La colpa di organizzazione dell’ente collettivo tra dimensione oggettiva ed esigibilità soggettiva

The paper analyses the structure and function of the organizational fault (colpa di organizzazione) of collective entities, understood as the foundation of corporate liability for criminal offences under the Italian Legislative Decree No. 231/2001. Starting from the premise that the entity’s wrongdoing follows the paradigm of the negligent failure to prevent criminal offences, the study highlights the central role of the corporate compliance program as both a preventive and imputative device, as well as the need for a multilayered reconstruction of organizational duties, articulated across hard law, soft law, and best practices. The paper criticises the trend towards an excessive subjectivisation of corporate culpability, which risks turning judicial discretion into arbitrariness, thereby undermining the principle of legality and eroding the minimum requirements of legal certainty. As an alternative, it proposes a the two-tier structure of the corporate liability, based on the distinction between an objective defect of organisation and a subjective standard of due diligence, to be assessed according to criteria of proportionality, reasonableness, foreseeability, and sustainability. Particular attention is devoted to SMEs, multinational enterprises, situations of economic distress, and the time factor as structural variables of subjective culpability. In conclusion, the article argues that corporate liability remains an open challenge for criminal law theory and for economic justice, currently suspended between guarantee and prevention, law and calculation.