From the legal entity’s asset perspective, interest and benefit should be considered as saving of economic resources resulting from the failure to implement safety procedures and protections (from the most basic and generic ones, such as training and information, to the more specific and sectorial ones), as well as from the general infringement of the rules regulating the disposal of hazardous wastes […]. Besides as economic growth resulting from the increase in productivity not prevented from the compliance with the applicable prevention laws and with the legislation governing the specific field of work".

- Criminal Supreme Court, IV Division, no. 31210 of 19 May 2016 -

  1. Legal case

On 4 November 2010 a fire broke out at Eureco S.r.l.’s disposal site for collection and treatment of waste in Paderno Dugnano, after which 4 workers died and 4 were injured. The fire was triggered by the contact of gas, given off by molecular sieves stored in a caisson, with hot parts of the engine of a forklift truck operating nearby, and further fueled by the contact with solvents and flammable paints, not far from the caisson.

The sole director, charged with involuntary manslaughter aggravated by the infringement of health and safety regulations under section 589, paragraphs 1, 2 and 4 of the Italian criminal code, and several other crimes, and Eureco S.r.l., charged with the administrative offense under section 25-septies of legislative decree no. 231/2001, were tried for the death and injury of the workers.

The Court of First Instance convicted both the sole director and the company and the judgement was confirmed on appeal.

Hence, the judgement was challenged before the Supreme Court, on the basis of five pleas in law in support of their claims.

In particular, the company argued the inconsistency and lack of reasoning of the judgement, which recognized the entity’s benefit in the cost-savings achieved by the company and resulting from the failure to comply with safety regulations.

The Supreme Court declared the appeals inadmissible and upheld the convictions.

  1. Interest and benefit in crimes relating to protection of health and safety at work

According to section 5 of legislative decree no. 231/2001, the legal entity may be held liable in the event the criminal offense is committed in its interest or to its advantage. Interest and benefit are autonomous, distinct and even alternative concepts. More precisely, interest concerns the offender’s conduct aimed at procuring an advantage in favour of the entity; while the benefit is to be identified in the advantage achieved by the entity and to which the offender’s conduct was aimed. The inclusion in the category of “predicate offenses” of unintentional crimes, such as those concerning protection of health and safety at work, has raised some concerns with regard to the consistency between the subjective element of the crime and the interest or benefit requirement. As regards unintentional offenses, constant case-law has clarified first of all that the existence of the interest or benefit must be assessed with reference to the conduct and not to the event. In light of the above, the entity’s interest or benefit should not be identified in the death or injury of a worker, but in the above mentioned - commissive or omissive - conduct, that caused the event. In addition, according to case-law, the benefit achieved or intended to be achieved must not necessarily consist in a positive benefit (e.g. fulfilment of the illegitimate act in corruption; acquisition of undue amounts in fraud against the State; etc.) but it may also consist in a negative benefit. With particular reference to crimes relating to the protection of health and safety at work, such negative benefit may correspond to the cost-savings resulting from the failure to adopt the measures provided for by accident prevention laws and to the related economic growth resulting from the increase in productivity.

Along the same lines also the Supreme Court’s decision at issue, which recognized the existence of the interest as well as of the benefit of the entity. In particular, the judgement states that “from the legal entity’s asset perspective, interest and benefit should be considered as saving of economic resources resulting from the failure to implement safety procedures and protections (from the most basic and generic ones, such as training and information, to the more specific and sectorial ones), as well as from the general infringement of the rules regulating the disposal of hazardous wastes […]. Besides as economic growth resulting from the increase in productivity not prevented from the compliance with the applicable prevention laws and with the legislation governing the specific field of work".