THE ORGANIZATIONAL AND MANAGEMENT MODEL
- Function of the Model
- Structure of the Model
- General Part
- Special Parts
- The implementation of the Decree by Chugoku – Boat Italy S.p.a.
- Mapping of risks
- Recipients of the Model
- Identification of the Supervisory Board
- Prerogatives and resources of the Supervisory Board
- Functions and powers of the Supervisory Board
INTERNAL INFORMATION FLOW
- Information obligations in respect of the Supervisory Board
- Disclosure obligations of the Supervisory Board in respect of the corporate bodies
- Collection and storage of information
- General principles
- Disciplinary measures against staff
- Measures against directors
- Measures for collaborators, business partners and suppliers
DISSEMINATION AND KNOWLEDGE OF THE MODEL
SPECIAL PART “A”
Relationships with the Public Administration
- TYPOLOGY OF CRIMES IN THE RELATIONSHIPS WITH PUBLIC ADMINISTRATION ANDTHE CRIME OF CORRUPTION AMONG PRIVATE PERSONS (ARTS. 24, 25 AND 25 ter, paragraph 1, letter s-bis OF THE DECREE
- EVALUATION OF RISK AREAS
- IDENTIFICATION OF THE ACTIVITIES AT RISK
- PRINCIPLES OF CONDUCT IN THE MANAGEMENT OF THE ACTIVITIES AT DIRECT RISK
- PRINCIPLES OF CONDUCT IN THE AREAS AT INDIRECT RISK
SPECIAL PART “B”
- Manslaughter and Serious and Very Serious Personal Injury in Violation of the Protection of Health and Safety at Work (art. 25 septies of the Decree)
- Recipients of this Special Part
- Purpose Of the Present Special Section
- Subjects Involved in Tasks in Terms of Safety
- Corporate Policy about Safety
- Planning and Organization Of the System
- General Principles And Rules Of Conduct
- Specific Rules Of Conduct
- Assessment Of the Existing Risks
- Special AND/OR Extraordinary Cases With Respect to the Ordinary Corporate Activities
- Documentation And Reporting Of Activities
- Disclosure, Information And Training
- Control and Reassessment of the Internal Safety System
SPECIAL PART “C”
- Receiving, Laundering or Re-using (art. 25-octies of the Decree)
- General Principles Of Conduct And Implementation Of Decision-Making Process In the Areas At Risk
- Particular Rules Of Conduct, Related To the Single Risk Areas
SPECIAL PART “D”
Crimes against the judicial activity
- The type of the relevant offence (art. 25- decies of the Decree)
- Area at risk
- General rules of conduct
SPECIAL SECTION “E”
SPECIAL SECTION “F”
1.1 The regime of administrative responsibility for Bodies
The adaptation of the Italian legislation to some international Conventions has led, in execution of the delegated legislation of 29 September 2000 no. 300, to the promulgation of the Legislative Decree no. 8 June 2001 no. 231, entered into force on 4 July 2001 “Rules on the administrative liability of legal persons, companies and associations also without legal personality”.
The Decree introduced into the Italian system the regime of administrative liability of the Bodies for certain offenses (listed in the articles 24 et following ones of the decree, the socalled Alleged Offences) committed, or simply tempted, in the interest or advantage of the same Bodies, or of one of their organizational units with financial and functional autonomy, by:
(i) by persons who have representative, administrative or management functions or, even de facto, manage or control the Body or one of its organized unit (the top management in accordance with art. 5 of the Decree, paragraph 1, letter. a); or (ii) persons subject to the direction or supervision of individuals referred to in letter (i) above (the subjects subordinate to the management of others pursuant to art. 5 of the Decree, first paragraph, letter b).
The administrative liability of the Body is direct and distinct from the liability of the material author of the crime and is aimed at sanctioning Bodies for the offenses committed for their benefit or in their interest.
By virtue of the liability introduced by the Decree, the Body undergoes an independent process and is therefore subjected to penalties which may go as far as to block ordinary business activities.
In fact, in addition to the financial penalties, to the possible confiscation and publication of the judgment, the Decree provides that the Body may also be subjected to injunctive sanctions (art. 9, second paragraph), such as:
• the disqualification from the exercise of the activity;
• the suspension or revocation of authorisations, licenses or concessions related to the committing of an offence,
• the prohibition on contracting with the public administration, except to obtain provision of a public service;
• the exclusion from contributions, assistance and financing and the possible revocation of those already granted;
• the ban on advertising goods or services.
Under the provisions of Art. 4, the Bodies headquartered in Italy can be prosecuted also for crimes committed abroad, if the law of the foreign country does not provide for a similar form of liability.
The administrative liability of the Body is based on a “organizational fault”: The Body is thus considered liable administratively for the offense committed by its representative, if it failed to create an organisation that can effectively prevent its realization and, in particular, if it failed to adopt a system of internal control and adequate procedures to perform the activities at a greater risk of committing offenses under the Decree.
On the contrary, pursuant to art. 5 paragraph 2 of the Decree, the Body is not liable if the persons indicated above have acted in their own exclusive interest or of third parties.
The processes in order to adopt such organization system and internal control are specified in the articles. 6 and 7 of the Decree, namely:
– the approval, adoption, and effective implementation, prior to the commission of a crime, of a Model suitable to prevent the commission of Alleged Offenses under the Decree. In general, and briefly summarised, the Model is considered “appropriate” when the subjects that have committed the crime have acted deliberately and fraudulently in order to circumvent the safeguards put in place by the same Model;
– the creation of an internal Surveillance Body, with autonomous powers of initiative and control, (i) to control the effective functioning of the Model and compliance with the provisions contained in it by all recipients; (ii) the constant verification of the real preventive effectiveness of the model; and (iii) its update.
The Model, based on the provision of the Decree, with reference to the delegated powers and the possible risk of committing crimes must also:
– identify the activities within the offend might be committed;
– provide specific controls for planning the formation and implementation of decisions of the Body in relation to the offences to be prevented;
– identify appropriate methods to manage financial resources, in order to prevent offences from being committed;
– envisage obligations of information to the Supervisory Body;
– introduce a disciplinary system that is suitable for sanctioning the nonobservance of the measures stated in the Model.
In criminal court, the judge, in fact, is called on to assess as part of the procedure to verify the administrative liability of the Body, the adequacy of the Model to prevent the commission of crimes, and its concrete application and effectiveness.
1.2 Activities of Chugoku – Boat Italy S.p.a.
Chugoku – Boat Italy S.p.a. has its registered office in Genoa, Via Macaggi 19.
All commercial and managerial functions are concentrated at the registered office.
On 12 November 2012 a contract “service agreement” between Boat, Boero Bartolomeo and Chugoku Paints B.V. was stipulated for the activities of “administration, accounting and payroll, information technology, general tax assistance and compliances services.
In July 2013 Boat decided to have the accounting run by the major shareholder so it is no longer managed by Boero Bartolomeo Spa.
Some specific functions remain with Boero Bartolomeo Spa. For the detail of the services please refer to the “service agreement” stipulated on 12 November 2012 between Boero Bartolomeo SpA, Chugoku Paints B.V. and Boat s.p.a.
Finally, another aspect of the Activity performed by Chugoku – Boat Italy S.p.a. is the consulting activity and technical support to its customers in relation to painting/coating. This activity is carried out by the staff of Chugoku – Boat Italy S.p.a. at the shipyards of the customers’ companies, in execution of special contract for work and labour.
2. THE ORGANIZATIONAL AND MANAGEMENT MODEL
2.1 Function of the Model
The Model aims to identify activities within which offenses may be committed, to provide specific protocols aimed at planning the formation and implementation of the decisions of the body in relation to the crimes to prevent, to identify ways of managing financial resources in order to prevent the commission of crimes, to envisage the obligation of information to the body responsible for supervising the functioning and observance of the model and introduce a disciplinary system suitable to punish the non-compliance with the measures indicated in the model.
The Model has, among other, the aim to:
– reiterate that the forms of unlawful behaviour are strongly condemned by Chugoku – Boat Italy S.p.a. as they are contrary, not only to the provisions of law, but also to the ethical and social principles which Chugoku – Boat Italy S.p.a. aspires to in the conduct of its business activities;
– allow Chugoku – Boat Italy S.p.a. to take prompt action to prevent or otherwise oppose the commission of crimes thanks to an action of identification of the activities areas within which offenses may be committed, and the implementation of procedures.
It follows that the qualifying aspects of the model are, in addition to those mentioned above:
• the sensitization and training of all Recipients on the expected behaviour and procedures designed to ensure the compliance with the Model;
• the allocation and attribution to the Supervisory Board of Chugoku – Boat Italy S.p.a. of specific independent powers of initiative and supervision of the effectiveness and the proper functioning of the Model;
• the control and documentation of operations at risk;
• the respect for the principle of separation of functions;
• the definition of authority levels consistent with the responsibilities assigned;
• the verification of the corporate conduct of the Recipients and the functioning and update of the Model.
2.2 Structure of the Model
The model is composed of a “General Part” and several “Special Parts”, drawn up in relation to the types of Alleged Offenses for which Chugoku – Boat Italy S.p.a. has considered that there is a risk of commission by the Recipients by virtue of the Activity performed by it.
Chugoku – Boat Italy S.p.a. is aware of the circumstance that the implementation of the Model is accompanied in practice by the adoption of a Code of Ethics, in which the Body normally formalizes the principles that inspires the performance of its own business.
Chugoku – Boat Italy S.p.a. has always harmonized its business activities to a set of principles and rules of conduct inspired by the values of fairness, transparency and good faith and, in this perspective, it will adopt has adopted- together with the Model – the Code of Ethics issued by the parent company Chugoku Paints Bv.
The original text of the Decree was limited to identifying, as Alleged Offenses, certain crimes against Public Administration (undue receipt of funds to the detriment of the State) and others against property through fraud, bribery, corruption (arts. 24 and 25).
Subsequent legislation interventions have expanded the number of Alleged Offenses for which the administrative liability of the Body is configurable, which has been subsequently gradually extended to the following:
• crimes against the Public Administration (art. 24 and 25);
• crimes in counterfeiting money, in public credit cards, tax stamps and identification instruments or signs (Art. 25-bis);
• corporate offenses (art. 25-ter) among which corruption among private individuals was introduced at the letter s) bis;
• offenses connected to terrorism or the subversion of democracy, (art. 25quater);
• crimes against the individual person (art. 25-quinquies);
• crimes of market abuse (art. 25-sexies);
• transnational crimes (art. 10 L.146/06);
• the practice of mutilation of female genital organs (art. 25 -quater- 1)
• crimes of manslaughter and serious and very serious personal injuries committed in violation of the regulations of protection of health and safety at work (art. 25-septies);
• crimes of money laundering, receiving and use of money, goods or benefits of illegal origin (art. 25-octies); • computer crimes and unlawful data processing (art. 24-bis)1;
• organized crime cases (art. 24 ter);
• crimes against industry and commerce (art. 25 bis-1);
• crimes related to the copyright violation (art. 25 -novies);
• crimes against the judicial activity (art. 25 -decies);
• environmental crimes (art. 25 -undecies);
• crimes governing immigration and the status of aliens (art. 25 -duodecies).
The administrative liability of the Bodies is supposed, however, to have further enlargements; with regard to the several bills that are currently being debated in Parliament and to certain European directives to which our legal system must comply.
For this reason, the Board of Directors or on its behalf the Chief Executive Officer Chugoku – Boat Italy S.p.a., also at the request of the Supervisory Board, will have to adopt special resolutions to integrate the Model with the inclusion of new Special Parts related to offenses which, as a result of further legislative interventions, should broaden the scope of the administrative liability of the Body.
1 This needs to be complemented by the Law 16 March 2006 no. 146, which has ratified the Convention and the Protocols of the United Nations against the transnational organized crime, adopted by the General Assembly on 15 November 2000 and 31 May 2001 (the so-called Convention of Parlermo). The Article 10 of the Law in question extends the administrative liability of the Bodies to the offenses mentioned in that article, if they are committed in the manner of a transnational crime. Under Article 3, Law no. 146/2006, it is considered transnational the crime punishable with imprisonment of not below a maximum of 4 years, and if an organized criminal group is involved, if the offense was: (i) committed in one or more States, or (ii) committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State, or (iii) committed in one State, but an organized criminal group engaged in criminal activities in more than one State is involved, or (iv) committed in one State but has substantial effects in another State.
2.3 General Part
As defined by art. 6, paragraph 3, of the Decree (and according to the mentioned Guidelines), the General Part of the Model must aim at three main objectives:
I) Identification of the Business activities within which Crimes may be committed: risk mapping
Article 6, paragraph 2, letter a) of the Decree requires first the Model to provide for the socalled risk mapping: it is necessary, therefore, the analysis of the overall activities carried out by Chugoku – Boat Italy S.p.a. and the identification of the operating or decision steps involving the risk of Alleged Offenses.
Given the legislative interventions that have led to a gradual extension of the Alleged Offences, and also given the changes that may occur both on the corporate structure of Chugoku – Boat Italy S.p.a., and on the activities carried out by the same, the risk mapping will never be considered final and unchangeable, but, on the contrary, it must be subjected to a continuous control and auditing activity and must be likewise constantly updated.
Chugoku – Boat Italy S.p.a. and the Supervisory Board will therefore integrate, where appropriate, the risk mapping whenever this is necessary because of further legislative interventions, changes in the corporate structure of Chugoku – Boat Italy S.p.a., or also in consideration of the changes in circumstances and/or the ways in which Chugoku – Italy S.p.a. Boat carries out its business activities.
II) Articulation of a preventive control system
Under Article 6, paragraph 2 letter b) of the Decree, once the mapping of the risks is completed, it should be provided for specific protocols aimed at planning the formation and implementation of the decisions of the Body in the identified risk areas.
In this regard, the specific measures and procedures able to prevent or at least strongly reduce the risk of committing crimes are set out in detail in each single Special Part of this Model.
In addition to these procedures, which have a preventive purpose, it is expressly recognized to the Supervisory Board the power/duty to carry out a posteriori checks on single operations or individual corporate behaviours.
Like risk mapping, also the procedures and the adopted remedies can never be said to be definitive: their effectiveness and completeness must, on the contrary, be subject to continuous revaluation by the Supervisory Board, which also has the main task to propose improvements, additions and modifications to the Board of Directors or on its behalf to the Chief Executive Officer it deems necessary from time to time.
III) Designation of the Supervisory Board.
Third purpose of the General Part is the identification of a Supervisory Board that executes, based on the Decree:
– continuous control of the compliance with the provisions of the Model and the specific provisions and the procedures established thereunder, by all Recipients;
– the activity of constant and continuous evaluation of the adequacy of the risk mapping and the procedures described in paragraphs I) and II);
– a proposal to the Board of Directors or on its behalf to the Chief Executive Officer all necessary changes.
The Supervisory Board is composed of a single member with independent powers of initiative and control and is appointed with the decision by the Board of Directors or the Chief Executive Officer.
2.4 Special Parts
This Model is subdivided, besides the General Part described above, also into some special parts, each dedicated to a specific category of Alleged Offences for which, on the basis of the risk mapping carried out under the Decree, Chugoku – Boat Italy S.p.a. has considered that there was a risk of committing within it.
Each Special Part, in addition to the description of the examined Alleged Offences, contains the identification of the company areas identified as particularly at risk, as well as the precise specification of the procedures adopted to prevent the commission of the offenses.
In the following Special Parts, the following cases will be therefore examined:
i) crimes against the Public Administration and corruption among private individuals (Special Part “A”);
ii) manslaughter and serious or very serious injuries, committed in violation of the accident prevention regulations, the protection of the hygiene and health at work (Special Part “B”);
iii) money laundering, receiving and use of money, goods or benefits of illegal origin (Special Part “C”);
iv) crimes against judicial activity (Special Part “D”);
v) environmental crimes (Special Part “E”) among which the monitoring system SISTRI and the crime of “illegal burning of waste” are included;
vi) self laundering (Special Part “F”).
Upon completion of the risks mapping, Chugoku – Boat Italy S.p.a. has decided to not to include other types of offenses in this Model, namely:
• crimes in counterfeiting money, in public credit cards, tax stamps and identification instruments or signs (art. 25-bis);
• corporate offenses (art. 25-ter);
• offenses connected to terrorism or the subversion of democracy, (art. 25quater);
• crimes against the individual person (art. 25-quinquies);
• crimes of market abuse (art. 25-sexies);
• transnational crimes (art. 10 L.146/06);
• the practice of mutilation of female genital organs (art. 25 -quater- 1) • computer crimes and unlawful data processing (art. 24-bis)2;
• organized crime offenses (art. 24 ter);
• crimes against industry and commerce (art. 25 bis-1);
• crimes related to the copyright violation (art. 25 -novies);
• crimes governing immigration and the status of aliens (art. 25 -duodecies).
In consideration of the fact that reasonable risks of commission of crimes do not exist for such cases, taken into account the specific business operations performed by the Company.
In any case, the Company has deemed that its complex of departments – organizational, procedural and ethical – aimed at ensuring the proper conduct of business operations, is also theoretically suitable to minimize the risk of committing such acts, recalling first of all the principles expressed in the current Code of Ethics and the protocols dictated with specific regard to the prevention of the offenses indicated in the Special Parts of the Model.
2 This needs to be complemented by the Law 16 March 2006 no. 146, which has ratified the Convention and the Protocols of the United Nations against the transnational organized crime, adopted by the General Assembly on 15 November 2000 and 31 May 2001 (the so-called Convention of Palermo). The Article 10 of the Law in question extends the administrative liability of the Bodies to the offenses mentioned in that article, if they are committed in the manner of a transnational crime. Under Article 3, Law no. 146/2006, it is considered transnational the crime punishable with imprisonment not below a maximum of 4 years, and whether an organized criminal groups is involved, if the offense was: (i) committed in one or more States, or (ii) committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State, or (iii) committed in one State, but an organized criminal group engaged in criminal activities in more than one State is involved, or (iv) committed in one State but has substantial effects in another State.
2.5 The implementation of the Decree by Chugoku – Boat Italy S.p.a.
In light of the desire to work in a transparent and correct way, even in defence of one’s own reputation, as well as of the shareholders, directors, and employees, Chugoku – Boat Italy S.p.a. considered it appropriate, and in line with its corporate philosophy, to proceed to the adoption and implementation of this Model, to its spread, and its subsequent constant update.
The Model has also the aim to sensitize all Recipients, in order to orientate their work to principles of fairness and transparency and, at the same time, to avoid and prevent any risk of the commission of crimes within the company activities.
This Model has been adopted by the Board of Directors of Chugoku – Boat Italy S.p.a..
In the same resolution, the Board of Directors appointed the Supervisory Board, consisting of one member – as established by the Guidelines – with independent powers, with tasks of supervision, control and initiative related to the Model and in particular to its concrete application, compliance and updating.
2.6 Mapping of risks
Based on the provisions of the Decree and the indications provided by the Guidelines, Chugoku – Boat Italy S.p.a. has mapped the risks, identifying, within its own company reality, the areas that are particularly at risk of commission of any of the Alleged Offenses.
The methodology used for risk mapping will be briefly explained herein.
Chugoku – Boat Italy S.p.a. has primarily covered the analysis of the constituent elements of the Alleged Offenses, with the aim to identify and define the concrete conducts, which, within the company activities, could lead to the various types of criminal cases.
Second, Chugoku – Boat Italy S.p.a. proceeded with the analysis of the company reality, in order to identify the areas and the sectors mostly at risk. The identification of such risk areas has been accomplished on the basis of the documentation and procedures already existing for each company activity.
The outcomes of these activities of risk mapping will be described in detail in the Special Parts, where the procedures and precautions prepared by Chugoku – Boat Italy S.p.a. will be described in order to avoid or minimize the risk of committing the Alleged Offenses.
The recipients of the rules and regulations contained in this Model, and who must, therefore, comply with it fully, are, in general, all those who work in the name and on behalf of Chugoku – Boat Italy S.p.a., including the directors, auditors, members of any other corporate organs, staff, collaborators also occasional, agents, business partners, suppliers as well as the member of the Supervisory Body (Recipients).
3. SUPERVISORY BODY
3.1 Identification of the Supervisory Board
The Supervisory Board of Chugoku – Boat Italy S.p.a. is an internal body with independent powers of initiative and control with the task of supervising the functioning and compliance of the Model and to update it.
The Supervisory Board of Chugoku – Boat Italy S.p.a. consists of a single member, as allowed for companies of small size, art. 6 paragraph 4 of the Decree, according to the interpretation given by the Guidelines. The member of the Supervisory has the necessary requirements of proven competence and professionalism, and will in any case draw up the minutes of the implemented activities. Given the monocratic composition of the Supervisory Board, Chugoku – Boat Italy S.p.a. has preferred not to attribute that status to the managing body, although this faculty is permitted by the article 6 paragraph 4 of the Decree, to ensure maximum autonomy and independence of the body, made all the more necessary by its individual composition. Therefore, the choice has inevitably fallen to a person external to the company, in order to ensure to the highest possible extent the performance of the supervision and control functions in a free way and unfettered by any form of conditioning.
The Supervisory Board is appointed by the Board of Directors or on its behalf by the Chief Executive of Chugoku – Boat Italy S.p.a. and holds the office for the time shown upon their appointment, or in the absence of such term for three years. Its members may hold office for more than one term.
The reasons that would make the members of the Supervisory Board unelectable or disqualified are:
i) the sentence, even if the sentence is not final or application of the penalty at the request of the parties, for crimes punishable by way of fraud, thus excluding the intentional crimes, except for those envisaged and punished under Articles 589 and 590 paragraph 3 of the p.c., committed in violation of the accident prevention regulations and the protection of hygiene and health in the workplaces, as well as contraventions involving the application of a punishment under art. 19 p.c., or provided for in the specific provisions of the law;
ii) in any case, any sentence, even if not definitive, involving the application of a punishment under art. 19 p.c. or envisaged by specific laws;
iii) the application of a personal or property detention order, the application of a personal or property prevention order or the application of personal or property anti-mafia prevention order;
iv) the declaration of interdiction or disability under the civil code, as well as the conflict of interest with Chugoku – Boat Italy S.p.a..
The provisions of the Civil Code about the mandate will be applied to the Supervisory Board and its member.
3.2 Prerogatives and resources of the Supervisory Board
The Supervisory Board may request the support of persons belonging to the various company activities, if their knowledge and specific skills to particular analysis, and evaluation of specific operational steps and decision of the activity of Chugoku – Boat Italy S.p.a. are needed.
In any case, the Supervisory Board shall have the right, if the need arises, to make use of professional skills not available internally, or at least in the organization of Chugoku – Boat Italy S.p.a., to make use of the advice of external professionals.
The Supervisory Board, at the beginning of its mandate, and annually thereafter, will submit to the Board of Directors or on its behalf to the Chief Executive Officer of Chugoku – Boat Italy S.p.a. a request for the annual expenditure budget to be paid by the same Chugoku – Boat Italy S.p.a. and in particular:
• the Supervisory Board will submit to the Board of Directors or on its behalf to the Chief Executive Officer the request for the payment of the amount corresponding to the annual budget with sufficient detail of the fees and costs to be incurred for the proper fulfilment of the mandate;
• the Board of Directors or on its behalf the Chief Executive Officer may not refuse reasonably to provide for the payment of this sum, provided that the Supervisory Board may use it, independently and without prior authorization, for the purposes envisaged by this Model;
• this amount will cover the costs which, according to the estimates, the Supervisory Board will bear in the performance of its functions (provided that any costs related to human resources or materials made available by Chugoku – Boat Italy S.p.a. are not part of the budget).
3.3 Functions and powers of the Supervisory Board
The Supervisory Board of Chugoku – Boat Italy S.p.a. is tasked with:
– supervising the compliance of the Model requirements and of the documents connected with them by the Recipients, assuming all the necessary initiatives;
– supervising the real effectiveness, efficiency and effective capacity of the Model requirements, in relation to the company structure, to prevent the commission of Alleged Offenses;
– verifying the opportunity of updating and adaptation of the relevant procedures to comply with the Model, by formulating to the Board of Directors or on its behalf to the Chief Executive Officer the appropriate related proposals;
– reporting to the Board of Directors or on its behalf to the Chief Executive Officer and to the Board of Auditors the ascertained violations of the Model so that the consequent measures can be taken.
Without prejudice to the supervision obligation of the compliance with the Model and the procedures therein attributed to the Supervisory Board, its action cannot be disputed by the Board of Directors or on its behalf by the Chief Executive Officer, if not for reasons relating to breaches of the given mandate.
The “institutional” interlocutors of the Supervisory Board are, obviously, the heads of the individual and various company functions, who report on their respective areas of competence.
In particular, the Supervisory Board of Chugoku – Boat Italy S.p.a. will achieve the aforementioned objectives through:
– the reconnaissance of corporate operations for the purpose of updated mapping of the risk areas within the corporate environment;
– the verification of the adequacy of the rules in place in connection with any transformations, modifications and enlargements of the business activity;
– the proposal to the Board of Directors or on its behalf to the Chief Executive Officer of the appropriate changes and additions of the single Special Parts;
– consequently the care of updating the rules of conduct of the single Special Parts;
– the coordination with the other company functions (also through special meetings) to monitor better the activities in the identified areas at risk of committing the alleged offenses;
– the control of the effective presence and of the proper record keeping of the required documentation in accordance with the provisions in the Special Parts of the Model for the different typologies of crimes;
– the notification to the Board of Directors or on its behalf to the Chief Executive Officer of the deficiencies of the Model and the relative proposals for change or improvement. In this context, the Supervisory Board must receive constantly information about the evolution in the risk areas, and has free access to all the relevant company documentation. In this regard, it shall receive constantly, by the Board of Directors or on its behalf by Chief Executive Officer of Chugoku – Boat Italy S.p.a., the reports about the situations that might involve a risk of illegal acts;
– the coordination with the heads of the other business functions for the different aspects regarding the implementation of the Model;
– any other control, both periodic and targeted, on the actual execution of the single operations, procedures or activities within Chugoku – Boat Italy S.p.a. that may be appropriate (subsequent controls);
– the drafting and verification of the validity of the standard clauses aimed at implementing sanction mechanisms (eg. those for the termination of contracts with respect of business partners, collaborators or suppliers), if infringements of the provisions of the Decree are discovered;
– the Supervisory Board shall prepare an information report for the Board of Directors or on its behalf for the Chief Executive Officer and the Board of Auditors, at least every six months.
Finally, and in accordance with the provisions of art. 6, paragraph 1, lett. b) of the Decree, the tasks of monitoring and updating of the Models assigned to the Supervisory Board are subdivided into three different types of controls:
• verifications on acts: the Supervisory Board will conduct a verification of the main corporate acts and the most important contracts concluded by Chugoku – Boat Italy S.p.a. within the areas of risk;
• verification of the procedures: the Supervisory Board will verify periodically the actual operation of this Model;
• verifications on warnings and measures:
The Supervisory Board must give account of the results of this verification activity, albeit briefly, in the annual report prepared by the Supervisory Board for the Board of Directors and Board of Auditors.
4. INTERNAL INFORMATION FLOWS
4.1 Information obligations in respect of the Supervisory Board
In addition to the documentation expressly indicated by each Special Part of the Model according to the procedures laid down in them, any other information pertaining to the implementation of the Model in the areas of risk, as well as the possible violations of provisions of the Model shall be brought to the attention of the Supervisory Board.
The heads of each corporate function, within their respective competence, shall always communicate to the Supervisory Board all information regarding:
– the decisions about the request, disbursement and use of public funds higher than 50,000.00 Euro;
– the requests for legal assistance submitted by the staff (including executives) against whom the judiciary proceeds for any of the Alleged Offenses;
– the measures and/or the news coming from the Judiciary and the Criminal Police showing performed investigations, including those against unknown persons, for events where the business activities of Chugoku – Boat Italy S.p.a. are potentially involved;
– the news on the actual implementation, at all company levels, of the Model;
– the performed disciplinary proceedings, any inflicted sanctions or any act of dismissal of such proceedings with the corresponding reasons about violations under the Legislative Decree 231/01;
– summaries of the most relevant public procurement contracts concluded with Public Bodies.
The Board of Directors or on its behalf the Chief Executive Officer is required to give full information to the Supervisory Board on matters falling within the competence of the Supervisory Board itself.
In order to allow to the Supervisory Board for the effective performance of the required tasks, Chugoku – Boat Italy S.p.a. guarantees to all Model’s Recipients, as well as any third parties, the right to report to this body any wrongdoing, fault or suspicious activity in relation to the commission or to the risk of committing one of the Alleged Offenses, of which they become aware for any reason.
The Supervisory Board will manage the information, reports and assessment activities with absolute confidentiality so that retaliation, discrimination or unjust penalties to the parties will not arise.
All staff of Chugoku – Boat Italy S.p.a. has the faculty, as well as the duty, to notify, in writing, any information relating to the possible internal anomalies or illegal activities.
The notifications given for the sole purpose of damaging the Company, its directors or staff will constitute a disciplinary offense. Anonymous reports will not be taken into account.
The Supervisory Board may also to receive and evaluate reports and communications, also written, from outside the Company.
The Supervisory Board can request any kind of information and/or documentation, useful for the verifications and controls assigned to it, to the Board of Directors or on its behalf to the Chief Executive Officer and to the staff, by obliging the indicated parties to comply with the utmost care, thoroughness and solicitude to every request of the Supervisory Board.
The Supervisory Board verifies and analyses the received information and the communication and the measures to be implemented. Once implemented, the measures shall be consistent and in line with the expectations dictated by the disciplinary system of this Model.
4.2 Disclosure obligations of the Supervisory Board in respect of the corporate bodies
The Supervisory Board is responsible for specific disclosure obligations directly in respect of the Board of Directors and the Board of Auditors.
The Supervisory Board of Chugoku – Boat Italy S.p.a. may be called at any time by the Board of Directors or on its behalf by the Chief Executive Officer or it may request in turn to be heard by said body, to report on the functioning of the Model or specific situations. In addition, every six months, the Supervisory Body sends to the Board of Directors or on its behalf to the Chief Executive Officer and the Board of Auditors a written report on the implementation of the Model.
The information and the prepared or received reports under the Decree must be preserved by the Supervisory Body for ten years.
Such documentation will, of course, be available to the Supervisory body and anyone entitled to access it.
5. DISCIPLINARY SYSTEM
5.1 General principles
Article 6, paragraph 2, letter e) of the Decree states that a disciplinary system to punish the occurred violations must be introduced.
The definition of a disciplinary system (proportionate to the typology of infringements) applicable in case of infringements of the provisions of the Model, makes effective the supervisory and prevention action assigned to the Supervisory Board and is designed to ensure the effectiveness the Model.
The disciplinary system has also been drawn up on the basis of the following principles:
• differentiation based on the Model’s Recipients;
• identification of the disciplinary sanctions to be adopted against the recipients in respect of the provisions envisaged by the national collective bargaining agreement and the applicable legislative requirements;
• identification of the procedures for investigating the violations, breaches, circumventions, imperfect or partial applications, and a special procedure for imposing applicable penalties, identifying the subject responsible for their imposition and in general to monitor the observance, application and updating of the disciplinary system.
In particular, the disciplinary system is addressed:
– to all those who hold, even de facto, functions of representation, administration or management (including also any liquidators) of Chugoku – Boat Italy S.p.a. or one of its organized units with financial and management autonomy;
– to persons under the management or supervision of one of the above subjects, and in general to all staff as well as to all those who, for any reason and at various levels of responsibility, operate within Chugoku – Boat Italy S.p.a. contributing, with their acts, to the performance of the overall company business, including collaborators, business partners, suppliers.
This disciplinary system is subdivided into specific sections, each referring to a category of recipients, taking into account the legal status of the different subjects. The disciplinary system is made public and spread by posting it on the premises of Chugoku – Boat Italy S.p.a..
The application of disciplinary sanctions is without regard to the result of possible criminal proceedings, since the rules of conduct imposed by the Model are assumed by the company independently, regardless of the criminal offence that such acts can integrate.
The conduct adopted by the staff in breach of any rules of conduct indicated in this Model, constitutes disciplinary offenses.
5.3 Measures against directors
In case of violations of the Model by the directors of Chugoku – Boat Italy S.p.a., the Supervisory Board will inform the entire Board of Directors or on its behalf the Board the Chief Executive Officer, who will take appropriate action provided for under the law in force.
5.4 Measures for collaborators, business partners and suppliers
Any conduct adopted by the staff, agents, business partners or suppliers in contrast with the lines of conduct indicated in this Model and such as to entail the risk of committing an Alleged Offense may determine, in accordance with the specific contractual clauses included in the letters of appointment or partnership agreements the termination of the contract, without prejudice to the claim for damages if such conduct causes damage to Chugoku – Boat Italy S.p.a.
6. DISSEMINATION AND KNOWLEDGE OF THE MODEL
An indispensable condition to ensure the concrete and constant compliance with the Model and the procedures described herein is the knowledge of the same by all Recipients.
Chugoku – Boat Italy S.p.a. has therefore taken the initiatives that will be described below in order to ensure a correct dissemination of the Model not only inside but also outside the company environment.
6.1 Staff training
Chugoku – Boat Italy S.p.a. promotes the awareness of the Model among all Recipients, who are thus obliged to know the content, to observe it and to contribute to its better implementation.
For the implementation of the Model, the staff training (to whom agents should be added) will be subdivided into the following modalities:
• Initial training through specific meetings in the period immediately after the approval of the Model;
• Publication of the Model on the website of Chugoku – Boat Italy S.p.a. and local intranet;
• Dissemination through internal circular of information material devoted to this matter, with constant and timely communication of any updates and modifications;
• Information at the time of recruitment.
6.2 Information of the collaborators, business partners and suppliers
SPECIAL SECTION “A”
Relationships with the Public Administration and the crime of “corruption among private persons”.
1. TYPOLOGY OF CRIMES IN THE RELATIONSHIPS WITH PUBLIC ADMINISTRATION AND THE CRIME OF CORRUPTION AMONG PRIVATE PERSONS (ARTS. 24, 25 AND 25 ter, paragraph 1, letter s-bis OF THE DECREE)
With regard to this First Special Part, the procedure below is a brief description of the offenses contemplated herein, as indicated in articles 24, 25 and 25 ter, paragraph 1, letter sbis of the Decree:
Embezzlement against the State or the European Union (art. 316-bis pc)
This type of offense occurs in the event in which, after having received financings or contributions from the Italian State or the European Union, the amounts obtained for the purposes they were intended are not utilized (the conduct, as such, is in having diverted, even partially, the amount obtained, without revealing that the planned activity has nevertheless been completed).
Given that the time of perpetration of the offense coincides with the executive phase, the offence may also be committed with regard to fundings obtained in the past but not subsequently utilised for the purposes for which they were granted.
Misappropriation of funds against the State or the European Union (art. 316-ter)
This type of offense occurs in the event in which – by using or presenting false statements or documents or the omission of required information – contributions, financing, subsidized mortgages or other funds of the same type granted or paid by the State, other public bodies or the European Union are obtained without being entitled. In this case, contrary to what already seen in the preceding point (art. 316-bis), the purpose for which the funds are utilised is irrelevant, in that the offence is committed at the time when the funds are received.
Finally, it must be noted that this type of crime is residual with respect to the offence of fraud against the State (which will be described below), in that it applies only in cases where the conduct does not provide the grounds for a charge of fraud to the detriment of the State.
Bribery (art. 317 p.c.) and undue induction to give or promise benefit (319-quarter)
Bribery occurs in the event in which a public official or a public service officer, abusing its position, compels another party to provide him or other persons with money or other benefits to which they are not entitled.
The offense of undue induction to give or promise benefit occurs in case, unless the action constitute a more serious offence, the public official or the public service officer, abusing his/her capacity and powers, induces somebody to give or promise unduly to him/her money or other benefit.
In these cases, the private individual who gives or promises money or other benefit is in turn penalised, albeit with a minor penalty. This offence is subject to a merely reductive application within the context of the offences contemplated by the Decree; in particular, these types of crimes may arise, within the scope of application of the same Decree, when an employee or agent of a company contributes to the crime of the public official, who, taking advantage of that capacity, forces or induces third parties to benefits not due (provided that, as a consequence of such conduct, the company in some manner obtains a benefit).3
An exception is the case of promise or payment not seen as a constraint, but induction of the private person from the public official or public service officer, because in that case the private person who yields to the induction to secure an advantage commits the offense of the less severe type.
Corruption (art. 318-319-320-321 p.c.)
The crime of corruption for the exercise of the function occurs in the event in which a public official or public service officer solicits money or other advantage, or the promise thereof, for himself/herself or for others, money or other benefits office for the exercise of his/her functions or powers.
The crime of corruption for an act contrary to official duties occurs in the event in which the public official or a public service officer, to omit or delay or because he/she has omitted or delayed an act of his office or for performing or having performed an act contrary to official duties, receives for himself/herself or for a third party, money or other benefit, or accepts a promise
The crime occurs both when the public official, for consideration, or in general against any benefit, performs an act related to its function (for example to give priority to matters which are part of his/her normal duties), or when he/she performs an act contrary to his/her duties (for example: guaranteeing the illegitimate awarding of a job) Under Article 321 p.c., the penalties for public officials and public service officers shall also apply to private individuals who give or promise money or other benefits.
Corruption among private people (art. 2635 c.c.)
The offense of corruption among private persons punishes the directors, general managers, managers in charge for preparing corporate accounting documents, auditors and liquidators and those who are under the direction or supervision of one of the subjects mentioned, who, as a result of bestowal or promise of money or other benefits for themselves or others, commit or omit acts in violation of the obligations inherent to their office or of obligations of loyalty causing harm to the company.
The rule also punishes those who give or promise money or other benefits to the abovementioned persons. More severe penalties are envisaged for the cases of publicly listed companies and for the distortion of competition.
Incitement to corruption (art. 322 p.c.)
The penalty for this offense applies to anyone who offers or promises money or other undue benefit to a public official or a representative of a public service, for the exercise of his/her functions or powers when the promise or offer is not accepted.
Likewise, the conduct of a public official or public service officer who solicits a promise or the bestowal of money or other benefits for the exercise of its functions or powers, is punished.
Corruption in judicial proceedings (art. 319-ter)
This offense occurs in the event in which the company is involved in legal proceedings and, in order to gain an advantage in the proceeding itself, bribes a public official (not only a magistrate, but also a clerk, a witness or other official).
Fraud against the State, other Public Body or the European Union (art. 640, paragraph 2, no. 1, p.c.)
This offense occurs in the event in which, to achieve an unjust profit, ploys or fraud are employed to produce errors or to cause damage to the State (or a public Body or the European Union), leading to the delivery of a determined performance of a capital nature.
This offence occurs, for instance, when, in preparing the documents or data required for participating in a tender procedure, untrue information is provided to the Government Agency (e.g. fabricated supporting documentation) in order to secure the award of the tender.
Aggravated fraud for the obtainment of public funds (art. 640-bis p.c.)
This offense occurs in the event in which the fraud is committed in order to illegally obtain public funds. This case occurs when ploys or fraud are employed communicating untrue data or preparing false documentation to obtain public funding.
Computer fraud against the State or other public Body (art. 640-ter p.c.)
This offense occurs in the event in which, by altering the operation of an information and computer system or manipulating the data contained therein, an unfair profit is obtained from the State or other public body, causing damage to third parties. Actually, the offence may occur if, once the financing is obtained, the computer system were infringed upon in order to enter a financing amount higher than the amount that was legally obtained.
Embezzlement, extortion, corruption and incitement to corruption of members of European Community bodies and officials of the European Communities and of foreign States (art. 322-bis p.c.)
Embezzlement refers to the act of appropriating money or other goods by public agents who have accessibility for reasons related to the performed activity. By virtue of that provision, crimes of embezzlement (art. 314), embezzlement taking advantage by the error of others (art. 316), extortion, undue induction to give or promise benefit and corruption (arts. 317-320, 319 -quater and 322, third and fourth paragraphs) occur, even if committed by:
1) members of the Commission of the European Communities, the European Parliament, the Court of Justice and the Court of Auditors of the European Communities;
2) officers and agents employed under the contractual rules of the officers’ statute of the European Community Officers or the regulations applicable to agents of the European Community;
3) individuals seconded by member States or by any public or private body at the European Community, whose duties correspond to those of officials or agents of the European Community;
4) members and employees of bodies constituted in accordance with the Treaties establishing the European Communities;
5) individuals who, within other member States of the European Union, carry out duties or activities that correspond to those of public officials and public service responsible.
1) to the above-mentioned persons;
2) to individuals who carry out duties or activities that correspond to those of public officials and public service officers in other foreign States or international public organizations, if the fact is committed to obtain for oneself or others an illegal benefit in international Business Transactions.
2. EVALUATION OF RISK AREAS
The risk of committing crimes against the Public Administration is inherent to any business activity: any company, in the ordinary course of business, has to face on many occasions with the most diverse public bodies and for the most diverse reasons (this happens for the formation of the company, with reference to the required formalities of registration and advertising).
Economic relations with partners and counterparts constitute the essence of the company business. In this situation, even the behaviours and relationships not aiming at the commission of offenses, but simple characterized by ambiguity (think of the relationships with a local administrator of excessive proximity, confidentiality and informality) can give rise to suspicion, determine the opening of investigations, in short, be misrepresented, both by the public official involved, and from outside observers. To this it may be added as another element of delicacy that case law tends to accommodate very wide notions of public official and public service officer (ie of the subjective qualifications that lead to the configuration of the offenses in question) with the result that figures belonging to legal persons and formally private bodies, because of the conduct of activities in the broad sense of public importance can be considered holders of qualification for the application of the criminal law.
As a general rule, it should also be said that, for Chugoku – Boat Italy S.p.a., the evaluation of the specificity of the business activities, aimed at seeking the possible existence of specific and more intense risk areas, gave reassuring results.
The analysis activity of business activities, executed in view of the elaboration of this Model, has allowed to verify that Boero’s clientele is almost exclusively private and is represented by the consumer market.
The analysis activity of business activities, executed in view of the elaboration of this Model, has allowed to verify that the clientele of Chugoku – Boat Italy S.p.a. is represented by Shipping Companies, Company of Ship management, Sanders and Applicators Companies, Shipyards, Carpentries, or other Port and Basin Operators with registered offices in Italy and/or their subsidiaries and/or affiliates abroad.
The aforementioned clientele has predominantly private legal nature in the business relationship cared directly by the staff of Chugoku – Boat Italy S.p.a. or by agents with whom regular contracts were stipulated. Brokers sometimes are hired on emerging centres and markets, or where major businesses occur, who care for new contacts and relationships with potential customers who, in case of successful commercial negotiations, receive a brokerage fee regularly billed.
The relationships with customers are managed, in most cases, directly by the company staff: the cases involving agents not bound by an employment relationship with the Company are limited and incidental. In any case, Chugoku – Boat Italy S.p.a. also supervises on its agents, to ensure that their behaviour never shows anomalies. It is, however, tradition of the Company to make use exclusively of agents that establish a stable and lasting relationship with the company.
For the rest, Chugoku – Boat Italy S.p.a. does not receive fundings and public subsidies. Despite the absence of a high level of specific risk of commission of offenses in the relations with the Public Administration, within the company activity, Chugoku – Boat Italy S.p.a. anyway stresses that the fundamental rule in any case if a Company representative, for whatever reason, has to maintain relations and contacts with the Public Administration must be as follows:
– any relationship with the Public Administration, with the individuals that represent it and with persons who perform functions in the widest sense of the term and have a bearing on the activities of public interest, must be considered an activity potentially at risk of violation of the Model;
– any relationship with partners or with trading counterparts that have significant economic importance or could result in a distortion of competition.
In particular, the procurement process is regulated by a special procedure that defines the role and responsibilities of those involved in the process as well as the general rules of behaviour for the main process activities.
3. IDENTIFICATION OF THE ACTIVITIES AT RISK
The offences taken into consideration presuppose the existence of relationships with the Public Administration (considered in a broad sense and also including the Public Administration of foreign States, as well as representatives of private organizations or private subjects that nevertheless exert activities regulated by public law and, in general, public interest) or, with regard to the crime of “corruption among private persons”, the establishment of relations with economic important content with subjects outside the Company.
All business activities that involve the establishment of a relationship with the Public Administration (direct risk activity) or the establishment of an economic relationship with third parties, in particular with reference to suppliers and customers must be therefore considered to be at risk.
Other areas of company activity that, although not involving directly the establishment of relations with the Public Administration, that require the management of financial tools and of payment and other activities that might allow advantages and benefits to be conferred to public officials (or their affiliated subjects) in the commission of crimes against the Public Administration (activity at indirect risk) must be considered to be at risk as well. In particular, areas of indirect risk are constituted by: with reference to the possibility that they may be used for the formation of hidden reserves of money or to be used in cases for illegal donations or to conceal illicit similar donations:
• the activities of administration, finance, accounting and tax; • the activities of purchase and payment;
• the award of contracts for consultancy and professional services, in particular when the selected subject is headquartered, operates regularly and is locally rooted in the area where Chugoku – Boat Italy S.p.a. is operating at that time; • personnel recruitment; • the appointment of directors and members of corporate bodies.
4. PRINCIPLES OF CONDUCT IN THE MANAGEMENT OF THE ACTIVITIES AT DIRECT RISK
This Special Part expressly prohibits – to all Recipients – to:
I) engage in conduct such as to integrate the types of crimes considered above (arts. 24 and 25 of the Decree);
II) engage in conduct that, although it does not constitute a type of crime included among those discussed above, it may potentially lead to it or otherwise be presented in a unclear way and be subject to misinterpretation;
III) engage in any conflict of interest with the Public Administration and private subjects with regard to the matters covered by the aforementioned offences.
In any relationship with the Public Administration it is forbidden in particular to:
a) give money donations to public officials or representatives of the business counterparts;
b) distribute giveaways and gifts beyond the practice and any applicable company procedures. In particular, any form of gift to Italian and foreign public official (even in those countries where the giving of gifts is a common practice), or their family members is prohibited, which may influence their independent judgment or induce to ensure any advantage for the Company. The allowed gifts must always be of an exiguous value or be intended to promote artistic initiatives (for example, the distribution of art books), or aimed at promoting business activity through gadgets and products approved by Chugoku – Boat Italy S.p.a.. The given gifts – except those of modest value – must be suitably documented in order to permit the required checks;
c) grant any other kind of advantage (promises of employment, etc.) in favour of representatives of the Public Administration which may lead to the same consequences referred to in point b);
d) provide services in favour of business partners that are not adequately justified in the context of the relationship established with the partners;
e) pay compensations in favour of collaborators that are not adequately justified in relation to the type of task to be performed and to the current local practice;
f) present untruthful or incomplete or partial declarations to national public or community bodies aiming to award public grants or subsidised loans or any other result;
g) allocate sums received from national public or community bodies, in the form of grants, contributions or loans for purposes other than those to which they were assigned.
The management of any relationship with the Public Administration or with private individuals when the relationship has an economic content, must be guided by the following fundamental principles:
– subjectivization of the activity: it is only important that, for projects of special relevance, a responsible of the activity in question is always identified, who follows the course and take the relevant decisions;
– subjectivization of the relationship: basically it is appropriate that only the identified responsible deals with the public official. Of course, the relationships subjectively undetermined must be excluded;
– formality: it is important to follow always the formal procedures provided for by the rules of the administrative procedure and avoid as much as possible informal relations, let alone confidential with representatives of public administrations;
– traceability: it is only important to leave written traces of the main stages and contacts during an administrative procedure;
– show of the exceptions: it is important to leave always a written record of the exceptions that, for reasons of extreme urgency, are made with respect to the procedures, with indication of the reasons;
– participation: it is only important to organize activities involving risks in such a way that the main decisions and actions of external importance affecting them occur and are perfected with the help of at least two corporate subjects, to facilitate the mutual control and prevent abuses.
The management of all relations with customers and suppliers must be guided by the following fundamental principles:
I) it is forbidden to engage in behaviours in order to commit or help commit the offenses considered above (2635 C.c.)
II) it is forbidden to engage in conduct not in line with the ethical principles contained in this model or not in accordance with the company procedures which are included herein and elaborated according to the aforementioned principles:
Subjectivization of the activity: all activities involving the selection, payment and generally the relationships with suppliers and customers are carried out in compliance with the tasks, roles and responsibilities defined by the corporate organizational chart and can be connected with a specific subject within the organization.
Formalities: all activities involving the selection, payment and generally the relationships with suppliers and customers are subject to formal procedures that must be followed obligatory.
Traceability: all activities involving the selection, payment and generally the relationships with suppliers and customers can be reconstructed through the various steps that led to the formation of the decision.
Participation: all activities involving the selection, payment and generally the relationships with suppliers and customers are perfected with the help of at least two corporate subjects, to promote mutual supervision and prevent abuse.
Show of the exceptions: it is important to leave always a written record of the exceptions that, for reasons of extreme urgency, are made with respect to the procedures, with indication of the reasons;
As far as specifically the relationships with suppliers, the Company’s activity is aligned with the following control principles:
• documented management of suppliers’ master data and changes to it, supported by appropriate documentation;
• registration of invoices only in the presence of a purchase order – properly approved on the basis of the granted spending limits – and the objective evidence of the received goods/services, and of the authorization flow to pay upon the execution of the contract/receipt of the goods;
• traceability of payments.
5. PRINCIPLES OF CONDUCT IN THE AREAS AT INDIRECT RISK
As mentioned, the Model shall certainly provide for additional checks on some areas of activities which, although not directly at risk of committing crimes against the Public Administration, may, however, provide an opportunity to prepare sums of money to be employed for corruption purposes or to assign duties and benefits that can mask illicit donations.
Activities of passive invoices and payments (mapping for Auditors)
Chugoku – Boat Italy S.p.a. has chosen to formalize carefully, through specific internal procedures, the entire procurement and supply cycle: In particular the Company is required to purchase goods and services only through the use of selected suppliers that are present in the suppliers’ master data.
The selection of suppliers is made after collecting information on the qualities and characteristics of them and after testing supplied samples. It is forbidden to do business with suppliers that are not inside the suppliers’ master data.
a) for the purchase of finished products a purchase order is placed in the system heart-profit by Boero Bartolomeo and Chugoku Marine Paints;
b) an order for the purchase of other products/services is not placed in the system, but the order is made by e-mail/fax with the authorization of the Chief Executive Officer; The purchase request must reach the company management (CM), which evaluates it and, where appropriate, approves it; only after this control, the purchase order can be sent and the purchase can take place.
As for the registration of passive invoices, it happens only in the presence of a purchase order (properly approved as per procedure briefly described and on the basis of the granted spending limits) only after verifying the correspondence between quality and quantity of goods received with what is indicated in the order. No bill, with the only exception of those in small amounts, can be issued or paid in a manner other than the envisaged procedure and, especially, with the initiative of a single subject, even if it is a director.
In particular: following the order, once the supply happens, it is first physically verified by the area receiving it;
a) a further verification of documents follows (on the order, transport documents, delivery bills etc.) by the accounting;
b) if any inconsistency arises, the payment is blocked and can be unblocked only after the decision of the head of logistics and supply.
Despite of the extensive guarantees offered by the adopted procedures, it goes without saying that anyone who finds elements that could arouse the suspicion of illicit activities in these areas must immediately inform the Board of Directors or on its behalf the Chief Executive Officer. The alert is notified to the Supervisory Board.
The selection of personnel is quite incidental, given the small number of persons that make up the organization of the Company: it is however carried out by the personnel function of Boero always with the express approval of the Chief Executive Officer of the Company Chugoku – Boat Italy S.p.a.. When selecting personnel, the Company avoids the treatment discrimination in any capacity, by applying under any circumstances the requirements of the Code of Ethics.
Hiring consultants and external professionals
The tasks to freelance consultants and external contractors, involving salaries higher than Euro 10,000.00 (amount reported not to the individual performance, but to the whole of the considerations to be paid in favour of a single consultant over a period of 12 months) which do not fall within the contractual consolidated and continuous relationships, are assigned by the Chief Executive Officer or at least must be approved by him/her.
Appointment of directors and members of other corporate bodies
The resolutions on the appointment of directors and members of other corporate bodies must always give, albeit briefly, the reasons that led to the choice of that particular subject.
3 Notes on the concept of a public official and public service officer Much of the types listed in articles 24 and 25 Leg. Decree. 231/01 are configurable as “real” crimes, as they can only be integrated into relations in which at least one of the two subjects is provided with the status of public official or public service officer. For the purposes of the criminal law (art. 357 p.c.), public official is who exercises a public legislative, administrative or judicial function, forming or helping to form the sovereign will of the State or other public Body in which he/she is called to exert authoritarian tasks (deliberative, consultative or executive). A public service officer must be considered (art. 358 p.c.) who, while acting as part of an activity regulated in the same manner as a public function, lack of the powers typical of the latter, as long as it does not carry out simple ordinary tasks or performs purely material services.
SPECIAL PART “B”
Crimes in violation of the rules on protection of health and safety at work
1. MANSLAUGHTER AND SERIOUS AND VERY SERIOUS PERSONAL INJURY IN VIOLATION OF THE PROTECTION OF HEALTH AND SAFETY AT WORK (ART. 25 SEPTIES OF THE DECREE)
Article. 25-septies of the Decree, introduced by Law 3 August 2007 no. 123, and by art. 300 of the Consolidated Law on the protection of health and safety in the workplace, has extended the administrative liability of the Body also to offenses of manslaughter and serious or very serious injuries, committed in violation of the regulations on health and safety at work.
In this regard, it should be emphasized that the mentioned Consolidated Law, in addition to reform and reorganize in a systematic way the vast existing rules concerning the protection of health and safety in the workplace, has also extended the administrative liability of the Body to cases of offense in question, and dictated some specific rules on the preparation of the Model.
Manslaughter (art. 589 of the p.c.)
Whoever causes by negligence the death of a person is punished with imprisonment from six months to five years.
If the crime is committed as a result of a violation of road traffic laws or laws for the prevention of occupational accidents, the penalty is imprisonment from two to seven years.
The penalty of imprisonment from three to ten years is applied if the offense is committed in violation of road traffic law by:
a. a subject under the influence of alcohol pursuant to art. 186, paragraph 2, letter c) of the legislative decree 30 April 1992 no. 285, as amended;
b. a subject under the influence of drugs or psychotropic substances.
In case of death of more persons, or the death of one or more persons and injury of one or more persons, the penalty that shall be inflicted for the most serious of the committed violations is applied increased up to three times, but the penalty cannot exceed fifteen years.
Culpable personal injury (art. 590 p.c.)
Anyone who causes others by negligence a personal injury is punished with imprisonment up to three months or a fine of up to Euro 309.
If the injury is serious, the punishment is the imprisonment of one to six months or a fine from Euro 123 to Euro 619; if it is very serious, imprisonment is from three months up to two years or a fine from Euro 309 to Euro 1,239.
If the crimes referred to in paragraph two are committed as a result of violations of road traffic laws or the laws for the prevention of occupational accidents, the penalty for serious injury is the imprisonment from three months to one year or a fine of Euro 500 to Euro 2,000 and the penalty for the very serious injuries is the imprisonment from one to three years. In cases of violation of the road traffic laws, if the crime is committed by an individual under the influence of alcohol pursuant to art. 186, paragraph 2, letter c) of the legislative decree 30 April 1992 no. 285, as amended, or by individual under the influence of drugs or psychotropic substances, the penalty for serious injuries is the imprisonment from six months to two years, and the penalty for the very serious injuries is the imprisonment for a year and six months to four years.
In case of injury of several persons, the penalty that should be inflicted for the most serious violation, is applied increased up to three times; but the penalty of imprisonment cannot exceed five years.
The crime is punishable on complaint by the victim, except in the cases envisaged in the first and second paragraphs, limited to crimes committed in violation of the regulations for the prevention of occupational accidents or on the hygiene at work that have led to an occupational disease.
It should be specified that not all incidents of manslaughter or serious or very serious personal injuries imply the administrative liability: in fact, pursuant to art. 27-septies in question, only those events are featured in which the culpable conduct that has caused a damage to the physical integrity of someone was due to the failure to comply with one or more provisions of law or regulations that protect health and safety at work.
It is also necessary to specify, in accordance with art. 583 paragraph 1 of the p.c., that the personal injury is considered “serious” if:
(i) an illness derives from the event which endangers the life of the injured person, or an illness or incapacity to attend to the normal activity for more than 40 days;
(ii) a permanent weakening of a sense or an organ derive from the event.
The injury is instead considered “very serious”, in accordance with the article 583 paragraph 2 of the p.c., if it causes:
(i) an illness that is certainly or probably incurable;
(ii) the loss of a sense;
(iii) the loss of a limb, or a mutilation which renders the limb useless, or the loss of use of an organ or the capacity to procreate, or a permanent and serious loss of the use of the word;
(iv) the deformity, or permanent disfigurement of the face.
With regard to the penalty system introduced by the Decree in relation to the crimes in question, there are three different degrees of gravity of the offense, and therefore of the sanction applicable by the Body. Specifically:
(i) in case of manslaughter given by the most serious violations indicated in art. 55 paragraph 2 of the Consolidated Law (consisting, briefly, of the failure of drafting or inadequate drafting of the risk assessment document by law in companies whose activities are characterized by particularly dangerousness), the pecuniary sanction is 1,000 shares; the disqualification sanctions range from a minimum of three months to a maximum of one year;
(iii) in case of serious or very serious culpable injury, the pecuniary sanction is a maximum of 250 shares; disqualification sanctions do not exceed six months.
2. RECIPIENTS OF THIS SPECIAL PART
In view of the purposes of the types under examination, it is quite evident that every business activity constitutes a risk, in this respect, for those who execute it and for the community in general.
Immediate consequence of these premises is that the recipients of this Special Part, in addition to the Model’s
Recipients, must be considered:
– all persons performing and holding executive positions in terms of health and safety in the workplaces (for example, the prosecutors of the employer, those responsible for the safety, competent doctors, the emergency workers, etc.).
– the external service providers who work within the corporate areas (including temporary workers or from cooperatives that operate even occasionally);
– drivers, truck drivers, and the like who access the corporate areas to perform operations of loading and unloading of goods;
– other collaborators, even occasional;
– visitors of the offices and, in general, of all the areas where the Activity takes place.
3. PURPOSE OF THE PRESENT SPECIAL SECTION
It should first be noted that the crimes referred to in this Special Part, unlike all the others under the Decree, does not involve voluntary illegal conducts; they are integrated by merely negligent conducts, and therefore involuntary.
In case of serious personal injury, therefore, no one wants the serious personal injury to happen: it occurs due to a previous omission about the compliance with prevention regulations caused by guilt (ie negligence or imprudence or inexperience), but not by the will of causing that event.
This Special Part has therefore the aim to prevent this type of crime, through the provision of a number of internal organizational measures that aim at taking timely and exhaustively all the remedies and all measures required by law and regulations for the full protection of the occupational safety and minimizing the risk that there may be omissions and deficiencies in this area of activity.
This Special Part, therefore, pursues five different purposes, all organically instrumental to ensure safety protection:
1) To organize and define the organizational structure of the corporate subjects involved in the care of health and safety at work;
2) To dictate principles and rules of general conduct for the company, for all Recipients of this Special Part, for persons holding active roles in the management of the occupational safety;
3) To organize and regulate all corporate activities with the required formalities, in terms of occupational safety, by the Consolidated Law, as well as any other rule of law and regulation;
4) To organize and regulate all activities relating to the continuous assessment of the intrinsic risks relating to the corporate activity and the correctness and/or timeliness of existing assessments;
5) To organize activities designed to adapt and update continuously the measures and tools of corporate protection of safety and health at work, both with regard to the legislation changes and to new technical and scientific knowledge on the subject.
In particular, in the pursuit of the purposes listed above, Chugoku – Boat Italy S.p.a. aims to regulate and direct the fulfilment of legal obligations in relation to:
a) the compliance with the technical standards of the law concerning equipment, plants, workplaces, chemical, physical and biological agents;
b) the activities of risk assessment and preparation of measures of the ensuing prevention and protection;
c) the organizational activities, such as emergencies, first aid, internal emergency plans, management of public procurement, periodical H&S meetings, consultations with workers’ representatives for safety;
d) the activities of health surveillance;
e) the activities of information and training of workers;
f) the activities of monitoring on the compliance with the procedures and instructions to ensure the work is performed by workers in safety;
g) the acquisition of documentation and obligatory certifications required by law;
h) the periodic checks of the application and effectiveness of the adopted procedures.
This model also aims expressly to:
– include measures and methods suitable to monitor:
(i) the overall system of safety protection by Chugoku – Boat Italy S.p.a.,
(ii) the continued appropriateness of the measures taken, and
(iii) the emergence of new needs for protection;
– to foresee the extension of the existing disciplinary system, also the weaknesses, omissions and violations on accident prevention.
4. SUBJECTS INVOLVED IN TASKS IN TERMS OF SAFETY
The subjects who have a significant role in the protection of occupational safety and health pursuant to Legislative Decree 81/08 are:
1. Employer, for the duties that cannot be delegated;
2. Prevention and Protection Manager (PPM)
3. Competent doctor;
It is important to bear in mind that the structural organization of the prevention system, within the Company, is as follows.
The Employer is the Chief Executive Officer provided with the decision-making and expenditure powers.
The Employer has then proceeded to identify, in accordance with the provisions of the Consolidated Law, the Prevention and Protection Manager (PPM). The PPM has the necessary competence and powers to carry out his/her tasks.
The Officers have been adequately trained.
The competent doctor knows the company’s plants and activities performed there, monitor the health and checks the fitness of workers for their tasks independently in the manner prescribed by law.
5. CORPORATE POLICY ABOUT SAFETY
Chugoku – Boat Italy S.p.a. has codified a set of general principles since long which it intends to comply with when dealing with the issue of health and safety protection at work.
The Company considers health and safety protection not just a legal obligation but a moral duty.
Chugoku -Boat Italy S.p.a. believes that the protection of the health and safety of workers represents a real opportunity for growth for the company itself and for its workers. In this sense, the Company always strives to ensure its employees working conditions that respect human dignity and safe working environments, developing awareness among workers of the hazards involved in the Activity, and promoting the adoption of behaviours which are responsible and compliant with laws by everyone, employees and collaborators.
Chugoku – Boat Italy S.p.a. performs, therefore, its business activities in full compliance with the principles of protecting the mental and physical health of their workers and its own company policy is based as to health and safety protection of workers on the following objectives:
– the decrease over time in the frequency and severity of accident phenomena and occupational diseases, to the minimum level that is currently technically achievable;
– the adoption, in every technical and organizational choice, of measures for the prevention and protection necessary to eliminate risks or to reduce them to acceptable levels;
– the maintenance over time of the desired levels of safety, consistent with the optimal management of the security costs, also including the efficient and planned use of human, technological and material resources in the possession of the company.
To this purpose, Chugoku – Boat Italy S.p.a. has made the constant update of the tools and technologies available to its employees for the performance of the corporate activities one of the key principles of its corporate activity.
To pursue the objectives that characterize its corporate policy, Chugoku – Boat Italy S.p.a. commits itself to:
• respecting the laws in force and the one that will enter into force in the future, in terms of protection of health and safety;
• ensuring the understanding, implementation and support of its policy at all levels to guarantee the participation in the system in accordance with the powers and responsibilities of each, being aware that the commitment of everyone is required to achieve the stated objectives;
• enhancing the training and work of all persons directly involved in protecting the health and safety of workers, giving the specific corporate function the importance it deserves, being aware that the pursuit of the stated objectives requires appropriate technical and management skills;
• enhancing the expertises of all workers, providing them with the necessary information and training on the risks and measures in order to eliminate or reduce them, recognizing that the main agents improving the levels of safety in the company are the workers themselves;
• demanding from all the staff who work in the company, internal and external, the observance of the existing legislation on health and safety at work, as well as all of the internal provisions the company has envisaged or will envisage, with the aim to improve and maintain the security levels;
• promoting the application of the rules of health and safety protection, even requesting each worker to signal any deficiencies or malfunctions of machines, equipment or safety devices, which can cause damage to the health and safety of workers and any violations of current laws and internal provisions.
6. PLANNING AND ORGANIZATION OF THE SYSTEM
assesses constantly the risks in relation to the various corporate activities;
considers, placing great attention and establishing the appropriate procedures, also the cases and the situations beyond the ordinary corporate activity.
7. GENERAL PRINCIPLES AND RULES OF CONDUCT
Chugoku – Boat Italy S.p.a. considers it appropriate to recall first of all what are, in general, the rules of conduct that must nevertheless distinguish the behaviour of all those involved in the corporate activities.
The Company, first of all, with reference to the matter of safety, hygiene and health protection of workers, adheres to the following general principles:
– the organization and the exercise of its industrial activity comply with all the rules drawn up on the matter in the strictest way and ensure the realisation of an effective, suitable and competent system for the management, execution and updating of the activities and issues related to the subject;
– cares the drafting and the dissemination of the regulations and internal communications, bearing any additional and necessary provision regarding the behaviour and the precautions that must be followed by the workers;
– makes available to workers adequate protective equipment, taking care that they are always updated according to the state of the art and knowledge in the field;
– monitors, through the persons in charge for the various areas that all safety and protection equipment provided are actually used in the manner required by the instruction manuals and other provisions, providing that their non-use is qualified as disciplinary offence;
– identifies and defines areas of particular danger to safety in the plants and in the pertaining areas, restricting the access only to authorized subjects;
– ensures that there are internal procedures that provide for, on the one hand, the regular updating of the risk assessment document, on the other hand, its immediate updating in case of significant organizational changes of the work activities;
– ensures that there are internal procedures on the rules of conduct in an emergency;
– ensures that the employer in terms of safety, the Manager and the Officers are provided with full powers for the effective exercise of the surveillance and prevention;
– ensures that all the obligations of training and information provided by the Consolidated Law and as subsequently amended and supplemented in terms of health and safety in the workplaces are comprehensively fulfilled;
– prepares a sheet that enables all workers to report work phases or work tools that are risky or deficient from the point of view of the safety protection at work;
– ensures that suppliers, contractors, performers of work and any other third party of the company, in the execution of works and the provision of services to the society, comply with the rules of safety at work with the same level of rigour that must be followed by the workers of Chugoku – Boat Italy S.p.a.;
– cares the assessment of the chemical risk, noise, vibration, as well as new and additional risks set forth and provided by the Consolidated Law such as, for example, the work-related stress.
It is mandatory for all Model’s Recipients to engage in the following conducts:
– to observe strictly every law and every regulation dictated in the field of occupational safety, hygiene and health protection of workers;
– to comply, with the same rigour, with every regulation and every internal provision on the same matters;
– to follow carefully the instructions and prohibitions that may be present on signs and internal communications;
– to employ all protective devices on machineries and equipment as required by the instructions manual, the manufacturer’s instructions, directions of the company etc…;
– to respect the boundaries of the work areas considered dangerous, by accessing only if authorized;
– to participate in training courses organized by the company and follow the information and the information documents relating to safety at work received from senior managers and officers;
– to not use working tools or protections other than those provided by the company;
– regarding third performers of work or providers of services, to not use tools and protective and safety equipment owned by Chugoku – Boat Italy S.p.a.;
– regarding temporary workers and cooperatives, to follow the instructions given to them by their employer, based on the information provided by Chugoku – Boat Italy S.p.a. in accordance with DUVRI and under the Consolidated law.
With reference to the PPM, to the Officers, they are responsible, within their respective power of:
– ensuring regular monitoring of emerging risks, allowing that the relative evaluation is gradually upgraded and updated with new risk profiles;
– ensuring that the monitoring results are translated a) into the adoption of new and appropriate safety measures and improvement of the existing ones; b) when necessary, into suitable documents that must be correctly disseminated within the company among the involved subjects; c) into the issuance of the necessary directives and instructions that must be correctly disseminated among the involved subjects;
– ensuring that their risk assessment is based on objective criteria, in line with the scientific literature;
– ensuring that the risk assessment and the preparation of guidelines, regulations and internal briefing documents always take into account hypothetical emergency situations, as well as ordinary activities;
– meeting periodically in order to coordinate the respective activities and ensure the involvement of different corporate functions on issues related to health and safety in the workplaces;
– proposing disciplinary sanctions against anyone who does not respect the legislation and/or the internal provisions in the field of occupational safety.
8. SPECIFIC RULES OF CONDUCT
The rules listed above are supplemented by any other rules issued by each of the subjects with duties in terms of safety, containing instructions necessary for the completion of specific activities or the use of certain tools.
First, and in accordance with the provisions of the Consolidated Law, Chugoku – Boat Italy S.p.a. has carried out the risk assessment with respect of all activities, that are carried out within its headquarters, the Laboratory, and all other places generally where the Company performs its business.
The results of this analysis, together with the procedures in place in order to eliminate, or at least to reduce the risks, have resulted in the Risk Assessment document, prepared in accordance with the provisions of the Consolidated Law. This assessment was performed by the Company, in collaboration with the PPM and the Competent Doctor.
In this document Chugoku – Boat Italy S.p.a. has also supported a number of procedures, standardized and disseminated among all the workers of the Company, in terms of safety. These procedures have been developed taking into account in particular the different activities carried out by Chugoku – Boat Italy S.p.a. in the performance of its business, and which consist specifically of:
(i) administrative, commercial and representative activities (at the Headquarters); (ii) analysis and research activity (in the Laboratory); and (iii) activities to control the activities of painting and coating and related technical assistance (in the Shipyards).
Firstly, in accordance with the law provisions, for each operating unit, and thus for the Headquarters, for the Laboratory, for the Shipyards and, in general, for all the offices where it run its own activities, Chugoku – Boat Italy S.p.a. has developed the documents called “Check Up and Risk Sheets” containing the analysis of the single risk factors for the relative work environment, with specific indication of the observations, necessity of corrective interventions, programmes of interventions, and final evaluation of the relevant factor of risk.
A further aspect of fundamental importance for safety is the training and information to the workers: Chugoku – Boat Italy S.p.a. ensures the training of the involved personnel in different ways in the event of new recruitments, the employment in new tasks, or in any case with the introduction of new work equipment and/or new technologies. Chugoku – Boat Italy S.p.a. also focuses particular attention on the adequacy of the Personal Protective Equipment (PPE) adopted in relation to the type of risk and the user who uses it.
Chugoku – Boat Italy S.p.a. makes available to all its workers the documentation of the procedures adopted for the protection and prevention through the publication of such documents on the intranet of the Society.
9. ASSESSMENT OF THE EXISTING RISKS
Necessary and indispensable prerequisite for an effective activity of prevention of health risks and safety at work is an effective, thorough and continuous detection and evaluation of the existing risks in the corporate organization.
Chugoku – Boat Italy S.p.a. has always kept in mind the problem and has always dealt with it carefully, adapting to the provisions of the Legislative Decree 81/08, to the rules, regulations and circulars subsequently issued in terms of health and safety in the workplaces and, most recently, reorganizing, revising and updating the risk assessments and procedures under the new and additional introduced provisions.
In fact on the occasion of the entry into force of the mentioned provision, Chugoku – Boat Italy S.p.a. carried out a review of the risk assessments concerning the execution of business activities, revised and updated the procedures already in place, as well as revised and updated all related documentation.
The demonstration is shown by the large apparatus of documents already existing and the new material prepared in the light of the principles and provisions of the Consolidated Law.
In this respect, above all the fundamental document is the Document of Risk Assessment envisaged by the Consolidated Law. It was prepared by the employer with the technical support and direct involvement of the PPM, the Competent Doctor, PRE and workers.
In this document – which is the basis of the prevention and protection programme in use at the Company – there are further and more specific documents concerning specific typologies of risk and/or activities, taking into account the different corporate activities carried out in the various business units: administrative and commercial activities in the offices, analysis and research activities in the Laboratory and support activities and technical assistance to the painting in the Shipyards. Chugoku – Boat Italy S.p.a. has indeed regulated through specific procedures the activity of its research and consulting field in the Shipyards, the ones theoretically more vulnerable to accidents.
According to the new provisions introduced by the Consolidated Law, part of the Risk Assessment Document is also dedicated to the analysis of the new typologies of risk introduced by the same, such as, for example, electromagnetic fields, artificial optical radiations, non-ionizing radiations, chemicals, carcinogens and mutagens, asbestos, workrelated stress.
Therefore, the Company is well aware that the drafting of those documents (and the risk assessment that preceded them) does not conclude its task: it is crucial, in fact, that the evaluation activity is constant and continuous, always ready to detect new risk areas made evident by new technical and scientific knowledge or resulting from modifications of the business (new processes and methods of work, new machineries, new offices etc.), as well as to verify elements of shortages and deficiencies in the existing measures. The same Document, and its subsequent updates, are however on the agenda of each of the regular meetings held in relation to safety.
Even in all these activities, the activity of the employer is assisted and supported by the PPM, the Competent Doctor and envisages a prior consultation with the PRE.
Other fundamental profile is the evaluation of possible health hazards. The fundamental role in this regard is of course played by the Competent Doctor and by the archive of the medical records. Health records are preserved in compliance with the regulations on protection of privacy, by the Competent Doctor.
The Competent Doctor deals with, inter alia:
(i) the drafting annually of a report on the health of workers,
(ii) the provision of the useful information for the purpose of verification of the workplace;
(iii) performance of inspections at least annually at the workplaces, drafting then the appropriate minutes.
The Company also ensures that reports on accidents, on their causes and the circumstances in which they occurred, are prepared periodically, annually.
Chugoku – Boat Italy S.p.a. has also prepared, in consultation with the Competent Doctor, a health surveillance programme.
Obviously, in particularly serious cases and in any other circumstance where it is considered appropriate, the Competent Doctor can, on the contrary must, without delay, signal data and the news that he/she becomes aware, while carrying out his/her tasks.
Finally, as to the Shipyards, Chugoku – Boat Italy S.p.a. elaborates a specific safety document (DVRS or POS) that contains all the safety requirements if the Company provides consulting to its customers as part of the Shipyards.
The Safety Document takes into account the requirements of the Consolidated Law and the Document of Risk Assessment prepared by the Company, and is the document with which the Company complies with the requirements for the risk assessment, identification of prevention and protection measures, information and coordination related to the procurement contract or contract for work under which certain workers of Chugoku – Boat Italy S.p.a. have to operate within shipyards of other companies.
This safety document is in possession of the person of reference of the procurement contract for the Company, which shall provide a copy to the staff employed at the yard.
10. SPECIAL AND/OR EXTRAORDINARY CASES WITH RESPECT TO THE ORDINARY CORPORATE ACTIVITIES
Further decisive element for an effective prevention is that its measures and its initiatives are based not only on the examination of the ordinary activity, but also on the cases and situations that are outside it: the cases in which subjects not directly belonging to the organization of persons of the Company are involved, or concerning situations broadly of emergency, bring the highest risk in the activity that prove dangerous or lower the level of caution prevention.
Chugoku – Boat Italy S.p.a. has formalized all procedures adopted to tackle all emergencies cases.
11. DOCUMENTATION AND REPORTING OF ACTIVITIES
Another key point of the internal safety management system is the recording and the reporting of the main performed activities, resulting in their traceability, as far as the involved subject and contents. The traceability of the performed activities guarantees a form of self-control on the same and allows the possibility of an easier reading altogether and verification of the corporate activity of occupational health and safety protection.
All persons who hold key roles in the field are obliged to draft minutes, albeit synthetically, about the performance of the main activities (meetings, issue of new directives and circulars etc.).
Chugoku – Boat Italy S.p.a. has already provided for the minutes and relative documentation of the procedures designed to train and inform both already experienced workers, and the newly hired workers and those who have been assigned new and different tasks.
Similarly, Chugoku – Boat Italy S.p.a. has already carried out a detailed description on a documentary support of all procedures provided for health and safety in the workplaces, both in relation to the ordinary performance of the working activity, and to the management of exceptional and emergency cases (fire, first aid, etc.).
All above-mentioned documentation is kept in paper and/or computer archives, set up at each operating unit of Chugoku – Boat Italy S.p.a..
These archives are expected to be accessible to whomever is entitled.
12. DISCLOSURE, INFORMATION AND TRAINING
A fundamental aspect for an effective activity of occupational health and safety protection is the provision of any useful initiative to ensure effective and comprehensive forms of training and information to the workers and any other involved subject about the necessary themes so that everyone has all useful knowledge to keep the best and safest conduct at every occasion.
As it was already mentioned, the fundamental importance, for the most effective and most efficient safety prevention, is the involvement of all those involved in the corporate activity.
Crucial in this regard is the constant exchange of information among all corporate subjects involved in the protection of health and safety at work.
Chugoku – Boat Italy S.p.a., with the possible contribution of all those subjects who have functions and tasks in terms of safety, envisages the forms and ways of ensuring:
• the effective training and information of workers and all other subjects involved in the activity;
• the contribution of knowledge and experience by the workers, involved daily in the processing and corporate activities.
As to the first point, activities have already been provided and expressly regulated:
– one off or periodic collective and collegial training (regular meetings for workers already serving);
– individual training, on entering the company and in case of change of tasks;
– access of all involved subjects to the documentation on safety.
Chugoku – Boat Italy S.p.a. envisages forms of involvement based on
– periodic meeting with workers and their representatives,
– possibility to report malfunctions and deficiencies with the preparation and provision of the special sheet to signal anomalies.
Reports of failures must be directed to the PPM.
A chronological collection of the training sheets and anomalies reports is kept at the operating unit which reports and sheets refer to.
13. CONTROL AND REASSESSMENT OF THE INTERNAL SAFETY SYSTEM
The corporate action in terms of safety at work has to be dynamic and continuous, to ensure the possibility of a constant and effective updating of the protection measures, as well as the maintenance of their optimal level.
In this regard, it is essential that a company takes not only all the necessary measures for the safety protection, but also carries out the control and supervision of their effectiveness.
This control must be conducted on two levels:
– first level: constant and continuous, inherent in the action of the company’s subjects with tasks in the field of safety, who must carry out their activities observing strictly all the rules contained in this Special Part and always keeping in mind the effectiveness of their initiatives and the real protection of every relevant aspect of safety;
– second level: internal review through forms of revaluations and periodic controls conducted by internal auditors.
SPECIAL PART “C”
Property crimes committed by fraud
1. RECEIVING, LAUNDERING OR RE-USING (ART. 25-OCTIES OF THE DECREE)
This Special Part refers to the offenses of receiving, laundering and using of money, goods or benefits of illicit origin, set forth in the provision of the art. 25-octies of the Decree.
The latter provision, introduced by the Legislative Decree 21 November 21 2007, no. 231 of “Implementation of the directive 2005/60/Ec on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, and of the directive 2007/70/Ec, which contains the implementing measures”, envisages: “In relation to the crimes referred to in the articles 648, 648-bis and 648-ter of the penal code, the body is punished with a monetary sanction from 200 to 800 shares. In cases where the money, goods or other benefits originate from an offence for which a penalty of imprisonment of more than a maximum of five years is imposed the pecuniary sanction is from 400 to 1000 shares. In cases of conviction for one of the crimes indicated in paragraph 1 the disqualification sanctions referred to in article 9, paragraph 2, are applied for a period not exceeding two years.”
A brief description of the offences is provided herein below contemplated by art. 25-octies of the Decree:
Handling stolen goods (art. 648 of the p.c.)
The offense occurs when a subject, in order to procure for himself/herself or others a profit, purchases, receives or hides money or property deriving from any crime or otherwise intervenes to abet the purchase, receipt or concealment.
The crime occurs only if the agent has not taken part in the previous crime.
Purchase means every negotiation, whether for consideration or free, suitable for the transfer of the thing in the purchaser’s assets.
Reception means every achievement of property possession deriving from a crime, even if only on a temporary basis or for mere complacency.
Concealment, finally, occurs with the simple concealment of goods deriving from a crime.
The handling stolen goods also can happen in all cases where there is an interference in the purchase, receipt or concealment of the thing.
In the latter case, the offense is committed by the mere fact of having the culprit interfered in order to abet the purchase, receipt or concealment of the thing of criminal origin, without being required that the intrusion has reached the goal proposed by the agent .
By express provision of paragraph 3 of art. 648 p.c., receiving stolen things occurs even when the perpetrator of the crime from whom the money or things derive, is not due or is not punished or when a condition of admissibility is missing.
Laundering (art. 648-bis)
This type of offense occurs when anyone, except for the cases of concurring in the previous crime, substitutes or transfers money, property or other benefits deriving from intentional crime or carries out other transactions connected with it in order to obstruct the identification of its criminal origin.
According to the second paragraph of art. 648 p.c. the penalty is increased if the crime is committed in the performance of professional activity.
The conduct may happen in two ways:
i. replacing or transferring money, goods and other benefits deriving from intentional criminal acts (this is the case of those who, for example, exports money or values abroad and change them with money or other values);
ii. carrying out transactions on money, goods and other benefits;
that is when these conducts occur in order to hinder the identification of the criminal origin of the goods.
Use of money, goods or benefit of unlawful origin (art. 648 ter of the p.c.)
The crime occurs when anyone, always except for the cases of concurring in crime and the cases of stolen goods and laundering, employs knowingly goods or other benefits deriving from crime in economic or financial activities.
The punishable conduct is described with the verb employ, which does not have a precise technical significance and ends up having a particularly wide scope, since it can refer to any way of using money, goods or benefits deriving from the crime regardless of any beneficial result for the agent.
2. GENERAL PRINCIPLES OF CONDUCT AND IMPLEMENTATION OF DECISION-MAKING PROCESS IN THE AREAS AT RISK
When carrying out all activities within the company, and more specifically in the performance of at-risk activities, the Recipients must comply both with the principles indicated in the Code of Ethics, and with the adopted procedures.
In particular, the Company requires specifically all Recipients to abide by the following principles:
• to refrain from conducts liable to constitute any violation of the law, including therein the types of crimes described above;
• to refrain from conducts which, although they do not constitute violations of law or offenses included among those considered above, may potentially become so;
• to refrain from carrying out any transactions and operations on money or goods if there are any, in the circumstances of the transaction or in the characteristics of the counterpart, elements that suggest the unlawful origin of the goods and the money in question;
• to behave in a correct, transparent way, in compliance with the law and the internal company procedures, in all activities aimed at managing the master data of suppliers, customers and business partners, including foreigners;
• to procure goods and services only through the selected suppliers that are inserted in the suppliers’ master data;
• to select suppliers after collecting information on the qualities and characteristics of the same (further indices and parameters such as, for example, the presence or absence of certification may be included), and after having tested samples;
• to select and identify customers also through the collaboration of external consultants;
• to evaluate on an ongoing basis the work and the characteristics of customers, reporting any anomalies to the Sales Management of Chugoku – Boat Italy S.p.a.;
• to not entertain trade relations with suppliers/customers/partners not present within the master data of suppliers/customers, or with subjects who are known or suspected of belonging directly or indirectly to organized crime or operating outside of legality;
• to record every bank handling in the information systems in order to allow the daily inspection by the Treasury Office and the related accounting recording of such data;
• to carry out a constant monitoring of the company cash flows, through the registration of every handling in the information systems of the Treasury;
• in case of cash payments (which are still an unlikely event in the practice of the Company and limited to small amounts), check the accuracy of the documentation certifying the occurred received payments.
It is specifically prohibited to:
• purchase goods or services at a price clearly below the market value of those goods or services, without first making the necessary checks on their origin;
• purchase goods or services from suppliers who are not registered in the Company’s master data;
• make or receive payments in cash, except for amounts below the limits of the law and of small value;
• carry out operations that may seem for the purpose of disguising the illicit origin of money, goods or other benefits;
• carry out operations that may seem for the purpose of putting recycled capital in the economic system.
3. PARTICULAR RULES OF CONDUCT, RELATED TO THE SINGLE RISK AREAS
In order to implement the rules listed in the previous chapter, besides the principles contained in the General Part of this Model, the following rules must be observed:
• identification of new business partners by verifying data and information from reliable source;
• collection of information on business counterparts sufficient to understand fully the nature of their activities;
• verification of the commercial and professional reliability of the suppliers and business/financial partners;
• execution of controls of the company cash inflows taking into account the registered office of the counterparty, and the used banks;
• all the operations of commercial and financial nature arising from ongoing relationships with third parties must be preceded by an adequate verification activity in order to ascertain the absence of the risk of involvement in the commission of crimes of money laundering, receiving and use of money, goods or benefits obtained illegally through a clear identification of the counterparty and the nature of the transaction;
• contracts with suppliers and partners must be defined in writing in all their terms and conditions;
• at the conclusion of contracts with suppliers and partners, these latter must declare:
(i) to be aware of the regulations of the Decree;
(ii) to commit themselves to the compliance with the Decree;
(iii) if they were ever involved in litigation pertaining to the offenses specified in the Decree.
SPECIAL PART “D”
Crimes against judicial activity
1. THE TYPE OF THE RELEVANT OFFENCE (ART. 25- DECIES OF THE DECREE)
Law August 3, 2009, n. 116 introduced in the Decree article 25-decies according to which “in relation to the commission of a crime under art. 377-bis of the Penal Code, the body shall be applied a monetary penalty up to five hundred quotas”.
The offence occurs when with violence or threat or offer or promise of money or other utility, someone induces the person called to make statements before the judicial authorities not to make statements or to make false statements (statements that can be used in a special procedure).
2. AREA AT RISK
Entrepreneurial, commercial or business activity of any company is always liable to be subject to investigation by the judicial authorities.
That, a fortiori, right from the moment the system of administrative liability of legal entities was introduced.
3. GENERAL RULES OF CONDUCT
Chugoku – Boat Italy S.p.a has always concerned to conduct their business activities according to general rules of conduct designed to ensure, in their dealings with suppliers, customers, business partners, and employees, the respect of ethical principles and the rule of law.
Prior to the introduction, among the Offences, of the one that is the subject of this special section, Chugoku – Boat Italy S.p.a already had, in its code of ethics, the prohibition to perpetrate activities such as threats, requests,
recommendations, undue pressure or indications aimed at influencing any individual to act against the law.
It follows that, where Chugoku – Boat Italy S.p.a., or one of its exponents are involved in investigations by the judicial authorities, all recipients, if called to give statements to the same authority, are completely free to respond with the truth.
Chugoku – Boat Italy S.p.a. ensures to all Recipients that the fact of their collaboration with investigators will never be a source of prejudice, discrimination or negative evaluation by the company.
All the Recipients are obliged to inform about any attempt of influencing (or any other circumstance that may have induced suspicion of such an attempt) the Supervisory Body, which will take any appropriate initiative in this regard.
SPECIAL SECTION “E”
1. THE TYPE OF ENVIRONMENTAL CRIMES (ART. 25 – UNDECIES)
On 16th August 2011, with the entry into force of Legislative Decree No 121 of July 7, 2011 “implementation of Directive 2008/99/EC on the protection of the environment through criminal law and directive 2009/123/EC amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements” the administrative responsibility of legal persons was extended also in the case of the commission of the socalled “environmental crimes”, as the Lgs. D. 121/2011 aforementioned provided inter alia, the inclusion in the Lgs- D. 231/2001 of art. 25-undecies.
Therefore, for environmental crimes, art. 25 undecies provides for the Company responsible the monetary sanction up to 800 quotas and the sanction of interdiction:
– up to 6 months in the event of a breach of articles 137, 256 and 260 of Lgs D. 152/2006 and in case of breaches of article 8, paragraphs 1 and 2 and art. 9 paragraph 2 of the Lgs. D. 202/2007;
The extension of the administrative liability of company to the environmental offences provided for in the Lgs. D. 231/2001 introduced by Lgs. D. 121/2011 is destined to have a significant impact on businesses that perform a task that would even indirectly and at culpable level, provoke damage or prejudice to the environment.
In fact, the Law punishes both culpable and malicious conduct.
Specific environmental offences are included in the following standards:
-Penal Code: art.727 and art.733;
– Lgs. D. 152/2006: The consolidated law on Environment integrated with Lgs. D. 128/2010 and Lgs. D. 205/2010;
-L. 150/1992: on international trade in species of animals and plants in danger of extinction;
-L. 549/1993: on the protection of the ozone layer.
The following is the definition of criminal figures referred to in art. 25 undecies:
1) In relation to the commission of offences covered by the Penal Code the following monetary penalties apply to the body:
a) for the violation of article 727-bis (“killing, destruction, capture, transfer, possession of specimens of protected wild animal and plant species”) a monetary penalty up to two hundred and fifty quotas.
b) for the violation of art. 733-bis (“destruction or deterioration of a habitat within a protected site”) the monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• art 727-bis Penal Code “killing, destruction, capture, transfer, possession of specimens of protected wild animal and plant species “
“Unless the Act constitutes a more serious offence, anyone, except where permitted, kills, catches or holds specimens of a protected wild animal species shall be punished by imprisonment from one to six months or a fine up to 4,000 Euros, except the action concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species.
Anyone, except where permitted, kills, catches or holds specimens of a protected wild animal species shall be punished with a fine up to 4,000 Euros, except the action concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species.”
For the purposes of the application of art.727-bis of the Penal Code, for protected wild animal and plant species are meant those listed in annex IV to Directive 92/43/EC and in annex I to Directive 2009/147/EC.
• art. 733-bis Penal Code “destruction or deterioration of a habitat within a protected site”
“Anyone, except where permitted, destroys a habitat within a protected site or otherwise deteriorates it compromising its conservation status, shall be punished by imprisonment up to eighteen months and a fine of not less than 3,000 Euro.”
For the purposes of the application of art.733-bis of the Penal Code for “habitat within a protected site” is meant any habitat of species for which an area is classified as a special protection area pursuant to article 4, paragraphs 1 or 2, of Directive 2009/147/EC, or any natural habitat or a habitat of species for which a site is designated as a special area of conservation pursuant to art.4 of Directive 92/43/EC.
2) In relation to the commission of offences provided for by Legislative Decree April 3, 2006 No. 152 “environmental standards”, the following monetary penalties shall be applied to the institution:
a) for the offences referred to in art. 137 (“criminal sanctions”)
• for the violation of paragraphs 3, 5, first period, and 13 the monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• for the violation of paragraphs 2, 5, second period, and 11 the monetary penalty from two hundred to three hundred quotas.
• art. 137 (criminal penalties)
“1. Anyone who opens or otherwise makes new dumping of industrial waste water, without authorisation, or continues to maintain or keep these discharges after the authorisation has been suspended or revoked, shall be punished by imprisonment from two months to two years or a fine from 1,500 to 10,000 Euros.
2. When the conducts described in paragraph 1 relate to discharges of industrial waste water containing hazardous substances included in the families and groups of substances listed in tables 5 and 3/A of annex 5 to the third part of this Decree, the penalty is of arrest from three months to three years.
3. Anyone, outside of the assumptions referred to in paragraph 5, who makes a discharge of industrial waste water containing hazardous substances included in the families and groups of substances listed in tables 5 and 3/A of annex 5 to the third part of this Decree without observing the requirements of the authorisation, or other requirements of the competent authority in accordance with articles 107 paragraph 1, and 108, paragraph, shall be punished by imprisonment up to two years.
5. Whoever, in relation to the substances listed in table 5 of annex 5 to the third part of this Decree, in making a discharge of industrial waste water, exceeds the limit values laid down in table 3 or, in the case of discharge on soil, in table 4 of annex 5 to the third part of this Decree, or the more restrictive limits established by the regions or autonomous provinces or by the competent authority pursuant to article 107 paragraph 1, shall be punished by imprisonment up to two years and a fine from three thousand to thirty thousand Euros. If the limit values laid down for substances contained in table 3 of annex 5 are exceeded, the arrest from six months to three years and a fine between 6,000 and 120,000 Euros apply.
11. Anyone who does not comply with the prohibitions of discharge laid down in articles 103 and 104 shall be punished with the imprisonment up to three years.
13. Always applies the penalty of arrest from two months to two years if the discharge into the sea by vessels or aircraft contains substances or materials for which a total ban of dumping has been imposed in accordance with the provisions contained in international conventions in force and ratified by Italy, unless they are in such quantities as to be rendered quickly harmless by physical, chemical and biological processes, that occur naturally in the sea and in the presence of prior authorisation by the competent authority “.
b) for the offences referred to in art. 256 (“unauthorized waste management activities”)
• for the violation of paragraphs 1a) and 6, first sentence, the monetary penalty up to two hundred and fifty quotas.
• for the violation of paragraphs 1 b), 3, first sentence, and 5 the monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• for the violation of paragraph 3, second sentence, the monetary penalty from two hundred to three hundred quotas.
The penalties provided for in paragraph 2, point b), shall be reduced by half in the case of the offence provided for in article 256, paragraph 4, of Legislative Decree April 3, 2006 no. 152.
• art. 256 (unauthorised waste management activities)
“1. Anyone who performs an activity of collection, transport, recovery and disposal, waste trade and intermediation in the absence of the prescribed authorisation, registration or communication laid down in articles 208, 209, 210, 211, 212, 214, 215 and 216, is punished:
a) with arrest from three months to one year or a fine from two thousand six hundred to twenty-six thousand Euros in case they are non-hazardous waste;
b) with arrest from six months to two years or a fine of from two thousand six hundred to twenty-six thousand Euros in case they are hazardous waste.
3. Anyone who produces or manages an unauthorized landfill is punished with penalty of arrest from six months to two years and a fine from two thousand six hundred to twenty-six thousand Euros. The penalty of arrest from one to three years and the fine from EUR five thousand two hundred to EUR 52,000 applies if the landfill is designed, even in part, to the disposal of hazardous waste. To the judgement of conviction or the sentence under article 444 of the code of criminal procedure, follows the seizure of the area on which the illegal dump is made if it is the property of the author or co-author in the offence, without prejudice to the obligations of reclamation or restoration of the state of the places.
5. Whoever, in breach of the prohibition laid down in article 187, performs prohibited activities of waste mixing is punished with the penalty referred to in paragraph 1, letter b).
6. Anyone who performs temporary storage at the place of production of hazardous medical waste, in violation of the provisions of article 227, paragraph 1, point b), is liable to a penalty of arrest from three months to one year or to fine penalty from two thousand six hundred to twenty-six thousand Euros. The administrative penalty from two thousand six hundred to fifteen thousand five hundred Euros applies for quantities not exceeding 200 litres or equivalent amounts”.
c) for the offences referred to in art. 257 (“site remediation”)
• for the violation of paragraph 1, the monetary penalty up to two hundred and fifty quotas.
• for the violation of paragraph 2, the monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• art. 257 (remediation of sites)
“1. Anyone who causes the pollution of soil, groundwater or surface water exceeding the threshold of risk concentrations is liable to a penalty of arrest from six months to one year or a fine from two thousand six hundred to twenty-six thousand Euros if they do not provide the reclamation in accordance with the design approved by the competent authority in the proceedings referred to in articles 242 et seq. In case of failure of the communication referred to in article 242, the offender is liable to a penalty of arrest from three months to one year or to a fine between one thousand to twenty-six thousand Euros.
2. The penalty of arrest from one year to two years and the fine from five thousand two hundred to fifty-two thousand Euros applies if the pollution is caused by hazardous substances.”
d) for the violation of art. 258, paragraph 4, second sentence (“violation of the obligations of communication, keeping of mandatory registers and forms”) a monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• art. 258 (violation of the obligations of communication, keeping of mandatory registers and forms)
“4. Anyone who carries out the transport of waste without the form referred to in article 193 or indicates in the same form incomplete or incorrect data is punished with a fine between sixteen hundred to nine thousand three hundred Euros. The penalty laid down in article 483 of the Penal Code applies in the case of transport of hazardous waste. This penalty also applies to anyone who, in preparing a certificate of analysis of waste, provides false information concerning the nature, composition and chemical-physical characteristics of the waste and to those who make use of a fake certificate during transport “.
e) for violation of art. 259, paragraph 1, (“illegal waste trafficking”) the monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• art. 259 (illegal waste trafficking)
“1. Anyone carrying a shipment of waste constituting illegal trafficking within the meaning of article 26 of Regulation (EEC) 1st February 1993, no. 259, or making a shipment of waste listed in annex II to that regulation in violation of article 1, paragraph 3, letter a), b), c) and d), of the same regulation is liable to a fine from one thousand five hundred and fifty to twenty-six thousand Euros and the arrest up to two years. The penalty is increased in the case of shipment of hazardous wastes”.
f) for the crime referred to in art. 260 (“organized activity for illegal waste trafficking”) the monetary penalty from three hundred to five hundred quotas, in the case referred to in paragraph 1 and from four hundred to eight hundred quotas in the circumstances referred to in paragraph 2.
If the institution or its organisational units are permanently used to the unique or prevailing purpose to allow or facilitate the commission of the offences referred to in art. 260 the sanction of a definitive ban of the exercise of the activity is applied in accordance with art. 16, paragraph 3, of Legislative Decree 231/2001.
• art. 260 (organised activities for illegal waste trafficking)
“1. Anyone who, in order to achieve an illegal profit, with more transactions and through the provision of continuing resources and organised operations, gives, receives, delivers, exports, imports, or otherwise handles large quantities of waste illegally is punished by imprisonment from one to six years.
2. If it’s high-radioactive waste the penalty of imprisonment from three to eight years applies”.
g) for the violation of article 260 bis, the monetary penalty from fifty to two hundred and fifty quotas in the circumstances referred to in paragraphs 6, 7, second and third sentence, and 8, first sentence, and the fine from two hundred to three hundred quotas in the case provided for in paragraph 8, second sentence.
• art. 260 bis (computer control system of waste traceability)
“6. The penalty laid down in article 483 c.p. is applied to those that, in preparing a certificate of analysis of waste, used as part of the control system of waste traceability, provides false information concerning the nature, composition and physical-chemical characteristics of the waste and who include a fake certificate in the data to be provided for the purposes of waste traceability. 7. The carrier that fails to accompany the transport of waste with the hard copy of the SISTRA-HANDLING AREA card, and where necessary on the basis of existing legislation, with the analytical certificate that identifies the characteristics of waste, is punished by an administrative fine from 1,600 to 9,300 Euros. The Penalty, pursuant to art.483 of Penal Code applies in the case of transport of hazardous waste. This penalty also applies to any person who, during transport makes use of a certificate of analysis of waste containing false information concerning the nature, composition and chemical-physical characteristics of the waste transported. 8. The carrier accompanying the transport of waste with a paper copy of the SISTRA- Handling AREA fraudulently altered is punished with the penalty provided for by the combined provisions of articles 477 and 482 of the penal code. The penalty is increased by up to a third in the case of hazardous waste.
h) for the violation of article 279, paragraph 5, the monetary penalty up to two hundred and fifty quotas.
• art. 279 (penalties)
“2. Who, in the exercise of a plant or an activity, violates the emission limit values or the requirements set out in the authorisation, annex I to part five of this Decree, in the plans and programmes or in the regulations referred to in article 271 or the requirements otherwise imposed by the competent authority under this title, is punished with imprisonment up to one year or a fine up to one thousand and thirty-two Euros.
5. In the cases referred to in paragraph 2 the arrest penalty up to one year always applies if the exceeding of the limit values also determines the exceeding of the emission limit values for air quality required by applicable legislation.
3) in relation to the commission of offences established by law February 7, 1992 No. 150 “offences discipline relating to the application in Italy of the convention on international trade in species of animals and plants in danger of extinction”, the following penalties shall apply to the institution:
a) for the violation of articles 1, paragraph 1, 2 and 6, paragraph 4, the monetary penalty up to two hundred and fifty quotas.
• art. 1
“Whoever in violation of the provisions of the Decree of the Minister of foreign trade of December 31, 1983, published in the ordinary supplement to the Official Journal n. 64 of March 5, 1984, imports, exports or re-exports, under any customs procedure, sells, exposes for sale, holds for sale, sells, transports, also on behalf of third parties, or otherwise holds specimens of species listed in Annex A, Appendix 1, and Annex C, part 1, of Regulation (EEC) no 3626/82 of December 3, 1982, as amended, shall be liable to the following penalties:
(a) arrest from three months to one year or a fine from 15 million to 200 million Lire;
(b) in the case of a repeated offence, arrest from three months to two years or a fine from 15 million Lire to six times the value of the animals, plants and their parts or derivatives covered by the violation. In the case of commercial enterprise to the condemnation follows the suspension of license from a minimum of six months to a maximum of eighteen months”.
• art. 2
“Whoever, in violation of the provisions of the Decree of the Minister of foreign trade of December 31, 1983, published in the ordinary supplement to the Official Journal n. 64 of March 5, 1984, imports, exports or re-exports, under any customs procedure, sells, exposes for sale, holds for sale, sells, transports, also on behalf of third parties, specimens of species listed in Annex A, appendix II and III-except those included in Annex C, part 1 and Annex C, part 2 of Regulation (EEC) no 3626/82 of December 3, 1982, as amended, shall be liable to the following penalties:
(a) fines from 20 million to 200 million lire;
(b) in the case of a repeated offence, arrest from three months to one year or fines from 20 million lire to four times the value of the animals, plants and their parts or derivatives covered by the violation. In the case of offences committed in the exercise of the business activity, to the condemnation follows the suspension of license from a minimum of four months to a maximum of twelve months.
2. Importing objects for personal or domestic use related to the species referred to in paragraph 1, without the presentation of CITES documentation, if provided, is punished with an administrative penalty from two million to 12 million Lire.
• art. 6
“1. Without prejudice to the provisions of law February 11, 1992 No. 157, it is forbidden to anyone to hold live specimens of mammals and reptiles of wild species and live specimens of mammals and reptiles from reproduction in captivity that constitute danger to health or public safety.
4. Any person who contravenes to the provisions of paragraph 1 shall be punished with imprisonment not exceeding three months or a fine between 15 million and 200 million Lire”.
b) for the violation of article 1, paragraph 2, the monetary penalty from one hundred and fifty to two hundred and fifty quotas.
• art. 1
“The importation for personal or domestic use related to species referred to in paragraph 1, without the presentation of the required CITES documentation issued by the foreign State where the object was purchased, is punished with a fine between three million and eighteen million Lire. Illegally imported objects are confiscated by the State Forestry Corps “.
c) for offences of the Criminal Code referred to in article 3-bis, paragraph 1, of the same law n. 150 of 1992, respectively:
• the monetary penalty up to two hundred and fifty quotas, in the case of offences for which the maximum penalty it’s not higher than one year of prison;
• the monetary penalty from one hundred and fifty to two hundred and fifty quotas, in the case of offences for which the maximum penalty it’s not higher than two years of prison;
• the monetary penalty from two hundred to three hundred quotas, in the case of offences for which the maximum penalty it’s not higher than three years in prison;
• the monetary penalty from three hundred to five hundred quotas, in the case of offences for which the maximum penalty it’s not higher than three years of prison.
• art. 3 bis
“In the event of violation of the provisions of Decree of the President of the Republic January 23, 1973, n. 43, the same coexist with those referred to in articles 1 and 2, of this article “.
4) in relation to the commission of offences covered by article 3, paragraph 6, of the law of December 28, 1993, no. 549 “measures to protect the ozone layer and the environment” the monetary penalty from fifty to two hundred and fifty quotas shall apply.
• art. 3 (termination and reduction of harmful substances) “anyone who violates the provisions of this article shall be punished by imprisonment up to two years and a fine up to three times the value of the substances used for manufacturing purposes, either imported or marketed. In more severe cases, the sentence is accompanied by revocation of the authorisation or licence under which the unlawful activity is developed.”
5) in relation to the commission of offences provided for by Legislative Decree November 6, 2007 No. 202 “implementation of Directive 2005/35/EC on ship-source pollution and related penalties”, the following monetary penalties shall apply to the institution:
a) for the offence referred to in article 9, paragraph 1, the monetary penalty up to two hundred and fifty quotas.
• art. 9 (culpable pollution)
“Unless the Act constitutes a more serious offence, the Commander of a ship, whatever its flag, as well as any members of the crew, the owner and operator of the ship, in case the violation has taken place with their cooperation, who violate by fault the provisions of art.4, shall be punished with a fine from 10,000 to 30,000 EUR “.
b) for the offences referred to in articles 8, paragraph 1, and 9, paragraph 2, the penalty from one hundred and fifty to two hundred and fifty quotas.
If the institution or its organisational units are permanently used to the unique or prevailing purpose to allow or facilitate the commission of the offences referred to in art. 8 the sanction of a definitive ban on the exercise of the activity applies in accordance with art. 16, paragraph 3, of Legislative Decree 231/2001.
• art. 8 (intentional pollution)
“Unless the Act constitutes a more serious offence, the Commander of a ship, whatever its flag, as well as any members of the crew, the owner and operator of the ship, in case the violation has taken place with their contribution, who intentionally violate the provisions of art. 4 shall be punished by imprisonment from six months to two years and a fine from 10,000 to 50,000 Euros.
• art. 9 (culpable pollution)
“If the violation referred to in paragraph 1 causes permanent or particularly serious damage, to water quality, to animal or vegetable species or to parts of them, the arrest from six months to two years and a fine from 10,000 to 30,000 Euros apply”.
c) for the offence referred to in article 8, paragraph 2, the monetary penalty from two hundred to three hundred quotas.
• art. 8 (intentional pollution)
“If the violation referred to in paragraph 1 causes permanent or particularly serious damage, to water quality, to animal or vegetable species or to parts of them, the arrest from one to three years and a fine from 10,000 to 80,000 Euros apply”.
The Decree No. 136 of 2012 has included in the Lgs. D. 152/2006 the art. 256 bis “illegal waste burning” whose penalties recall to disqualification provided for in art. 9 Legislative Decree 231/2001.
Art. 256 bis (illegal waste burning)
“Whoever sets fire to abandoned waste that is deposited in an uncontrolled manner shall be punished with imprisonment from two to five years. In case you set fire to hazardous waste, the penalty of imprisonment from three to six years is applied. The responsible is obliged to the restoration of the state of the area, the compensation for the environmental damages and the payment, even of recourse, of the remediation expenditures.
The same penalties apply to the one holding the conduct referred to in Article 255, paragraph 1, and the offence referred to in articles 256 and 259 for the purpose of a subsequent burning of waste.
The penalty is increased by one third if the offence referred to in paragraph 1 is committed within the framework of the activities of an enterprise or an organised activity. The owner of the company or the person responsible for the organised activities is also responsible under the autonomous profile of the lack of supervision on the action of the perpetrators of the crime any way related to the company or the activity itself; to these business owners or managers of business shall also apply the penalties provided for in article 9, paragraph 2, of legislative decree June 8, 2001, n. 231.
The penalty is increased by one third if the offence referred to in paragraph 1 is committed in territories which, when the fact happens, and in any case within the previous five years, are or have been affected by declarations of a State of emergency in the waste sector under law February 24, 1992 No. 225.
The means used for the transport of waste which is subject of the offence referred to in paragraph 1 of this article, incinerated in unauthorised areas or plants, are confiscated pursuant to article 259, paragraph 2, except that the means belongs to a person who has no relation with the conduct referred to in paragraph 1 of this article and that the person did not participate in the commission of the crime. To the judgement of conviction or the sentence under article 444 of the code of criminal procedure follows the seizure of the area on which the offence was committed, if it is the property of the author or of the co-author of the offence, without prejudice to the obligations of reclamation and restoration of the state of the places.
The penalties provided for in Article 255 apply if the conduct referred to in paragraph 1 have the object referred to in article 184, paragraph 2, point e)”.
The law May 22, 2015 n. 68 has included in the Penal Code, in book two, after the “crimes against public safety”, part six – bis relating to “crimes against the environment”. With the same occasion was also modified the lgs. d. 152/06 (consolidated law on the environment) and also provided a specific discipline for the extinction of administrative offences and criminal penalties relating to the environment. Here below a list of the changes made:
Art.452-bis. (Environmental pollution). -It is punished with imprisonment from two to six years and a fine from 10,000 to 100,000 Euros anyone who causes an impairment or significant and measurable deterioration: 1) of air or water, or extended or significant portions of the soil or subsoil; 2) of an ecosystem, biodiversity, including agriculture, flora or fauna. When pollution is produced in a protected natural area or an area of landscape, environmental, historical, artistic, architectural or archaeological value, or for the damage of protected animal and plant species, the penalty is increased.
Art. 452-ter. (Death or injury as a result of the crime of environmental pollution). – if any of the facts referred to in article 452-bis origins, as an unintended consequence by the offender, a personal injury, except for cases in which the illness lasts no longer than 20 days, the penalty of imprisonment for two years and six months to seven years applies; if the result is a serious injury, the penalty of imprisonment from three to eight years; if the result is a very serious injury, the penalty of imprisonment from four to nine years; if the result is death, the penalty of imprisonment from five to ten years. In the event of the death of many people, of injuries to many people, or death of one or more persons and injury of one or more persons, the penalty shall be applied which should be inflicted for the more serious hypothesis, increased up to three times, yet the penalty of imprisonment may not exceed twenty years.
Art. 452-quater. (Environmental disaster).– Except where provided for in Article 434, anyone who unlawfully causes an environmental disaster shall be punished with imprisonment from five to fifteen years. Environmental disaster is constituted by: 1) irreversible alteration of the balance of an ecosystem; 2) alteration of the balance of an ecosystem whose elimination is particularly onerous and achievable only with exceptional measures; 3) offence to public safety because of the relevance of the fact for the extension of the impairment or of its harmful effects or the number of persons offended or exposed to danger. When disaster is produced in a protected natural area or an area of landscape, environmental, historical, artistic, architectural or archaeological value, or to the damage of protected animal and plant species, the penalty is increased.
Art. 452-sexies. (Traffic and abandonment of high radioactive material). – Unless the fact constitutes a more serious offence, it shall be punished with imprisonment from two to six years and a fine from 10,000 to 50,000 Euros anyone who illegally sells, acquires, receives, transports, imports, exports, procures to others, holds, transfers, abandons or illegally disposes of high radioactive material. The penalty referred to in the first sub paragraph shall be increased if from the fact derives a danger of impairment or deterioration: 1) of air or water, or of extended or significant portions of the soil or subsoil; 2) of an ecosystem, biodiversity, including agriculture, flora or fauna. If it causes danger to life or safety of persons, the penalty shall be increased by up to half.
Art. 452-septies. (Impediment of the control). – Unless the fact constitutes a more serious offence, anyone who by denying access, setting up obstacles or artificially changing the status of the places, prevents, hinders or evades the environmental supervision and safety and control and hygiene on the work, or compromises its results, shall be punished with imprisonment from six months to three years.
2. AREAS AT RISK
After a careful preliminary assessment supported by risk assessment conducted by the company with the participation of the Person in charge of the prevention and protection service has emerged that the risk related to the commission of environmental crimes is not concretely conceivable given the operational realities of the Company.
Indeed, the activity of Chugoku – Boat Italy S.p.a. can be divided into three main categories:
– Administrative and commercial activities for which there is no risk to commit the offences covered by this special section.
– Analysis and research activities in the laboratory: the laboratory is located within the plant Boero Bartolomeo Spa Company in Pozzolo Formigaro (Alessandria). The company Boero Bartolomeo takes care of the correct storage of the products used for analysis and research, as well as the management of waste that takes place under the directions of staff Chugoku – Boat Italy S.p.a. according to the procedures existing within the plant.
– Support and technical assistance to varnishing in dockyards: in such cases, the technicians work at shipyards of shipbuilding and ship repair in dry docks by checking whether the treatment of the metal surface of the sheet metal gave a result suitable for product application and verify the application of the same product.
SPECIAL SECTION “F”
F1 THE CRIME OF SELF LAUNDERING (ART. 648-TER. 1)
On the Official Journal No. 292 of December 17, 2014 has been published the law n. 186 of December 15, 2014 “provision on emergence and return of funds held abroad as well as for strengthening the fight against tax evasion. Provisions on self laundering”.
The law introduces into the Criminal Code, in art. 648 ter. 1, the offence of self laundering.
«Art.648-ter. 1. – (Self laundering). The penalty of imprisonment from two to eight years and a fine from 5.000 to 25,000 Euros to anyone, who after committing or collaborating to commit an unintentional crime, uses, transfers, replaces in economic or financial activities, or speculative business, money, goods or other benefits from the commission of such a crime, in order to hinder the identification of their criminal origin. The penalty of imprisonment from one to four years and a fine from 2,500 to 12,500 Euros if money, property or other utilities come from the commission of an unintentional crime punishable with a prison term whose maximum is five years. Anyway, the penalties provided for in the first sub paragraph apply if money, property or other benefits origin from a crime committed with the conditions or the purposes referred to in article 7 of Law-Decree May 13, 1991, no. 152, converted, with amendments, by law July 12, 1991, no. 203, as amended. Out of the cases referred to in the preceding sub-paragraphs the conduct for which the money, assets or other courtesies are intended to merely personal use or enjoyment are not punishable. The penalty is increased when the facts are committed in the exercise of a banking or financial activity or other professional activities. The penalty is reduced by up to half for those who have effectively acted to prevent that the conduct are brought to the further consequences or to secure evidence of the offence and the identification of goods, money and other benefits coming from the crime. The last sub-paragraph of article 648 is applied».
The offence covers anyone who has committed or has collaborated to commit the main offence subsequently providing, with reference to money, goods or other benefits coming from the commission of this crime, to the: a) replacement, b) transfer, c) use in economic or financial activity, in order to concretely hinder the identification of their criminal origin. The only way not to be punished in these situations is the destination to personal use or enjoyment of money, goods or other utilities.
The difference with the offence of money laundering is the necessary presence of a third party who engages in the actions of replacement or use of that money. The third is the one who takes the money or property from the one or those who got them from the crime and enter them into the economic circuit through legal financial transactions or any other means. To punish a subject for laundering it is necessary to demonstrate that the resources employed by him are precisely those that are in his availability because come from crimes committed by third parties. Third parties cannot be convicted for money laundering, but for the so-called “assumptions” of crimes. With this new case, it is possible to contest the offence of self-laundering to the same person who committed the crime, without considering him a “mediator”. The cases of laundering and reuse do not penalise those who have committed the offence from which the illicit proceeds come (so-called assumption of crime), but a stranger to that unlawful act who, though aware of the criminal origin of the funds or the other utilities, reutilises or occults them. With the self-laundering, on the other hand, the crime can be committed by the same person who committed the assumption of crime.
Although, as mentioned above, any unintentional crime that generates a utility for the institution can in the abstract constitute an assumption for the accomplishment of the crime of self-laundering, the company has nevertheless proceeded to carry out an analysis in order to identify more specifically which crimes can configure, by way of abstract, in performing its activities, such as to entail the risk of commission of the crime of self-laundering.
The outcome of this analysis showed that the company believes they can be abstractly committed, and thus a potential source of self-laundering, the tax offences reported below:
o Fraudulent declaration by the use of invoices or other documents for nonexistent operations (art. 2 Lgs. Decree 74/2000);
o Fraudulent declaration by other artifices (art. 3 Lgs. Decree 74/2000);
o Unfaithful Declaration (art. 4 Lgs. d. 74/2000);
o Omitted Declaration (art. 5 Lgs. d. 74/2000);
o Issue of invoices or other documents for non-existent operations (art. 8 Lgs. d. 74/2000);
o Concealment or destruction of accounting documents (art. 10 Lgs. d. 74/2000);
o Omitted payment of certified withholding tax (art. 10-bis Lgs. D. 74/2000);
o Omitted payment of VAT (art. 10-ter Lgs. D. 74/2000);
o Undue compensation (art. 10-quater Lgs. D. 74/2000);
o FRAUDULENT EVASION OF TAX PAYMENT (ART. 11 LGS. D. 74/2000).
F.2 GENERAL PRINCIPLES OF CONDUCT
This special section includes:
• the express prohibition to all recipients to engage in, or even tolerate that others pursue behaviours:
• such as to integrate cases of crimes that are an assumption for the crime of self-laundering above mentioned;
• which, although not such as to constitute in themselves the commission of offences among those considered above, could potentially become one;
• not complying with the procedure or not in line with the principles expressed in this Model and the code of ethics;
• designed to use in the economic or financial activity cash, assets or other courtesies coming from crime;
• the obligation to Recipients to:
• keep a correct, transparent and collaborative behaviour, in compliance with national and international regulations, the code of ethics, of the principles contained in the present Model and company procedures;
• avoid to put in place actions-or give cause to the realization of behaviours- that directly or indirectly incorporate the offences included in those outlined above;
• observe a conduct designed to ensure the smooth functioning of the society, ensuring and facilitating all forms of business activities by the Supervisory Body;
• ensure that no relationship is started with persons or entities who do not intend to follow the ethical principles of the Society
With specific reference to tax crimes:
• Recipients are obliged to:
• do not simulate operations (e.g. emissions of invoices or other documents for non-existent operations) to obtain a tax benefit;
• do not forget to make tax returns;
• do not hide or destroy own or third parties accounting records;
• provide tax payments on time;
• recipients are expressly forbidden to prepare and submit tax declarations to the competent authorities, containing false, incomplete, or otherwise non-responsive to real data, or omit statements in order to evade income or value added taxes;
• the company also provides:
• timely check on the effectiveness and adequacy of benefits in relation to which the invoice is issued to the company, with involvement of units that have benefited from the service to acquire certification of the actual performance of the same and of its compliance to the object of the contract;
• the traceability of the process concerning the transmission of tax declarations to the competent authorities, to be carried out in compliance with the law and regulations, in view of the objectives of transparency and proper information.
indicates the archive containing all the documents relating to the adoption of the Model and its implementation, which is kept at the registered office of the Company;
indicates the activity of marketing of painting products for shipbuilding, as well as the technical assistance activities in the shipyards on behalf of the customers;
Chugoku – Boat Italy Spa or the Company
indicates Chugoku – Boat Italy S.p.a., – already Boat Spa, the company name changed in the minutes of the Board of Directors dated 24.4.2015- and the Laboratory, where the same Activity is carried out;
indicates the shipyards where the staff of Chugoku – Boat Italy S.p.a. provides advice and technical support on painting, by virtue of specific contracts of work and labour;
indicates the Leg. Decree 8 June 2001 no. 231 and subsequent amendments and integrations;
indicates all parties that must comply with the provisions contained in the Model, in particular: all those working in the name and on behalf of Chugoku – Boat Italy S.p.a., including administrators, auditors, members of any other corporate bodies, employees, coworkers, also the occasional ones, agents, business partners, suppliers, members of the Supervisory Board;
Body or Bodies
pursuant to art. 1 of the Decree, it indicates the bodies with legal personality, companies and associations also without legal personality to which the provisions of the Decree and in particular the administrative liability introduced by the same are applied;
indicates the group consisting of Chugoku Paints B.V. (Netherlands), which owns the majority of shares in Chugoku – Boat Italy S.p.a.;
indicates the laboratory located at the production site of Boero in Pozzolo Formigaro (AL), where the Company conducts its business of setting up the sample colour and sampling of raw materials;
indicates the guidelines for the construction of the organizational, management and control Models pursuant to the former Legislative Decree 231/2001 published by Confindustria on 31 March 2008 and subsequently updated over time;
indicates the organization, management and control Model envisaged by the Decree;
indicates the Administrative and Accounting Control Model adopted by the Group pursuant to the art. 154 bis TUF;
indicates the offenses for which the Decree has introduced the administrative liability;
indicates the Leg. Decree 9 April 2008 No.81 of the so-called Consolidated Law for the protection of health and safety in the workplaces, as subsequently amended, including in particular the leg. Decree 3 August 2009 no. 106;
indicates the Leg. Decree 24 February 1998 no. 58, Consolidated Law on Financial Intermediation, as subsequently amended and supplemented;
indicates the Leg. Decree. 3 April 2006 no. 152, “environmental regulations” published in the Official Gazette no. 88 of 14 April 2006 and subsequent additions and amendments.