Italian Legislative Decree n. 231/2001 Implements Art. 11 of Italian Law n. 330/2000
Organisation, Management and Control Model
The abovementioned decree has introduced a new concept to the Italian legal system, namely the criminal liability not only of any natural person who physically commits an offence but also of any legal person in favour of which the offence was committed.
Pursuant to international and EU commitments, the decree in question has introduced a form of direct, independent liability of collective corporate bodies, in relation to specific offences.
This liability has been defined as administrative but it actually constitutes a form of criminal liability.
In order to guarantee transparency and honesty in its conduct of business and in all its business activities, Empirix Italy S.r.l. (“Company”) adopted, on 6June 2019, an organisation, management, and control model (hereinafter referred to as the “OMM”).
This model has been developed with the help of external consultants.
The OMM is designed to meet requirements to:
- Identify activities during which criminal offences may be committed;
- Provide specific protocols to guide planning and implementing the company’s decisions concerning offences which must be prevented (procedures and rules);
- Identify appropriate ways of managing financial resources in order to prevent offences being committed (financial resources);
- Establish information requirements which must be met by the supervisory body (SB), i.e. the organisation established to assess and monitor implementation of and compliance with the OMM (information requirements);
- Introduce a suitable disciplinary system to punish offenders/those who do not comply with the measures set out in the model (penalties and disciplinary system).
The OMM is structured into several sections:
This section provides a summary of the company and its activities, applicable legislation, the purpose of the OMM adopted, and its underlying principles. This part also outlines sensitive areas and instrumental processes for each category of offence.
The term “sensitive area” refers to all activities carried out by the company which involve a potential risk of offence. The term “instrumental process” means all those areas that, while not generally at risk, may be indirectly linked and instrumental to the commission of offences.
The presence of the supervisory body is also specified here, in addition to:
- the ways in which the model is disseminated both inside and outside the company;
- compulsory staff training methods.
This part comprises various sections discussing individual areas where there is a risk of offences being committed. Each section specifies the possible offences, the areas involved, the ways an offence may be committed, and the monitoring procedures adopted in order to reduce risks.
The following documents will be attached to the OMM:
- Criminal Law Manual
- Code of Ethics
- Organisational Structure
- Supervisory Body Regulations
Criminal Law Manual
The Criminal Law Manual contains the specific description of all offences which may give rise to administrative liability.
Code of Ethics
The Code of Ethics is a set of guidelines, outlining general principles, that are shared with and aimed at all stakeholders (employees, suppliers, clients, public administration authorities). It is a key element to ensuring effective prevention and detection of breaches within the company.
It is essential that all stakeholders undertake to comply with the laws and regulations in force.
It is divided into:
- Introduction, outlining the ethics division of the company and the way in which it achieves its mission;
- General provisions, defining the parties to whom/which the code applies, the obligations of the company and its staff, the value of the code in relation to third parties, and the contractual relevance of the code;
- Description of the corporate ethical principles used as benchmarks in every single activity;
- Rules of conduct, to guide the behaviour of all personnel – in particular those tasked with management and control duties – according to ethical principles and rules of law;
- Implementation and control procedures, describing the procedures and bodies set up to implement, monitor, and disseminate compliance with the code and ensure the code is constantly updated;
- Disciplinary procedures, including penalties in the event of breach of the rules of conduct envisaged in the code.
The organisational structure is the basis of a company’s organisation and must therefore be built in a way which is consistent with the business carried out. The organisation chart outlines the positions within the company and the parties occupying them. It also highlights existing hierarchies and functional dependency relationships.
The OMM and Code of Ethics must be backed by a disciplinary system which envisages appropriate penalties for those who break the rules of the Code of Ethics, as well as the procedures provided for in the OMM. As a general guide, only the disciplinary measures provided for in the national collective labour agreement may be applied to employees and managers.
Possible penalties for directors include written warnings, fines, and total or partial revocation of powers of attorney or revocation of an authorisation. Penalties applied to workers must comply with the procedures laid down in Art. 7 of the Italian law known as the Workers’ Statute and/or in special regulations. In the case of an independent contractor, supplier, or other person having contractual relations with the company, specific clauses for the application of penalties should be included in the relative agreements.
More specifically, a disciplinary system, based on the OMM, must contain:
- The list of punishable breaches;
- The list of penalties, which must be ranked and classified according to the perpetrator of the unlawful act (employees, external contractors, venture partners);
- The persons to which the penalties apply;
- The penalty application procedures, with specification of the person responsible for application and, in general, the body responsible for supervising compliance with the rules and for applying and updating the penalty system;
- An introduction to appropriate publication and dissemination methods;
- The list of penalties applicable to anyone who infringes the protection measures of the reporting entity established by the reporting procedure (“whistleblowing”) and for anyone making serious allegations which prove to be unfounded.
Supervisory Body Regulations
The guidelines for setting up the OMM issued by Confindustria association, pursuant to Italian Decree n. 231/2001, suggest that “The supervisory body should draft regulations to govern its activities (establishing aspects of checks such as frequency, criteria, and analytical procedures, etc.)”.
Through its own regulations, the supervisory body therefore has the power to define its own operations and organisation.
The regulations are an expression and an instrument of the principles of autonomy and independence that should form the basis of the supervisory body’s operations and must not contain any requirements, which may affect its autonomy and independence.
The supervisory body carries out its tasks in accordance with these principles, with a view to proposing operational solutions.