The liability of entities: Legislative Decree 231/2001 and the Uber eats case

With the advent of Legislative Decree 231/2001, it is possible to impose administrative and criminal liability on entities, following offences committed by their administrative and/or management body and its employees or third-party agents, if these offences were committed in the interest or to the advantage of the same company.

In any case, the entity can escape this liability by demonstrating that it has adopted a suitable organisational and management model as described in the Decree.

The Legislative Decree 231/2001 is the legislation that governs the administrative liability of entities arising from offences committed by administrative bodies, management bodies or third-party agents, when committed in the interest or to the advantage of the company.

The purpose of the decree is therefore to identify in concrete terms which categories of persons or bodies forming part of an entity are liable in the event of an offence being committed. Therefore, this legislation is recognised as belonging to the category of so-called 'blank criminal law'since it must in any case be supplemented with the articles of the criminal code.

Entities concerned

The entities referred to in the decree are both those equipped with legal personality, or with perfect patrimonial autonomy (e.g. corporations), which those without (e.g. non-recognised association); it does not apply to the State, territorial public bodies, non-economic public bodies, as well as those performing functions of constitutional importance and sole proprietorships.

The entity must have its head office in Italy and the State of the place where the offence was committed must not prosecute it.

When is the entity liable?

The liability of the entity exists if offences committed in its interest or to its advantage are committed by:

• those who hold functions of representation, administration or management of the entire entity or of an organisational unit thereof having financial and functional autonomy, as well as by persons exercising, also de facto, the management and control thereof;
• from persons subject to management or supervision of one of the subjects mentioned above.
• The liability of the entity exists if the commission of the offence was made possible by the failure to comply with management or supervisory obligations.
• In any event, this is excluded for non-compliance with the aforementioned obligations if it is proved that
• the management body has adopted and effectively implemented - prior to the commission of the offence - organisational and management models capable of preventing offences of the kind committed;
• the task of supervising the functioning of and compliance with the models and ensuring that they are updated has been entrusted to a body of the entity endowed with autonomous powers of initiative and control;
• the persons committed the offence by fraudulently circumventing the organisation and management models;
• there was no omission or insufficient supervision by an independent body with powers of initiative and control;
• the organisation, management and control model is suitable for guaranteeing that the activity is carried out in compliance with the law and that it provides - in relation to the nature and size of the organisation as well as the type of activity carried out - for measures suitable for guaranteeing that the activity is carried out in compliance with the law and for discovering and eliminating risk situations in good time.

The entity is also held liable when the perpetrator of the offence is not identified or when the latter cannot be charged and when the offence is extinguished for a reason other than amnesty.

In fact, unless the law provides otherwise, no proceedings shall be brought against the body when an amnesty is granted for an offence in respect of which it is liable and the accused has waived its application.

The organisational model

Legislative Decree 231/2001 is innovative because it describes a organisational, management and control model - outlining the characteristics that it must possess - so that all entities can adopt it in a uniform manner. According to this model proposed by the regulation, the management body of the entity - in relation to the extent of delegated powers and the risk of offences being committed - has the task of identifying the activities within the scope of which offences may be committed, provide for specific protocols directed to planning training e the implementation of decisions of the entity in relation to the offences to be prevented, identify ways of management of financial resources appropriate to prevent the commission of offences, provide for information obligations with regard to the body in charge of supervising the functioning of and compliance with the models and, finally, introduce a disciplinary system suitable for penalising non-compliance with the measures indicated in the model.

Organisation and management models may be adopted on the basis of codes of conduct drawn up by the associations representing the entities, communicated to the Ministry of Justice which, in agreement with the competent Ministries, may make observations on the suitability of the models to prevent offences.

The Uber case: digital corporatism

Recently, the Court of Milan - with a decree dated 27 May 2020 - ordered the company Uber Italy S.r.l. (Uber eats, a food delivery company) to adopt the organisational model proposed by Legislative Decree 231/2001 because the same Court had accused the company of digital caporalato.

Digital caporalisation is defined as any practice of illegal exploitation of labour where the labour services required of riders included a constant availability to make deliveries.

This commitment obviously did not correspond to the salary received. In fact, the company did not remunerate the riders for the time they were available to possibly make further deliveries after the one already made, receiving remuneration based only on completed deliveries.

Therefore, in the face of this warning, the Court of Milan decided to impose on the defendant company to adopt the criteria set out in the legislation in question and rules of conduct to suppress the unfair practice of exploitation of workers and consequently to prevent any offences that the company may commit in that area.

Sanctions

The sanctions provided for in the legislation concerning administrative offences are of a multifaceted nature. In fact, sanctions of pecuniary nature and/or of prohibitory nature (such as, for example, disqualification from exercising the activity, suspension or revocation of authorisations, licences or concessions functional to the commission of the offence, and so on).

In particular, prohibitory sanctions apply in relation to offences for which they are expressly provided for or when at least one of the following conditions is met:

• the entity has derived a significant profit from the offence and the offence has been committed by persons in a senior position or by persons subject to the direction of others when, in this case, the commission of the offence was determined or facilitated by serious organisational deficiencies;
• in the event of repeated offences.

Such sanctions may not be imposed in cases where:

• the entity has fully compensated the damage and eliminated the harmful or dangerous consequences of the offence, or has in any case effectively done so;
• the entity has eliminated the organisational deficiencies that led to the offence by adopting and implementing organisational models capable of preventing offences of the kind committed;
• the entity has made available the profit obtained for the purposes of confiscation.

Another sanction provided for is the publication of the judgment.

Lawyer Milena Maria Oggiano