Entity Liability under Legislative Decree 231/2001: Beyond the Predicate Offence – Judgment no. 17664/2025

Legislative Decree 231/2001, which governs the liability of entities for offences committed in their interest or to their advantage, is a cornerstone of Italian corporate criminal law. However, its practical application is often complex and requires continuous jurisprudential interpretation. Judgment no. 17664 of January 29, 2025 (filed on May 9, 2025) by the Court of Cassation, presided over by F. G. and reported by D. F., offers a fundamental clarification, reiterating essential principles for companies and professionals.

The Context of the Judgment and Proof of Liability

The decision, which involved L. F. of A. S.C. S.R.L. and annulled with referral a previous ruling by the Court of Appeal of Salerno, focuses on the correct assessment of the entity's liability. A common mistake is to believe that the mere commission of an offence by an individual linked to the company is sufficient to attribute liability to the entity itself. The Cassation Court, with this ruling, refutes such simplification, emphasizing the need for a more in-depth analysis.

The Supreme Court's Ruling: An Unavoidable Principle

The criminal liability of entities cannot be inferred from the mere proof of the predicate offence; instead, it requires, on an objective level, the commission of an offence, complete in its objective and subjective elements, committed in the interest or to the advantage of the entity by a person who has a qualified relationship with the latter. On a subjective level, it requires organisational fault, which is characterised differently depending on whether the predicate offence was perpetrated by a person in a top-level position or by someone subject to the supervision and direction of others. (In its reasoning, the Court specified that, in order to establish the entity's liability, the judge, in the presence of a declaration of prescription of the predicate offence, must independently and incidentally verify the commission of the latter, not merely invoke the effect of the prescription judgment).

This ruling is a firm point. The Cassation Court clarifies that specific elements are necessary for the entity's liability:

• Predicate Offence: must be proven in all its objective and subjective elements.
• Interest or Advantage: the offence must have been committed in the interest or to the advantage of the entity.
• Qualified Individual: the perpetrator of the offence must have a qualified relationship with the entity (top-level or subordinate).
• Organisational Fault: the entity must have shown organisational deficiencies (i.e., failed to adopt or effectively implement an Organisational, Management, and Control Model - MOGC - suitable for preventing the offence). The "fault" is articulated differently depending on the role of the perpetrator of the offence.

A crucial aspect highlighted is that, even in the case of the prescription of the predicate offence, the judge must still independently and incidentally ascertain its commission, without limiting themselves to the mere declaration of prescription.

Practical Implications and the Importance of MOGCs

This ruling reinforces the need for companies to adopt and seriously implement Organisational, Management, and Control Models (MOGCs) pursuant to Legislative Decree 231/2001. An effective MOGC is not just a regulatory compliance measure but a strategic tool for risk prevention and corporate protection. The judgment reminds us that the burden of proving the effectiveness of the MOGC and its fraudulent circumvention falls on the entity. Without adequate proof, liability can be established.

Conclusions

Judgment no. 17664/2025 by the Court of Cassation emphasizes that entity liability is not automatic. It requires a careful verification of "organisational fault" and the relationship between the offence and the entity's interest/advantage. This reiterates the importance of investing in robust and updated MOGCs, viewed as an essential investment for legality, reputation, and corporate sustainability. To navigate this complex matter, specialized legal advice is more indispensable than ever.