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In the event of a corporate change, liability for administrative and criminal offences committed prior to the extraordinary transaction remains either with the entity resulting from the transaction or with the transferee thereof.
Therefore, the Administrative & Criminal Due Diligence constitutes a fundamental prevention and control tool in order to verify the risks deriving from administrative and criminal sanctions against the Target company, from criminal convictions against the top management of that company and from situations of potential conflict of interest that may fall on the acquiring company.
Among the responsibilities to be scrutinised, those provided for in Legislative Decree 231/01 on the administrative liability of organisations for offences are of primary importance. In fact, if it is established that one of the offences of the so-called '231 catalogue' has been committed by an apical subject (director or manager) or by a subordinate (employee/collaborator) even in the interest or for the benefit of the company, the latter may be prosecuted before a criminal court and be sentenced to very significant fines or disqualifications that may jeopardise the continuation of business activities.
Other serious liabilities on the part of the newco may arise from violations of tax and social security regulations; the due diligence activity is also aimed at preventing the risk of being jointly and severally liable to pay fines or having grounds for refusal to participate in public tenders.
Administrative & Criminal Due Diligence therefore represents an important tool for the control and management of risks relating to the commission of criminal and administrative offences and is of fundamental importance in the assessment carried out prior to corporate change events.
Administrative and Criminal Due Diligence consists of the following main assessment activities:
- Identification of potential risks and/or cases of criminal conduct potentially involving or having involved the Company and verification of the pendency of any criminal proceedings both against the Company and against directors/managers/employees,
- verification of any situations of conflict of interest and of the nature of any relations with the public administration;
- identification of potential risks arising from administrative sanctions;
- evaluation of the company's compliance system: Code of Ethics; Organisation, Management and Control Model pursuant to Legislative Decree 231/01;ISO 37001:2016 Anti-bribery management systems
RSM Legal Italia STA, thanks to a dedicated team of professionals, is able to provide companies with qualified assistance for criminal due diligence activities that bring clear advantages for the client:
- prediction and prevention of risks of commission of offences and potential future sanctions;
- quantification of any additional charges relating to any investigations, criminal proceedings and/or requests by the competent authorities,
- anticipation of possible risks precluding the participation in public tenders;
- mitigation of the risk of crime related to the acquisition of a new partner and correct assessment of the purchase value in the preparation of M&A or other corporate transactions.
