Organisational and Management Model (OMM)
In the context of a structured and organic system for prevention, deterrence and control, each Group company has adopted an Organisation and Management Model, respecting the guidelines of the Parent Company.
The process of merger (the "Merger") of Unipol Assicurazioni SpA, Milano Assicurazioni SpA and Premafin HP S.p.A. in Fondiaria-SAI SpA, and the subsequent birth of UnipolSai Assicurazioni SpA ("UnipolSai"), with effect from the effective date of the Merger, resulted in the need to adapt the Organization and Management (the "MOG") of UnipolSai.
In the light of the changed legislation and corporate structure, the Board of Directors of UnipolSai approved the adoption of the new MOG, which forms the basis for the operational conduct, as well as for control and verification that must be implemented to prevent possible offenses included in Legislative Decree no. 231/2001.
What is the italian legislative decree 231/2001?
Legislative Decree 231/2001 entered into force on 4 July 2001 and identified the legal provisions relating to the regulation of administrative liability of legal persons, companies and associations, including those without legal personality. Such decree provides for a presumption of a shared liability of enterprises in the commission of certain types of offenses, which are subject to significant administrative penalties and disqualification, by its directors, officers, employees and/or third-party associates, unless the same enterprises have adopted an organizational, management and control model suitable to prevent the commission of the offenses laid down therein.
What are the offenses punished by legislative decree
The list of offenses that can give rise to a liability of companies and entities in general by virtue of Legislative Decree 231/2001 is being continuously updated and expanded.
Currently, in addition to the offenses of a culpable kind (manslaughter and serious or very serious bodily harm) relating to the protection of health and safety in the workplace, the great majority of offenses are of the willful kind and include the following, among others:
- Offenses in relations with Public Administration (e.g., participation in fraud in order to obtain public incentives/funding, corruption of public officials in order to obtain a contract, concessions/permits, etc.);
- Corporate offenses (by way of an example without limitation: false corporate statements, unlawful return of capital contributions, bribery between private individuals);
- Administrative crimes and offenses of insider dealing, market manipulation and market abuse;
- Offenses of receiving, laundering or self-laundering and offenses for the purpose of terrorism or subversion of democracy (Legislative Decree 231/2007);
- IT offenses and unlawful data processing (by way of an example without limitation: unauthorized access to computer or electronic systems);
- Crimes against the industry and commerce (e.g., disruption of industry or trade, illegal competition with threats or violence, etc.);
- Environmental offenses (Legislative Decree 121/2011).
What are the penalties for the company?
The penalties which a company or entity in general may incur are particularly heavy and may also be applied as a precautionary measure. In particular, the following should be highlighted:
- Disqualification sanctions, such as prohibition for a specified period of time to exercise the business activity, ban on entering into contracts with the PA (except for the provision of a public service), suspension or revocation of authorizations, licenses or permits in relation to the offense committed, exclusion from grants, loans, contributions or subsidies, as well as the revocation of those that may have already been granted, ban on advertising for goods or services;
- Fines, calculated in accordance with a system of units. For each offense, in fact, the law determines a minimum and maximum number of units. After determining a minimum and maximum value in relation to the offenses being punished, the Judge will proceed to determine the value of each unit (from € 258.23 to € 1,549.37, based on the severity of the company's liability). Moreover, Article 12 of Legislative Decree 231/2001 provides for a series of cases in which the fine will be reduced, as briefly summarized in the table below, showing the reduction granted and the conditions for applying the reduction itself.
What is the Organizational and Management Model?
The Organizational and Management Model (the "Model") is a document required by Legislative Decree 231/2001 under the broader framework of corporate liability. The purpose of the Model is to provide a comprehensive and structured prevention system designed to avoid the perpetration of the offenses specifically provided for by Legislative Decree 231/2001, raising awareness in individuals who directly or indirectly carry out sensitive activities as to the possibility of causing penalties that may be imposed, in the event of unlawful conduct, not only on themselves but also on the Company. Having said that, the adoption and effective implementation of the Model not only enables the Company to benefit from the exemption provided for by Legislative Decree no. 231/2001, but also, in accordance with the same, to improve its governance, reducing the risk of committing crimes.
What is the disciplinary system and what are the sanctions?
Articles 6, paragraph 2, letter e) and 7, paragraph 4, letter b), of Legislative Decree 231/2001 require the preparation of an appropriate system of sanctions in case of violation of the provisions of the Organizational and Management Model. Failure to comply with the provisions of the Model and of the Code of Ethics, thereby undermining the relationship between the Company and its "stakeholders", implies the imposition, as a consequence thereof, of disciplinary sanctions against those involved, regardless of whether the case has been prosecuted by the judicial Authority.
The type and amount of the sanctions to be applied in each case of violation found will be proportional to the seriousness of the offenses and, in any case, will be set forth according to the following general criteria:
- Personal evaluation of behavior depending on willful intent or culpable conduct;
- Relevance of the obligation that has been breached;
- A hierarchical and/or technical level of liability of the person involved;
- A possible sharing of liability with other persons who may have contributed in causing the offense;
- The presence of aggravating or mitigating circumstances with a particular emphasis on professionalism, previous work performance, previous disciplinary measures, circumstances in which the crime was committed.
Any possible imposition of disciplinary sanctions, regardless of whether legal proceedings have been started and/or of the outcome of the relevant criminal case, must, as far as possible, be based on the principles of timeliness, immediacy and fairness.
What is the Supervisory Body?
Article 6 of Legislative Decree 231/2001 provides for the establishment of a Supervisory Body, with "independent powers of initiative and control" with the task of monitoring:
- The effective compliance with the Organizational and Management Model by the recipients: employees, corporate bodies and, within the limits laid down by the same, agents, third-party associates and suppliers;
- The effectiveness and adequacy of the Organizational and Management Model in relation to the corporate structure and its actual ability to prevent the commission of the offenses referred to in Legislative Decree 231/2001;
- The advisability to update the Model, where there is a need to adapt the same to any modified corporate circumstances and/or legal framework, urging the competent bodies to take action in such regard.
What are the duties of the recipients of the Organizational and Management Model?
In carrying out their work activities, all recipients of the Organizational and Management Model must refrain from engaging in conduct that may involve a criminal offense as provided for by Legislative Decree 231/2001. In general, the Company's governing bodies promote the spread of a culture of control thereby raising awareness among all staff of their role, also with reference to control activities, and encouraging the involvement of all organizational units in the pursuit of the corporate objectives.
In the preparation of the Organizational and Management Model, account was taken of the procedures and control systems in place and already operational within the Company, as suitable to be used as crime prevention measures.
In particular, UnipolSai operates in accordance with the following instruments, aimed at planning the formulation and implementation of Company decisions also with regard to offenses to be prevented:
- applicable Italian and foreign legislation, regulations included;
- the By-Laws;
- the Unipol Group Charter of Values and Code of Ethics;
- the Code of Corporate Governance for Listed Companies;
- the corporate policies approved by the Board of Directors;
- the self-governance system envisaged by corporate regulations, internal communications and circulars;
- the system of proxies and powers in place;
- the disciplinary system and sanctions referred to in the National Collective Bargaining Agreement, Supplementary Contracts in force, Corporate Regulations, the Workers’ Statute and the Agents’ National Agreement.
The rules, procedures and principles set out in the instruments listed above are not reported in detail in the Organizational and Management Model, but are part of a more extensive system of organization and control that the same is meant to supplement.
What is the procedure to submit any reports to the SB?
The Supervisory Body (the "SB") must be informed by means of appropriate reports from employees, corporate bodies, third-party associates and agents in respect of any events that may cause a liability for the Company pursuant to Legislative Decree 231/2001, subject to the following general requirements:
- Only cases of offenses committed or allegedly committed or, in any event, conduct not in conformity with the rules laid down in the Model may be reported;
- Those who wish to report a violation (or suspected violation) of the Organizational And Management Model must contact their line manager;
- If the report remains unresolved, or the informant feels uncomfortable for having to contact his/her line manager in order to submit the report, the informant will report directly to the SB in writing by sending a letter addressed to the SB at the registered office of the Company, or by e-mail to:
- The SB must ensure the confidentiality of informants;
- Only members of the SB have access to the above-mentioned e-mail account;
- Information as to the establishment of such e-mail account and relevant address will be given through appropriate communication within the corporate premises;
- The SB will evaluate the reports received and any measures to be taken will be enforced in accordance with the provisions of the National Collective Bargaining and Supplementary Labor Agreements, the Company Disciplinary Regulations, the National Agreement with Agents, as well as the law;
- The Company is committed to protecting the informants in good faith against any form of retaliation, discrimination or penalty and in any case it will ensure the confidentiality of the informants' identity, except as required by law and for the protection of the rights of the Company or of people accused wrongly and/or in bad faith.