We would like to highlight a very recent and interesting Decree for Dismissal pursuant to Art. 58, Legislative Decree 231/2001, filed by the Milan Public Prosecutor's Office on 11 November 2022.
The filing was made at the conclusion of criminal proceedings initiated in 2021 against a multinational company, which was charged with the offence of using invoices for legally non-existent transactions, simulating procurement contracts instead of supplying labour, under Art. 25-quinquiesdecies, Legislative Decree 231/2001.
A reading of the aforementioned decree for dismissal, heralds points of reflection undoubtedly worthy of consideration. One of the topics of main interest appears to be, first and foremost, that which is linked to the principle of ne bis in idem or ‘double jeopardy in systems featuring a double sanction system.
This is because, since the company had previously paid the relevant tax penalties imposed on it under Legislative Decree 471/1997, the question arose as to the appropriateness of continuing the proceedings pursuant to Legislative Decree No. 231/2001, in order to avoid undue duplication of sanctions.
Indeed, this topic had already been the subject of historical consideration by national and supranational authorities, which had issued some highly valuable statements on the matter.
This same decree for dismissal does not in fact refrain from mentioning well-known judgments of the European Court of Human Rights, such as those relating to the cases of Grande Stevens v. Italy on 4 March 2014, but also A and B v. Norway of 15 November 2016 and on the criteria illustrating the essentially penal nature of administrative sanctions, Engel et al v. The Netherlands of 8 June 1976.
Indeed, the significant principles deriving from the aforementioned judgments served as the keystone for part of the arguments put forward by the Milan Public Prosecutor's Office in drafting the decree for dismissal. The latter, first of all, are in fact based on consideration of the fact that the idem factum schema, in its historical factual connotation, finds immediate application in the case in question. Moreover, given the dissuasive and afflictive nature of the tax sanctions already imposed, the state's punitive claim against the multinational corporation involved could have been deemed satisfied in this sense, without the need to also impose on the corporation those provided for in connection with administrative liability for offences. Indeed, the tax penalties under consideration have been characterized as having a "substantially penal" nature, in a clear sense that the imposition of any penalties under Legislative Decree 231/2001, would have been a violation of the principle of proportionality and the prohibition of bis in idem,or double jeopardy. Although the aspects just mentioned have plated an undoubtedly important role, the decision not to continue with the proceedings concerning the administrative responsibility of the corporation, is to be considered the product of reflections with an even wider scope.
The Milan Public Prosecutor's Office in fact demonstrates, with the decree of dismissal in question, that it has paid special attention with regard to the conduct adopted by the multinational company during the course of both proceedings, with a specific focus toward the commitment shown by it in repairing the harmful consequences resulting from the offence. Precisely in this sense, both the organisational model duly adopted by the company and aimed at combating the macro area of risk relating to relations with suppliers of goods and services, and the project to hire workers employed by the suppliers are mentioned, with the aim of emphasizing the remedial conduct of the company. Elements that would clearly signal the company's intentions as being perfectly in line with a fully legal framework.
Indeed, it is precisely this that seems to be the new element. Reading the decree, one can in fact infer, that the state's punitive claim could be waived in the face of certain conduct adopted by the company that could be translated as conduct forming part of a "restoration of legality" programme. The rationale described would seem to be that of allowing the company to be held accountable with respect to the contested facts, with the goal of enabling it to adopt virtuous models of management and reorganisation, thus allowing its "reintegration" by identifying the punitive response as having the nature of a final solution. We refer, specifically, to a North American-inspired institute, introduced in France in 2016, which was used in the resolution of the well-known "Airbus" case. The institution in question provides, upon reaching a special agreement between the Prosecutor and the company involved, and upon fulfilment of the specific obligations therein, for impeding the state in exercising a punitive claim.
In reality these are mechanisms, also already provided for in the United States, which offer interesting insights from the point of view of controlling the criminality of companies, which would have the opportunity, by using instruments offering a more rapid solution, to disassociate themselves from the procedural fates of natural persons who may be responsible for the crime, and to avoid having to endure all the negative aspects entailed due to involvement in criminal proceedings.
It cannot be denied, therefore, that a rationale with these connotations carries undoubted benefits, especially considering the innovative scope with which this highly significant subject is addressed. Considering, in fact, that it would be sufficient for the company to arrange for a reorganisation of corporate protocols and development of projects aimed at a future virtuous management under the banner of legality, it would be an undoubtedly stimulating approach, in the shared desire to avert undue procedural and punitive burdens.
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