The Reservation of Criminal Law principle and its application to Legislative Decree n. 231/2001


Implementing the delegation principle of the reservation of criminal law under article 1, par. 85, letter q) of Law n. 103 of 23rd June 2017, the criminal rules are supposed to be streamlined.

Since its coming into force (on 6th April 2018), Legislative Decree 21/2018 has included the introduction of article 3-bis in the Criminal Code, concerning: “New provisions defining crimes can be introduced in the legal system only if they amend the Criminal Code or are included in laws that discipline the subject-matter organically.”

The law states the already mentioned principle of Reservation of Criminal Law and, more specifically, establishes the transfer into the criminal code of several types of crimes that exist already but are regulated by the complementary legislation.

The practical result of this provision is shown, with regard to the crimes punished by Legislative Decree 231/2001, by the following amendments:

  • Art. 260 of Legislative Decree 152/2006, referred to in art. 25-Undecies of the Decree (”Environmental Crimes”) was repealed and replaced by the new article 452-quaterdecies of the criminal code,  “Activities organised for the unlawful trafficking of waste”;
  • Article 3 of Law 654/1975, referred to in art. 25-terdecies of the Decree (”Racism and Xenophobia”) was repealed and replaced by the new article 604-bis of the criminal code, “Propaganda and incitement to delinquency on grounds of racial, ethnic and religious discrimination”.

In compliance with the above amendments, entities that have already adopted an Organisational, Management and Control Model pursuant to Legislative Decree 231/2001 shall be required to update said model and the references to the relevant types of crimes.

SOURCE: Legislative Decree 21/2018 “Implementing provisions of the delegation principle of the reservation of criminal law under article 1, par. 85, letter q) of Law n. 103 of 23rd June 2017”.

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