Corporate administrative responsibility for crimes committed in its interest. A topic for further study.
Administrative responsibility of legal persons, Leg. 231/2001
Legislative Decree 231/2001 has superseded the Enlightenment principle that ‘society cannot commit crimes’ and criminal liability hinges on the individual. The private interest of a collective entity, after all, has often proven and is still confirmed to animate quite a few criminal actions.
The entity’s administrative liability arises from the assertion of criminal liability of certain individuals for having committed certain crimes (so-called predicate crimes) in the interest or to the benefit of the entity.
The underlying crimes are typical ‘white collar’ ones, from bribery to the endless receipt of public grants, fraud against the public administration on the various levels (local, national, European). In addition to corporate crimes and, as we shall see, trade fraud. (1)
The perpetrators of the crimes may be those who perform representative, administrative or management functions of the entity. Or management and control, even if only de facto. As well as persons ‘subordinate’ to them, who perform tasks under the direction or supervision of the top individuals.
The wrongdoing attributed to the entity thus stems from criminal corporate policies or deficiencies in governance. Where the legal person has been unable to prevent the commission of the crime through an effective organizational model.
The court may evaluate the model of organization and if appropriate exclude the entity’s liability. On the off chance that the criminal event is absolutely unpredictable and unavoidable. In the face of a well-designed control system and implemented in practice with the help of a special body, the so-called supervisory committee.
Crime of fraud in trade and corporate administrative responsibility
The crimes of fraud in trade and selling non-genuine substances as genuine are the ones to be watched most closely, within the food chain. (2) Precisely because such crimes can intervene in the operators’ own activities, from seed to table.
231 to 231. The legislative decree of 2001 introduced the liability of entities for crimes committed for their benefit, that of 2017 reaffirmed the primacy of the criminal law if consumer information constitutes the crime of fraud, or others. (3)
The responsibility of the distributor is crucial. In both cases of
retail
physical and
online
, the seller may in fact be held liable as an accessory to the crimes of fraud.
The legal representative of the large-scale retailer (4) can therefore become involved in criminal proceedings for failing to prevent the sale of products that differ from what was promised, (5). And having vice versa participated in the realization of the unjust profit, given that a not insignificant margin on the final price of the product is accrued precisely by the distributor, even in cases of fraud.
Fraud in trade and business risk
Thus, the most serious risk for the organization is to become involved in the criminal prosecution of its representatives or their proxies, suffering conviction to even exemplary administrative punishment for trade fraud committed for its own benefit. (6)
To avoid incurring liability, the organization must adopt appropriate procedures for verifying the information accompanying food, both on MDD ( Private Label, or Private Label) and IdM (Industry Brand) products.
Controls must be systematic and preventive. Regardless of examining the data sheets of the goods, precisely to prevent the sale of ‘aliud pro alio‘. (7) Nor neglect the value of second-party audits, even as an alternative to certifications, to consolidate reliance on all suppliers, without discounting anyone.
Dario Dongo and Pier Luigi Copparoni
Notes
(1) The predicate offenses from which the administrative liability of legal persons may arise are set forth in Leg. 231/01 and subsequent amendments (most recently made through Law 179/17)
(2) Cf. d.lgs. 231/01, Article 25a1, and Criminal Code, Articles 515 and 516
(3) For further discussion, please refer to our free ebook ‘1169 penis. Reg. EU 1169/11, food news, controls and penalties’, at https://www.greatitalianfoodtrade.it/libri/1169-pene-e-book-gratuito-su-delitti-e-sanzioni-nel-food
(4) The legal representative may be relieved of liability only where the court finds that there is an effective delegation of authority, even before liability, to associates with the necessary skills
(5) In the face of the specific duty to refrain from the sale of products of which one knows or even has reason to suspect non-compliance with applicable regulations. See in this regard reg. EU 1169/11, Article 8.3
(6) Except in the sole, remote case where the offender is shown to have acted in his own exclusive interest or that of a third party. In the case, for example, of private bribery of a CEO, executive, or buyer in the large-scale retail sector who accepts undue gratuities to facilitate the access and shelf placement of outlawed products. Thus failing, among other things, to fulfill his obligations of loyalty to his employer
(7) The sale of ‘
aliud pro alio
‘, that is, of one thing in the place of another, in fact coincides with the material case of the crime of fraud in commerce referred to in Article 515 of the Criminal Code
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
