Studio Legale Petrali · Guide
Entity liability under d.lgs. 231/2001: predicate offences, organisational model, supervisory body and conditions of the exempting defence.
It is the liability of entities for criminal offences established by d.lgs. 231/2001, autonomous from that of the natural person. It applies to entities with legal personality and to companies and associations even without legal personality, excluding the State, territorial public bodies and entities performing functions of constitutional significance.
Article 1 of legislative decree 8 June 2001, no. 231 defines the subjective scope: the rules apply to entities with legal personality and to companies and associations even without legal personality; they do not apply to the State, to territorial public bodies, to other non-economic public bodies or to entities performing functions of constitutional significance. Liability arises when three conditions are met together: the commission of an offence included in the catalogue of predicate offences; the objective link with the entity, namely the interest or advantage referred to in article 5; and organisational fault, understood as the absence or ineffective implementation of the preventive framework.
Article 8 establishes the autonomy of the entity’s liability, which subsists even where the perpetrator of the offence has not been identified or lacks criminal capacity, or where the offence is extinguished for a cause other than amnesty. Proceedings against the entity are conducted before the criminal court with jurisdiction over the predicate offence and are governed by articles 34 et seq., with the provisions of the code of criminal procedure applying insofar as compatible. Limitation of the administrative offence is governed by article 22, with a five-year period running from the consummation of the offence, subject to interruption.
Legal references: artt. 1, 5, 8, 22, 34 ss. d.lgs. 8 giugno 2001, n. 231.
The catalogue is contained in articles 24 et seq. of d.lgs. 231/2001 and has been progressively widened. It includes, among others, offences against the public administration, corporate offences, money laundering and self-laundering, workplace health and safety offences, environmental and tax offences, offences against cultural heritage, and smuggling.
The catalogue has grown through successive layers. Of particular relevance are: articles 24 and 25 for offences against property and against the public administration; article 24-ter for organised crime offences; article 25-ter for corporate offences; article 25-septies for manslaughter and grievous or very grievous bodily harm committed in breach of the rules on the protection of health and safety at work; article 25-octies for handling stolen goods, money laundering, use of unlawful proceeds and self-laundering; article 25-undecies for environmental offences; article 25-duodecies for the employment of third-country nationals whose stay is irregular; article 25-quinquiesdecies for tax offences, introduced by decree law 26 October 2019, no. 124, converted with amendments by law 19 December 2019, no.
157, and extended by legislative decree 14 July 2020, no. 75; article 25-sexiesdecies for smuggling; article 25-septiesdecies for offences against cultural heritage, introduced by law 9 March 2022, no. 22. The catalogue was most recently affected, in its environmental part, by legislative decree 21 April 2026, no. 81, published in Gazzetta Ufficiale no. 113 of 18 May 2026 and in force since 2 June 2026, implementing directive (EU) 2024/1203: verifying the list in force at the time of the facts is therefore a necessary preliminary step. Mapping the predicate offences relevant to the individual organisation is the first substantive step in building the model: a generic catalogue not calibrated to the company’s actual processes is the defect most frequently identified by the courts.
Legal references: artt. 24-25-duodevicies d.lgs. 231/2001; d.l. 124/2019 conv. l. 157/2019; d.lgs. 75/2020; legge 9 marzo 2022, n. 22; d.lgs. 21 aprile 2026, n. 81.
For offences committed by senior officers, the entity must prove four elements: adoption and effective implementation of the model before the offence, the model’s preventive adequacy, supervision entrusted to an autonomous body, and fraudulent circumvention of the model by the offender. For offences committed by subordinates, the burden of proof is less demanding.
Article 6, paragraph 1, of legislative decree 231/2001 constructs an exempting defence in favour of the entity, with a reversal of the burden of proof for offences committed by persons in senior positions. Paragraph 2 sets out the required contents of the model: identification of the activities within which offences may be committed; provision of specific protocols designed to plan the formation and implementation of the entity’s decisions; identification of methods of managing financial resources capable of preventing the commission of offences; information obligations towards the supervisory body; and introduction of a disciplinary system apt to sanction non-compliance with the measures.
Paragraph 2-bis, as amended by legislative decree 10 March 2023, no. 24, requires the establishment of internal reporting channels and the prohibition of retaliation. Article 7 concerns offences committed by subordinates: liability subsists where commission was made possible by non-compliance with the obligations of direction or supervision, and paragraph 2 excludes such non-compliance where the entity adopted and effectively implemented an adequate model. The assessment of adequacy is made ex ante, on the basis of a prognosis as to the preventability of the offence that actually occurred, and is not exhausted by a formal check that the document exists.
Legal references: artt. 6 e 7 d.lgs. 231/2001; d.lgs. 10 marzo 2023, n. 24.
The supervisory body (organismo di vigilanza) oversees the operation of and compliance with the model and keeps it up to date. It must have autonomous powers of initiative and control, independence from the management bodies and continuity of action. In small entities its tasks may be performed by the governing body itself.
Article 6, paragraph 1, letter b), of legislative decree 231/2001 requires that the task of supervising the operation of and compliance with the models, and of keeping them up to date, be entrusted to a body of the entity endowed with autonomous powers of initiative and control. Paragraph 4 permits, in small entities, that these tasks be performed directly by the governing body; paragraph 4-bis, introduced by law 12 November 2011, no. 183, permits that in companies with share capital the functions be performed by the board of statutory auditors, the supervisory board or the management control committee.
The requirements developed in applied practice are autonomy and independence from operational functions, professional competence commensurate with the mapped risks, and continuity of action, with scheduled reviews and minuted meetings. From a defence standpoint, the documentation of the body’s activity — audit plans, information flows received, reports received and their outcome, periodic reports to the administrative body — constitutes the most substantial evidence of the model’s effective implementation. A body without its own budget, or composed mainly of persons hierarchically subordinate to senior officers, exposes the exempting defence to challenges on the merits that are difficult to overcome.
Legal references: art. 6, comma 1, lett. b), commi 2, 4 e 4-bis, d.lgs. 231/2001; legge 12 novembre 2011, n. 183.
The sanctions are financial penalties calculated in units, disqualification sanctions, confiscation of the profit and publication of the judgment. The remedial conduct provided for by article 17 — compensation for the damage, elimination of the organisational shortcomings, surrender of the profit — excludes the application of disqualification sanctions.
Article 10 of legislative decree 231/2001 provides for the financial penalty applied in units, no fewer than one hundred and no more than one thousand; article 11 governs the determination of the amount of each unit according to the entity’s economic and asset position. Article 9, paragraph 2, lists the disqualification sanctions: disqualification from carrying on the activity; suspension or revocation of authorisations, licences or concessions instrumental to the commission of the offence; prohibition on contracting with the public administration; exclusion from advantages, financing and grants and possible revocation of those already awarded; and prohibition on advertising goods or services.
Article 12 provides for reductions of the financial penalty, among other cases where the perpetrator committed the act predominantly in his own interest, where the pecuniary damage is of particular slightness, or where the entity has compensated the damage in full or adopted an adequate model before the opening of the trial was declared. Article 17 makes the exclusion of disqualification sanctions conditional on the completion, before the opening of the trial is declared, of full compensation of the damage and elimination of its harmful consequences, elimination of the organisational shortcomings through the adoption of adequate models, and the surrender of the profit for the purposes of confiscation. Disqualification sanctions may also be applied as precautionary measures under articles 45 et seq., with the possible appointment of a judicial commissioner.
Legal references: artt. 9, 10, 11, 12, 13, 17, 19, 45 ss. d.lgs. 231/2001.
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