Corporate law, a Supervisory Board to prevent environmental crimes

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The theme relates to the administrative liability of legal persons, companies and associations without legal personality governed by Decree No. 8 June 2001, n. 231.

Responsibility means that companies, corporations and associations that are directly relevant to the offenses committed for their benefit by their directors, officers and employees.

On this, last year important changes have occurred. In particular the Legislative Decree July 7, 2011, n. 121 (transposition of directives 2008/99/C and 2009/123/EC on criminal law protection of the environment and pollution from ships) inserted among the illicit environmental crimes (pollution of water, air and soil, waste management , damage to wildlife, flora and habitats) and the law of 12 November 2011, n. 183 (Stability Law 2012) has introduced the ability for corporations to entrust the supervision of the implementation organization models that company has to avoid the consequences of administrative responsibility for the offense of the board of auditors, the supervisory board and the control committee of management instead of the supervisory organ.

Article. 6 of legislative decree No. 231 provides that the institution may be exempt from administrative liability arising from the commission of crimes strictly indicated, if the governing body - prior to commitment of the crime - has, among others:
a) used models of organization, management and control designed to prevent these offenses themselves;
b) given the task of supervising the operation and the observance of the model and its updating to a "body of the entity with autonomous powers of initiative and control."
The assignment of these duties Body and the orderly development of them are prerequisites for the exemption from liability, whether the offense was committed by top management subjects (Art. 6), both by people subject to their direction (art. 7).

The contents of the organizational model are defined by a complex system of sources, according to the following value hierarchy:

1. primary legislation and industry

2. technical standards

3. governance codes and guidelines issued by professional associations.
The activities that the organism is called upon to perform, can be summarized as:
- Discussion about the appropriateness of the model, namely, of his real (and not merely formal) ability to prevent the prohibited conduct;
- Checking the effectiveness of the model, which is embodied in the verification of consistency between the actual behavior and the model set;
- Analysis on maintenance over time of the soundness and functionality of the model;
Care of the necessary updating of the model, assuming that the analysis operated need corrections, additions and adjustments.

Interested parties in the standard cover a wide range of legal personalities, the first among all public bodies that perform economic activities and corporations, but also non-profit associations and individual companies.

The crimes: Misappropriation of funds, fraud against the State or a public body or for obtaining public funds and fraud against the State or a public body; crimes and unlawful processing of data regarding organized crime ; Bribery and corruption, industrial crime and commerce, corporate crimes, market abuse; Culpable homicide or severe or extremely severe injuries committed in violation of the rules on health and safety at work; Handling, laundering and use of money, goods or assets of illicit origin; Environmental offenses.
 

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