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;
- employees;
- collaborators;
- 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:
- 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.
Criteria for imputation of liability to the
company
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:
- 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.
Elements of the Model
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.