1. Legislative Decree no. 231/2001 and relevant legislation
The Legislative Decree, 8 June 2001 no. 231 (hereinafter, “Legislative Decree no. 231/2001” or the “Decree”), implementing the delegated power conferred to the Government by Article 11, Act 29th September 2000, no. 300, is known as the legal framework governing “Corporate Liability for White Collar Crime”, and applies to corporations with legal personality and companies and associations regardless of whether they have legal personality.
The Decree owes its origins first and foremost to international and EC conventions ratified by Italy which provide for the compulsory institution of a form of liability for collective corporations in relation to certain types of crime; in fact, such corporations can be held “liable” for certain unlawful acts, whether committed or attempted, including in the interests or to the advantage of members of top management of companies (persons in the so-called “white collar” positions) as well as those responsible for directing or supervising them. (article 5, para. 1, of Legislative Decree no. 231/2001)
Administrative liability of corporations exists independently of criminal liability associated with natural person who perpetrates the unlawful act itself; it does not replace, rather it supplements the individual liability of person who has committed a crime.
Nonetheless, liability is excluded if the corporation concerned has, among others, adopted and effectively implemented prior to the commission of the crimes, organisational models, appropriate management and controls aimed at preventing the commission of the crimes themselves; these models can be adopted in the form of codes of conduct (guidelines) developed by the associations representing the corporations, such as Confindustria, and communications issued by the Ministry of Justice. In the punishment of certain unlawful criminal acts, the Legislative Decree 231/2001 also implicated the assets of corporations that have taken advantage of the situation. For all unlawful acts that have been committed, a pecuniary penalty is always foreseen; for the most serious cases, prohibitive measures are also foreseen such as suspension of even revocation of permits granted, and the prohibition on concluding agreement with the public administration, the prohibition on conducting business activities, exclusion from or revocation of financing and contributions, the prohibition on advertising goods and services.
Administrative liability is in any case excluded if the “white collar” directors and/or their subordinates have acted exclusively in their own interests or those of third parties.
As regards specific types of crime to which the framework in question applies, the subject is dealt with in greater detail in Annexe A.
2. Codes of conduct drawn up by associations representing corporations
Article 6, para. 3, of Legislative Decree no. 231/2001 states that “organisational and operational models can be adopted, thereby guaranteeing the needs set forth in para. 2, on the basis of codes of conduct drafted by associations representing the corporations, sent to the competent Ministry of Justice, which together with the competent Ministries may formulate its observations on the models aimed at preventing crimes within thirty days”.
In the Model prepared for present purposes, the Company drew its inspiration from the Confindustria Guidelines, in addition to the Codes of Conduct of the major representative associations and best practices relating to the various areas of activity. Any divergence from the specific points set forth in the Confindustria Guidelines are based on the need to adapt the organisational and operational models to the activities actually carried out by the Company and the context in which it operates.
3. Extending the principles laid down by the Model
According to the Steering and Coordination letter sent by the Holding Company to its Subsidiaries, the Holding Company draws up the Group Code of Ethics and defines the policies to be followed in relation to the organisational and operational models, as set forth by Legislative Decree 231/2001.
Moreover, A2A will send its own Model as approved by the Management Committee to its subsidiaries in the manner it considers most appropriate - or a document containing the so-called General Principles of the Model (abstract) which have to serve as the basis of the subsidiaries’ own organisational models – and any later amendments to the same.
These companies may adopt, upon deliberation of their own boards of directors, and taking responsibility for the same, organisation, management and control models pursuant to the intents and purposes of Legislative Decree no. 231/2001, base don the so-called General Principles of the Model referred to, and the “Guidelines for the extension of the Organisation, management and Control Model, ex Legislative Decree no. 231/2001 for Subsidiary Companies”.
The subsidiary companies of the Group communicate any difficulties they have in making their own Model comply with this Organisation, management and Control Model to the Supervisory Body of the Holding Company.
The Company, as the Holding Company, has the power to verify the conformity of the Models of the subsidiary companies with the criteria communicated to them by means of the aforementioned “guidelines”.
Until they adopt their own Models, the companies in the Group ensure that crimes are prevented by taking appropriate organisational and internal control models.