On May 29 next, a criminal proceeding against 12 former employees and managers of Telecom Italia will officially open, focusing on an allegation of fraud in the issuing and release in the market of 500 thousand SIM mobile cards. The Company will respond of administrative responsibility, under the principles of Legislative Decree no. 231 of 2001, according to which corporations may be called to respond for criminal offences performed by managers and top employees in its own interest.

Aside criminal violations relevant to managers, Telecom Italia will thus be subject to possible sanctions, and its protective “Corporate Model” adopted in avoidance of criminal offences under the Legislative Decree, will be heavily scrutinized by the Court. The Company risks administrative fines, as the Legislative Decree provides that companies or legal entities may be held responsible for crimes committed in their interest by top managers acting in office.

Investigations on the case refer back to 2008, when for the first time a number of apparently false SIM cards indicating unaware clients or fictitious names emerged in the market. The investigations then revealed a series of interested managers, brokers and/or dealers of the commercial chain involved in the activation of such SIM cards, apparently connected in the general interest in leveraging commercial credits or altering incentive schemes connected to the market share of the operator in the market. Further evidence, following six years of track analysis of the obscure phenomenon, revealed that the general fraud scheme was apparently triggered by top managers of the Company.

During the preliminary hearing, the investigation judge sent to trial 75 people, among which 12 former employees of Telecom Italia (two of which plea bargaining), with the charge of conspiracy and receiving of stolen goods. The Company will respond under the principles of administrative responsability.

Telecom Italia has declared that it will recur for remedies, and file for compensation for damages in the opening criminal proceeding. Yet under current interpretation by the Supreme Court (as well as the European Court of Justice), the Company could lawfully do so only up to a certain extent and only with regards to its former employees. The Legislative Decree aims at holding entities objectively responsible for crimes committed in their interest or to their advantage by individuals who represent, administer and/or manage such entities, as well as employees referring to such type of managers (i.e. employees who may have taken action because of a specific request by managers or referring directly to such top managers, under Article 7 of the Decree). The Decree thus encourages the adoption of an organisational, management and audit Model suited to prevent the execution of crimes which may appear the consequence of a number of actions. Nonetheless, the Decree provides a general obligation on companies to identify the possible measures with which managers may concretely give way to the illicit behaviour, envisaging a possible avoidance of liability in case of adoption of an Organisational Model in line of theory capable of avoiding the execution of crimes.

Tiziana Bastianelli e  Fabrizio Cugia di Sant’Orsola