Liability of the Supervisory Body and Organizational Fault: Supreme Court Orientations

1. The facts

   The case stems from the open-balance accounting of structured financial transactions named Alexandria and Santorini in the financial statements of Monte dei Paschi di Siena between 2012 and 2015. According to reports from outlets such as Il Sole 24 Ore and Il Corriere della Sera, the prosecution argued that this technical choice was aimed at concealing billions in losses, constituting the crimes of false corporate communications and market manipulation. The proceedings involved former top executives Alessandro Profumo and Fabrizio Viola, together with the members of the Supervisory Body. In the first instance, the court accepted the prosecution's theory, but the Court of Appeal overturned the decision, issuing an acquittal because the fact does not exist. The Supreme Court upheld the Public Prosecutor's appeals regarding the former executives and the bank, annulling the acquittal with referral to the Milan Court of Appeal for the 2014 and 2015 financial statements due to contradictory reasoning, while the acquittal was confirmed as final only for the OdV members. Regarding the latter, it was established that its members could not be held liable for failing to prevent an accounting choice that, at the time, was technically debatable but not patently fraudulent.

2. 

   Relevant legal framework

   1. Legislative Decree no. 231/2001, under Articles 6 and 7, forms the core of the regulatory framework, requiring entities to adopt organizational models suitable for preventing crimes and to establish a body endowed with autonomous powers of initiative and control.
   2. Article 40, paragraph 2, of the Criminal Code sets forth the equivalence clause, under which failing to prevent an event that one has a legal duty to prevent is equivalent to causing it, raising the question of whether OdV members hold a guarantor position.
   3. Articles 2621 and 2622 of the Civil Code define the scope of false corporate communications, the predicate offense that the OdV should have, according to the initial prosecution theory, detected and promptly reported.

3. What case law says

   Supreme Court case law has progressively clarified that the OdV holds neither management nor representation powers for the entity, distinguishing it strictly from the Board of Statutory Auditors. The court specified that OdV members are not tasked with auditing financial statement data in a technical accounting sense, but must monitor the functioning and compliance of models, ensuring the maintenance of the overall preventive system. Established case law excludes attributing liability to the body solely because an offense was committed. For omissive liability to exist, so-called organizational fault must be demonstrated, meaning a structural deficit in control measures that the OdV should have identified. Furthermore, the causal link must be proven: the prosecution must demonstrate that, had the OdV exercised its oversight powers, the offense would have been prevented with high logical probability, thereby avoiding the transformation of the role into a form of positional liability.

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8. Key takeaways for professionals

   1. Accurately define information flows directed to the OdV, clearly distinguishing management information from control reporting.
   2. Thoroughly document every verification activity conducted, in order to establish evidence of due diligence and absence of organizational fault in case of legal challenges.
   3. Avoid overlapping duties between the Board of Statutory Auditors and the OdV, preserving the autonomy and specificity of the oversight function regarding the Model.

References: D.Lgs. 231/2001Art. 40 c.p.Art. 2621 c.c.Art. 2622 c.c.

Editorial oversight: Avv. Federico Papa·ICAMUpdated 3 November 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction