Reform of Decree 231: the proposals of Assonime and Confindustria

While waiting for the final text, it is worth reviewing the contributions of Assonime and Confindustria that, with two position papers published on 2nd and 11th April 2025 – respectively, “Sulla riforma della disciplina della responsabilità degli enti. Osservazioni e proposte” and “Prospettive di riforma della responsabilità “amministrativa” degli enti (disciplina 231)” – provided a critical reading and suggestions for improvement in order to achieve a comprehensive reform of the 231 system. 

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First, particular attention is paid to redefining the objective scope of application of Legislative Decree no. 231/2001, through a rationalization of the catalogue of predicate offences, which is currently considered excessively broad and uneven. Over time, in fact, types of offences that are often unrelated to corporate crime have been included, as if any conduct that is criminally relevant to natural persons also had – automatically – an impact on legal persons.

In this perspective, Confindustria proposes a selective intervention aimed at excluding those types of offences that are clearly misaligned with the purposes of the legislation, to give legal certainty to companies and make the prevention measures adopted by them more effective and targeted.

Also on the subjective level, both Confindustria and Assonime urge an update of the regulations that considers the actual morphology of the Italian business landscape, which is dominated by micro and small enterprises and, in parallel, by an increasing spread of corporate groups.

For smaller companies, in fact, the application of Legislative Decree no. 231/2001 is often disproportionate. These are structures with simplified governance, a limited number of employees and limited resources, for which the adoption of an organizational model often appears burdensome and impractical, considering the difficulty of: identifying suitable control points, ensuring the separation of functions and responsibilities, and creating a structured control system that enables the effective dissociation between the will of the perpetrator and the will of the entity.

Assonime proposes, therefore, the introduction of a principle of proportionality of the requirements for the prevention of the risk of crime with respect to company size, with the possibility of adopting simplified organizational models in smaller companies. Confindustria, more radically, suggests excluding micro-enterprises from the application perimeter of the discipline, leaving them the possibility of voluntarily adopting preventive protocols like those of the organizational model, especially to meet the compliance needs of corporate groups or supply chains to which they may belong.

Regarding corporate groups, there is a need for regulatory intervention that expressly defines the coordination between group compliance measures and the organizational models of the subsidiaries, also clarifying the conditions for the parent company to be held liable under Legislative Decree no. 231/2001 in the event of a crime committed within a subsidiary, including a foreign one.

To return Legislative Decree 231/2001 to its original function as a tool for preventing corporate crime, the reform should enhance the virtuous conduct of entities, both before and after the crime is committed. The current absence of regulatory provisions on the contents of the organizational model has made its exempting effectiveness uncertain, which is now left to the discretionary and case-by-case assessment of judges, in the absence of precise reference parameters.

Assonime and Confindustria also emphasize the need to enhance the overall corporate compliance structure of entities in order to recognise exemption from liability, by coordinating the organizational model with the internal control systems adopted in compliance with other sectoral laws (on data protection, antitrust, occupational health and safety, ESG, etc.) or soft laws (ISO standards, legality rating, etc.), with a view to integrated compliance.

Finally, it is proposed to incentivize post-factum conduct through negotiated justice mechanisms – inspired by deferred prosecution agreements – as well as the use of the institution of suspension of proceedings with probation, favoring a balance between the need for reorganization of the entity and the need to continue its activity.

Finally, Confindustria and Assonime suggest some corrective measures on the procedural and sanctioning level: the overcoming the distinction between crimes committed by senior managers and crimes committed by subordinates and the repeal of the requirement of fraudulent circumvention of the organizational model as an exempting condition; the introduction of the assessment of subjective parameters in addition to periculum in mora, when applying sanctions, including precautionary sanctions; the alignment of the statute of limitations for entities with that for individuals; the application to entities of the grounds for non-punishment due to the extinction of tax debt pursuant to Legislative Decree no. 173/2024 and due to the particular insignificance of the offence pursuant to Article 131-bis of the Italian Criminal Code, already provided for individuals.

The reform of Legislative Decree no. 231/2001 looms as a crucial opportunity to update the regulation of corporate liability, making it more consistent with regulatory and case law developments and more adherent to the needs of the business fabric. 

The hope is for a more streamlined, effective system capable of promoting a culture of compliance that is truly prevention-oriented, thanks to the implementation of consistent and effective organizational models.