Art. 5 of Italian Legislative Decree 231 of 2001 provides that legal persons are responsible for crimes committed in their "interest" or to their "advantage" by persons who hold representative, administrative or management functions as well as by persons who exercise, including by fact, the management and control of the same or by persons subject to the management or supervision of one of the aforementioned subjects.
With sentence no. 15543/2021, the Italian Supreme Court of Cassation again expressed itself on the concepts of "interest" and "advantage" provided for by art. 5.
The Court focused on the concepts of "interest or advantage", highlighting how they are placed in a relationship of "alternativity" and therefore consist of two different criteria for attributing the fact to the entity, overcoming another argumentative approach according to which, on the other hand, an attribution of responsibility to the entity would have been possible only in the presence of the criterion of interest, assigning to the requirement of the advantage a mere “symptomatic” value of the effective pursuit of the interest.
In fact, the Court stated that "for the purposes of configuring the entity's liability, it is sufficient to prove that it has objectively obtained an advantage from the crime, even when it was not possible to determine the actual interest claimed before the consummation of the offense and provided that it was not simultaneously ascertained that the latter was committed in the exclusive interest of its author, a natural person or third parties ".
In support of this argument, moreover, the judges have placed both the provision contained in art. 8 of Italian Legislative Decree 231/2001, on the basis of which the entity may be liable even in the event that the perpetrator of the offense is not identified or is not attributable, and the introduction of hypotheses of liability of the entity also for crimes of a negligent nature.
Avv. Francesco Bianchi
Dott.ssa Elisa Meyer
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