Pursuant to Legislative Decree no. 231 of 8 June 2001
S.T.A., with a resolution of 22/12/2021, adopted an “Organisation, management and control model”, with the purpose of excluding the administrative liability of S.T.A. in the case of Commission of the offenses provided for in Legislative Decree no. 231/2001 by shareholders, directors, employees or, in general, collaborators.
The following are “Recipients” of this Model and, as such, are required, within the scope of their respective responsibilities and competences, to know and comply with it:
- components of the company bodies (shareholders, directors, members of the board of statutory auditors, auditors);
- components of the Supervisory Body;
- external suppliers and consultants;
- any other person who establishes, in any way, relationships of collaboration with S.T.A.
The persons to whom the Model is addressed are therefore obliged to conscientiously comply with all the provisions, also in fulfilment of the duties of fairness, correctness and diligence that arise from the legal relationships of a labour law nature established with the Company.
The Company shall ensure compliance with the provisions contained in the Model by ensuring the transparency of corrective actions in the event of violation of the Model.
The Company undertakes to disseminate, in its own organisation and externally, the contents of the Model and the subsequent updates in a complete, accurate and continuous way.
According to what is expressly stated in Legislative Decree no. 231/2001 (art. 6, third paragraph), Models may be adopted on the basis of codes of conduct or guidelines drawn up by representative and trade associations and communicated to the Ministry of Justice. This Model is prepared in accordance with Confindustria’s guidelines.
The task of monitoring the operation and observance of the rules and principles contained in this Model shall be entrusted to a Supervisory Body with autonomous powers of initiative and control.
LEGISLATIVE DECREE No. 231/2001
The administrative liability of legal persons
Legislative Decree no. 231/2001 “regulates the administrative liability of legal persons, companies and associations, even if they do not have legal personality” – issued in implementation of the delegation referred to in article 11 of Law no. 300 of 29 September 2000 - it introduced the concept of criminal liability for legal persons into the Italian regulatory system, adapting the internal legislation to some international conventions to which Italy had already adhered for some time.
For the first time in Italy, the aforesaid decree introduced a direct liability of legal persons (companies, associations, bodies, etc.) for certain offenses committed in the interest or for the benefit of the same by:
- persons acting as representatives, administration or management of the company or of an organisational unit of the company with financial and functional autonomy and persons who, de facto, carry out the management and control of the company (so-called apical persons);
- persons subject to the management or supervision of one of the above mentioned persons (so-called subordinate persons).
This liability, called administrative by the legislator, but characterised by the existence of profiles of criminal importance to the legal person, is in addition to, and is not substituted for, the liability of the natural person who committed the offense.
The administrative liability of the legal person is excluded in the event that the person acting has committed the act in the sole interest of himself/herself or of extraneous third parties.
The new administrative liability introduced by the Decree is primarily intended to affect the assets of companies and bodies which have benefited from the Commission of certain specifically identified types of crimes. It is therefore envisaged, in any case, that a financial penalty may be applied to a varying extent depending on the seriousness of the offense and the capital capacity of the company. For the most serious hypotheses, prohibitory measures are also envisaged, such as the suspension or withdrawal of licenses and concessions, the prohibition of contracting with the Public Administration, the prohibition of the exercise of the activity, the exclusion or withdrawal of financing and contributions, the prohibition of advertising goods and services.
Articles 6 and 7 of the Decree provide, however, for a form of exemption from liability if the Company proves that it has adopted and effectively implemented Organisation, management and control models suitable to prevent that the offenses in question are committed. The system also provides for the establishment of an internal control body within the company (Supervisory Body) to monitor the functioning and compliance with the Models and to keep them up-to-date.
The Models must meet the following requirements:
Criteria for imputation of liability to the company
- identify the processes and activities in which offenses may be committed;
- provide for specific protocols and procedures to prevent the commission of crimes;
- identify ways of managing financial resources to prevent the commission of crimes;
- Provide for information obligations to the body (SB) responsible for monitoring the functioning and compliance with the Model;
- Introduce a disciplinary system suitable to penalise non-compliance with the measures indicated in the Model.
The objective conditions for the application of the discipline referred to in Legislative Decree no. 231/2001 is evinced from art. 5 of the same Decree and are:
- the commission by the apical or subordinate persons of one of the offenses provided for in the Decree;
- the commission of the act constituting offense in whole or even in part, in the interest or for the benefit of the company.
The concept of interest
is closely linked to a concept of the finalisation of the offense: for the offense to exist, it is sufficient that the offense has been committed with the intention of making the company acquire an economic advantage without, moreover, requiring that it be actually achieved.
The term advantage
, on the other hand, refers to the concrete acquisition of economic utility by the company, regardless of the intentions that led the agent to carry out the offense.
In other words, interest must be assessed ex ante the advantage, ex post.
Therefore, once the commission of one of the above-mentioned offenses by the persons functionally connected to the company is established, for the existence of the liability of the company, it will be sufficient for those persons to have committed the act in order to favour the company in economic terms; this is even if an ex post verification finds that such utility has not been achieved.
If then, and alternatively, regardless of the intentions that led to the conduct of the perpetrators of the underlying crime, the company has achieved a real economic advantage, the company will be held accountable for the act committed by them.
In this regard, two hypotheses must be distinguished:
1. For offenses committed by persons in “apical” position, Legislative Decree no. 231/2001 introduces a sort of relative presumption of liability of the company, since it is expected to exclude its liability only if it proves:
- that “the management body has adopted and effectively implemented, prior to the commission of the act, Organisation and management models suitable for preventing offenses of the kind that occurred”;
- that “the task of monitoring the operation and observance of the models and and taking charge of their updating has been entrusted to a Supervisory Body of the company with autonomous powers of initiative and control”;
- that “the persons committed the offense by fraudulently circumventing the Organisation and management models”;
- that “there has been no lack of supervision or insufficient supervision by the Body with autonomous powers of initiative and control”.
The conditions listed above must contribute jointly in order that the company’s liability can be excluded.
2. If the offense was committed by persons in a “subordinate” position
, there is no presumption of liability by the company: in order for the company to respond, it will be the responsibility of the magistrate, during proceedings, to ensure that the commission of the offense has been made possible by non-compliance with the obligations of management or supervision.
In this case, Legislative Decree no. 231/2001 places the liability for a failure to fulfil the duties of management and supervision, which typically burden the top management (or the subjects delegated by them).
Non-compliance with management or supervision obligations does not occur “if the company, prior to the commission of the offense, has adopted and effectively implemented an Organisation, management and control model suitable to prevent offenses of the kind that occurred”.
The assumption of exclusion of liability: the adoption and effective implementation of the Model
Legislative Decree no. 231/2001 does not analytically regulate the nature and characteristics of the Organisation model, limiting itself to dictating some general principles, broken down according to the different persons that could commit a crime.
The purpose of the Model is to provide a system of prevention such that it cannot be circumvented unless intentionally
, in total harmony with the concept of fraudulent circumvention foreseen by art. 6 of the Decree.
The model is not to be understood as a static instrument, but must be considered, on the contrary, a dynamic apparatus that allows the company to eliminate, through a correct and targeted implementation of the same over time, any deficiencies that, at the moment of its creation, were not possible to identify.
THE ORGANISATION, MANAGEMENT AND CONTROL MODEL ADOPTED BY S.T.A.
Objectives and purpose of the Model
With the adoption of the Model, the company S.T.A. S.r.l., aims to equip itself with an internal control system that responds to the purposes and requirements of Legislative Decree no. 231/2001.
The purpose of the Model is to implement a system of prevention such that it cannot be circumvented unless fraudulently, in total harmony with the concept of fraudulent circumvention of the Model foreseen by art. 6 of the Decree.
In particular, through the identification of processes and activities exposed to the risk of crime, the Model proposes the aims of:
Elements of the Model
- promoting and valorising even more an internal ethical culture, with a view to fairness and transparency in the conduct of business;
- disseminating the necessary awareness in all those who work in the name and on behalf of the Company that, in case of violation of the provisions contained in the Model, they can incur a punishable offense, on the criminal and administrative level, not only in respect of themselves, but also in respect of the Company;
- emphasising that such forms of unlawful conduct are systematically condemned by the Company, as they are contrary to the ethical and social principles to which it adheres, as well as to the provisions of law;
- informing all interested parties that the violation of the requirements of the Organisation, management and control model will lead to the application of penalties, or the termination of the contractual relationship;
- introducing a mechanism to establish a permanent process of analysis of the company’s activities, aimed at identifying the areas in which the offenses indicated by the Decree can be abstractly configured;
- introducing control principles to which the organisational system must comply so as to be able to prevent in practice the risk of Commission of the offenses indicated by the Decree in the specific activities arising from the activity of analysis of sensitive areas;
- establishment of the Supervisory Body to monitor the correct functioning and compliance with the Model and to keep it up to date.
This Model is based on the following elements, which are integrated with each other:
- Code of Ethics;
- Organisational Structure;
- Authorisation and signing powers;
- Control system (governance);
- System of procedures;
- Mapping of the risk areas and controls;
- Disciplinary system;
- Training and information regarding the Model and the Decree.