Entity Liability in the New EU Framework – Effects on Legislative Decree 231/2001

The European Union, with the proposal for Directive No. 2023/0135 (COD), has initiated a profound rethinking of the criminal and administrative liability of legal persons. This initiative is part of a broader harmonization policy aimed at combating economic crimes and strengthening corporate accountability, which is destined to significantly affect the Italian legal system, already regulated by Legislative Decree 231/2001.

1. INNOVATION POINTS OF THE EUROPEAN DIRECTIVE

The legislative project introduces some breaking points compared to traditional structures:

• Standardization of pecuniary sanctions: Member States will have to provide for a minimum of at least 5% of the entity's global annual turnover, with the possibility of increasing up to 10%. This is a radical change, as the proportion is detached from the criterion of "benefits obtained" alone and aims to hit the company as an economic entity.
• Extension of the scope of liability: the directive goes beyond the idea of a strict catalogue of offenses, imposing liability for a much wider range of illicit acts that harm financial, environmental, and social interests.
• Criteria for subjective imputation: alongside the principle of organizational fault, a model emerges that also gives importance to the failure to prevent through adequate governance systems, strengthening the duty of diligence of corporate management.
• Harmonized ancillary measures: prohibitions from carrying out activities, exclusions from funding and public tenders, up to the dissolution of the entity, to be applied uniformly in the different legal systems.

2. COMPARISON WITH LEGISLATIVE DECREE 231/2001

The Italian model, for over twenty years, has anticipated many of the lines currently discussed at European level. However, the directive raises critical issues:

• Quantification of the sanction: Legislative Decree 231/2001 provides for a quota system (up to 1000) parameterized on gravity and economic conditions, with amounts ranging from approximately 258 to 1549 euros per quota. The percentage impact on turnover introduced by the directive could lead to much heavier sanctions for large Italian companies.
• Catalogue of offenses: the Italian legal system, while having expanded the number of predicate offenses over time, remains based on a typified list. The EU directive, however, imposes a more extensive coverage, with the risk of attracting offenses currently excluded.
• Burden of proof: Italian jurisprudence has consolidated the notion of "organizational fault" (Cass., Sez. Un., n. 38343/2014, Thyssenkrupp), but the European model seems to disregard the verification of a real organizational deficit, linking liability to the mere failure to adopt preventive measures "suitable according to European standards".
• Effects on SMEs: the directive does not distinguish between large groups and small entities. For the Italian entrepreneurial fabric, composed of thousands of SMEs, this can lead to disproportionate burdens and the risk of unsustainable sanctions.

3. STRATEGIC IMPLICATIONS FOR CORPORATE COMPLIANCE

Italian companies will have to face three main challenges:

1. Adaptation of organizational models 231 to new European best practices in governance, risk management, and sustainability (ESG).
2. Strengthening of the Supervisory Body (OdV), which will have to acquire transnational skills and the ability to dialogue with EU standards.
3. Management of sanctioning risk: the adoption of periodic audit tools and compliance certifications can constitute proof of diligence, mitigating liability.

4. PROSPECTS AND CRITICAL ISSUES

Directive 2023/0135 represents a turning point: from a national, fragmented model, we will move to a harmonized European system of corporate liability.

However, the risk is twofold:

• on the one hand, a disproportionate tightening for the Italian context, with companies exposed to devastating sanctions;
• on the other hand, a fragmentation of application if Member States adopt divergent interpretative criteria, generating legal uncertainty and forum shopping.

CONCLUSION

The Italian legislator will be called upon to profoundly revise Legislative Decree 231/2001, integrating the principles of the directive without distorting the balance between punitive needs and the protection of the economic and social function of the enterprise. The real challenge will be to combine repressive effectiveness and system sustainability, preventing entity liability from becoming a factor of instability rather than legality.