In the recent ruling no. 14343 filed on April 11, 2025, the Supreme Court, Criminal Section VI, has returned to comment on central issues regarding the administrative liability of entities under Leg. 231/2001.
This ruling offers important interpretive clarifications regarding the liability of the legal entity in relation to the position of the defendant and the context of corporate groups, as well as the relevance of the statute of limitations of the predicate offense.
In the case at hand, the technical director of a company operating in the dredging industry was charged with the crimes of breach of public supply contracts, under Article 355 of the Criminal Code, and aggravated fraud, under Article 640, paragraph 2, no. 1 c.p. (as a predicate offense), for supplying materials that did not comply with the technical specifications stipulated in the tender specifications for the construction of a port. Both cases had already been declared time-barred by the lower court, but the company was declared liable under Art. 24 of Leg. 231/2001 because the crimes were believed to have been committed in its interest or benefit. The company was part of a temporary association of companies (ATI) with two other companies (not involved in the trial) and a consortium company in charge of carrying out the work.
The court found the defendant’s appeal unfounded, as the evidence did not allow for an acquittal, while upholding the company’s appeal, providing significant interpretive insights.
In detail, the Supreme Court reiterated that although the extinction of the predicate offense due to the lapse of the statute of limitations does not automatically result in the administrative offense against the entity ceasing to exist, its liability must still be ascertained in compliance with procedural guarantees and in accordance with the same evidentiary criteria provided for the defendant. The court is also required to apply the principle enshrined in Art. 533 c.p.c. and declare liability only when there is evidence that crosses the threshold of “beyond reasonable doubt.”
As the Supreme Court recalls, Art. 8 of Leg. 231/2001 makes it possible to proceed against the legal person even when the predicate crime is extinguished for causes other than acquittal on the merits (as in the case of the statute of limitations), but this rule does not legitimize the conviction of the entity in the absence of a full reconstruction of the historical fact and a thorough verification regarding the existence of the original crime, the verification of which must be based on solid evidence and not on presumptions or partial reconstructions
In essence, the autonomy of the entity’s offense from the natural person’s offense can never result in a simplification of evidentiary standards or a reduction in the level of procedural protection.
As for the running of the statute of limitations, the Supreme Court recalled the guideline that the statute of limitations for the administrative offense (amounting to five years from the date of consummation of the crime) remains suspended once the action is exercised and until the judgment defining the proceedings against the legal person becomes final.
The Supreme Court also censured the assessment of the Court of Appeals, which had found the crime committed “in the main interest” of the company in order to obtain an unfair profit because, since it was a company participating in a temporary grouping of companies, the role of the accused company, the advantage actually achieved, and the link between the natural person perpetrator of the crime and the company would not have been verified in concrete terms.
On the point, the ruling states, “where the predicate offense was committed within the scope of activity of a company that is part of a group or business combination, liability may extend to affiliated companies only if the interest or advantage of one company is also accompanied by the competing interest or advantage of another company and the individual perpetrator of the predicate offense possesses the necessary subjective qualification, pursuant to Art. 5 d. lgs. 231/2001, for the purpose of the common imputation of the administrative offense of crime“.
Therefore, there is no presumption of coincidence of group interest with that of individual companies, it being necessary to verify concretely the existence of an interest or advantage in favor of each of them.
