Legal Protection Against Supervisory Authorities

Facing criminal proceedings for the offense of obstructing the exercise of supervisory functions is a critical moment for company directors, general managers, statutory auditors, and liquidators. This charge strikes at the heart of corporate governance and requires an immediate and meticulous defense strategy. As a criminal lawyer practicing in Milan, I fully understand the sensitivity of these situations, where professional reputation and business continuity are severely tested. My goal is to provide clear guidance and robust technical defense to those who must answer such accusations before the judicial authorities.

The Regulatory Framework: Article 2638 of the Civil Code

The offense of obstructing the exercise of functions by public supervisory authorities is governed by Article 2638 of the Italian Civil Code. This provision punishes conduct by the top corporate officers who, in communications required by law to public supervisory authorities (such as Consob, Bank of Italy, or IVASS), present material facts that are not true, even if they are matters of evaluation, regarding the economic, asset, or financial situation of entities under supervision. The law also punishes those who conceal, by other fraudulent means, facts that should have been communicated. It is crucial to understand that the legal interest protected is corporate transparency and the effectiveness of the oversight action by the responsible authorities. The complexity of this offense lies in the fact that it is often a crime of danger, where sanctions can be imposed even in the absence of actual financial damage, provided that the conduct is capable of obstructing the supervisory function.

The Bianucci Law Firm's Approach to Corporate Criminal Defense

The approach of Avv. Marco Bianucci, an expert lawyer in corporate criminal law in Milan, is based on a rigorous technical analysis of company documentation and communications with the supervisory authority. In these cases, the defense cannot be limited to mere legal argumentation but must delve into the merits of the accounting and administrative assessments that led to the charge. The Bianucci Law Firm's strategy often involves collaboration with external technical consultants to demonstrate the correctness or good faith of the directors' actions. Our priority is to reconstruct the factual truth to dismantle the prosecution's hypothesis of intent, which is essential for the offense to be constituted. Every step is carefully considered to protect the client's position, whether it is an individual or the company itself, potentially involved under Legislative Decree 231/2001.

Frequently Asked Questions

What are the penalties for the offense of obstructing supervision?

The Civil Code provides severe penalties for this type of corporate offense. Imprisonment can range from one to four years, but the penalty can be doubled if the conduct caused financial damage to shareholders or creditors. It is important to note that the severity of the sanction reflects the importance the legislator places on accurate information to control bodies.

Does the offense occur even if the supervisory authority still discovers the truth?

Yes, the offense can occur regardless of the outcome of the supervisory activity. Case law tends to consider the offense as a concrete danger offense. This means that it is sufficient for the false communication or concealment to be capable of deceiving the authority or obstructing its activity, even if the supervisory body later manages to obtain the correct information through other channels.

Who are the subjects who can be accused of this offense?

This offense is a so-called "own offense" (reato proprio), meaning it can only be committed by qualified individuals within the company. Article 2638 of the Civil Code specifically identifies directors, general managers, managers responsible for preparing corporate accounting documents, statutory auditors, and liquidators. However, external parties can also be complicit in the offense if they instigated or assisted the qualified individuals in committing the illicit act.

Does the company risk anything in case of conviction of the directors?

Absolutely yes. The offense of obstructing the exercise of supervisory functions falls under the predicate offenses for the administrative liability of entities, governed by Legislative Decree 231/2001. If the offense was committed in the interest or to the advantage of the company, the latter may face heavy pecuniary and disqualifying sanctions, unless it proves to have adopted and effectively implemented organizational models suitable for preventing offenses of the same kind.

Request a Case Assessment

If your company or its directors are involved in investigations related to dealings with supervisory authorities, it is essential to act promptly and competently. Avv. Marco Bianucci, thanks to his consolidated experience as a criminal lawyer in the field of corporate offenses, is available to analyze your position and define the best defense strategy. Contact the Bianucci Law Firm at via Alberto da Giussano 26 in Milan for a confidential and professional consultation.