Commentary on Judgment No. 14840 of 2022: Corporate Liability and Probation

Judgment No. 14840 of October 27, 2022, filed on April 6, 2023, represents an important ruling by the Court of Cassation regarding the discipline of corporate liability provided for by Legislative Decree No. 231 of 2001. In this decision, the Court established the impossibility of applying the institution of probation, provided for by Article 168-bis of the Criminal Code, to legal entities, emphasizing the specificity of administrative liability compared to criminal liability for individuals.

The Judgment and the Regulatory Context

In the reasoning of the judgment, the Court clarified that probation for adults is conceived as a criminal "sanctioning treatment," applicable to individuals and the offenses attributable to them. This approach, according to the Court, cannot be extended to entities, as their liability is attributable to a "tertium genus," a third category of liability that does not coincide with that of individuals. This principle is in line with Article 25, paragraph 2, of the Italian Constitution, which establishes the principle of legality in criminal matters.

Discipline of corporate liability "ex lege" No. 231 of 2001 - Suspension of proceedings with probation – Applicability – Exclusion. The institution of admission to probation under Article 168-bis of the Criminal Code does not apply with reference to the discipline of corporate liability under Legislative Decree of June 8, 2001, No. 231. (In its reasoning, the Court stated that probation for adults has the nature of a criminal "sanctioning treatment," tailored to the individual defendant and the offenses abstractly attributable to them, and cannot be extended, by virtue of the principle of reservation of law, to entities, whose administrative liability is attributable to a "tertium genus").

Implications of the Decision

This judgment has several significant implications for the legal world and for companies. Among the most relevant, we can identify:

• Clarification of the distinction between criminal liability and administrative liability of entities.
• Impossibility for legal persons to resort to probation, limiting defense options in cases of administrative offenses.
• Reinforcement of the need for adequate compliance by companies to avoid sanctions.

This decision is part of a broader context of evolving legislation on corporate liability, which has seen growing interest from jurisprudence in distinguishing between different forms of liability and their respective sanctioning consequences.

Conclusions

In conclusion, judgment No. 14840 of 2022 offers important food for thought on the issue of corporate liability and the applicability of probation. It is essential for companies to fully understand this distinction, as administrative liability can entail significant consequences and requires rigorous compliance. Jurisprudence will continue to play a crucial role in further clarifying these issues and defining guidelines for corporate liability in the near future.