Italy

Reviewed April 2015
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PUBLIC OFFICIALS
    Is there an offence of bribing public officials?
    • There are various sections of the Italian Penal Code (IPC) which cover public bribery. Under Articles 318, 319 and 321 IPC, there are offences which cover both the offering and the acceptance or receipt of money or any other benefit of value by either domestic or foreign public officials to perform or to refrain from performing acts related to their office.

      There are also specific offences of extortion by a public official under Article 317, inducement under Article 319 quarter, trading in influence under Article 346 and judicial bribery under Article 319 ter.

    What is the relevant test for each offence?
    Can corporates and individuals commit the offence?
    • Historically in Italy criminal liability was ascribable only to individuals. Corporate criminal liability was introduced into the Italian legal system recently for specific offences mentioned by Legislative Decree no. 231 of June 08, 2001 (L.D. 231/2001).

      Under L.D. 231/2001, corporates can be criminally liable for certain offences of bribing public and foreign public officials which have been committed during the performance of company activities. The offences of inducement (Article 319 quarter) and trading in influence (Article 346) are not listed in the relevant provision and therefore cannot be committed by corporates.

      Corporate criminal liability is attributable when:

      the crime has been committed in the company’s interest or to its advantage,

      the offenders are individuals holding a high managerial role within the company or a subordinate position to the former if there was a failure of oversight by those holding a high managerial role, and

      the offenders have not acted for their exclusive interest or a third party’s interest.

      “High managerial role” means the company’s top management and chief executives.  

      When the perpetrator of the crime is a person in a subordinate role, the company will be criminally liable if it can be proved that they failed in their obligation to direct and control the subordinate subject.

    Does the offence have extra-territorial effect?
    • The offences apply to Italian nationals who commit offences overseas when:

      the offender is within Italian territory,

      the offence is punishable by Italian law by a minimum of three years’ imprisonment, and

      the offence is committed to the detriment of the EC or a foreign country,

      at the request of the Minister of Justice and where extradition has not been requested/granted.

      The offences also apply to non-nationals who commit offences overseas when:

      the offender is within Italian territory,

      the offence is committed to the detriment of the Italian state or an Italian national and is punishable by a minimum of one year imprisonment (at the request of the Minister of Justice or the victim), or

      the offence is committed to the detriment of the EC or a foreign country and is punishable by at least three years’ imprisonment,

      at the request of the Minister of Justice and where extradition has not been requested/granted.

      With regard to corporate criminal liability, foreign companies can be prosecuted pursuant to L.D. 231/2001 for crimes committed within Italian territory, even if their registered office is not in Italy. Foreign companies are subject to Italian law and statutes when carrying on business within Italian territory.

      Italian companies can also be held liable for certain crimes committed abroad, provided that the state where the crime occurred has not begun criminal proceedings on the same grounds.

    Are there any exceptions or defences?
    • No specific exceptions or defences are provided for individual criminal liability.

      With regard to corporate criminal liability, when the perpetrator of the crime is a person in a top managerial role, the company will be criminally liable unless they have adopted a suitable organisational and management model aimed at preventing the commission of the crime (ie have a compliance programme in place). The burden of proof is on the company to demonstrate that the crime was committed by the relevant person circumventing the preventative measures put in place by the company.

      L.D. 231/2001 does not specify the components of the compliance programme, however it has entrusted the main business associations (such as Confindustria, the Italian Manufacturers’ Association) with issuing guidelines for implementation of a compliance programme. The major guidelines are historically those issued by Confindustria.

    What are the penalties?
    • Individuals

      The penalties for the following offences are:

      Article 317 (extortion by a public official): between six and 12 years’ imprisonment and permanent disqualification from any public office.

      Article 318 (bribery for performing acts in an official capacity): between one and five years’ imprisonment and temporary disqualification for between one and five years from any public office.

      Article 319 (bribery with regard to acts contrary to official capacity): between four and eight years’ imprisonment and temporary disqualification from any public office.

      Article 319 ter (judicial bribery): between four and five years’ imprisonment.

      Article 319 quarter (inducement): between three and eight years’ imprisonment and temporary disqualification from any public office.

      Article 322 (where a bribe is offered to a public official but not accepted): the briber will be subject to a third of the maximum penalty applicable if the bribe had been accepted, and

      Article 346 (trading in influence): between one and five years’ imprisonment and a fine ranging between €309.00 and €2,065.00.

      Corporates

      Under L.D. 231/2001, the maximum penalty for corporates is €1,550,000 for the various bribery offences. Companies can also be subject to the following sanctions:

      • temporary disqualification from certain activities
      • suspension or revocation of licences
      • prohibition from dealing with the public administration
      • exclusion from public financing and repeal of existing financing
      • temporary exclusion from advertising goods and services, and
      • publication of the sentence.
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    PRIVATE SECTOR
      Is there an offence for bribery within the private sector?
      • Law 190/2012 introduced a general provision which criminalises bribery occurring in the private sector under Article 2635 of the Italian Civil Code (ICC).

      What is the relevant test?
      • Under Article 2635 of the ICC, directors, general managers, CFOs, statutory auditors or liquidators (or individuals who are subject to the direction or control of the former), are criminally liable for performing or failing to perform acts in breach of their office or duties of loyalty, having received or having been promised money or any other advantage for themselves or a third party, if their behaviour caused harm to the company. An individual who gives or promises money or an economic advantage is criminally liable as well.

        The crime can only be prosecuted at the request of the victim of the crime, unless the behaviour caused distortion in the competition for goods or services.

        In addition, there are several provisions that punish specific criminal behaviour, such as

        • inducement to commit perjury or not to testify
        • promising or offering an undue advantage to participants of public biddings and auctions so that they abstain from taking part in or hinder the bidding, and
        • promising or offering an undue agreement with creditors of bankrupted companies.
      Can corporates and individuals commit the offence?
      • Corporates can be criminally liable for the offences of:

        • bribery occurring in the private sector (Article 2635 ICC), and
        • inducement to commit perjury or not to testify (Article 377 bis IPC).

        which have been committed during the performance of company activities.

        Corporate criminal liability is attributable only when:

        The crime has been committed in the company’s interest or to its advantage.

        The offenders are individuals holding a top managerial role within the company or a subordinate position to the former if there was a failure of oversight by those holding a high managerial role.

        The offenders have not acted for their exclusive interest or a third party’s interest.

        When the perpetrator of the crime is a person in a subordinate role, the corporate will be criminally liable if it can be proved that they failed in their obligation to direct and control the subordinate subject.

      Does the offence have extra territorial effect?
      • The offences apply to Italian nationals who commit offences overseas when:

        • the offender is within Italian territory
        • the offence is punishable by Italian law by a minimum of three years’ imprisonment, and
        • the offence was committed to the detriment of the EC or a foreign country

        at the request of the Minister of Justice and where extradition has not been requested/granted.

        The offences also apply to non-nationals who commit offences overseas when:

        the offender is within Italian territory,

        the offence is committed to the detriment of the Italian state or an Italian national and is punishable by a minimum of one year imprisonment (at the request of the Minister of Justice or the victim), and

        the offence is committed to the detriment of the EC or a foreign country and is punishable by at least three years’ imprisonment

        at the request of the Minister of Justice and extradition has not been requested/granted.

        With regard to corporate criminal liability, foreign companies can be prosecuted pursuant to L.D. 231/2001 (corporate criminal liability) for crimes committed within Italian territory, even if their registered office is not in Italy. Foreign companies are subject to Italian law and statutes when carrying on business within the Italian territory.

        Italian companies can be held liable for certain crimes committed abroad, provided that the State where the crime has occurred has not begun criminal proceedings on the same grounds.

      Are there any exceptions or defences?
      • No specific exceptions or defences are provided for individual criminal liability.

        With reference to corporate criminal liability, when the perpetrator of the crime is a person holding a top managerial role, the company will be criminally liable unless the company has adopted a suitable organisational and management model aimed at preventing the commission of the crime (ie has a compliance programme in place). The burden of proof is on the company to demonstrate that the crime has been committed by the relevant person circumventing the preventive measures put in place.

      What are the penalties?
      • Individual liability:

        the crime of bribery committed in the private sector (Article 2635) is punishable by between one and three years’ imprisonment,

        the crime of inducement to commit perjury or not to testify is punishable by between two and six years’ imprisonment,

        promising or offering an undue advantage to participants of public biddings and auctions is punishable by up to two years’ imprisonment and a fine of between €103 and €1,032,

        promising or offering an undue advantage to a manager, director, auditor or member of an auditing company to omit or delay an act in breach of that office is punishable by up to three years’ imprisonment, and

        promising or offering an undue agreement with creditors of bankrupted companies is punishable by between one and five years’ imprisonment.

        Corporate liability:

        the offence of bribery committed win the private sector (Article 2635) is punishable under L.D. 231/2001 by a fine raging between € 51.600.00 and € 619,600.00,

        the offence of inducement to commit perjury or not to testify is punishable under L.D. 231/2001 by a maximum fine of €774,500.00.

        Penalties are doubled when the same offence is committed by corporates whose securities are listed on the Italian or an EU Stock Exchange or are widely distributed among the public1.


        1. As provided by the Financial Act no. 58 of February 24, 1998.

      This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.