Brief commentary on judgment no. 30039 issued on 13/05/2025, with grounds filed on 1/09/2025, by the Court of Cassation, Criminal Section IV

The case before the Supreme Court originates from a fatal accident that occurred on a building site at a refinery, in which an employee of the executing company with the duties of a labourer lost his life.

Only a few aspects of the judgment under review are reported here, which - in the writer's opinion - deserve to be highlighted.

1) Liability of Companies Pursuant to Legislative Decree 231/2001

The Court of Appeal had upheld the first instance ruling concerning the liability, pursuant to Legislative Decree 231/2001, of the companies in various capacities involved in the construction site.

The Court of Cassation, on the other hand, with reference to the company to which the Principal had entrusted the management of the safety plan, annulled the contested sentence with reference, considering the District Court's argument that had identified the "requirement of interest" in "securing and maintaining a job order received from a Principal who wanted to please", to be merely apparent.

More specifically, the Supreme Court held that the mere 'pleasing', 'devoid of any - concrete - specification as to the nature and extent of the utility pursued, results in an empty and generic formula, unsuitable to satisfy the evidentiary requirement that the requirement of interest imposes'.

In fact, as repeatedly reiterated in jurisprudence, "in the case of occasional violations, proof is required of the objective prevalence of the need for production and profit over the need to protect the health of workers as a consequence of the omitted precautions, as well as of the actual and appreciable advantage consisting in the saving of expenses or the maximisation of production, which may also derive from the omission of a single precaution and the consequent reduction of working time (see sentence no. 22256/2021, Cass. Pen.)".

In relation to the liability of the Executing Company, to which the Contractor had subcontracted the works, the Court of Cassation annulled the contested sentence with referral, as the company had adopted a MOG - self-defined - compliant with the BS OHSAS 18001 (now ISO 45001) certification, and this "circumstance had to be subject to a more in-depth assessment in light of the presumption of conformity pursuant to Article 30 paragraph 5 of Legislative Decree 81/2008".

More specifically, the Supreme Court held that this element, 'while not automatically determining exemption from liability', can only be overcome by a 'full demonstration of the substantial inadequacy of the organisational system adopted'.

In addition, the territorial Court had held that the MOG adopted by the company was unsuitable because the procedures contained therein were 'generic or merely a warning' and did not contain 'any indication of how' the safety aspects were 'to be controlled'.

Well, also in relation to this aspect, the Court of Cassation censured the judgment under appeal, holding that the MOG 'by its nature and structure, cannot and must not go into specific operational detail, but must limit itself to outlining the principles, general procedures and information flows necessary to prevent the commission of offences. Operational specificity is left to the risk assessment documents, operating instructions and detailed technical procedures, which constitute separate and complementary tools with respect to the organisational model.

The organisational model under Legislative Decree No. 231/2001 has a governance and decision-making process control function, not a technical-operational detail function.

The procedures contained therein must necessarily have a general and systematic character, since their function is to ensure that operational decisions are taken in accordance with criteria of legality and in compliance with predefined information and control flows."

2) Responsibilities of Safety Figures at Temporary and Mobile Sites, in particular: Client, Construction Manager (RdL) appointed by the Client, Client's 'project leader', Safety Coordinator during Execution (CSE) and assistant to the CSE

With reference to the figure of the Principal, the defence had contested his alleged liability, despite the valid appointment of the Works Manager, and the absence of concrete interference in the management of safety at the worksite.

The Court, after reviewing the contours of the Principal's liability, and the conditions to which the releasable efficacy, pursuant to Article 93 of Legislative Decree. 81/2008, connected to the appointment of the Project Supervisor, not only reaffirmed the principle according to which "the Principal's exemption from liability occurs only following the appointment of the Project Supervisor and within the limits of the task conferred on him", but added that the appointment of the RdL "must inescapably be accompanied by a deed of delegation with which decision-making powers are attributed, to which are connected obvious expense charges or, more generally, the determination of the sphere of competence attributed to him".

With this 'addition', the Court seems to implicitly refer to the delegation of functions under Article 16 of the Safety Consolidation Act; and in fact it goes on to state that, in the presence of such an appointment and delegation, 'all the functions of the Employer in matters of safety are incumbent on the Project Supervisor'.

Moreover, again with reference to the figure of the Principal, the Supreme Court, after reviewing the indications provided by case law for ascertaining his possible co-responsibility (i.e. his interference in the organisation or execution of the works, or his knowledge of immediately and easily perceivable dangerous situations), specified that they cannot be qualified as 'interference':

- "conduct falling within the normal residual supervisory activities of Principals";

- "purely managerial activities";

- "mere participation in coordination meetings ... or safety meetings in general";

- "the signing of the Work Permit".

In relation to the figure of the Project Manager, the so-called "project leader", of the Principal, the Court of Cassation held that the District Court erred in basing the liability of the same "on the mere performance of a role within the scope of the contract, generically equating his position to that of the Principal", without "identifying a specific source of criminally relevant obligations ... since the regulatory source of the same was not identified, and the actual impeding powers were not verified".

In light of the principles summarised so far, the Court of Cassation annulled with reference the contested sentence in relation to the positions of the Principal and the "project leader": this entailed an identical ruling on the Entity's liability pursuant to Legislative Decree No. 231/2001.

With reference, finally, to the figures of the Safety Coordinator in the Execution Phase (CSE) and, in particular, to the figure of the CSE's assistant, the Supreme Court, after recalling the principle, now consolidated in jurisprudence, according to which the CSE holds a position of guarantee characterised by "high vigilance" on the construction site, and that his functions, being of a personal and fiduciary nature, are indelegable, annulled without referral the judgment under appeal in relation to the position of the CSE's assistant, "because of the impossibility of configuring positions of guarantee that are criminally relevant".

More specifically, the territorial court had held that the CSE assistant was liable by applying "beyond its regulatory limits" Article 299 ("Exercise of de facto managerial powers") of the Safety Consolidation Act (T.U. Sicurezza.

In this regard, the Supreme Court held that Article 299 "requires the exercise of legal powers, not mere participation in technical activities"; and, in the case at hand, the assistant of the CSE, although having participated in inspections and attended meetings, does not "appear to have ever concretely exercised the powers of the CSE", nor does he have "actual powers connected to the role of CSE, autonomous decision-making capacity on safety measures, nor sanctioning powers or powers to suspend works".

The Supreme Court, referring to Article 92, paragraph 2 of the Safety Consolidation Act, entitled "Obligations of the coordinator for the execution of works", held that the grounds for the responsibility of the assistant of the CSE did not exist on the ground that the defendant had carried out mere technical support activities, lacking decision-making autonomy, while Article 299 of the Safety Consolidation Act requires "the actual exercise of legal powers" and not the mere participation in meetings or inspections.

3)      Defects resulting from the non-exclusion of civil parties

Some of the defences had argued that the victim's heirs had been unlawfully retained because they had been fully compensated under a settlement agreement - only with some of the defendants - in which they had declared that they 'accepted the amount in full settlement of any claim for compensation' and that they 'no longer had any claim'.

The other defendants had not been informed of this settlement agreement and the civil parties had not mentioned it during the trial which, consequently, and in the defence's opinion, was vitiated by a general nullity under Article 178(c) of the Code of Criminal Procedure.

The Supreme Court, in ruling on this point, took up a long-standing principle of jurisprudence according to which "the failure to ascertain the conditions for the exclusion of the civil plaintiff is not covered by any procedural sanction (see Cass. Pen. Sect. 1, no. 9811 of 13/05/1987, rv. 176651- 01; Sect. 5, no. 10528 of 21/10/1983, Rv. 161599-01)".

Moreover, with specific reference to the content of the settlement agreement, the Supreme Court held it to be partial in nature, having been reached only with some defendants and not with all of them, and therefore incapable of extending its effects to the other defendants. Consequently, only the "Civil Judge will be able to assess" whether, and to what extent, the settlement amount can be considered fully satisfactory for the civil parties' right to full compensation for damages.

In the opinion of the writer, the Supreme Court with the judgment under comment has made important and useful clarifications on the subject of the exempting efficacy of Models pursuant to Legislative Decree 231/2001, as well as on the perimeter of the responsibilities of the figures called upon to ensure safety at Temporary and Mobile Sites.

Please find attached Judgment No. 30039, Court of Cassation, 4th Sect., ud. 13/05/2025, dep. 01/09/2025.

sentenza 30039-2025.pdf

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