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Model D.lgs 231. Page1of42. Piazza Generale Armando Diaz n Milan - Italy Tel Fax

Model D.lgs 231 Model D.lgs 231 Piazza Generale Armando Diaz n Milan - Italy Tel Fax Version Date Reason for the review 1 Approved by the BoD of
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Model D.lgs 231 Model D.lgs 231 Piazza Generale Armando Diaz n Milan - Italy Tel Fax Version Date Reason for the review 1 Approved by the BoD of Coeclerici Spa, 27 September Approved by the BoD of Coeclerici Spa, 26 September 2013 Updating of the Model Page1of42 Contents GENERAL PART 3 1. PURPOSES AND PRINCIPLES OF LAW LEGISLATIVE DECREE NO. 231 OF 8 JUNE PENALTIES PRECAUTIONARY MEASURES ORGANISATION, MANAGEMENT AND CONTROL MODELS FOR EXONERATION FROM LIABILITY REQUIREMENTS OF ORGANISATION, MANAGEMENT AND CONTROL MODELS Confindustria Guide Lines THE COMPANY, THE GOVERNANCE MODEL AND ORGANISATION SYSTEM THE COECLERICI GROUP COECLERICI S.P.A COECLERICI S CORPORTATE GOVERNANCE SYSTEM COECLERICI S.p.A. ORGANISATION, MANAGEMENT AND CONTROL MODEL THE AIMS OF THE MODEL THE CONCEPT OF ACCEPTABLE RISK THE CONSTRCUTION OF THE MODEL AND ITS ADOPTION THE STRUCTURE OF THE MODEL THE SUPERVISORY BOARD COMPOSITION AND APPOINTMENT RULES AND REGULATIONS TERMINATION OF OFFICE THE REQUIREMENTS FUNCTIONS, ACTIVITIES AND POWERS OF THE SUPERVISORY BOARD INFORMATION FLOWS INVOLVING THE SUPERVISORY BOARD ETHICAL STANDARDS THAT REGULATE THE ACTIVITIES OF THE SUPERVISORY BOARD THE CODE OF ETHICS AND CONDUCT RELATIONSHIP BETWEEN THE ORGANISATION, MANAGEMENT AND CONTROL MODEL AND THE CODE OF ETHICS AND CONDUCT PURPOSE OF THE CODE OF ETHICS AND CONDUCT STRUCTURE OF THE CODE OF ETHICS AND CONDUCT THE SYSTEM OF DELEGATED POWERS GENERAL PRINCIPLES THE STRUCTURE OF THE DELEGATED POWERS SYSTEM AND PROCEDURES IN COECLERICI MANUAL AND DIGITAL PROCEDURES MANAGEMENT CONTROL AND FINANCIAL FLOWS TRAINING, COMMUNICATION AND DIFFUSION OF THE MODEL COMMUNICATION AND INVOLVEMENT ON THE MODEL AND RELATED PROTOCOLS TRAINING AND EDUCATION ON THE MODEL AND RELATED PROTOCOLS DISCIPLINARY SYSTEM (AS PER LEGISLATIVE DECREE 231/01 ART. 6, PARAGRAPH. 2, LETTER. E) PURPOSE OF THE DISCIPLINARY SYSTEM PENALTY SYSTEM FOR SALARIED EMPLOYEES PENALTIES FOR SENIOR MANAGEMENT MEASURES FOR DIRECTORS MEASURES FOR AUDITORS MEASURES FOR OTHER ADDRESSEES OTHER MEASURES UPDATING OF THE MODEL 41 Page2of42 GENERAL PART Page3of42 1. PURPOSES AND PRINCIPLES OF LAW 1.1 LEGISLATIVE DECREE No. 231 OF 8 JUNE 2001 The Legislative Decree of 8 June 2001 no. 231, containing the Regulations governing administrative liability of legal entities, companies and associations also without legal status (hereinafter, in short, also Decree 231 ), gave immediate implementation to the legislative delegation contained in art. 11 of law 29 September 2000, no. 300, in which Parliament had established principles and directive criteria for the regulation of administrative liability of legal entities or organisations without legal status for offences committed by subjects operating within the entity, in the interests of or benefit of the same entity. This solution derives from a series of INTERNATIONAL CONVENTIONS of which Italy was a signatory in recent years. Namely: the Convention on the protection of the European Communities financial interests, signed in Brussels on 26 July 1995 and its first protocol ratified in Dublin on 27 September 1996; the protocol concerning the interpretation in a preliminary ruling by the European Court of Justice of the said Convention, signed in Brussels on 29 November 1996; the Convention regarding the fight against corruption involving officials of the European Communities, ratified in Brussels on 26 May 1997; the OECD Convention combating bribery of foreign public officials in international business transactions, with annex, ratified in Paris on 17 December Decree 231 entered into the Italian legal system the principle of administrative liability for crimes as a consequence of unlawful acts committed by those who act in the name and on behalf of the entity represented, in other words: a) persons who have roles of representation, administration or management of the entity or one of its organisations, vested with financial and functional autonomy as well as persons who exercise, even de facto, the management and control of the entity (known as parties in senior management ); b) persons working under instruction or supervision of one of the parties referred to in letter a (known as parties in a subordinate position or subordinated parties ) 1. For the cases expressly contemplated by the law, to the traditional liability for an offence committed (personal criminal liability, which cannot but refer to individuals in virtue of the liable party), the deed representing an offence, with the conditions indicated in the legislation, operates on a dual level, insofar as it integrates both the offence attributable to the individual who committed it (an offence punishable with a penalty), as well as the unlawful administrative act (offence punishable with administrative penalty) for the entity. As regards the NATURE OF LIABILITY of Decree 231, despite the status of administrative liability that appears in the title of the decree, there are different provisions that nonetheless highlight a substantially criminal meaning of the entire legislative corpus. Decree 231, in the first place, introduced the configuration of the entity s liability based on the commission of an offence for which the entity is independently liable, if committed in its interests or benefit by subjects belonging to the organisation of the entity (art. 6), which are made liable for such conduct due to a culpable disorganisation represented by the failure to comply with management and supervisory obligations (art. 7). Indicating the substantially criminal meaning of the liability is also the attribution of jurisdiction to the criminal 1 The entity is not liable if the persons indicated in points a) and b) have acted in their own exclusive interests or of those of third parties. Page4of42 judge, called to comply with the rules of the criminal procedure where not expressly in conflict with Decree 231. Furthermore, a further indication of the criminal matrix of the legislation is the attempt to customise the penalty, not only with pecuniary penalties, but also, among others, with prohibitive penalties which may lead to the definitive closure of the entity. The possibility of the entity being exonerated from liability or of obtaining a reduction in the sanctions-penalties is nonetheless possible, by implementing conduct, either by way of compensation or by demonstrating willingness to reorganise the business structure with the adoption of organisation and management models (art. 6) suitable for preventing criminal conduct by parties belonging to the organisation of the entity. Decree 231 deals with outlining the scope of the ADDRESSEES of the legislation, namely: entities with legal status, companies and associations also without legal status. It is, therefore: parties which have acquired legal status according to statutory procedures, as associations, foundations and other institutions private in nature that have obtained the recognition of the State; companies that have acquired legal status by way of registration in the business and trade registry; unnamed bodies, without financial autonomy, yet nonetheless important legal subjects. Excluded from the list of parties subject to the code of administrative liability for offences are: the State, public local bodies (Regions, Provinces, Municipalities and mountain communities), no- profit public entities and, in general, all entities that carry out function of constitutional importance (Chamber of deputies, Senate of the Republic, Constitutional Court, General Secretariat of the Presidency of the Republic, C.S.M., CNEL). Art. 5 of Decree 231 identifies the CRITERIA OF NON-INDIVIDUAL LIABILITY for administrative liability for crimes. The legislation sets out three conditions in the presence of which the offence may be attributed to the entity: the offence must be committed in the interests or benefit of the entity; the agents must be individuals in a senior or subordinated position; the agents must not have acted in the sole interests of themselves or of third parties. Art. 6 and 7 identify the CRITERIA OF NON-INDIVIDUAL LIABILITY, in that, for the purposes of the configuration of administrative liability for crimes, the sole attribution of the offence to the entity is not sufficient, but a judgement of reproach regarding the same entity must be formulated. The parameters of the entity s liability differ depending on whether the predicate offence was committed by persons in senior or subordinated positions. Art. 6 outlines the profiles of the entity s liability in the case of offences committed by senior parties, as identified in art. 5 paragraph 1 letter a. The entity, however, is not liable if it is proven that: organisation and management models suited to preventing criminal conduct of the same nature of those committed were adopted and effectively implemented by the Board of Directors, before the offence was committed,; the task of supervising the function, compliance with and updating of such models was entrusted to a body of the entity vested with independent powers of initiative and control (hereinafter, in brief, Supervisory Board or also SB ); the individuals were able to commit the offence insofar as they fraudulently avoided the models; there was no omitted or inadequate supervision by the Supervisory Board within the entity. As for the conditions that must occur for the entity to be deemed liable for offences committed by subordinate parties (art. 5 paragraph 1 letter b), art. 7 generally establishes that the entity s liability stems from the failure to Page5of42 comply with the obligations of management and supervision that are the charge of the entity itself. In any case, the entity is exonerated if, before the crime was committed, it had adopted organisation and management models suited to prevent offences of the same kind that was committed by the subordinate party. Unlike that set forth for offences committed by senior parties, in this case, it is down to the prosecution to prove the failed adoption and/or ineffective implementation of the models. Section III of Heading I of Decree 231 outlines in the catalogue of predicate offences whose commission may lead to the entity s administrative liability, whether committed by a senior party or a party working under the instructions of superiors. Over the years, a progressive expansion of this catalogue has been witnessed (originally restricted to the provisions of articles 24 and 25), and more so with the implementation of the contents of International Conventions to which Italy has adhered and which also provide for forms of empowering collective entities. The original nucleus of the Section, with the provision of art. 24 of Decree 231 includes the following offences against the Public Administration: misappropriation to the detriment of the State (art. 316-bis Italian Criminal Code); improper receipt of funds to the detriment of the State (art. 316-ter Italian Criminal Code); fraud to the detriment of the State or other public entity (art. 640 c. 2 n. 1 Italian Criminal Code); aggravated fraud for the attainment of public funds (art. 640-bis Italian Criminal Code); computer fraud committed to the detriment of the State or other public entity (art. 640-ter Italian Criminal Code). Public Administration is understood as public institutions, public officials and persons in charge of a public service, namely the group of public entities and subjects (State, Ministries, Regions, Provinces, Municipalities etc.) and sometimes private ones (agents providing public services, Awarding authorities, joint ventures, etc.) and all other figures that perform in nay way a public function in the interests of the community. Public institutions refers to, by way of example, the companies and administrations of the State, the Regions, the provinces, the Municipalities and their consortiums and associations, universities, chambers of commerce, industry, artisanal and agriculture, non-profit national, regional and local public entities,, administrations, national healthcare companies and entities. A public function is also played by members of the European Commission, the European Parliament, the Court of Justice and the Court of Auditors of the European Community. Public official, as regulated by art.357 Italian Criminal Code, refers to a subject that exercises a public legislative, judiciary or administrative function. The administrative function regulated by public laws is considered public, or by acts constituting the exercise of public authority and characterised by the formation and manifestation of the wishes of the public administration and by its performance as authoritative and certifying powers. Person in charge of a public service, as regulated by art.358 of the Italian Criminal Code, is whoever, in whatever way, renders a public service, taken as an activity disciplined in the same way as a public function, but characterised by the lack of powers typical of the latter and with the exclusion of the performance of simple duties of law and order and by the performance of material labour alone. A person in charge of a public service is therefore whoever carries out a public activity, not attributable to any of the functions described above and not regarding simple duties in law and order and/or the performance of material labour alone and, as such, without any intellectual and discretional input. Examples of persons in charge of a public service are employees of entities that carry out public services even if being private in their nature. Art. 24-bis of Decree 231 was introduced by law 18 March 2008, no. 48 by the ratification and execution of the Convention of the European Council on IT crimes, in Budapest on 23 November 2001 in line with the increase in the Page6of42 type of offences triggered by the inevitable use of IT apparatus (which includes IT and digital systems, as well as programmes, others information and data) ain the performance of company activities. The text of the law introduced new offences based on IT offences and illegal processing of data. Such predicate offences are: illegal access to an IT or electronic system (art. 615-ter Italian Criminal Code); illegal bugging, prevention or interruption of IT or electronic communications (art. 617-quater Italian Criminal Code); installation of equipment aimed at bugging, preventing or interrupting IT or electronic communications (art. 617-quinquies Italian Criminal Code); criminal damage of IT and electronic systems (art. 635-bis Italian Criminal Code); criminal damage of information, data or IT programmes used by the State or by other public entities or nonetheless in the public interest (art. 635-ter Italian Criminal Code); criminal damage to IT or electronic systems (art. 635-quater Italian Criminal Code); criminal damage to IT or electronic systems of the public interest (art. 635-quinquies Italian Criminal Code); any fraud provided for by Capo III, Book II of the Italian Criminal Code, if regarding an IT or public document, taking that as being any IT support containing data or information having evidential effectiveness or programmes specifically for processes the same having also evidential effectiveness (art. 491-bis Italian Criminal Code); IT fraud by the party that provides electronic signature certification services (art. 640-quinquies Italian Criminal Code). Art. 1 of the aforementioned Budapest Convention defines the concepts of IT system and IT data. IT system refers to any equipment, device, group of equipment or devices, interconnected or linked, or more of such that carry out automatic data processing, based on a programme. The concept of IT data is defined by making reference to the use, that is: any representation of facts, information or concepts in suitable form for processing by an IT system, including a programme capable of allowing an IT system to perform a function. Art. 24-ter of Decree 231 was introduced by the law of 15 July 2009 no.94 and includes within administrative liability the offences of organised crime, which include the following criminal offences: criminal association aimed at enslavement or forced labour, underage prostitution, underage pornography, and offences regarding violations of the provisions on illegal immigration (art. 416, VI paragraph, Italian Criminal Code); mafia-type association, also foreign (art. 416-bis Italian Criminal Code); political-mafia electoral fraud (art. 416-ter Italian Criminal Code); kidnapping for the purpose of extortion (art. 630 Italian Criminal Code); criminal association aimed at the sale of narcotics (art. 74 of Presidential Decree 309/90); criminal association offences (art. 416 Italian Criminal Code, excluding paragraph VI); offences regarding the manufacture and trafficking of war arms, explosives and illegal arms (art. 407, paragraph 2, letter a), number 5, of the Italian Criminal Code.); offences committed in order to facilitate mafia-type criminal association activities, also foreign, provided for by art. 416 bis Italian Criminal Code; offences committed by making use of the conditions provided for by art. 416-bis Italian Criminal Code Page7of42 Art. 25 of Decree 231 counts as relevant for the purposes of administrative liability offences against the Public Administration including the crimes of misappropriation and corruption, known as proper offences, insofar as they occur only where the active party holds the position of public official or person in charge of a public service. The legislation divides these crimes into three categories with regard the seriousness of each criminal conduct. The first category includes: bribery for an official deed (art. 318 Italian Criminal Code) with regard both to the case of active corruption (art. 321 Italian Criminal Code), as well as the case of unaccepted incitement to corruption (art. 322 paragraphs 1 and 3 Italian Criminal Code). The second category includes: bribery for a deed contrary to official duties (art. 319 Italian Criminal Code); simple judicial corruption (art. 319-ter Italian Criminal Code) including also the cases regarding the corruptor (art. 321 Italian Criminal Code) and unaccepted incitement to corruption (art. 322 paragraphs 2 and 4 Italian Criminal Code). The third category includes: misappropriation (art. 317 Italian Criminal Code); bribery for an act contrary to official duties (art. 319 Italian Criminal Code) aggravated when the entity has obtained major gain from the deed (pursuant to art. 319-bis Italian Criminal Code); aggravated judicial corruption (art. 319-ter c. 2 Italian Criminal Code) including the cases regarding the corruptor; unlawful incitement to give or promise benefits (art. 319-quater Italian Criminal Code), introduced by art. 77, letter 1) of Law no. 190 of 6/11/2012. Decree 231 provides for the extension of the entity s administrative liability also to cases in which the offences indicated in the four categories described above were committed by public officials, persons in charge of a public service, members of European community bodies or by officials of the European Community and foreign states. Art. 25-bis of Decree 231, introduced by conversion law no. 409 of 23 November 2001 of the Legislative Decree 350/2001 containing urgent provisions in view of the euro and subsequent modification by Law no.99 of 23 July 2009 containing provisions for the development and of revenue stamps and of identification instruments or signs, for the purposes of administrative liability are: forgery, abuse and introduction into the State, acting in concert, of forged money (art. 453 Italian Criminal Code); alteration of money (art. 454 Italian Criminal Code); abuse and introduction into the State, without acting in concert, of forged money (art. 455 Italian Criminal Code); abuse of forged money received in good faith (art. 457 Italian Criminal Code); forgery of revenue stamps, the introduction into the State, purchase, pos
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