Posizione di garanzia datoriale e gestione del rischio lavorativo tra ambiente interno ed esterno all’impresa: profili penali

Abstract

The essay begins with the empirical-criminological evidence of the multiple risks associated with modern industrial activities, able to extend their harmful effects beyond the workplace, endangering a wide range of legal interests, including worker safety, public health, and the environment. In terms of criminal liability, the interaction between internal and external safety issues complicates the delineation of the types of risks associated with the employer’s duty of guarantee, leading to interpretive fluctuations in case law. A tendency has long prevailed in jurisprudence to reconstruct the employer’s obligation broadly, including the protection of third parties and legal interests outside the work context. However, a recent ruling concerning the case of Viareggio railway disaster (Cass. pen., no. 32899/2021) emphasized the need to limit the application of preventive work safety regulations to only those harmful events that concretise the “working risk”. The analysis thus engages with this revised judicial criterion, highlighting further theoretical issues and unresolved challenges regarding its application. On this basis, a few considerations de iure condendo are ultimately formulated.