An allegation of corporate crimes or entity liability pursuant to Legislative Decree 231/2001 can simultaneously involve individuals and a company. Anyone holding an office may wonder whether a signature on a document is enough to be held accountable; the company, on the other hand, must understand whether the accusation also concerns its organization, the benefit obtained, and its compliance program 231.
The first distinction is between the act, the role, and the liability of the entity. I will explain how to interpret these three levels without confusing them: which conduct can assume criminal relevance, when a person is considered a director even without formal appointment, what must emerge to contest the offense to the company, and which steps deserve attention starting from the investigations. The rules apply even if the proceedings take place in Milan, because the reference discipline is national.
Corporate crimes: not every irregularity becomes a crime
An accounting error or questionable management do not automatically coincide with a corporate crime. For criminal liability to exist, it is necessary to verify the specific offense charged, the conduct attributed to the person, the subjective element required by the law, and the effects of the act. Allegations may concern, for example, untrue corporate communications, capital transactions, obstacles to controls or supervisory authorities, depending on the concrete data.
The content of the document matters more than its label. A balance sheet, a resolution, an external communication, or an accounting entry are not in themselves proof of an offense. It is necessary to understand which information is considered false, omitted, or represented in a misleading way, who formed or approved it, what function that document had, and whether the available data allow a different reconstruction.
Liability 231 does not indiscriminately concern all enterprise crimes. The legislative decree identifies the predicate offenses that can give rise to the entity's liability; for corporate crimes, Article 25-ter links specific penalties to the company. The provision includes offenses from the civil code and, following subsequent amendments, also hypotheses provided for by special laws. You can read the text of Article 55 of Legislative Decree 19/2023, which updates Article 25-ter of Legislative Decree 231/2001.
Confiscation must be distinguished according to the assets involved. Article 2641 of the Civil Code provides for confiscation of the product or profit of corporate crimes and, when those assets cannot be seized, assets of equivalent value. Constitutional Court judgment 7/2025 instead removed mandatory confiscation of assets used to commit the crime, including confiscation of their equivalent value. Discretionary direct confiscation of instrumental assets remains possible under Article 240 of the Criminal Code, subject to proportionality. The illicit gain and every asset used in the transaction therefore cannot be treated alike.
Underinvestigated person and company: two positions that should not be overlapped
The company does not answer solely because a director is under investigation. Article 5 of Legislative Decree 231/2001 requires, in addition to the commission of a predicate offense by senior management or persons subject to their direction or supervision, that the act was committed in the interest or to the advantage of the entity. Interest and advantage are not equivalent formulas: the former looks at the purpose of the conduct, the latter at the result that the entity may have achieved.
The company's position remains distinct from that of the individual. The entity is the recipient of an administrative offense dependent on a crime, ascertained in criminal proceedings; a director, manager, statutory auditor, liquidator, or employee may instead answer personally according to the charge leveled against each of them. For this reason, a useful defensive line must avoid shortcuts: what protects a person does not always coincide with what clarifies the organizational position of the company.
The identification of the offender is not always decisive for closing the entity's position. Article 8 of Legislative Decree 231/2001 establishes that the entity's liability can exist even when the offender is not identified or is not imputable, or when the crime is extinguished for a cause other than amnesty. This does not mean that the company is automatically responsible: the predicate offense, the link with the entity, and the other requirements provided by law remain to be ascertained. The general framework is contained in the text of Legislative Decree 231/2001.
Compliance program 231 can count, but it must be prior and effective
An organizational model does not automatically protect the company. For offenses by senior officers, Article 6 of Legislative Decree 231/2001 requires cumulative conditions: a suitable model adopted and effectively implemented before the conduct, supervision entrusted to a body with independent powers of initiative and control, fraudulent circumvention of the model by the perpetrator, and no omitted or insufficient supervision. A formally approved document does not by itself establish these requirements.
A document prepared only on paper is not enough. The model must be linked to the concrete risks of the enterprise and translated into recognizable operating rules: powers consistent with delegations, controls on sensitive operations, traceability of decisions, information flows, and disciplinary measures. The useful question is not only whether the model exists, but whether the invoked procedure was applicable to that specific operation and whether it was actually observed.
For subordinate subjects, the rule is different. Article 7 of the decree links the entity's liability to the failure to observe direction or supervision obligations; the effective implementation of a suitable model can also be relevant on this level. Formal qualifications, however, do not solve the problem on their own: it is necessary to identify who was giving directives, which controls were foreseen, and whether the conduct was extraneous or integrated into the enterprise's processes.
A model adopted after the fact does not prove the exemption provided for the past. It can nevertheless represent an organizational datum to be correctly placed in the proceeding, without presenting it as if it demonstrated prevention already operating at the time of the contested conduct. The discipline of Article 6, including the conditions referring to senior management, is reported in the provision that reproduces the text of Article 6 of Legislative Decree 231/2001.
De facto director: formal office is not the only criterion
Whoever truly manages the company can assume relevance even without formal appointment. Article 2639 of the civil code equates anyone who exercises the typical powers of the function in a continuous and significant manner to the formally invested person. The rule concerns corporate crimes and prevents the absence of an appointment resolution from closing, on its own, every verification on the role played.
Intense collaboration or occasional advice is not enough. The point is to establish whether the person has exercised powers proper to the director with stability and concrete weight: management decisions, relations with banks or clients, instructions to personnel, signing or definition of operations, effective influence on corporate choices. An external consultant, a shareholder, or a proxy holder can have an important role without thereby automatically being a de facto director.
The sources of real power must be evaluated as a whole. Delegation, power of attorney, organizational chart, minutes, messages, corporate correspondence, and operations performed can assume relevance only if they show continuous and significant direction. Article 2639 clarifies precisely this criterion of equation, reported in the regulatory reference on corporate crimes.
Investigations require timely and coherent choices
The first requirement is to understand precisely which fact is contested. A notice, a search warrant, an invitation to appear, or a notice of investigation should not be read as a judgment already concluded. It is necessary to distinguish the provisional description of the accusation from the available evidence, verifying dates, companies involved, attributed role, and individual operations recalled in the measure.
The closure of investigations opens a defensive space regulated by law. With the notice provided by Article 415-bis of the code of criminal procedure, the suspect and defense counsel can examine and extract copies of the deposited documents; within twenty days, the suspect can submit briefs and documents, request investigative acts, make statements, or request interrogation. The current text of Article 415-bis of the code of criminal procedure indicates the content of the notice and exercisable faculties.
Documentary reconstruction must be orderly, not selective. Balance sheets, minutes of corporate bodies, delegations, powers of attorney, contracts, correspondence, authorization flows, and accounting documentation can clarify functions, knowledge, and decision-making steps. Accumulating indistinct material is useless: it is necessary to understand whether each document confirms, denies, or makes the contested fact more precise. Altering, eliminating, or artificially reconstructing documents would instead aggravate the position of whoever intervenes in them.
What alternatives to evaluate in the face of an allegation
The defense can focus on the fact, the role, or the link with the entity. If the accusation concerns a corporate communication, verifying the correctness of the data and its meaning in the context of the document can be decisive. If it concerns a de facto director, proof of the effective continuous exercise of powers can count. If it involves the company pursuant to Legislative Decree 231/2001, interest or advantage, decision-making process, model, and controls become central.
Divergent positions must be recognized immediately. The company may argue that it has effective rules that a person circumvented; the person may contest having had the powers, knowledge, or purposes attributed to them. These theses are not necessarily incompatible, but they cannot be taken for granted. When conflicting interests emerge between the entity, directors, or other involved subjects, the choice of representation and defensive initiatives requires particular attention.
The response does not consist solely in denying the accusation. In some cases, the core is to demonstrate extraneousness to the fact; in others, it is to correct an incomplete reconstruction regarding the function performed, decision-making flows, or the real utility of the operation for the enterprise. Subsequent conduct may also assume relevance, but each legal effect depends on the applicable rule, the procedural moment, and the required conditions. If you must face an allegation of this type, you can contact me to frame your personal position and that of the entity without overlapping them.
Frequently asked questions
Can I be investigated even if I was not formally a director?
Yes, but not for the mere fact of having collaborated with the company. In corporate crimes, whoever exercises powers typical of the director's function in a continuous and significant manner can be relevant. Real and stable management activities must therefore emerge, not occasional consultancy, a single assignment, or mere personal influence over whoever administers.
Does the company always answer if one of its directors is investigated?
No, additional requirements are needed. For liability pursuant to Legislative Decree 231/2001, it is necessary to ascertain a predicate offense, the offender's role, and the link of the act with the entity's interest or advantage. The rules on the organizational model and controls must also be considered. The accusation leveled against the person does not automatically transfer liability to the company.
Can a compliance program 231 adopted after the allegation exclude the entity's liability?
It cannot demonstrate effective adoption prior to the act. The exemption provided by Article 6 requires in fact a model adopted and effectively implemented prior to the commission of the crime. Subsequent updating must not be ignored, but must be represented for what it is: a subsequent organizational measure, not a retroactive proof.
What can I do after the notice of conclusion of investigations?
Notice 415-bis allows defensive initiatives within twenty days. You can examine the deposited documents, produce documents and briefs, request further investigations, or request interrogation. The choice depends on the concrete content of the accusation and the available documents: it is important not to use that deadline to send generic explanations or unverified documents.
Is a signature on minutes or a balance sheet enough to prove the crime?
No, the signature does not replace the ascertainment of the conduct required by law. It can attest participation in an act and make it necessary to clarify the role and available information, but liability depends on the contested offense, the content of the act, knowledge of the data, and the possible causal contribution of the person involved.