Assonime’s analysis in the event of posting of employees abroad

Edited by Francesca Tironi, Giulia Spalazzi, Lorenzo Vassalli, Paola Barazzetta, Pamela Terazzi, Mattia Caprioni

Assonime, the association of Italian joint-stock companies that since 1910 has aimed to improve the quality of Italian and European legislation, studying its impact on the economic system and the functioning of the markets, recently analyzed the framework provided for by Legislative Decree no. 231/2001 in case of posting of employees abroad.

In this regard, it should be recalled that Legislative Decree No. 231/2001 regulates in the Italian legal system the so-called administrative liability of entities (meaning both entities with legal personality and companies and associations, including those without legal personality) in the event of the commission of one of the criminal offences expressly provided for by the same Decree by a top-level manager or subordinate, who has acted in the interest or to the advantage of the entity.

In particular, Assonime focused on the hypothesis of the posting of personnel abroad, emphasizing the need to distinguish between cases in which the predicate criminal offence pursuant to Legislative Decree no. 231/2001 is entirely committed outside Italian territory and those in which part of the conduct occurs in Italy.

According to Assonime’s interpretation, in fact, if a criminal offence is fully committed abroad, the liability of the entity is only possible if certain conditions are met. In this regard, Article no. 4 of Legislative Decree no. 231/2001 provides that in the cases and under the conditions laid down in Articles 7, 8, 9 and 10 of the Italian Criminal Code, entities having their head office in Italy shall also be liable in relation to criminal offences committed abroad, provided that the State of the place where the offence was committed does not take action against them.
Moreover, in cases where the law provides that the offender is punished at the request of the Minister of Justice, proceedings are only brought against the entity if the request is also made against the latter.

If only a part of the offence is actually committed in Italy, however, the entire criminal offence falls under Italian law and jurisdiction, in accordance with Article 6 of the Italian Criminal Code. It follows that, for instance, the criminal offence is considered to have been committed in Italy even when only the accessory acts were conceived in our country, while the material execution of the offence took place entirely abroad.

In view of this legal framework, Assonime focuses its analysis on the hypothesis that seconded employees hold top management positions in the seconding company. In such a scenario, in fact, the integration of a minimum segment of conduct in Italy could be achieved, thus triggering Italian jurisdiction.

In order to eliminate the risk of criminal offences pursuant to Legislative Decree no. 231/2001 being committed and the potential liability of the entity arising from such situations, Assonime recommends that companies adopt an effective code of ethics with unlimited territorial validity and an organizational, management and control model pursuant to Legislative Decree no. 231/2001 in which: (i) specific control measures are implemented to regulate the management of employees seconded abroad, (ii) specific information flows to the Supervisory Board are provided for, and (iii) formation courses are organized.