News · Criminal law · – 20 September 2026
The Court of Cassation distinguishes two situations in a seizure affecting a company: where it is ordered directly against the company as a third party that benefited from the profit of an offence committed by someone else, a special power of attorney under Article 100 of the Code of Criminal Procedure is enough; where instead it is linked to the company’s own administrative offence under Article 53 of Legislative Decree 231/2001 (the statute on corporate liability for offences), the company must first complete its costituzione (formal joinder as a party) under Article 39 of that decree — the only act through which the entity exercises its participation rights, as distinct from technical legal defence. If the legal representative is under investigation for the underlying offence, a conflict of interest arises: a new representative or a procuratore speciale ad processum (special attorney appointed solely for the proceedings) is required, or the riesame (review of the precautionary measure) filed by counsel — whether court-appointed or retained — will be inadmissible.
Upon receipt of the informazione di garanzia (formal notice of investigation) under Articles 369 of the Code of Criminal Procedure and 57 of Legislative Decree 231/2001, a company must complete its costituzione without delay and check whether its representative is conflicted: only then can it later challenge the seizure linked to the company’s own offence. The rule does not apply, however, where the company has not yet learned of proceedings against it under Decree 231/2001 and is acting merely as a third party seeking the return of seized assets: in that case, a riesame filed by counsel appointed by the legal representative — even if under investigation — remains admissible.
Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.