Intelligence and the great challenges it is bringing to democratic societies. And think about the recent European AI Act: it provides a new setting of rules, built on a risk-based approach, which requires adequate assessment and management of (precisely) the risk of human rights violations. In this new scenario, a long-standing experience in the human rights field will be crucial for the ethical use of these new machines by the companies, which shall adopt and implement policies and procedures crafted on this approach and aimed at mitigating and managing any arising risk. What are the main features of whitecollar enforcement in Italy in comparison with other jurisdictions? In the very first place, it should be highlighted that companies in Italy may be held liable before criminal courts for certain specific crimes committed in their interest or to their advantage by their directors or employees. After years of regulatory vacuum, following the ancient Roman formula “societas delinquere non potest”, in 2001 the mentioned formula was deleted, and several criminal offences started to be considered relevant for companies (by the so-called Law No. 231/2001). The new legal framework has been progressively applied by prosecutors and criminal courts, representing an effective deterrent tool given the heavy sanctions that may be imposed (fines, disqualifying measures such as the prohibition to carry out the business for a certain period or the suspension or revocation of permits or licenses, which may have a drastic impact on the company’s operations). One of the main differences with other jurisdictions is that in Italy, public prosecutors do not have discretion in deciding whether to prosecute or not. In other words, they have a legal obligation to open an investigation whenever they become aware that a crime may have been committed. I have often seen criminal complaints targeting corporations or their senior executives being filed in complex corporate battles to be used as leverage in the overall litigation strategy. Well, even in these situations, the public prosecutor should basically proceed, being able to assess the reliability of the allegation (and finally ask for dismissal) just after some preliminary investigations. In fact, Italian law does not provide for non-prosecution or deferred prosecution agreements. As a result, for those companies whose trial is not dismissed, settling the case directly with the prosecutor is not possible: the only option will remain an agreement with the Public Prosecution, to be filed before a judge for a plea bargain. What does this mean for companies and or individuals operating in your jurisdiction? Which internal processes and departments are mainly involved in committing white collar offences? For those who are under investigation or accused of committing such crimes, what are the main implications and consequences? The advice we often give to our clients is to invest in compliance. Italian legal system is ‘civil law’ based, which indeed consists of mostly written laws, where compliance with several national laws becomes essential to protect the assets and the reputation of companies. This implies that a proper assessment of purchase function will allow due management of the risk of a conflict of interest with the public body and, thus the risk of corruption. An example could help. Let’s think about a pharma company that appoints, as a consultant, a doctor of high standing (e.g. an opinion leader). This appointment could lead, despite the good faith of the company, to a criminal investigation and, more precisely, to a criminal charge for bribery, assuming that the doctor prescribed, to his patients, drugs manufactured or distributed by the client company. This kind of situation may be avoided by a more adequate assessment and management of the purchasing process of that consultancy engagement. A proper interaction between the HR function and purchasing function could surely mitigate the risk of illegal labour exploitation, as well as the related risk of tax fraud. To this end, we often suggest a due diligence on the company’s potential WWW.LAWYER-MONTHLY.COM 13 One of the main differences with other jurisdictions is that in Italy, public prosecutors do not have discretion in deciding whether to prosecute or not.
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