In the landscape of corporate liability, a recent decision by the Procura Generale at the Corte d'Appello of Milan marks a significant turning point. Through the endorsement affixed to an archiving decree on 30 June 2026, it is affirmed for the first time explicitly that the administrative sanction imposed on an entity pursuant to d.lgs. 231/2001 can be entirely eliminated where the totality of consequences already suffered — both tax-related and otherwise — proves sufficient to satisfy the punitive and preventive requirements of the legal order.
This is a development that companies and their advisors cannot afford to ignore.
The Problem of the Dual Sanctioning Track
Anyone who has had to manage a corporate tax crisis is well acquainted with the risk of the so-called doppio binario (dual track): a single irregular course of conduct may give rise, in parallel, to consequences both on the tax law level and on the criminal-administrative level under d.lgs. 231/2001. In practice, the entity risks paying twice — once to the Tax Authority, and a second time by way of the 231 sanction — for the same underlying conduct.
This overlap has long raised questions of proportionality. The European Court of Human Rights has for many years consolidated the principle that the ne bis in idem rule is not merely a procedural guarantee (prohibiting two sets of proceedings for the same act), but also a substantive guarantee: the accumulation of sanctions must not translate into a punitive burden that is disproportionate to the gravity of the conduct in question.
The Key Provision: Art. 21-ter d.lgs. 74/2000
D.lgs. 87/2024 introduced into the body of the legislative decree on tax offences a new Article 21-ter, which represents the Italian legislature's response to this proportionality requirement. The provision establishes a compensatory mechanism: the court, in determining the 231 sanction, must take into account what the entity has already suffered on the tax side, thereby constructing a «residual sanctioning space» to be filled — or, in the right circumstances, left empty.
The most far-reaching aspect of the Milan ruling concerns precisely the interpretation of the verb «ridurre» («to reduce») contained in the provision. The Procura Generale clarifies that to reduce does not necessarily mean maintaining a minimum residual portion of the sanction: it is possible to «reduce to zero». Where the overall burden already borne by the entity is sufficient, the reduction can and must extend to the complete absorption of the 231 administrative sanction.
What Weighed in the Specific Decision
The case examined by the Procura Generale did not concern merely a tax regularisation. The entity had implemented a comprehensive set of corrective measures, which the ruling expressly lists and accords significant weight to:
- Internalisation of hundreds of workers previously engaged through external arrangements;
