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Anti-corruption In Italy

1. Bribery in the home (private to public)

 

1.1 The Legal Environment

Sections 317, 318, 319, 319-quarter, 320, 321, and 322 of the Italian Criminal Code cover private-to-public bribery (ICC).

 

1.2 What does bribery mean?

Both “active bribery,” or the behavior of someone who bribes or attempts to bribe a public official, and “passive bribery,” or the behavior of the corrupted public official, are illegal in Italy.

Bribery is defined as offering, promising, requesting or receiving, or accepting a promise to receive money or other benefits in exchange for the public official performing his or her functions (Section 318 of the ICC), or for the public official omitting or delaying, or having omitted or delayed, an act relating to his or her office, or for the public official acting or having acted in breach of his or her official duties (“proper blunder”).

In the context of bribery violations, the term “advantages” has an extremely broad definition, encompassing any material or moral benefit to the recipient, whether monetary or not.

In a series of decisions, the Supreme Court has affirmed that in order for an offer or a promise to offer money or other benefits to constitute corruption, the offer or promise must be suitable to achieve the crime’s goal, that is, suitable to improperly influence the performance of the public official’s duties. This must be assessed in light of objective and subjective factors, such as the type or amount of compensation paid and the beneficiary’s financial situation, in order to determine the likelihood that the beneficiary will be influenced by the offer and induced to accept it in order to perform his or her duties.

If a private party is forced to provide or pledge a bribe by a public official, this conduct is considered “extortion by a public official” (concussion – see Section 317 of the ICC), for which only the public official is criminally accountable, while the private party is the victim of the crime.

However, as a result of the recent reform of Italian anti-corruption legislation, a new offense has been added: “unlawful inducement to give or promise money or other benefits” (see Section 319-quarter of the ICC), which punishes a public official who, by abusing his or her position or authority, induces a person to give or promise money or other benefits unduly to him or her or a third person. The private party that grants or offers money or other perks is also penalised in such a scenario (although the penalty applicable to the private party is less severe than the one for the public official).

Finally, when a private party offers or promises undue money or other benefits to a public official and the offer or promise is not accepted, or when the public official solicits an undue promise or giving of money or other benefits that is not carried out by the private party, the less serious offense of “inducement to bribery” (see Section 322 of the ICC) occurs.

 

1.3 What does it mean to be a public official?

The ICC’s definition of “public official” is fairly broad, encompassing anybody who performs a public function, “whether legislative, judicial, or administrative” (see Section 357, Paragraph 1 of the ICC). “An administrative function is public if it is regulated by public law provisions and acts of a public authority, and is characterized by the formation and manifestation of the public administration’s will, or by a procedure involving an authority’s powers or powers to certify,” according to the same criminal definition (see Section 357, Paragraph 2 of the ICC). Members of Parliament, regional councillors, judges and their consultants, public notaries, and police officers are all examples of “public officials.”

Bribery offenses are punishable under Italian criminal law for both public officials and persons in charge of a public service (incaricato di pubblico servizio), who are those who, under any title, perform a public service, defined as “an activity governed by the same forms as a public function, but characterized by the lack of its typical powers, and with the exclusion of simple ordinary tasks and m (see Section 358 of the ICC). Employees of the state and public administration who do not have the traditional powers of a public authority, such as electricity and gas workers, security guards, and the manager of a public dump, are examples of “persons in charge of a public service.”

 

1.4 Bribery’s Consequences

 

(a) For the Individuals Involved

  • In the instance of bribery for the exercise of a public official’s functions, a public official may be sentenced to jail for one to six years (see Section 318 of the ICC), and for proper bribery, a public official may be sentenced to jail for six to ten years (see Section 319 of the ICC) (see Section 319 of the ICC).

  • In the case of bribery of persons in charge of a public service, the penalties are lowered by no more than one-third.

  • The briber is subject to the same criminal penalties as the public official or person in charge of a public service to whom he or she gives, offers, or promises money or any other unfair benefit.

 

(b) For the business/legal entity

  • The corporation is subject to the following penalties under Section 25 of Legislative Decree No. 231, dated June 8, 2001 (“Decree 231”):

  • Bribery of a public official in the exercise of his or her functions is punishable by a fine of up to 200 quotas under Section 318 of the ICC.

  • In the case of legitimate bribery, a fine ranging from 200 to 600 quotas is imposed under Section 319 of the ICC.

  • A quota can be worth as little as EUR 258 or as much as EUR 1,549.

  • The corporation may also be subjected to the following restraints:

  • Temporary halt to all business operations

  • Any authorizations, licenses, or permissions held by the legal entity with relation to the crime-related business unit are suspended or revoked.

  • Negotiating and entering into contracts with public administration entities is prohibited, with the exception of contracts relating to public services.

  • Exclusion from subsidies and contributions, or reversal of any subsidy or contribution that has already been granted to the company

  • Advertising the company’s goods and/or services is prohibited.

  • Under some instances, restraining orders may be issued against the company as a pre-judgment remedy.

 

1.5 Contributions from politics

Law Decree No. 149/2013 has modified the rules governing private contributions to political parties.

Private contributions to political parties are permitted under this regulation, but only under the following conditions:

  • A natural person cannot donate money or offer goods or services to a single political party in any form or in any fashion for a total amount exceeding EUR 100,000 per year, even through a third person or controlled companies. Such restrictions do not apply to political party legacies.

  • A legal business / firm cannot donate money or supply products or services to political parties in excess of EUR 100,000 per year, in any form and in any way delivered. This prohibition does not apply to money or capital transfers between political parties in general.

  • Donations must be made through a bank or post office, or by any other manner that allows for traceability.

  • Administrative fines are imposed for violations of the regulation governing the limits and modalities of private contributions to political parties.

  • Furthermore, under Section 7 of Law No. 195, dated 2 May 1974, as recently amended by Law No. 96, dated 6 July 2012, private companies cannot finance or contribute to any politician or political party, including their political-organizational structures and parliamentary groups, in any way, directly or indirectly, unless such financing/contributions have been approved by the rector. Violation of this clause carries a penalty of six months to four years in prison and a fine of up to three times the amount paid in violation of the law.

 

1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, amongst others)

The giving of gifts, travel expenses, meals, or entertainment to public officials or those in charge of a public service is not expressly prohibited or restricted by Italian criminal law. However, those costs could be considered “undue benefit,” which the ICC prohibits from being given, offered, promised, or accepted. In addition, there are no explicit currency restrictions in Italian law that apply to gifts and hospitality in general. Gifts of little value (modico valore) are not illegal per se, according to case law, because they do not fall within the scope of anti-bribery laws. Small-value gifts may be considered bribes under anti-bribery laws if they are presented and/or accepted on a regular basis and in certain conditions (for example, there is a pending negotiation between the parties, or a business decision is imminent)

The amount of this “little value” isn’t specified in the law. It is possible to get some advice on this topic in Italian case law.

Furthermore, the Italian government recently issued a rule containing a code of behavior for public employees (Presidential Decree no. 62 of 16 April 2013), which states that a public employee may not accept presents or other benefits for himself or others. However, there is an exception for public officials who meet the following criteria: (a) Gratuities must not exceed EUR 150. The internal code of ethics of any public organization may set lower limitations on gratuities.