ITALIAN REPORT

Prof. Stefano Manacorda

Mr. Costantino Grasso

Currently, in the Italian legal system, only some specific conducts of corruption in private sector are criminalized.

Art. 2635 of the civil code, as amended by the Legislative Decree no. 61 of 11 April 2002, punishes the conduct of promising or giving an advantage of any kind to a person who has a specific leading position in a private company in order to induce this person to perform or to refrain from performing any act in breach of that person's duties, providing that this conduct damages the company.

Art. 353 of the penal code punishes the corruption in the course of a public or private auction.

Art. 170 and Art. 171 of the Royal Decree no. 1265 of 27 July 1934 punish the corruption of doctors, veterinaries and pharmacists in order to facilitate the diffusion of medical products.

Art. 1 of the Act no. 401 of 13 December 1989 punishes the corruption of a sportsman in order to modify the result of a match or a competition.

Therefore, Italy has not adopted yet specific measures in order to ensure that any form of corruption in private sector constitutes a criminal offence as provided by the Council Framework Decision 2003/568/JHA.

In truth, with the enabling Bill (Act no. 34 of 25 February 2008), the Italian Parliament has delegated to the Government the duty, which was supposed to be accomplished in the term of one year, of introducing a legislative decree necessary in order to implement the above mentioned Framework Decision in the Italian jurisdiction.

However the matter is still under considerable debate.

In order to punish this particular conduct of bribery the legislature introduced the Art. 322 bis in the Italian penal code.

However, the Art. 322 bis, 2nd paragraph, expressly provides that the above mentioned conduct is punished only where the natural person perpetrated it in order to obtain, for himself/herself or for a third party, an improper advantage in the conduct of international business or to obtain or retain business.

This article extends the applicability of the crime of bribery of a national public official, only in its active form as provided by the Art. 321 of the penal code, where the conduct is perpetrated in relation to a foreign public official.

By means of Art. 322 bis, paragraph 1, of the penal code, EU officials are treated as Italian public officials whereas the case of corruption of a foreign public official is disciplined by Art. 322 bis, paragraph 2.

The main difference consists in the fact that in case of corruption of a foreign public official it is only possible to prosecute and punish the briber (the person who gives or promises to the public official money) and not the corrupt (the foreign public official), whereas in case of corruption of EU officials it is possible to punish also the corrupt.

Notwithstanding in Italy many conducts of participation in criminal organizations are criminalized, the Italian legislature did not provide any general definition of criminal association but for the specific definition of “mafia-type” criminal association.

The main rule could be considered the offence of “criminal association” provided by Art. 416 of the Italian penal code. As provided by this article, where three or more persons associate themselves for the purpose of committing more than one crime, those who promote, constitute or organise the association are punished. The same article extends the punishment to the sole fact of participating in the association.

The same article defines a “mafia-type” association as an association whose members use the power of intimidation deriving from the bonds of memberships and the atmosphere of coercion and conspiracy of silence that it engenders to commit offences, to acquire direct or indirect control of economic activities, licenses, authorizations, public procurement contracts and services or to obtain unjustified profits or advantages for themselves or others, or to prevent or obstruct the free exercise of the right to vote, or to procure votes for themselves or others at elections.

The Art. 416 bis of the Italian penal code (introduced in 1982) covers the participation in a “mafia-type” criminal association, which is characterized by power of intimidation, coercion and conspiracy of silence.

The Legislative Decree no. 231 of 8 June 2001 represents the law which recognizes the corporate liability in Italy.

It is still discussed by scholars if corporate liability in the Italian legal system has an administrative or a criminal nature. The debate began because, on the one hand, the Legislative Decree no. 231 of 8 June 2001 is formally called “Administrative Liability of Legal Persons” but, on the other, a corporation could be considered liable only in the course of a criminal trial and both conviction and sentencing are made by a criminal judge.

The distinction is relevant in relation to the procedural rights granted to legal persons, which are more comprehensive in case of criminal liability.

At the state, even if it seems prevailing the thesis that recognises the administrative nature of corporate liability, it is commonly accepted that the corporations have all the rights recognized to an offender in the course of a criminal trial.

As specified by Art. 5 of the Decree, the liability of legal persons could derive only from the commission of one of the offences indicated in the Section III, perpetrated in the advantage or in the interest of the corporation by a person vesting a leading position or a subordinate role.

Therefore, the commission of a prerequisite crime perpetrated by a natural person represents the necessary condition for corporate liability. In the Section III of the above mentioned Decree are listed, among others, also the offences of bribery and organized crime.

Moreover, the Italian Parliament delegated to the Government the duty of including in the list also the conducts of corruption in private sector.

In order to avoid any sort of strict liability, which would be illegitimate for contrast to the Italian Constitution and in particular to its article 27 stating the principle of personal criminal liability which imposes the criminal culpability, the Legislative Decree provides that:

Art. 6 - Where the offence is committed by a person vesting a leading position, the legal person has to be considered liable unless it is demonstrated that the offenders have fraudulently avoided compliance with the models of organization adopted by the corporation notwithstanding the control of the supervisory body.

Art. 7 - In case of commission of a prerequisite crime by a person vesting a subordinate role inside a corporation, corporate liability could subsist in case of lack of supervision or control. The Italian legislation imposes that such control is exercised by a supervisory body, which has autonomous powers. The same article provides that this liability is excluded where the corporation adopted an adequate organizational model in order to prevent the relevant offences. Therefore, the corporation’s liability under art. 7 could be more likely assimilated to a negligent act instead of an intentional one.