Corporate criminal liability under Legislative Decree 231/2001 extends to environmental crimes even in the absence of direct economic profit
With Judgment No. 27669 of 28 July 2025, the Italian Supreme Court (Criminal Section III) reaffirmed that, in the context of environmental offences such as the unauthorised management of a landfill (Art. 256(3), Legislative Decree No. 152/2006), the “advantage” required to establish the liability of a legal entity under Legislative Decree No. 231/2001 does not necessarily imply a direct economic profit. It may also consist in the cost savings achieved, for example, by avoiding waste disposal expenses.
- Key distinction: “interest” vs. “advantage”
- Interest: assessed ex ante as the intent to pursue unlawful enrichment, even if not achieved.
- Advantage: assessed ex post as the actual benefit derived from the offence, even if it was not planned.
In this case, the Court upheld the legitimacy of confiscation based on avoided costs, including transportation and VAT, expressly referring to the “logic of unlawful savings” as the guiding principle for determining the relevant profit pursuant to Art. 19 of Legislative Decree No. 231/2001.
- Organisational benefit may also trigger liability
The decision is in line with a growing body of case law adopting a strict approach, whereby any form of benefit—whether economic or organisational—may suffice to establish liability, especially where it stems from inadequate managerial decisions, such as the failure to adopt adequate waste collection or treatment systems.
Consistent with the recent Decree-Law No. 116/2025—aimed at combating unlawful waste-related activities and promoting the remediation of the Terra dei Fuochi—the ruling confirms the expanded scope of corporate liability under Legislative Decree No. 231/2001 in the environmental sector. Even in cases involving negligent or conduct-based offences, corporate liability may arise where there is evidence of cost savings or other advantages deriving from non-compliant corporate practices.
Directors’ liability and conflicts of interest: misconduct even when the payment is formally due
In its order no. 23963 of 2025, the Italian Supreme Court (Corte di Cassazione) reaffirmed that, pursuant to Articles 2476(1) and 1176(2) of the Italian Civil Code, a director of a limited liability company (S.r.l.) is required to act with the degree of care and diligence appropriate to the nature of the business and to avoid conflicts of interest with the company.
A director’s conduct constitutes a breach of duty, and thus a source of contractual liability towards the company, when, even while executing payments formally due, the director favours an extraneous interest incompatible with that of the company, particularly where such conduct results in actual prejudice to the company.
- Assessment must be ex ante, in light of the business judgment rule
The director’s conduct must be assessed ex ante, taking into account:
- the failure to adopt appropriate safeguards and prior verifications,
- the lack of adequate information available at the time of the decision,
- and the director’s ability to anticipate and assess the risks associated with the transaction.
Pursuant to the business judgment rule, directors are not liable for business decisions that — while possibly detrimental in outcome — were taken in good faith, with due care and on an informed basis. However, the rule does not shield decisions that are manifestly arbitrary, unreasonable or imprudent, which remain actionable under civil liability principles.
Chairman’s Remuneration: Board or Shareholders’ Resolution Required, but Judicial Intervention Is Possible
In its decision dated 30 January 2025, the Milan Court addressed the issue of remuneration of the chairman of the board of directors of a joint-stock company (S.p.A.), in light of a by-law provision subordinating such remuneration to a resolution of the shareholders’ meeting or the board of directors, within the limits set by the shareholders.
In the absence of valid resolutions, the Court held that no contractual entitlement to remuneration could be established.
- Remuneration may be recognised only if expressly provided by the bylaws
Where the by-laws expressly provide for the right to remuneration, even if the amount has not yet been determined, the director may seek judicial determination of the compensation.
In such case, the judge may award remuneration on an equitable basis pursuant to Article 1709 of the Italian Civil Code, taking into account:
- the nature, quantity and quality of the activity actually carried out;
- the results of the company’s performance (i.e. profit or loss);
- and the effective activity carried out as chair of board meetings.
In the case at hand, however, the Court rejected the claim for remuneration, as the chairman failed to provide evidence of the activities performed and the company had recorded significantly negative results.
No adverse possession by the prospective buyer upon early delivery of the property
With Order No. 12024 of 7 May 2025, the Italian Supreme Court (Corte di Cassazione) reaffirmed a settled principle in real estate law: where a prospective buyer, pursuant to a preliminary agreement (contratto preliminare), is granted early delivery of the property and has already paid the purchase price in full, such party does not qualify as a possessor for the purposes of acquiring ownership by adverse possession (usucapione).
In this scenario, the relationship between the parties is governed by a commodatum agreement (loan for use) functionally linked to the preliminary contract. The buyer exercises a qualified form of holding (detenzione qualificata), in recognition of the seller’s ownership, and not the exercise of a real right (diritto reale) over the property. Only through a valid conversion of possession (interversio possessionis), as provided under Article 1141 of the Italian Civil Code, may such holding be transformed into possession for usucapion purposes.
The Court reiterated that:
- full payment of the purchase price, and
- early delivery of the property
do not in themselves anticipate the transfer of title. These elements merely reflect a performance in advance of the future obligations under the final deed (contratto definitivo), without altering the obligatory nature of the preliminary agreement (Cass. No. 5132/2000).
- Adverse possession requires manifest opposition to the owner
In the case at hand, the claimants sought a judicial declaration of ownership over parking units purchased through preliminary contracts with early possession, and in the alternative, a declaration of adverse possession. However, the Court rejected the claim, holding that:
- prolonged use of the property,
- full payment of the price, and
- the absence of a final deed
were not sufficient to establish possession “uti dominus” (i.e., as an owner).
According to the Court, only clear and overt acts of possession incompatible with the rights of the legal owner, capable of demonstrating conversion of possession, may support a claim for adverse possession. In this case, no such acts had been proven.
Limited liability company and death of the shareholder-director: no grounds for dissolution if the majority shareholder can act autonomously
By decree dated 22 January 2025, the Court of Milan held that a majority shareholder holding 70% of the share capital of an S.r.l. cannot request the court to ascertain a cause for dissolution pursuant to Article 2485, paragraph 2 of the Italian Civil Code, nor to appoint a liquidator, if the shareholder is in a position to act autonomously under the applicable statutory and legal framework.
In the case at hand, the death of the minority shareholder (30%), who also served as the sole director, did not prevent the continuation of the company’s business, since the surviving shareholder, although claiming to lack management experience, still had the legal capacity to convene the shareholders’ meeting independently and, through their sole vote, appoint a new director. It would then be up to the newly appointed director to ascertain any cause for dissolution and to register it with the Companies Register, as required by law.
- Shareholders’ meeting initiative lies with the majority shareholder
Under the applicable legislation, and in the absence of any statutory limitations:
- A shareholder holding at least 70% of the share capital may convene the shareholders’ meeting and adopt both ordinary and extraordinary resolutions;
- The appointment of a new director falls within the competence of the shareholders’ meeting, and may be resolved with the vote of the majority shareholder alone;
- Any potential cause for dissolution must be assessed and registered by the newly appointed director, not by the shareholder directly.
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