Gruppi multinazionali, regole di responsabilità e applicazione del D.LGS. N. 231/2001 a fattispecie internazionali di gruppo

• Autores: Alberto Mazzoni
• Localización: Jus: Rivista di Scienze Giuridiche, ISSN 0022-6955, Vol. 58, Nº. 1-2, 2011 (Ejemplar dedicado a: Incontro di studi in ricordo di ARMANDO BARTULLI. Il diritto penale nell'economia di oggi), págs. 227-247
• Idioma: italiano
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• Resumen

  • The purpose of the essay is to argue that an international approach, as opposed to a purely domestic one, is especially appropriate and helpful for the purpose of correctly applying the Italian legislation on quasi-criminal liability of legal entities (Legislative decree 231/2001), in situations involving companies belonging to a multinational group having links with the Italian territory and/or the Italian legal order. The starting point of the analysis is an overview of the scope and the underlying rationale of the different liability ruels affecting multinational gropups of companies in a variety of situations. In particular, reference is made to the liability rules in antitrust cases, in cross-border insolvency cases ad in cases involving civil actions for the recovery of environmental or catastrophic damages (including also consideration of the potencial availability in common law jurisdictions of the forum non conveniens doctrine). On the whole, the development of the analysis supports two main conclusions, namely (i) in order to determine which legal entity among those belonging to a multinational group may be sanctioned pursuant to the liabilityu rules provided by Legislative Decree231/2001, regard must be had to the applicable proper law governing the issue of the imputation link between the individual having committed the criminal act and the legal entity on whose bahalf or service such individual must be deemed to have acted; and (ii) for the purpose of avoiding liability under Legislative Decree 231/2001 on the ground that the criminal act was committed notwithstanding an adequate surveillance system had been organized, implemented and put to work, multinationalgroups are not mandatorily required to set up "ad hoc" survaillance bodies in accordance with Italian local practice, but (in theory at least) are entitled to mantain their own multinational codes of conduct or intra-group international compliance rules, provided always that the anti-criminal preventive effect of such codes or rules may be shown to be equivalent to (i.e., not less stringent than) the Italian surveillance models, as the latter have developed in the domestic practice.