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.