Barclays Organisational, Management and Control Model pursuant to Italian Legislation on Administrative Liability
- Legislative decree no. 231 of 8 June 2001 "Provisions governing administrative liability of legal entities, companies and associations, including those lacking legal personality" ("Legislation 231"), governs the liability of entities for administrative unlawful acts in connection with relevant crimes.
- Under Legislation 231, Barclays may be held liable for certain crimes committed or attempted in its interest or for its benefit, by top level executives/officers or their subordinates. It follows that Barclays is subject, on a direct and autonomous basis, to certain administrative sanctions in connection with relevant crimes attributable to the above-mentioned individuals.
Administrative liability for the Bank is, however, excluded where the bank has, inter alia, adopted and effectively implemented, prior to the commitment of the relevant crimes a suitable Organisational, Management and Control Model (the "Model").
Further, it should be noted that Barclays will not be liable, pursuant to the express provisions of Legislation 231, if the top level executives/officers and/or their subordinates acted exclusively in their own interest or in the interest of third parties.
Administrative responsibility, where applicable, is additional to the criminal responsibility for the perpetrators of relevant crimes.
Relevant crimes under Legislation 231 may be broken down into the following categories:
- Crimes against public bodies
- Offences to the detriment of public belief such as falsification of currency and other generally recognised payment instruments "Delitti contro la fede pubblica"
- Corporate crimes
- Criminal offences related to terrorism and subversion of democratic order
- Market abuses
- Criminal offences against individuals
- Supranational crimes
- Criminal offences against life and personal safety
- Manslaughter and grievous and extremely grievous bodily harm committed in breach of the provisions for the protection of health and safety in the workplace
- Money-laundering related crimes of receiving stolen goods, laundering and use of cash, goods or benefits originating from unlawful activities
- IT offences and unlawful management of IT data
In addition to the criminal sanctions that may be applicable to the individuals who committed the relevant crimes, Legislation 231 imposes upon the Bank, as the result of the commitment or attempted commitment of the above-mentioned crimes, a complex series of sanctions, falling within four main categories:
- Monetary sanctions
- Restrictions (temporary or definitive prevention to carry on in the Italian territory a specific business activity affected by the sanctioned violation)
- Confiscation of the gain received as the result of the crime
- Publication of the relevant Court sentence
Pursuant to Legislation 231, Barclays will have a due diligence defence if it can prove the following:
- It has adopted and effectively implemented the Model before the committment of the relevant offence;
- It has appointed an Internal Control Committee "Organismo di Vigilanza" (the "ODV") with independent action and control powers;
- In case of a breach committed by an executive, it can demonstrate that such subjects have fraudulently avoided to comply with Barclays Model; and
- The ODV has conducted sufficient monitoring and adequate surveillance
For the above reasons Barclays has adopted a Model and has appointed an ODV.
The Model represents a description of all the principles, rules, policies, procedures, systems and controls that Barclays has in place to prevent the relevant crimes set out in Legislation 231.
Barclay’s Model, consistently with guidelines provided by major trade bodies, contains the following analyses:
- Identification of the activities carried out by the Bank where crimes may be committed
- In relation to the relevant offences or crimes, the adoption of specific preventative controls
- Definition of adequate set of rules on the management of financial resources to avoid the commitment of the relevant crimes and offences
- Establishment of information duties to be given to the ODV
- Provision of an appropriate disciplinary system to sanction any violation of the rules set out by the Model.
Barclays has also decided to set up the ODV as an additional layer of governance to supervise the functioning of the Model and to ensure its effectiveness. The ODV has autonomous powers of initiative and control and it possesses the following characteristics:
- Its members have sufficient skills and technical knowledge to ensure the effectiveness of the controls and the prevention of relevant crimes
- It is structured to ensure continuity of action both in supervising sensitive areas and in updating the Model in case of relevant legislative or structural changes.
In the light of the above, the Legal Representative of Barclays Bank PLC, Italian Branch ("the Branch") has appointed four members representative of the structure of the Branch and who possess the necessary integrity and subjective requirements.
The ODV has set up a reporting system which ensures that it receives the following information flows:
- Any action or omission deemed in good faith not to be in compliance with the Model;
- Any circumstance in which it is deemed in good faith that a relevant offence or crime may be committed.
Barclays ODV takes very seriously any breaches of relevant controls with immediate escalation and enforcement applicable disciplinary actions.
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