For companies
The Firm, with its decades of experience, aims to assist top executives and companies charged under Legislative Decree no. 231/2001 at every stage of the legal process, developing a solid strategy to provide an effective defence.
Given their profound knowledge of tax crimes, corporate offences against the public administration, environmental crimes, building abuses as well as crimes stemming from labour related omissions, the professionals of the Firm can provide the necessary assistance in every branch of corporate criminal law.
Furthermore, the Firm aims to mitigate the so-called 'criminal risk,' minimizing the chances of criminal proceedings being initiated and the need for judicial defence, with a view toward increasingly widespread preventive legal consulting.
In addition to means such as opinions and consultations, the Firm’s professionals support companies in the prevention of crime risk through:
drafting and implementing corporate compliance measures, such as: Organizational and Management Model under Legislative Decree no. 231/2001; privacy policies; delegations of functions complete with all the requirements provided for by the Law;
drafting and implementing anti-corruption procedures;
In addition to these activities, the Firm is available for the review and adjustment of corporate contracts and forms, adjusting them to the requirements introduced by compliance instruments.
The Firm supports businesses that have adopted compliance instruments (Organizational and management models, delegations, etc.) in obtaining the so-called “Legality rating”.
Given the ever-increasing importance of intangible assets, such as intellectual and industrial property, in the business production cycle, the Firm offers to draft regulations on access to corporate networks. These regulations are intended to govern the access of employees and external collaborators to the company's most valuable assets. The Firm also offers continuous assistance to companies and businesses.
If the company realizes that it has been the victim of unlawful activities by competitors or employees, the Firm – through its network of consultants and the expertise of its professionals - can analyse the case in the shortest possible time frame and offer various legal solutions, including assistance through the drafting of criminal report.
Various definitions
1. Organizational and Management Model under Legislative Decree no. 231/2001:
Legislative Decree n. 231/2001, which introduced the liability of legal entities for a number of offenses listed therein if committed in the interest or for the benefit of the company by top individuals within it, assigns crucial legal importance to the adoption of an effective organization, management, and control model. This is the only instrument capable of excluding or at least mitigating the company's liability. The company obtains exemption from any liability by proving that:
it has adopted and constantly updated a 231 model which can effectively prevents the perpetration of offences;
it has instituted an internal supervisory board, provided with autonomous initiative and control powers, which also constantly monitors the adequacy of the model;
the offender has fraudulently eluded the measures instated to prevent offences;
there have been no shortcomings or insufficient controls by the supervisory board.
It is crucial to construct the model to in a way that is in line with the peculiarities of the business, since it must:
identify the areas in which offences may be perpetrated;
design protocols for business-related decisions, aimed at mitigating the risk of criminal offences and which provide penalties in case of non-compliance;
outline suitable methods for managing corporate resources to prevent the commission of criminal offences;
make it mandatory for employees to report to the supervisory board.
The implementation of an organisation, management and control model brings significant benefits to the company, in various aspects.
In addition to the undoubted advantage of keeping the company free from sanctions that could seriously damage it, in fact:
the presence of a "231 form" has a positive impact on the due diligence that investors carry outon the companies into which they wish to inject funds.
Eliminate or greatly reduce the risk of crime, in fact, it allows the investor to take on only the normal business risk, with a consequent reduction in hazard;
adopting a model provides access to otherwise unattainable liquidity; some financial institutions make the presence of an organization, management, and control model a necessary condition for the disbursement of funds;
the adoption of the model postulates the introduction of a code of ethics, which can do nothing but improve the image of the company towards potential customers, as well as investors .
These are just some of the many advantages resulting from the introduction of a “231 model”.
2. Whistleblowing procedure
The so-called "Whistleblowing" involves the reporting or public disclosure by an individual (the "Whistleblower") of information about violations acquired within the scope of their employment context.
This legal institution is regulated by Legislative Decree March 10, 2023, n. 24, which provides that its provisions apply to both public and private entities that have employed an average of at least fifty employees with open-ended or fixed-term employment contracts in the last year.
The violations that employees can report include behaviours, acts, or omissions that harm the public interest or the integrity of the public administration or of a private organization. These violations encompass a wide range of issues, including administrative, accounting, civil, or criminal offenses; unlawful conduct relevant under Legislative Decree June 8, 2001, n. 231, or violations of the organization and management models defined therein; offenses falling under the scope of application of European Union or national acts listed in the annex of the aforementioned decree, or related to public procurement, services, products, financial markets, and the prevention of money laundering and the financing of terrorism, among others.
Moreover, the decree also obliges private companies to establish an appropriate channel for reporting violations, which must ensure the confidentiality of the Whistleblower's identity, the individuals involved, and those mentioned in the report, as well as the content of the report and related documentation.
This channel must be managed by an independent internal person or office with specific training in handling the reporting channel or by an external entity with the same characteristics.
Legislative Decree n. 24/2023 allows the National Anti-Corruption Authority to impose sanctions in cases of failure to establish or inaccurate establishment of the reporting channel. Therefore, the procedures for the establishment and regulation of the reporting channel must be carried out by knowledgeable personnel, capable of creating procedures that meet regulatory requirements and of informing and training employees about the new measures implemented.
3. Privacy policy
It consists in an notice provided in accordance with article 13 of EU Regulation n. 2016/679 ‘General Data Protection Regulation’ (hereinafter, the “GDPR”) and with Italian national law on the protection of personal data (Legislative decree n. 196/2003 and subsequent amendments).
Within it must be listed the individuals who process data, those who store the data and the procedures for storage, the legal basis for data processing, as well as all other information required by the Law.
4. Delegation of functions
The delegation of functions, as provided for by Legislative Decree n. 81/2008, allows the transfer of various responsibilities from the employer to a subordinate, especially in the field of workplace safety and security.
It must comply with various requirements set out in the legislation and refined by case law, including being drafted in writing and adequately publicized.
Moreover, it is undisputedly accepted in the context of waste management.
5. aRating di legalità
Regulated by AGCM Resolution n. 24075 of November 12, 2012, and Ministerial Decree of February 20, 2014, n. 57, the latter issued in accordance with Article 5 ter, paragraph 1, of Legislative Decree n. 1/2012, it is a synthetic indicator of the company's compliance with legal standards.
The company is assigned a score, ranging from one to three, to determine how many of the requirements set out in the AGCM Resolution are met.
Public administrations must provide at least one of the following priority systems for companies with the rating:
priority in rankings;
assignment of additional points;
reserved allocation of financial resources.
Banks, when granting loans, take into account the legality rating for the purpose of expediting the assessment process and in the evaluation for access to credit.
6. Anti-money laundering procedures
In accordance with the Global Compact adopted by the United Nations in 2000 and UNI EN ISO 37001:2016 regulations, companies, especially those with a Model 231, adopt a procedure to mitigate the risk of corruption.
This procedure should be skilfully coordinated with the protection of so-called "Whistleblowers" to make the company's practices consistent and cohesive.
The increasing importance of these procedures arises from the always more frequent introduction "compliance clauses" in contracts, with which buyers require that their suppliers also have anti-corruption procedures in place as a condition for entering into an agreement.
7. Regulation on the use of IT instruments and company networks
This tool allows for a clear and rigorous regulation of access to systems that contain a significant portion of sensitive, confidential, and commercial information of the company.
In order to be effective, the regulation must comply with all relevant regulatory provisions, such as: criminal code, Legislative Decree. 81/2008 (Consolidated Law on Health and Safety at Work), Legislative Decree. 196/2003 and subsequent amendments (Privacy Code), EU Reg. 2016/679 (General Regulation on the protection of personal data), Legislative Decree. 82/2005 (Digital Administration Code), provisions of the Privacy Guarantor.
The regulation will establish uniform procedures to be applied in all operational areas of the company, as well as govern how the company can monitor employee activities and specify sanctions applicable in case of violations.
In this way, it significantly reduces the risk that improper use of company systems could expose the company to third-party intrusions, contribute to the voluntary or involuntary dissemination of important information and data, and expose the company to civil, criminal, or administrative liabilities.
8. Regulation on video surveillance and for the protection of the company’s assets
Video surveillance is undoubtedly an effective tool for protecting a company's assets. However, to comply with the strict provisions of the Italian Criminal Code, labour law regulations (e.g., Law n. 300 of May 20, 1970, "Workers' Statute"), and privacy regulations (Legislative Decree 196/2003 and EU Regulation 2016/679), this tool must be carefully drafted, and its implementation must be thoroughly studied.
The Firm aims to assist companies in safeguarding their assets by creating a regulation that complies with the law and helps prevent wrongdoing against the company's assets by employees or third parties.