Factores Numéricos de Divisibilidad Exacta del Tun

Anna Salvina Valenzano Sapienza University of Rome

Abstract: The Italian law (L.D. No. 231/2001) provides that the implementation of an organizational and managerial model, before the commission of an offence, may constitute a cause of exemption from ‘ex crimine’ corporate liability. To this end, the organizational and managerial model must be ‘adequate’ to prevent the commission of offences of the same kind as the one committed. To ensure the effective application of the preventive model, the Italian legislator introduced the ‘supervisory body’, which is in charge of supervising the functioning as well as the implementation of, and compliance with, the same organizational and managerial model. My research aims at analyzing the links between the preventive model and its supervisor, i.e. the supervisory body, within the complex system of attribution of ‘ex crimine’ liability to legal entities. For this purpose, functions, features and the structure of the supervisory body will be analyzed in order to establish the extent to which a ‘lack of or insufficient supervision’ by the supervisor constitutes an ‘organizational failure’ that, as such, may be attributed to the same legal entity.

Key words: Corporate ‘ex crimine’ liability, Organizational and managerial (or preventive) models, Supervisory body, Control, Lack of or insufficient supervision, Organizational failure.

1 INTRODUCTION. THE ROLE OF ORGANIZATIONAL AND MANAGERIAL MODELS IN THE ITALIAN SYSTEM OF ‘EX CRIMINE’ LIABILITY OF LEGAL ENTITIES

The Italian legislator recognized ‘ex crimine’ liability of legal entities in 2001 (L.D. No. 231/2001) through the introduction of a set of rules that was considered to be very advanced by many scholars1. In particular, when defining the imputation system of ‘ex crimine’ corporate liability, the Italian legislator aimed at ensuring a strong relationship between the offence and the entity for the crime to really ‘belong to’ the corporation2

.

Moreover, the Italian law (L.D. No. 231 of 2001) was also inspired by the North American experience of compliance programs3 and it provided that the adoption and effective implementation of an organizational and managerial model, before the commission of an offence, may constitute a cause of exemption from ‘ex crimine’ liability of corporations. It gives the legal entity a chance to prove that it was ‘blameless’, also in cases in which the perpetrator is a person in a leading position.

1

See, for instance, GOBERT, J. - PUNCH, M., Rethinking Corporate Crime, p. 108 et seq., who refer to «Lessons from Italy», giving relevance to the Italian discipline on corporate ‘ex crimine’ liability.

2 _{With reference to the imputation system of corporate ‘ex crimine’ liability adopted by the Italian}

legislator, see FIORELLA, A., Responsabilità da reato degli enti collettivi, p. 5102 et seq. Refer to PALIERO, C.E., La responsabilità penale della persona giuridica nell’ordinamento italiano: profili sistematici, p. 24 et seq. More recently, see DE MAGLIE, C., Societas Delinquere Potest? The Italian Solution, p. 261 et seq. Refer also to JARVERS, K., Verantwortlichkeit für Straftaten in Unternehmen, Verbänden und andere Kollektiven in Italien, p. 413 et seq.

3

Even though there is an important difference with respect to the effects reconnected to the adoption of organizational and managerial models, since, according to the provisions of the North American Federal Sentencing Guidelines (USSC - United States Sentencing Commission, Guidelines Manual, 2012, http://www.ussc.gov/Guidelines/index.cfm), the compliance programs represent only a circumstance mitigating the sanction for a legal entity (and not a cause of exemption from corporate criminal liability). See, in particular, the criteria for calculating the «culpability score» provided for in §8C2.5, subsection (f)(1), according to which it must be subtracted 3 points if the offence occurred even though the legal entity had in place at the time of the offence an «effective compliance and ethics program», as provided in §8B2.1 of the same Guidelines.

To this end, the organizational and managerial model must be ‘adequate’ to prevent the commission of offences of the same kind as the one committed [Art. 6, par. 1, lett. a) of L.D. No. 231/2001 and, with a similar wording, Art. 7, par. 2, of the same Act]. In other words, the legal entity has to prove of having adopted any possible measure to prevent an offence before it is committed, through the adoption and effective implementation of an ‘adequate’ organizational model that the perpetrator, i.e. a natural person, has fraudulently evaded.

2 CONTROL TOOLS OVER the PREVENTIVE SYSTEM: THE ‘SUPERVISORY BODY’ In this context, the Italian legislator attached decisive importance to the instruments of control over the same preventive model to ensure the effective application of the organizational and managerial model. He chose to typify such control tools by introducing the ‘supervisory body’ (in the Italian version, «organismo di vigilanza»), which is in charge of monitoring the implementation of the organizational model [Art. 6, par. 1, lett. b) of L.D. No. 231/2001]. It plays a pivotal role in the preventive control system, since it is required to ensure the effective application of the organizational model, which may exclude ‘ex crimine’ corporate liability only if adopted and effectively implemented ‘before’ the commission of the offence.

In other words, in lack of a supervisory body that exercises this control power effectively, a legal entity has no chance of being exempted from liability for a crime committed by a person in a leading position.

To this end, it has to be pointed out that provision has been made for the supervisory body for it to finalise the crime prevention system only in respect of offences committed by a person in a leading position (pursuant to Art. 6 of L.D. No. 231/2001). On the other hand, it is not expressly provided for in cases in which the offence is committed by a subordinate person, i.e. an employee4. Indeed, in the latter case (crime committed by an employee provided for by Art. 7 of L.D. No. 231/2001), the contents of the organizational and managerial model seem to be different, to some extent, from those described in Art. 6, since the requirements to prevent offences by employees appear less stringent as compared to the requirements for ruling out corporate liability for the crimes committed by a person in a leading position (pursuant to Art. 6). However, Art. 7, par. 3 and 4, lays down instruments to monitor the application of the organizational models, even if no specific reference is made to the need for a supervisory body. On this point, some scholars believe that the supervisory body can also be assigned the function of controlling the implementation of preventive models which apply to employees in a subordinate position5.

3 THE FUNCTIONS OF THE SUPERVISORY BODY

In light of the above, the content of the functions exercised by the supervisor, which should be identified in relation to the goal of effective implementation of preventive measures, i.e. the ‘organizational and managerial model’, clearly emerges, since the supervisory body may be considered as the ‘guardian’ of the system of prevention. It is required to ensure its effectiveness, in order to guarantee that the preventive model adopted by a legal entity does not serve simple ‘window dressing’ purposes. It is also expected to guarantee the overall functioning of the crime prevention system.

More in detail, its main functions are:

A) supervising the functioning and the effective implementation of the organizational and managerial model, as well as the compliance with the preventive model;

B) updating the organizational and managerial model.

4 _{For further details on the effects connected to the role of the ‘triggering persons’ in the legal entity,}

also in a comparative perspective, please refer to our VALENZANO, A.S., ‘Triggering Persons’: the Role of the Offender in ‘ex crimine’ Liability of Legal Entities. A Comparative Study on Member States’ Legal Systems, p. 213 et seq.

5 _{See, on this issue, PIERGALLINI, C., Paradigmatica dell’autocontrollo penale (dalla funzione alla}

struttura del “modello organizzativo” ex d.lgs. 231/2001), p. 16. See, also for further references, MONGILLO, V., Substantive requirements, p. 58 et seq. In the praxis, see CONFINDUSTRIA, Linee guida per la costruzione dei modelli di organizzazione, gestione e controllo ex d.lgs. n. 231/2001, approved on 7 March 2002, updated to 31 March 2008, in www.confindustria.it, p. 32, which seems to maintain that the supervisory body is required to control over the implementation of the preventive models even in case the offence is committed by an employee in a subordinate position.

A) As to the control functions, the supervisory body has to supervise and evaluate the adequacy of the organizational and managerial model to prevent the commission of offences provided for by L.D. No. 231/2001. We believe that, depending on the specific case, this kind of control may be performed ‘ex ante’ or ‘ex post’, that is before or after the effective implementation of the preventive measures prescribed by the organizational and managerial model. For instance, it may be also performed ‘ex ante’ where the supervisory body proposes to update the model.

Moreover, the supervisory body has to supervise the effective implementation of the organizational and managerial model and the compliance with the preventive measures prescribed by the same model.

As to the type of control performed by the supervisory body, it has to be excluded that it should control the ‘actions’ of single employees, since the scope of its control is the organizational and managerial ‘model’. As such, this control should not interfere with the contents of legal entities’ managerial decisions6. In other words, it is not a question of controlling the ‘behaviour’ of corporation employees - and consequently managerial choices - but of supervising ‘a preventive model’7. For this reason we believe that the monitoring of the supervisory body can be defined as a ‘second- degree’ control, in so far as it is a control over a preventive system.

B) As to the updating of the organizational and managerial model, it has to be highlighted that the model is ‘dynamic’, as regards the content of its provisions. Therefore, its updating may be necessary in different cases, such as, for instance, legislative amendments, or changes in the organization, or when the supervisory body detects a defect in the preventive model.

If some changes are necessary, based on the analysis of the preventive model or the results of its implementation collected by the supervisory body, its updating function shall be characterized by two different stages. In the first place, the supervisory body should present a relevant review proposal to the competent managing body. In the second place, a follow up process should be scheduled, to ascertain the effective implementation and functioning of the solutions proposed8.

4 POWERS OF THE SUPERVISOR IN DETAIL

The supervisory body should be guaranteed «autonomous powers of initiative and control9_»

in order to exercise its functions. Therefore, the powers of initiative and control have to be instrumental to fulfill its functions of supervision over the effective implementation of the preventive model and its compliance.

To this end, the supervisory body should be ensured powers of inspection and supervision, exercised both following a planned strategy and without notice, in order to control the implementation of the organizational and managerial ‘model’ rather than the ‘actions’ of natural persons operating for the legal entity.

The proper functioning of the information systems to effectively implement the preventive model is ensured by giving the supervisory body wide powers to access information, i.e. to request and receive information about the model’s implementation at all levels of the hierarchy, with no need for an authorization10. Indeed, the supervisory body should have direct access to information to be able to control the preventive model in an effective way. It should do so with no obstacles in its supervisory activity, otherwise information flows would be interrupted and as a result an ‘organizational failure’ could emerge in the crime prevention system11

.

It is clear that the range of the supervisory bodies’ powers to access information is more or less extended in relation to the special provisions contained in the model of prevention, but it should be taken into account that the wider the powers are, the larger the real effectiveness assured to the supervisor is, thus achieving a higher level of compliance with the preventive goals by legal entities, as laid down in L.D. No. 231/2001.

6

For more details on this issue, see TRAPASSO, M.T., Powers and liability, p. 89 et seq.

7 _{With respect to the difference between ‘supervising a model’ and ‘supervising a behaviour’, refer to}

FIORELLA, A., Sui poteri dell’organismo di sorveglianza, p. 165 et seq.

8 _{For further details on this issue, see BARTOLOMUCCI, S., Corporate governance e responsabilità}

delle persone giuridiche, p. 247 et seq. In the praxis, see CONFINDUSTRIA, Linee guida per la costruzione dei modelli di organizzazione, gestione e controllo ex d.lgs. n. 231/2001, above at fn. 5, p. 33.

9

This is the only indication that the legislator gives in L.D. No. 231/2001, Art. 6 par. 1 lett. b).

10

On the directions and the more specific contents of information flows, see, infra, par. 3.2.

11

Some scholars recognize the supervisory body not only the power to monitor and ascertain the violations of the preventive model, but also the power to exercise the relevant disciplinary action, if the said model allows for it12.

Indeed, a correct functioning of an organizational and managerial model is ensured by a link with a ‘disciplinary system’, as provided for by Art. 6, par. 2, letter e) and Art. 7, par. 4, letter b) of L.D. No. 231/2001. These articles set forth the introduction of a ‘disciplinary system’ suitable to punish violations of the measures covered by the organizational and managerial model, in order to complete the preventive system. In other words, a violation of any measure prescribed by the same preventive model should be punished by a disciplinary sanction. To this end, an action shall be commenced against the perpetrator and a disciplinary sanction shall be imposed when the organizational rules of the model of prevention have been infringed.

On principle we believe that the supervisory body is not vested with the disciplinary powers for purposes of checking on the behaviours of natural persons involved, because its function is only to supervise the proper application of the preventive model.

As a rule legal entities have the power to start a disciplinary action, unless an explicit delegation is given to the supervisory body. As a result, a decision concerning the an of the disciplinary action, as well as the an and the quantum of the related punishment, lies within the sole power of the organization through its management and, on its behalf, through those people who are entrusted with this power within the organization. It is our opinion that the supervisory body should, as a rule, only advice the managing body which institutes disciplinary proceedings in case of violation of the preventive model.

5 THE SYSTEM OF INFORMATION DUTIES’ IN DETAIL

As already highlighted, the information flows allow the supervisory body to work effectively with powers of intervention on the organizational models (and not on individual behaviours), since it is not required to monitor the ‘behaviour’ of corporation employees – and consequently managerial choices – but it has to supervise a preventive ‘model’.

In other words, the information system plays a central role in its different articulations, since it helps to ensure a proper functioning of crime prevention mechanisms. If information flows were missing, the organizational and managerial model could only seem ‘apparent’, i.e. with “window dressing” purposes, and therefore ineffective. This is the reason why Art. 6, par. 2, letter d) of L.D. No. 231/2001 stipulates that an organizational model should prescribe ‘information duties’ towards the supervisory body, i.e. ‘obligations to report’ to the supervisor, that is responsible for monitoring the implementation of the model, as well as the compliance with the preventive model13.

In accordance with the general system provided for by the L.D. No. 231/2001, we believe that the ‘system of information duties’ should be devised in accordance with the specific goal to be reached, i.e. the proper functioning of the supervisory body14. Therefore these information flows should be organized following two different directions:

A) from employees to the supervisory body;

B) from the supervisory body to the managing body (board of directors or sole administrator). In relation to the first direction of the information flow [sub A)], it has to be taken into account that the supervisory body receives the information about the implementation of the preventive model from corporate sectors with the support of managers (or another contact person, in his/her capacity as ‘contact person for the preventive model’), even if, as already said, the supervisor must be assured the power to ask for information without any hierarchical limitation. It also receives

12 _{In this regard, refer to PIERGALLINI, C., Paradigmatica dell’autocontrollo penale (dalla funzione}

alla struttura del “modello organizzativo” ex d.lgs. 231/2001), p. 21 et seq.

13

In the Italian version, Art. 6, par. 2, letter d) of L.D. No. 231/2001 states that an organizational model should prescribe «obblighi di informazione nei confronti dell’organismo». A recent proposal to amend Art. 6 of L.D. No. 231/2001 [Schema di disegno di legge di modifica del d.lgs. 8 giugno 2001 n. 231. In: R. PINZA (ed.), La responsabilità amministrativa degli enti. Progetto di modifica d.lgs. 231/2001, Rome, 2010, p. 9 et seq.] states that an organizational and managerial model should prescribe «information flows on the adequacy of the same preventive model and on its effective implementation»: see Art. 6, par. 2, letter g) of the proposal.

14 _{With regard to the specific ‘content’ of these ‘information duties’, please refer to our VALENZANO,}