The Legal Representation of the Entity under Legislative Decree 231/2001: The Interpretation of the Court of Cassation (Judgment no. 16932/2025)

Legislative Decree 231/2001 introduced the administrative liability of entities for crimes committed in their interest or to their advantage into our legal system, revolutionizing how legal persons are held accountable for criminal offenses. This complex legislation often raises questions, and jurisprudence is constantly called upon to clarify its scope of application. A recent ruling by the Court of Cassation, Judgment no. 16932 of 14/03/2025 (filed on 06/05/2025), offers a fundamental clarification on the delicate issue of entity representation in 231 proceedings, particularly when the legal representative has been involved in the predicate offense. Let's analyze together the principles established by this important decision.

The Regulatory Framework: Article 39 of Legislative Decree 231/2001

The legislation on entity liability provides a complex system of procedural rules. Among these, Article 39, paragraph 1, of Legislative Decree 231/2001 is of crucial importance. This provision establishes a prohibition of representation for the entity: the individual who holds the position of legal representative and who is simultaneously accused of the crime from which the entity's administrative offense derives, cannot represent the latter in the proceedings. The ratio of this prohibition is evident: to avoid conflicts of interest and ensure the correct and impartial defense of the entity, separating the position of the natural person from that of the legal person.

However, the interpretation of this rule has not always been unequivocal, especially concerning the point in time when the status of "accused" must be assessed. This is where the Court of Cassation intervenes with its ruling, offering an interpretative compass.

The Court of Cassation's Judgment no. 16932/2025: A Decisive Clarification

The Supreme Court, with the judgment in question, had the opportunity to address and resolve an interpretative question of considerable practical relevance. The case concerned the appointment of a special attorney by the legal representative of an entity (in the specific case, C. M. for Soc. Coop. A. R. L. "La M. F."), in proceedings against the entity itself. The peculiarity was that the legal representative had been accused of the predicate offense in another proceeding, but this proceeding had concluded with a judgment of "no further proceedings due to prescription," which had become final prior to the appointment of the special attorney.

The Court of Cassation thus ruled:

In matters of entity criminal liability, the provision of Article 39, paragraph 1, of Legislative Decree no. 231 of June 8, 2001, must be applied according to a strict interpretation, in the sense, consistent with the legislative text, that the prohibition of representing the entity presupposes that the legal representative holds the status of accused at the time of the act performed in the interest of the entity. (Case concerning the appointment of a special attorney for the entity, made, in the proceedings against the latter, by the legal representative who had been accused of the crime from which the administrative offense arose within the scope of another proceeding, which concluded with a judgment of no further proceedings due to prescription, which became final prior to the appointment).

This maxim is of fundamental importance. The Court of Cassation clarifies that the prohibition of representation provided for by Article 39 of Legislative Decree 231/2001 must be interpreted strictly. This means that the legal representative's status as "accused" must exist at the precise moment the act of representation is performed in the interest of the entity. If, as in the case in question, the criminal proceeding against the representative has already concluded (even due to prescription) and the judgment has become final before the act of representation is performed, the prohibition does not apply. Therefore, it is not being accused in the past that matters, but being accused at the time of the action.

This principle reinforces the need for a precise and temporal assessment of the subject's legal position. The Court of Cassation, with this interpretation, offers greater legal certainty and prevents analogical extensions of the prohibition that would go beyond the letter and the ratio of the rule.

Practical Implications for Entities and Professionals

The Court of Cassation's ruling has significant repercussions for the management of 231 proceedings and corporate compliance:

• Temporal Assessment: It is essential to verify the legal representative's position not only in terms of past involvement but, above all, concerning their current status as "accused" at the time they must perform acts of representation for the entity.
• Legal Certainty: The judgment helps to define the scope of application of the prohibition with greater precision, reducing interpretative uncertainties that could slow down or invalidate procedures.
• Appointment of a Special Attorney: The validity of appointing a special attorney strictly depends on the legal representative not holding the status of accused at the time of the appointment itself.
• Risk Management: Companies must carefully monitor the status of criminal proceedings involving their top management, in relation to the predicate offenses under Decree 231, to ensure that every act of representation is validly carried out.

This orientation of the Court of Cassation is in line with previous jurisprudence (such as the United Sections no. 33041 of 2015, albeit on different aspects but always related to the interpretation of Decree 231) which promotes a rigorous but not excessively extensive application of the rules, protecting both the entity and the principles of legality and due process.

Conclusions: A Step Towards Clarity

Judgment no. 16932/2025 of the Court of Cassation represents an important piece in the interpretative mosaic of Legislative Decree 231/2001. It unequivocally clarifies that the prohibition of representation referred to in Article 39, paragraph 1, applies only if the status of accused exists at the time of the act. This principle of strict interpretation offers greater clarity and predictability to entities and legal professionals, allowing for more informed and secure management of procedural dynamics related to administrative liability. For companies, this means the opportunity to act with greater awareness, always with the support of qualified legal advice to navigate the complexities of this legislation.