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Supervisory Body under Law 231/2001

Supervisory Body under Law 231/2001

Investigative support to the Supervisory Body on the observance of the "231 Organizational Model".

Legislative Decree 231/2001 - Administrative responsibility for crime

We have gained experience in providing information to the Supervisory Bodies. The purpose is to highlight facts and situations that may be a critical issue of the "231 Organizational Model". We carry out intelligence and investigation activities to ascertain compliance with the agreed procedures.

In particular, on behalf of the Supervisory Body we also carry out preventive investigations aimed at verifying:

  • environmental crimes (Article 25-undecies, Legislative Decree No. 231/2001);
  • corporate offenses (Article 25-ter, Legislative Decree No. 231/2001) and specifically private sector corruption (Article 2635 of the Civil Code);
  • crimes against industry and commerce (Article 25-bis.1, Legislative Decree No. 231/2001);
  • extortion, inducement to give or promise other benefits and corruption (Article 25, Legislative Decree No. 231/2001);
  • IT crimes and illicit data processing (Article 24-bis, Legislative Decree No. 231/2001).

The activities are carried out, with our correspondents, in all countries where the Customer operates or intends to operate. We have developed a best practice that concerns the reputational survey of the subjects who, on behalf of the Customer, carry out commercial or relational activities with the local institutions.

 

Bribery Act

The Bribery Act is the homologous regulatory provision of Legislative Decree 231/2001, in force, in the United Kingdom, from July 1, 2011. It introduced a new type of responsibility of companies for corruptions committed to their advantage or in their interest, in case they do not possess internal organizational models designed to prevent such acts.

For companies operating in the English territory, it is therefore important to adopt a suitable and effective model to constitute a possible defense for the company itself in the trial phase.

The Ministry of Justice in England has published a "guide on the procedures that companies can put in place to prevent people, associated with them, from performing acts of corruption" (Guidance on procedures from bribing) containing six guiding principles, each of which is accompanied by comments and examples. Despite being a useful document for the adaptation of the model, any discrepancy from the procedures suggested in the guide does not in itself mean that the company does not have adequate procedures.

The aforementioned guidelines start from the assumption that commercial organizations must adopt a risk-based approach, to manage any risks deriving from corruption. The latter vary according to many elements, for example depending on the sector in which the company operates and on the basis of the size and the place where the activity is carried out, making it necessary to calibrate the application of the principles established on the basis of reality. operating company.

Dogma Srl, thanks to the experience gained in the international field, and through the collaboration of selected and highly qualified foreign correspondents of which it avails, advises companies that intend to verify and eventually adapt their organization to the provisions dictated by the Bribery Act, with the aim of minimizing the responsibility of the same in case of corruptive episodes in which they find themselves involved.

 

Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act (FCPA) is the American law that is equivalent to the Italian Legislative Decree 231/2001. Entered into force in 1977, it consists of a set of rules containing provisions aimed at preventing corruption, by American companies and foreign public officials, in order to obtain or maintain commercial relations.

FCPA has worldwide resonance, since the rules contained therein are commonly held to be the inspiring model of the OECD Convention on the "Fight against the corruption of foreign public officials in international economic operations" of 1997, which represents the first international instrument of contrast to the phenomenon.

The legislation is extremely detailed and is aimed at both individuals and companies. If on the one hand penalties are punishable by the illicit payments, on the other hand, firms are required to carry out a series of internal controls, focused on the transparency of the accounting books, so as to allow both the company itself and the federal authorities to exercise an easy control over the management of financial flows.

The recipients of the provisions are "domestic concerns", ie persons (physical or juridical) resident or established in the territory of the United States, and "issuer", foreign companies that buy or sell securities in the United States. In 1998 an amendment was made that further expanded the list of recipients by subjecting the regulation to foreign companies, controlled or owned by a US corporation that have carried out corrupt practices in the USA. This expansion is of considerable interest to all Italian companies that are part of US groups, since not only can they be directed recipients of sanctions by the American authorities, if they have committed acts of corruption in the US, but can also co-distribute the US parent company that has failed to examine the actions of its subsidiary, omitting the adoption of appropriate regulations on the matter.

Dogma, thanks to the experience gained in the international field, and through the collaboration of selected foreign correspondents and highly qualified in the US, advises companies that intend to verify and eventually adapt their organization to the requirements contained in the 'FCPA, with the aim of minimizing, for the same, the risk of incurring penalties in case of corruptive episodes in which they find themselves involved.

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