THE EPISODICITY OF THE VIOLATION AND THE SMALLNESS OF THE ADVANTAGE DO NOT EXCLUDE THE ENTITY’S LIABILITY

With sentence no. 33976/2022, the Supreme Court recognized the entity’s liability pursuant to art. 25-septies, co. 3, Legislative Decree no. 231/2001, following serious culpable injuries occurring to the detriment of an employee with violation of the accident prevention legislation (in this case, the failure to adopt a protective grid). Specifically, the Court of Cassation returned to the topic of the possible effectiveness of exempting the episodic nature of the violations and the negligible patrimonial nature of the advantage achieved, effectively consolidating the previous guidelines formed on the point. In particular, the existence of the subjective requirement of attribution of the entity was reaffirmed regardless of the proof of the systematic nature of the violations, since the interest of the same consists in a mere finalistic prospectus which is considered integrated when there is factual evidence proving this connection between the violation and the entity’s interest. As for the smallness of the advantage achieved, the Court takes up what has already been stated in terms of its exempting effectiveness where the violation is inserted in a context of overall observance of the precautionary discipline by the company, thus lacking the fault of organization under the profile of the “non-predictability for the institution of the precautionary rule that was neglected”. However, this principle is not applicable to the present case since, although it is an expense saving equal to €1,860, the requirement of the institution’s advantage is deemed to exist given that the violation pertains to a significant risk area, and as such not able to exclude the fault of organization of the body. In summary, the Court of Cassation, in continuity with the previous judicial arrests, recognized the possibility of founding the entity’s liability on the basis of the single episode of violation of the legislation on protection and safety at work, and although the entity itself has derived a completely negligible patrimonial advantage. In such cases, it should be noted, there are still some openings available to the entity in order to escape administrative liability for a crime, but which presuppose an active role of the same in demonstrating, in addition to the negligible nature of the advantage and the frequency of the violation , also the reference of the latter to an area of risk inherent in a non-significant sector, and its location in a context of general compliance with the legislation on safety at work.