Commentary on Judgment No. 21640 of 2023: Corporate Liability and Organizational Models

Judgment No. 21640 of March 2, 2023, issued by the Court of Cassation, represents an important reference point for understanding the liability of legal entities for crimes committed by top-level individuals. In particular, the Court emphasized the importance of an adequate organizational and management model, highlighting that the assessment of such a model must be carried out through a concrete, not merely theoretical, analysis.

The Concept of Corporate Liability

According to Legislative Decree 231/2001, legal entities can be held liable for crimes committed by their top-level representatives, provided they do not demonstrate that they have adopted an organizational model suitable for preventing such offenses. The judgment in question clarifies that the judge must adopt a "posthumous prognosis" criterion, meaning they must ideally place themselves at the time the crime was committed and assess whether the organizational model, as implemented, could have avoided or reduced the risk of similar crimes being committed.

The Ruling's Headnote

Criminal liability of entities - Offense by top-level individuals - Organizational model - Suitability - Judicial assessment - Content - "Totalizing" basis – Exclusion – Concrete verification of the model's adequacy – Existence - Indications.

The Court specified that a generic compliance with precautionary rules is not sufficient; a concrete verification of the adequacy of the adopted model is necessary. This means that the judge must ascertain whether the crime committed by the top-level individual represents the concrete risk that the organizational model aimed to prevent. In other words, it must be examined whether, had the model been respected, the harmful event would not have occurred.

Final Reflections on the Judgment and Practical Implications

Judgment No. 21640 of 2023 has significant practical implications for companies and organizations. It is crucial for businesses not only to adopt organizational models but also to ensure that these models are effectively implemented and monitored over time. Companies must therefore invest in the training and awareness of their employees regarding internal procedures, to ensure that behavior aligns with legal standards and company policies.

• Importance of continuous training for employees.
• Constant monitoring of the organizational model's effectiveness.
• Implementation of internal reporting procedures for illicit conduct.

Conclusions

In summary, Judgment No. 21640 of 2023 offers clear guidance on how legal entities can protect themselves from criminal liability through the adoption and implementation of effective organizational models. Liability is not merely a matter of formal compliance but of concrete and practical implementation of the models themselves. It is essential for companies to pay attention to this aspect to avoid sanctions and reputational damage.