Legislative Decree No. 231/2001: the extensions to the catalog of predicate offenses

Legislative Decree No. 231/2001 (Decree 231) has been amended to include additional predicate offenses. The amendments reflect the dynamic nature of corporate governance and the broader societal expectations of corporate conduct.

The legislator expanding the catalog of the relevant crimes under Decree 231 post-2001 has resulted in an assortment of predicate offenses, fundamentally transforming the initial framework of Decree 231. Closer examination reveals that the document has transcended its original aim of addressing “business-related crime.” It now targets, more broadly and substantially, the concept of a “criminal enterprise.”

Legal scholars understand that the legislative body will take advantage of every available opportunity to extend criminal safeguards, incorporating corporations and organizations and employing Decree 231 as a holistic tool for prevention.

To enhance corporate accountability, legislators have made significant strides in expanding the scope of Decree 231 through a series of robust legal reforms. These reforms have introduced stringent measures against a wide array of criminal activities, signaling a decisive shift towards reinforcing corporate responsibility.

From 2021, here are the updates to Decree 231.

 

Crimes related to non-cash payment instruments

Legislative Decree of November 8, 2021, No. 184, titled “Implementation of Directive (EU) 2019/713 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA,” has introduced Article 25 octies.1 to Decree 231, concerning “Crimes related to non-cash payment instruments.”

The new article has extended the catalog of predicate offenses for the liability of legal persons. The catalog now includes:

• unauthorized use and forgery of credit and payment cards (Art. 493 ter of the Italian Criminal Code)
• possession and dissemination of equipment, devices, or computer programs intended for committing crimes involving non-cash payment instruments (Article 493 quarter of the Italian Criminal Code)
• computer fraud (Article 640 ter of the Italian Criminal Code). The latter is included not only when committed against the state, another public body, or the EU, as previously stipulated by Article 24 of the Decree, but also “in the aggravated circumstance of resulting in the transfer of money, monetary value, or virtual currency”

Pecuniary penalties up to 800 quotas and prohibitive sanctions referred to in article 9, paragraph 2 of Decree 231 are provided for committing these crimes.

Specifically, the prohibitive sanctions include:

• the prohibition from engaging in business activities
• the suspension or revocation of authorizations, licenses, or concessions necessary to commit the offense
• a ban on contracting with the public administration, except to obtain public service benefits
• exclusion from benefits, financing, contributions, or subsidies and the possible revocation of those already granted
• a ban on advertising goods or services

 

Crimes against cultural heritage

Law No. 22/2022 has marked a significant advancement in the protection of Italy's cultural patrimony, introducing severe penalties for crimes against cultural heritage perpetrated by members of a company (i.e., executives, or individuals under their supervision). This law has integrated two new articles into Decree 231:

• Article 25 septiesdecies (Crimes Against Cultural Heritage), imposing monetary and prohibitive sanctions for crimes related to:
• Alienation of cultural goods (Art. 518 novies of the Italian Criminal Code)
• Embezzlement of cultural goods (Art. 518 ter of the Italian Criminal Code)
• Illicit importation of cultural goods (Art. 518 decies of the Italian Criminal Code)
• Illicit exportation of cultural goods (Art. 518 undecies of the Italian Criminal Code)
• Destruction, dispersion, deterioration, disfigurement, defacement, and illicit use of cultural or landscape goods (Art. 518 duodecies of the Italian Criminal Code)
• Counterfeiting of artworks (Art. 518 quaterdecies of the Italian Criminal Code)
• Theft of cultural goods (Art. 518 bis of the Italian Criminal Code)
• Receiving stolen cultural goods (Art. 518 quater of the Italian Criminal Code)
• Forgery in private documents relating to cultural goods (Art. 518 octies of the Italian Criminal Code)
  
  
• Article 25 duodevicies (Money Laundering of Cultural Goods and Devastation and Pillage of Cultural and Landscape Goods), introducing monetary and prohibitive sanctions for:
• Money laundering of cultural goods (Art. 518 sexies of the Italian Criminal Code)
• Devastation and pillage of cultural and landscape goods (Art. 518 terdecies of the Italian Criminal Code)

There are severe penalties for committing these new predicate offenses. A pecuniary penalty, up to 1,000 quotas, is sanctioned. Moreover, the application of the prohibitive sanctions referred to in article 9, paragraph 2 of Decree 231 is also provided, together with the sanction of permanent disqualification from carrying out the activity, applied whenever the entity or one of its organizational quotas is consistently used for the sole or predominant purpose of enabling or facilitating the commission of the crimes provided for by Articles 518 sexies and 518 terdecies of the Italian Criminal Code.

 

False or omitted declarations for the issuance of a preliminary certificate, crimes related to public tenders and Fraudulent transfer of values

Article 55 of Legislative Decree March 2, 2023, No. 19 extends the range of corporate crimes to include into Article 25 ter of Decree 231 (Corporate Crimes) the offense of “False or omitted declarations for the issuance of a preliminary certificate,” mandating a monetary penalty of 150 to 300 quotas.

On October 9, 2023, Law No. 137/2023 “Conversion into law, with modifications, of the decree-law of August 10, 2023, No. 105, containing urgent provisions regarding criminal and civil procedure, combating forest fires, recovery from drug addiction, health and culture, as well as concerning the judiciary and public administration personnel” (DL) came into force.

The DL, within the context of a diverse range of interventions, has further expanded the catalog of predicate offenses under Decree 231, by incorporating:

• Article 24 (Crimes against public administration), imposing monetary and prohibitive sanctions for crimes related to:
• Disrupted freedom of auctions (Art. 353 of the Italian Criminal Code)
• Disrupted freedom of the contracting process (Art. 353 bis of the Italian Criminal Code)

For such offenses, there’s a pecuniary penalty of up to 500 quotas, or from 200 to 600 quotas if the entity has made a profit of significant amount or if particularly serious damage has been caused.

• Article 25 octies.1 (Crimes related to non-cash payment instruments and fraudulent transfer of values), introducing monetary and prohibitive sanctions for:
• Fraudulent transfer of values (Art. 512 bis of the Italian Criminal Code)

In relation to the commission of this crime, the entity will have to pay a pecuniary sanction of 250 to 600 quotas. The prohibitive sanctions referred to in article 9, paragraph 2 of Decree 231 will also apply in this case.

Beyond these aspects, it’s important to note that reform proposals are currently underway. They could considerably broaden the compendium of predicate offenses and alter the framework of Decree 231 in its entirety.

On March 26, 2024, the Council of Ministers preliminarily approved the Legislative Decree implementing the delegation law for the tax reform (Law No. 111/2023), with the “Revision of customs regulations and the sanction system concerning excise duties and other indirect taxes on production and consumption.”.

If the legislative novelty is definitively approved and comes into effect, it would further extend the Decree 231 liabilities to the crimes specified in the Consolidated Text on Excise Duties. And, in certain aggravated circumstances, it would also envisage the application of prohibitive measures.