The emergency linked to the spread of COVID – 19 has inevitably affected not only individuals but also companies, which have found themselves facing completely unpredictable situations to which the possibility of incurring new business risks is connected, i.e. those which, albeit already “mapped” in the abstract, they could manifest themselves in a different and imponderate way.
These risks, if poorly managed during the analysis, involve forms of responsiblepenalties which inevitably add to that of the natural person who, operating in the corporate context, has physically committed the illegal act.
There criminal liability of entities pursuant to Legislative Decree 231/2001, it adds up to that of the natural person who materially committed the crime in the corporate context, as a subject linked by a functional / organic relationship with the entity, such as directors, employees, suppliers.
this extension of liability addressed to the legal entity, involves the assets, economic interests and image of the company in the punishment of certain criminal offenses, which, it should be remembered, up to the entry into force of Legislative Decree 231/2001, did not suffer any consequence following the realization of a crime committed by the directors or employees.
This is why, especially in light of the new provisions on health and safety in the workplace consequential to the ongoing health emergency, the maze of the compliance corporate, through the preparation, by anyone who carries out a “healthy” business activity, of a series of preventive activities and tools, in order not to incur the risk of non-compliance with current legislation. In this way, in the event of legislative non-compliance during the business, the company itself can easily identify the most effective solutions, protecting itself from both the legal and reputational consequences to its detriment.
The national economic fabric: the advantages of adopting Model 231 for SMEs
As always happens, in such a complex institutional and bureaucratic framework, it is the small and medium-sized entrepreneurs who suffer the most serious consequences in the event of a possible one bad gestio and delay in adaptation and corporate reorganization as imposed by current legislation, which could significantly affect the national economic setback.
In Italy, in fact, over 90% of companies are Small and Medium-sized Enterprises (henceforth SMEs) which, precisely because of their importance in the national economic fabric, cannot ignore the respect for legality and fairness in organizational management and business.
Therefore, in this phase of delicate transition, the task of the entrepreneur is particularly delicate as it is articulated on several fronts, from personnel management to the reorganization and reprogramming of the activityto, always keeping in mind the primary objective of ensuring employee health protection.
But in a historical moment like this, where the expression “adoption of tools and devices for protection and prevention” seems to be on the agenda, those who are concerned with adopting a tool to protect the company from liability former Leg. 231/01?
Although the context is frenetic and constantly evolving, the entrepreneur cannot fail to reserve the same protection for his company as he would for himself and every member of his entourage company.
With this in mind, in order to avoid the serious consequences that the company derives from the commission of an offense by a natural person, an entrepreneur who is inspired by correct ethical standards, can only favor the adoption of an 231 Organization and Management Model (from now on MOG 231) which, although not mandatory, when effectively prepared and implemented, prevents the application of financial penalties, disqualifications and precautionary measures against the company.
The utilityto to be in possession of a MOG 231 still too often escapes many realitiesto entrepreneurial, especially if medium and small, who would also benefit from his presence as it turns out to be, in fact, the only exemption for the company investigated pursuant to Legislative Decree 231/01, such as to exclude liability.
It should also be noted that the MOG 231, in addition to having the function of exempting the company from liability in the event of the commission of crimes, brings significant benefits for the company, as it acts as status symbol, by code of ethics of an entrepreneurial reality with consolidated moral principles, aimed at simultaneously enhancing the image and reputation of the company in order to increase trust in its users and to protect the company from all weightable risks.
Itinera – Administrative liability of entities (Legislative Decree 231/01)
Edited by: Bonelli Erede e Lombardi Law Firm, Sbisà Francesco, Spinelli Emanuela, IPSOA, 2020
However, as anticipated, in the current Italian business environment one of the most significant problems is that related to the implementation of Legislative Decree 231/2001 and MOG 231 in SMEs that they make up the absolute majority of Italian entrepreneurship.
The problem arises when we refer to a company that is so “small” from an organizational and structural point of view that most of the functions are concentrated in the hands of a few people: so that, precipitously, there are those who believe that talking about MOG 231 in this dimensional context is out of place, to the point that the vast majority of SMEs are not even informed about what a MOG 231 actually is.
This conclusion, however, is erroneous and anachronistic, both from the regulatory point of view, since Legislative Decree 231/2001 does not in any way exclude SMEs from its sphere of application, it is practical, since in practice, the majority of criminal proceedings former Legislative Decree 231/2001 has affected companies of this type.
It is true that for the adoption of a MOG 231 the company cannot ignore the presence in its structure of the Supervisory Body, which has the task of constantly monitoring the efficiency and adequacy of the prevention system dictated by the template; but, on the other hand, it is the legislator himself who has considered the problems from the point of view of the specific ones agenciesbusiness ties which, due to their size and simplicity of the organizational structure, do not have a function with monitoring tasks of the internal control system and for which, consequently, the burden that originates from setting up a body ad hoc it could be economically unsustainable.
This problem, in fact, finds its solution in art. 6, paragraph 4, of the Legislative Decree 231/2001, thanks to which in companies of small dimensions, the role of the Supervisory Body can be performed by the management body itself.
Therefore, every entrepreneur, regardless of the size threshold of his business, can decide to provide a “liability protection device” former Legislative Decree 231/01 “to their business reality, adopting the same model that the legislator provides for large companies, at far more moderate costs.
In fact, it seems logical that, in the development of the model, the size and type of activity carried out by the company should be taken into account, former art 7, paragraph 3 of Legislative Decree 231/2001, so as to make the functionality and costs of the model mirror the company concerned and its turnover.
In a dimension aimed at simplifying and sponsoring Organizational and Management Models 231 in general for the benefit of Small and Medium-sized Enterprises, in order to lower the above considerations in a historical moment in which the problem of health and safety in the places of work more than any other, it is stressed that Article. 25-f of Legislative Decree 231/2001 provides as a crime – prerequisite for corporate liability, with reference to those aspects of “organizational fault”, manslaughter and serious or very serious injuries committed in violation of the rules on the protection of health and safety in the workplace , former Legislative Decree 81/08, hypotheses of crime that can be indifferently committed both by small entities and by multinational companies.
Indeed, it is precisely in small companies, often personally owned, that a greater aptitude for the commission of such illegal conduct emerges, precisely in consideration of the superficiality and disinformation in which most of the small and so-called Italian micro-enterprises (defined as those with less than ten employed).
With reference to the latter, the data provided by the Statistical Archive of Active Enterprises (ASIA) by ISTAT, which indicates the absolute prevalence in the Italian production system of micro-enterprises with less than ten employees, equal to approximately 95% of the total, achieving an occupation equal to 46% of the employees.
The remaining part of the Italian business fabric is made up of companies employing up to forty-nine employees, while the largest companies make up just 0.5% of the total.
Relevant data considering that, to date, only 0.5% of companies have a 231 MOG and that, therefore, only a very low percentage can guarantee themselves and, more generally, the survival of entrepreneurship all Italian, all-round protection.
This is why the adoption of the exempting Organizational Models must be understood as an increasingly significant issue to be submitted to the business world of SMEs, since this protection tool is the only one truly able to guarantee the entrepreneur continuityà of its own business and to keep it alive regardless of what may happen to the entrepreneur himself, understood as an individual.
|Read more about Coronavirus on Quotidianogiuridico.it:|