Italy is a signatory to several international conventions on bribery and corruption, including:

• the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (signed in Paris on 17 December 1997 and ratified on 15 December 2000);
• the Convention drafted on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (signed in Brussels on 26 May 1997 and ratified on 6 March 2003);
• the United Nations Convention against Corruption (signed in New York on 31 October 2003 and ratified on 5 October 2010);
• the Council of Europe’s Criminal Law Convention on Corruption (signed in Strasbourg on 27 January 1999 and ratified on 13 June 2013); and
• the Council of Europe’s Civil Law Convention on Corruption (signed in Strasbourg on 4 November 1999 and ratified on 13 June 2013).

In the Italian legal system, the legislation concerning corruption offences is provided for in the section dedicated to offences against the public administration in the Criminal Code and in the Code of Criminal Procedure.

However, some fundamental provisions specifically applicable to bribery offences can also be found in Legislative Decree No 231/2001 (referring to the administrative liability of legal entities – see 3.3 Corporate Liability) and in the Civil Code (which proscribes bribery in the private sector – see 2.1 Bribery).

The interpretation and enforcement of anti-corruption provisions is requested of the Italian courts, whose activity is facilitated by the contributions of legal doctrine. Although Italy does not adopt a stare decisis principle, some important case-law rulings play a significantly persuasive role in the interpretation of anti-corruption rules.

On the administrative side, the National Anti-Corruption Authority has published numerous recommendations and guidelines, which, despite many of them not being binding, do assist in the interpretation and enforcement of the rules on the prevention of corruption (eg, regarding legal services or prevention of corruption in state-owned companies).

Since 2012, Italy has embarked on a path of broad-ranging structural reforms, directly or indirectly relating to anti-corruption provisions, which have significantly amended the Italian Criminal Code (ICC), the Code of Criminal Procedure and even the Penitentiary System.

The most effective amendments to the anti-corruption measures were introduced in 2019 by Law No 3/2019 (the so-called Bribe Destroyer Act), which takes a significant step towards further advancing the repression of bribery.

This positive process has continued in 2020 and further innovations have been introduced.

Specifically, it is worth highlighting the 14 July 2020 Legislative Decree No 75 (effective since 30 July 2020) entitled “Implementation of the EU Directive No 2017/1371 (so-called PIF Directive) concerning the contrast, by means of criminal law, of frauds affecting Union’s financial interests”.

With specific reference to anti-corruption measures, the Decree:

• introduced paragraph no 5-quinquies in Article 322-bis of the ICC, which extends liability for the offences of embezzlement (Article 314 of the ICC), embezzlement by taking advantage of third parties’ error (Article 316 of the ICC), blackmail by a public official (Article 317 of the ICC), undue induction to give or promise benefits (Article 319-quater of the ICC), active and passive bribery (Articles 318, 319, 319-ter, 320 and 321 of the ICC), incitement to bribe (Article 322 of the ICC) persons exercising functions or activities corresponding to those of public officials and persons in charge of a public service in states which are not part of the European Union, when the fact affects the EU’s financial interests;
• increased the sanctions provided for the crimes of embezzlement by taking advantage of third parties’ error (Article 316 of the ICC), undue receipt of funds to the detriment of the state (Article 316-ter of the ICC) and undue induction to give or promise benefits (Article 319-quater of the ICC) in the event that the offence concerns money or another advantage diverted from financial statements of the EU or its bodies if the subsequent damage is over EUR100,000; and
• listed under Article 25 Legislative Decree No 231/01 the offences of embezzlement (Article 314 of the ICC), embezzlement by taking advantage of third parties’ error (Article 316 of the ICC) and abuse in office (Article 323 of the ICC) when the facts affect the EU’s financial interest.

Furthermore, Law Decree No 76 of 16 July 2020 (converted into Law No 120 on 11 September 2020) amended the crime of abuse in office (Article 323 of the ICC) in order to restrict the conduct which may be potentially relevant under that provision.

In greater detail, the Decree replaced the words “violations of either rules of Law or secondary regulations” with “violation of specific rules of conduct expressly set forth by rules of either Law or equivalent legislations which are not discretionary”.

This modification of the legal provision determined three consequences that are connected to each other:

• violations of secondary regulations are no longer relevant for the crime of abuse in office to be perpetrated;
• only violations that are both specific and expressly provided by the Law rules of conduct are able to trigger the crime at issue. This means that the offence pursuant to Article 323 of the ICC cannot be perpetrated by merely violating general principles of the legal system (eg, Article 97 of the Italian Constitution, which states the duties of impartiality and sound management of the public administration); and
• only violations of non-discretionary rules of conduct can be considered for charges of abuse in office. This implies that the abuse of power (which may occur when, in discretionary acts, power is used for a purpose which is different from that for which it was granted) can no longer be regarded as criminal.

It follows that the reform at issue determined a partial abolitio criminis with reference to the violations which are no longer included in the legal provision, pursuant to Article 323 of the ICC.

As far as the criminal enforcement of anti-corruption laws is concerned, the institution of the European Public Prosecutor’s Office (EPPO) which started operating on 1 June 2021 (see 7.2. Enforcement Body and 7.3 Process of Application for Documentation) is also worthy of note.

Finally, it is important to highlight that on 17 October 2022, Legislative Decree No 150 was published in the Italian Official Journal, with the purpose of implementing reform of the Italian criminal justice system (the so-called Cartabia Reform) in accordance with the principles contained in Law No 134/2021.

The reform is basically aimed at speeding up the criminal trial and provides many modifications to the actual system, such as:

• implementation of telematic criminal trial;
• amendments to the rules on notifications to the defendants after the first notification;
• time limit of the preliminary investigations;
• redefinition of time limits for the preliminary investigations and of the conditions and for extensions;
• modification of the rule of judgment of the preliminary hearing;
• introduction of a pre-trial appearance hearing in the proceedings with decree for direct summons to trial (without preliminary hearing);
• reform of appeal judgments;
• amendments of criminal penalties (ie, substitute penalties for short-term imprisonment, financial penalties, terms for probation);
• regulation of reparative justice measures; and
• reform of the statute of limitations.

The Italian legislator punishes corruption offences by means of a complex regulatory system aimed at dealing with different types of crimes, which are provided for in Articles 318, 319, 319-ter and 320 (passive bribery) and Articles 321 and 322 (active bribery) of the ICC.

More specifically, the ICC considers as a criminal offence the conduct of a public official or person performing a public service:

• who, to exercise their functions or powers, unduly receives, for themself or a third party, money or another advantage, or accepts a promise of them (Article 318 – bribery for the exercise of a function);
• who receives money or any other advantage, or the promise thereof, for themself or a third party, to omit or delay, or for having omitted or delayed acts relating to their office, or to perform or for having performed acts in breach of their official duties (Article 319 – bribery for the performance of acts in breach of official duties); or
• who commits the offences described in the first two points in favour of or against a party to civil, criminal or administrative proceedings (Article 319-ter – bribery in judicial proceedings).

Punishment for passive bribery shall also apply to whoever gives or promises money or any other advantage to a public official or person performing a public service if the promise is accepted (Article 321 – active bribery).

Conversely, if the offer, promise or request of a bribe is not accepted, the mere conduct of incitement to corruption is considered as a minor criminal offence (pursuant to Article 322, punishment provided for in Articles 318 or 319 is reduced by one third).

Under Italian legislation, bribery offences do not just include cases where the public official performs an act in accordance with or contrary to their official duties because of a previous agreement with the bribe giver. In fact, even the mere agreement (or the mere solicitation) to perform or not perform the functions of a public official in return for a bribe also constitutes conduct punishable under criminal law. In other words, there is no requirement for the results expected by the perpetrators actually to occur.

It is important to note that the Criminal Code does not distinguish between a bribe (money or other advantage) and gifts, promotional expenditures or other facilitation payments. For this reason, even a small amount of money can trigger criminal provisions concerning corruption if related to the exercise of a public function by the receiver.

However, many companies and public authorities have adopted codes of conduct that specifically address this issue by regulating the conditions and extent of facilitation payments.

Finally, it is worth mentioning that the Italian criminal law system does not contemplate the conduct of individuals who fail to prevent bribery as an offence. In fact, the general provision set out in Article 40 of the ICC, for cases in which omitting to avert a result is treated as an active act, does not cover corruption offences.

Public Official

The definition of “public official” is provided by Article 357 of the Criminal Code as those who perform a legislative, judicial or administrative public function (ie, an administrative function) that is:

• regulated by the public law provisions and acts of an authority; and
• characterised by the formation and statement of the public administration’s will or by its implementation by means of authority and certifying powers.

In addition to that figure, anti-corruption provisions also cover acts committed by a “person performing a public service”, which, under Article 358 of the ICC, is defined as whoever performs any activity that is governed in accordance with the same modalities as a public function, excluding the performance of merely ordinary tasks and exclusively manual work.

Moreover, according to international conventions ratified by Italy, Article 322-bis of the ICC extends the provisions applicable to domestic public officials to foreign public officials. More specifically, the offences of embezzlement (Article 314 of the ICC), embezzlement by taking advantage of third parties’ error (Article 316 of the ICC), blackmail by a public official (Article 317 of the ICC), undue induction to give or promise benefits (Article 319-quater of the ICC), active and passive bribery (Articles 318, 319, 319-ter, 320 and 321 of the ICC), and incitement to bribery (Article 322 of the ICC) are triggered in all cases when involving:

• members of European Union institutions;
• contracted officials and agents in accordance with either staff regulations applying to European Union officials or to the provisions applying to European Union agents;
• any person seconded to the European Union by the Member States or by any public or private body which carries out functions corresponding to those performed by the officials or agents of the European Union;
• members and servants of bodies created on the basis of founding Treaties of the European Union;
• those who, within European Union Member States, carry out functions or activities corresponding to those performed by public officials or persons performing a public service;
• members of the International Criminal Court;
• persons exercising public functions or activities within the framework of international public organisations and members of international parliamentary assemblies or of an international or supranational organisation, and judges and officials of international courts (paragraph introduced by Law No 3/2019); or
• persons exercising functions or activities corresponding to those of public officials and persons in charge of a public service in states which are not part of the European Union, when the fact affects the Union’s financial interests (paragraph introduced by Legislative Decree No 75/2020).

Private Bribery

In accordance with the Council of Europe’s Criminal Law Convention on Corruption, the Italian legislator criminalises the conduct of bribery between private parties.

More specifically, Article 2635 of the Italian Civil Code punishes directors, general managers, managers responsible for preparing a company’s financial reports, statutory auditors, liquidators or any other employees of private entities who solicit or receive undue money or other advantages (or accept the promise thereof) to perform or omit an act in breach of their duties.

The same sanctions also apply to whoever, even through an intermediary, offers, promises or gives money or other undue benefits to the persons mentioned in the paragraph above.

It is important to note that Anti-corruption Law No 3/2019 has introduced the opportunity to punish ex officio bribery in the private sector by eliminating the procedural requirement of a complaint by the victim.

In addition to corruption offences, the Criminal Code also punishes the conduct of active and passive trading in influence.

In particular, under Article 346-bis of the ICC, the conduct of any private person or official who, by exploiting or claiming a real or apparent influence on a public official or a person in charge of a public service, unduly receives money or other financial advantage, as the price for their own illicit mediation or for the payment of the public official, to act in contrast to their duties or to omit or delay an act of their duties, is considered criminal.

As a result of Anti-corruption Law No 3/2019, Article 346-bis of the ICC has extended its scope to the influence-peddling of foreign public officials as defined by Article 322-bis of the ICC (see 2.1 Bribery).

As required by international conventions, the Italian legislator criminalises certain conduct deemed preparatory to bribery offences.

For this reason, Article 2621 of the Civil Code punishes directors, general managers, and managers responsible for preparing the company’s financial reports, and statutory auditors and liquidators who, in order to obtain an undue profit for themselves or for others, falsify financial statements, reports or other corporate communications addressed to shareholders or the public, by presenting a misleading picture of the financial situation of the company (or group).

More severe penalties are envisaged for accounting fraud regarding listed companies (Article 2622 of the Civil Code).

Within the Criminal Code, the misappropriation of public funds carried out by a public official is relevant under the offence of embezzlement, set forth by Article 314 of the ICC.

In greater detail, this offence expressly punishes the public official who, having possession, or in any case having available, money or other things by reason of their functions, makes them their own.

In this case, no unlawful request or order must arise from the public official, whose behaviour is limited to embezzling money or other things of which they have possession.

However, the potentially unlawful taking of interest or showing of illicit favouritism by a public official might trigger, respectively, the crime of abuse in office or the endangerment of fairness of tenders.

Abuse in Office

In the Italian legal system, public officials have the general duty to abstain in the case of a personal conflict of interests (or in the event of a relative’s conflict of interests) and failure to do so may fall under the crime of abuse in office, as set forth in Article 323 of the ICC.

However, mere inobservance of the duty to abstain is sufficient to be deemed abuse in office (the other conduct described by the legal provision is breach of the rules of conduct expressly set forth by rules of either law or equivalent legislations which are not discretionary law or regulations), but is not enough to trigger the offence at issue.

Indeed, for the occurrence of the offence under Article 323 of the ICC, the law also requires:

• an undue financial advantage for the public official or others or, alternatively, an unjust detriment to others; and
• the specific intention of the public official who must act in order to obtain an undue advantage for themself or others, or to cause a detriment to a third party.

According to this provision, the public official is punished whenever they act intentionally in breaching the law or, otherwise, fail to abstain in circumstances of conflict of interests (relevant even in the case of a third-party’s interest), obtaining – in this way – an undue profit for themself (or for others) or, alternatively, causing a detriment to others.

Endangerment of Fairness of Tenders

The conduct linked to favouritism on the part of a public official, who guarantees an undue advantage to a third party by acting in breach of the law ensuring free and equal access to bidders for the granting of contracts, is relevant from a criminal law perspective and is punished by two different provisions included in the Criminal Code.

The offence under Article 353 of the ICC (disturbing the fairness of tenders) punishes anyone who, by means of violence or threat, gifts, promises, collusion or other fraudulent means, prevents or disrupts the fair course of the tender, or prevents tenderers from competing in it.

Moreover, in the event such conduct is carried out by a person designated by law or a public authority to manage the tender, the sanctions (fine and imprisonment) are increased. In this case, the designated person is considered to hold the office of a public official.

The second offence to be considered is the crime or offence of “Disrupting the fairness of the procedure for choosing a bidder” as set forth in Article 353-bis of the ICC.

This legal provision punishes anyone who, by means of violence or threat, gifts, promises, collusion or other fraudulent means, alters the administrative proceedings intended to determine the content of the call for bids, or any other equivalent notice, pursuing the intention to influence the methods adopted by the Tender Authority for choosing the successful bidder.

Some of the specific offences against the Public Administration (ie, Articles 317, 318, 319, 319-quater, 323 of the ICC) provide for the liability of a public official, both in the event that the act is committed by them, and in the event that the advantage or money (as forms of payment for the performance or omission of the due or undue act, or merely as a result of the role the public official holds) is received by a third party.

Furthermore, all the above-mentioned offences may hypothetically be committed through an intermediary: indeed, the criminal system states a general rule, set forth in Article 110 of the ICC, according to which any person who participates in the commission of a crime (through conscious behaviour and causally linked to the fact) is liable for it. In this way, any third party who acts together with the agent is equally liable for the crime committed.

As a general rule, under Italian criminal law any crime is extinguished after a period corresponding to the maximum prison term provided for each offence and, in any case, after a period of not less than six years, starting from the day the offence is committed (Article 157 of the ICC).

According to Articles 160 and 161 of the ICC, the limitation period can be suspended by one of the procedural acts specifically determined by the law (eg, the request for committal to trial) and may be extended by up to one quarter of its ordinary duration. Suspension for limitation period may be longer for corruption crimes under Articles 318, 319, 319-ter, 319-quater, 320, 321, 322-bis of the ICC, for which the extension term is doubled.

The statute of limitations was widely amended by Law No 9/2019 (Bonafede Reform, after the former Minister of Justice), introducing a “freezing clause” for the statute of limitations after the first-instance judgment for all crimes committed from 1 January 2020 (meaning that, for these crimes, the limitation period ends with the issue of the first-instance verdict).

This new clause was recently confirmed by Law No 134/2021 (Cartabia Reform), which also sets maximum time limits for appeal proceedings and for proceedings before the Supreme Court with regard to all crimes committed from 1 January 2020. The limits are:

• two years (extensible for one further year in the event of a particularly complex trail) for appeal proceedings; and
• one year (extensible for six further months in the event of a particularly complex trial) for proceedings before the Supreme Court.

Both time limits run 90 days after the deadline for filing the grounds of the judgment.

After these maximum time limits have passed, criminal action is time-barred and the trial is extinguished (Article 344-bis of the ICPC).

As for administrative liability of legal entities, the limitation period under Article 22 of Legislative Decree No 231/01 is five years after the crime was committed.

This term can be suspended by a request to apply precautionary measures and by an entity being charged with having committed the administrative offence. In the latter event, the statute of limitations does not run until the final judgment becomes enforceable.

Italian criminal law applies to crimes committed on Italian territory. More specifically, under Article 6 of the ICC, territorial jurisdiction is established (i) over conduct which occurred either wholly or partially within the territory of the state, or (ii) even in those circumstances where the offence is wholly committed abroad but its effects take place in the national territory.

Nevertheless, with regard to certain serious offences such as corruption, Articles 9 and 10 of the Criminal Code establish national or universal jurisdiction over cases not covered by the above-mentioned Article 6.

Specifically, Italy has extraterritorial jurisdiction over conduct wholly committed abroad which does not have any effect in the national territory when three conditions are met:

• the perpetrator is within Italian territory;
• the double-criminality principle is satisfied; and
• a request for punishment is made by the Minister of Justice or the injured party.

However, it should be mentioned that Anti-corruption Law No 3/2019 has recently facilitated the prosecution of corruption offences committed by a national or foreign citizen by eliminating the condition that a request for punishment for such crimes should be made by the Minister of Justice or the injured party.

Legislative Decree No 231/2001 introduced administrative liability against legal entities in the event that any of the crimes listed in Legislative Decree No 231/2001 (including crimes against public administration) are perpetrated by directors, managers or employees for the benefit of or in the interest of the company.

This is an autonomous liability of the legal entity (so-called organisational negligence) for not having adopted organisational models capable of preventing the crimes listed in the Decree from being committed (for further details, see 4.5 Safe Harbour or Amnesty Programme and 6.1 National Legislation and Duties to Prevent Corruption).

In connection with this point, it is worth mentioning that a company’s liability arising from crimes committed is completely independent of corporate events following the perpetration of the crimes. Indeed, according to Articles 28, 29 and 30 of Legislative Decree No 231/01, in the case of changes to a legal entity’s organisational structure, the company remains liable for the offences committed before the date on which the changes took effect; in the same way, in the event of a merger or takeover, the resulting legal entity is liable for the offences for which the previous entities were responsible before the merger or takeover. However, in the event of a partial split-up, the divided company remains liable for crimes committed before the split.

In general terms, the Italian criminal system is founded on the presumption of innocence, so that the burden of proof in demonstrating that a crime has been committed lies with the prosecutor. This means that, if there is any doubt about the defendant’s guilt, they must be acquitted in accordance with the in dubio pro reo rule.

With regard to an individual’s liability, the first defence for any crime (not only bribery or other crimes against the public administration) may be based on the demonstration that the so-called objective elements of the offence have not been satisfied or sufficiently proved by the prosecutor.

Furthermore, another defence strategy may consist in attempting to demonstrate the lack of intent by the defendant to commit a crime (lack of mens rea), which is a mandatory condition for punishment.

Another argument that may be used as a defence for the above-mentioned offences relates to so-called mitigating or exonerating circumstances (see 7.4 Discretion for Mitigation and 4.5 Safe Harbour or Amnesty Programme).

Regarding the legal entity’s liability, see 6. Compliance and Disclosure.

There are no exceptions to the aforementioned defences.

In general, there are no de minimis exceptions under Italian Law: a bribe of any value will constitute an offence.

The only exception – the relevance of which is, in any case, subject to the court – can be configured if the “advantage” is permitted by the law or if its value is very small as, for instance, in the case of a mere courtesy gift (the so-called munuscula). Please note that Decree No 62/2013 provides exceptions for munuscula or donations of modest value to be identified, for public employees, to the amount of EUR150.

The value of the bribe could also be taken into account by the court as a mitigating factor in determining the quantum of sanction to be imposed: according to the mitigating circumstance provided by Article 323-bis of the ICC, if the offences under Articles 314, 316, 316-bis, 316-ter, 317, 318, 319, 319-quater, 320, 322, 322-bis and 323 of the ICC are particularly slight, the sanction is reduced by up to one third.

In Italy, no sectors or industries are exempt from corruption offences.

It is, however, important to bear in mind that most of the offences described require, as an “objective element” of the crime, the fact that the unlawful advantage is granted or promised to a public official or a public service-provider.

With reference to corruption crimes, a new exonerating circumstance – introduced by Law No 3/2019 – is provided by Article 323-ter of the Criminal Code in the event of self-incrimination and effective co-operation with the judicial authority.

For more details, see 7.4 Discretion for Mitigation.

Regarding the specific exonerating consequence for legal entities, arising from the adoption of an adequate compliance system, see 6.1 National Legislation and Duties to Prevent Corruption.

Penalties upon conviction for the above offences are different for individuals and legal entities.

With specific regard to penalties provided for legal entities, penalties arising from crimes can be “financial” or “disqualifying”; according to Article 10 of Decree No 231/2001, financial penalties are always applied for administrative offences arising from a crime and are applied in terms of not less than 100 units (the so-called quotas) and not more than 1,000 units. The amount of each unit is not below EUR258 and not above EUR1,549, according to Article 11 of Decree No 231/2001.

Penalties for the following offences when committed by individuals or legal entities are:

• for the crime of misappropriation pursuant to Article 314 of the Criminal Code:

a) individuals: imprisonment from four to ten years and six months (imprisonment from six months to three years in the event of temporary misappropriation); or

b) legal entities: fine of up to 200 units (when the act affects EU financial interests);

• for the crime of blackmail by a public official pursuant to Article 317 of the Criminal Code:

a) individuals: imprisonment from six to 12 years; or

b) legal entities: fine from 300 to 800 units and disqualifying penalties (Article 9, paragraph 2, Decree 231);

• for the crime of bribery pursuant to Article 318 of the Criminal Code:

a) individuals: imprisonment from three to eight years; or

b) legal entities: financial penalty of up to 200 units;

• for the crime of bribery pursuant to Article 319 of the Criminal Code:

a) individuals: imprisonment from six to ten years; or

b) legal entities: fine from 200 to 600 units (from 300 to 800 units in the event of significant profit by the company as a consequence of the crime) and disqualifying sanctions (Article 9, paragraph 2, Decree 231);

• for the crime of bribery in relation to judicial acts pursuant to Article 319-ter of the Criminal Code:

a) individuals: imprisonment from six to 12 years; or

b) legal entities: fine from 200 to 600 units (from 300 to 800 units in the event of significant profit by the company as a consequence of the crime) and disqualifying sanctions (Article 9, paragraph 2, Decree 231);

• for the crime of undue inducement to give or promise benefits pursuant to Article 319-quater of the Criminal Code:

a) individuals: imprisonment from six to ten years and six months for the public officer. Imprisonment of up to three years (or up to four years when the act affects EU financial interests and the damage or profit is greater than EUR100,000) for the corruptor; or

b) legal entities: fine from 300 to 800 units and disqualifying of “suspension or revocation of authorisations, licences or concessions functional to the commission of the crime”;

• for the crime of misconduct by a public official pursuant to Article 323 of the Criminal Code:

a) individuals: imprisonment from one to four years; or

b) legal entities: fine of up to 200 units (when the act affects EU financial interests);

• for the crime of influence-peddling pursuant to Article 346-bis of the Criminal Code:

a) individuals: imprisonment from one to four years and six months; or

b) legal entities: fine of up to 200 units;

• for the crime of keeping inaccurate corporate books and records pursuant to Article 2621 of the Civil Code:

a) individuals: imprisonment from one to five years; or

b) legal entities: fine from 200 to 400 units;

• for the crime of keeping inaccurate corporate books and records in listed companies pursuant to Article 2622 of the Civil Code:

a) individuals: imprisonment from three to eight years; or

b) legal entities: fine from 400 to 600 units; and

• for the crime of private corruption pursuant to Article 2635 of the Civil Code:

a) individuals: imprisonment from one to three years; or

b) legal entities: fine from 400 to 600 units and disqualifying sanctions (Article 9, paragraph 2, Decree 231).

The only guidelines or principles applicable to the assessment of the penalties are provided by the “general part” of the Criminal Code in Articles 132 and 133. The first legal provision states that the application of penalties shall be at the judge’s discretion, within the limits (minimum and maximum) established by the law for each crime; the second one specifies the principles to be applied by the judge in the exercise of their discretionary power (eg, the judge has to take into account the seriousness of the offence and the individual’s attitude to the crime). Sanctions are increased in the event of a repeat of the crime, in accordance with Article 99 of the ICC.

Articles 11, 14 and 20 of Legislative Decree No 231/2001 state similar principles for the administrative liability of legal entities.

Legislative Decree No 231/01 states an autonomous administrative liability of legal entities, in the event that one of the crimes listed in the Decree (including bribery and corruption offences) is perpetrated in the interest or to the benefit of the company by persons who have representative, administrative or management functions or by persons under the direction or supervision of one of these persons.

All such provisions are enforced by the Criminal Court (following an initiative put in place by the prosecutor), which has the duty to assess – usually in the same proceedings – both individual and corporate liabilities and, as a consequence, issue judgments of acquittal or conviction.

In order to avoid liability in the event that a crime has been committed in the interest or to the benefit of the company, according to Articles 6 and 7 of Legislative Decree No 231/2001, entities may adopt the so-called organisational models in order to prevent the crimes listed in the Decree from being committed.

According to Legislative Decree No 231/2001, the model must be considered “effective”; this means that, according to Article 6 paragraph 2 of the Decree, the model must:

• identify the activities in which the crimes listed in the Decree could be committed;
• provide specific protocols designed to assist the company in formulating and implementing company decisions, in relation to the crimes to be prevented;
• identify procedures for managing the financial resources needed to prevent crimes from being committed;
• provide obligations of disclosure to the supervisory board; and
• provide a suitable disciplinary system.

The adoption of the model is not mandatory for the company but is a necessary condition to avail of the exonerating circumstance provided for by Legislative Decree No 231/2001.

Indeed, as highlighted in 3.3 Corporate Liability, the company has a duty to prevent bribery as an offence (as well as all the other crimes listed in Legislative Decree No 231/2001) and, in the event of failure of that obligation, an autonomous liability might arise for not having adopted organisational models capable of preventing the crimes listed in the Decree from being committed.

Other essential tools for the implementation of the model – as usually stated by the courts – are disclosure of the content of the model and staff training:

• communication is usually reserved to HR functions and is necessary in order to ensure employees are completely aware of the organisational model and the Code of Ethics; and
• training is crucial in order to comply with the requirement of Article 6 of the Decree 231/2001, according to which, in order to be able to determine an “exonerating effect” in favour of the company, the model must be “effectively implemented”.

It should be noted that, for public and private entities subject to Italian law, the organisational model may be complemented by the ISO 37001 “Anti-Bribery Management Systems”, which represents the first international standard designed to prevent, detect and address bribery involving the company, its personnel and its business partners.

The ISO 37001 standard is therefore designed to help legal entities to implement and maintain a proactive anti-bribery management system, by establishing procedures, policies and controls which companies are urged to implement to prevent bribery or at least to respond to it promptly.

Italian legislation does not provide for a uniform regulation of lobbying activities; however, such activities have been subject to multiple initiatives at both national and regional level through the issuing of regulatory acts (eg, Toscana Regional Law No 5/2002, Molise Regional Law No 24/2004, Lombardia Regional Law No 17/2016; Chambers of Deputies: Code of Conduct, 12 April 2016 and Resolution, 26 April 2016; Ministry for Economic Development and Ministry of Labour and Social Policy: Directive, 24 September 2018; Ministry of Ecological Transition: Decree No 258, 1 August 2018).

At the same time, it is worth mentioning that a Draft Law (called “Discipline of interest representation activities”) aimed at regulating lobbying activities was approved by the Chamber of Deputies on 12 January 2022.

The most relevant innovation of the new Law would be the Register for Transparency of Interest Representatives, in which all those who intend to carry out the activity of lobbying are obliged to be registered and keep note of the meetings with the public decision-makers. Furthermore, the new legislation would provide for specific rights, prohibitions and obligations for lobbyists, the violation of which may lead to the application of administrative sanctions.

In the Italian criminal system, there is no obligation for individuals (who are not public officials) or companies to report bribery or other crimes against the public administration, of which they become aware, to the judicial authority.

Law No 179/2017 – which came into force on 29 December 2017 – introduced a public and private system of protection for whistle-blowers in Italy.

In the Public Sector

Starting from the public sector, according to the law, a public employee who, in the interest of the integrity of the public administration, reports to the “person responsible for preventing corruption and transparency” (pursuant to Article 1, paragraph 7, of Law No 190, 6 November 2012), or to the National Anti-Corruption Authority (ANAC), or by complaint to the ordinary judicial authority or the accounting authority, unlawful conduct of which they have become aware due to their employment relationship, cannot be sanctioned, demoted, dismissed, transferred, or subjected to any other organisational measure with detrimental effects, direct or indirect, on their working conditions determined by the report.

Furthermore, the law guarantees protection for the whistle-blower by providing for two sanctioning powers by ANAC:

• a fine of up to EUR30,000 for those who adopt retaliatory measures against the whistle-blower; and/or
• a fine of up to EUR50,000 for the person responsible for transparency and anti-corruption who failed to examine the report received from the public employee.

With Resolution No 469 of 25 June 2021, the ANAC has approved the new guidelines on the protection of whistle-blowers in the public sector to strengthen the protective measures for employees who report illegal conducts.

In Private Legal Entities

From the standpoint of private legal entities, the law provides specific protection to whistle-blowers according to Decree No 231/2001 (but only for those companies which have adopted an organisational model).

In greater detail, according to Article 6, paragraph 2-bis, of Decree No 231/2001, companies are required to provide:

• one or more channels enabling senior managers and subordinates to raise detailed disclosures of unlawful conduct pursuant to Decree No 231/2001 and based on precise and congruous facts, or breaches of the organisational model of the company, which they witnessed in the performance of their functions. Such channels must assure confidentiality over the identity of the whistle-blower when handling the disclosure;
• at least one alternative reporting channel suitable to assure, through IT, the confidentiality of the identity of the whistle-blower;
• prohibition against retaliation or discriminatory acts, whether direct or indirect, towards the whistle-blower for reasons, directly or indirectly, connected to the disclosure; and
• within the disciplinary system adopted, sanctions against those infringing the measures for the protection of the whistle-blower, as well as those making disclosures, maliciously or negligently, that turn out to be unfounded.

Such legislation is currently being revised. See 6.6 Location of Relevant Provisions Regarding Whistle-Blowing.

No incentive is offered to whistle-blowers as a consequence of reporting bribery or corruption.

The only “incentive” – actually, a sort of “protection” for the whistle-blower – is the one provided by Article 3 of Law No 179/2017, which qualifies the complaint of the whistle-blower, if the “interest of the integrity of the public administration” is pursued by them, as a “justified cause” of disclosure of professional secrets. Therefore, Article 3 provides for an exonerating circumstance for the crimes of “disclosure and use of official secrets” (Article 326 of the ICC), “disclosure of professional secrets” (Article 622 of the ICC), “disclosure of scientific and industrial secrets” (Article 623 of the ICC) and “breach of the duty of loyalty” (Article 2105 of the Civil Code).

With reference to the new exonerating circumstance provided by Article 323-ter of the ICC in the event of self-incrimination and effective co-operation with the judicial authority, see 4.5 Safe Harbour or Amnesty Programme.

Provisions regarding whistle-blowers in the public sector are set out in Article 54-bis of Legislative Decree No 165/2001; provisions regarding the private sector are set out in Article 6 of Legislative Decree No 231/2001.

As mentioned in 6.4 Protection Afforded to Whistle-Blowers, both decrees have been amended by Law No 179/2017 entitled ”Provisions for the protection of whistle-blowers who report offences or irregularities which have come to their attention in the context of a public or private employment relationship”.

As above-mentioned in 6.4 Protection Afforded to Whistle-Blowers, the Whistle-Blowing discipline is currently under review and update.

On 19 April 2021, the Italian Senate approved Law No 53/2021 (“Legge di delegazione europea 2019–2020”), delegating the Italian Government to transpose (by 17 December 2021) the European Whistle-Blower Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (commonly referred to as the “EU Whistle-Blowing Directive”). Nonetheless, noting the Government’s inaction in implementing the first delegation, the Parliament renewed the delegation itself by means of Law No 127 of 4 August 2022. The law was published in the Official Gazette and the measure is effective as of 10 September 2022.

The Italian Government will have to:

• amend national legislation, in accordance with the framework of the EU Whistle-Blowing Directive;
• guarantee co-ordination with current national provisions, ensuring a high level of protection to whistle-blowers; and
• introduce or keep provisions more favourable to the rights of whistle-blowers in order to ensure the highest level of protection for them.

The EU Whistle-Blower Directive sets out common minimum standards across EU member states for the protection of persons who report information about threats or harm to the public interest obtained in the context of their work-related activities.

Most importantly, it provides that the member states must:

• ensure EU-wide protection for those who report breaches of EU legislation in some specific fields (eg, public procurement, financial services, money laundering, and terrorist financing, product safety, transport safety, financial interests of the Union);
• broaden the scope of people who enjoy such protection, including, for example, self-employed workers, contractors, volunteers, non-executive directors, facilitators, consultants, trainees, board members, former employees and job applicants, colleagues or relatives of the reporting persons;
• extend the protection to those who had reasonable grounds to believe that the information on breaches reported was true at the time of reporting, irrespective of whether those breaches are substantiated;
• require that legal entities implement specific internal and external reporting channels to ensure that the whistle-blower’s identity is kept confidential (no longer only by companies that have adopted the Models pursuant to Legislative Decree 231/2001 but now by all companies with at least 50 workers, regardless of the nature of their activity);
• designate the authorities competent to receive, give feedback and follow up on reports;
• prohibit all forms of retaliation against whistle-blowers; and
• provide for effective, proportionate and dissuasive penalties for persons that hinder reporting, retaliate against whistle-blowers, or otherwise breach the duties outlined in the EU Whistle-Blowing Directive.

See 7.3 Process of Application for Documentation.

See 7.3 Process of Application for Documentation.

As mentioned previously, in the Italian jurisdiction, the main anti-bribery and anti-corruption provisions are included in the Criminal Code, which describes conduct that may trigger the relevant crimes and provides for the correlative sanctions.

At the same time, Legislative Decree No 231/2001 establishes an autonomous administrative liability for legal entities, in the event that one of the crimes listed in the Decree (including bribery and corruption offences) is perpetrated in the interest or to the advantage of a company.

All such provisions are enforced by the Criminal Court (following an initiative put in place by the prosecutor), which has a duty to assess individual and corporate liabilities and, as a consequence, deliver judgments of acquittal or conviction.

However, Law No 190/2012 established the National Anti-Corruption Authority (ANAC), which is an administrative authority aimed at preventing corruption in public administrations. The ANAC has a broad range of powers (listed also under the ANAC in Legislative Decree No 90/2014 and No 50/2016), which may be summarised as follows:

• analysis of the causes that facilitate corruption, identifying prevention initiatives (for this purpose the authority issues the annual National Anti-Corruption Plan, which assesses the risk of corruption related to the office and points out the potential initiatives to be carried out to mitigate the risk);
• inspections by requesting information, acts and documents, and the execution of the initiatives required by the National Anti-Corruption Plan;
• supervision of public contracts and public tenders;
• reporting to the Public Prosecutor’s Office in the event of crimes or to the Court of Auditors in the event of detriment to the Treasury;
• regulation by issuing guidelines (also having a binding value);
• management of the national database of public contracts, digital record of public contracts and national register of evaluation commission members;
• imposition of disqualifying and pecuniary sanctions in the event of failure, without justified reason, to provide the information requested by the ANAC or contracting authorities, or in the event of providing false information or documents;
• incentive reporting through a whistle-blowing channel and imposition of pecuniary sanctions against:

a) those who take revengeful initiatives against the reporters; and

b) Corruption Prevention and Transparency Officials who fail to assess the reports received; and

• in the event of prosecution of any of the crimes under Articles 317, 318, 319, 319-bis, 319-ter, 319-quater, 320, 322, 322-bis, 346-bis, 353 and 353-bis of the ICC or in the event of potential unlawful conduct referable to a successful tenderer, the ANAC will inform the Prosecutor’s Office and propose to the Prefect to:

a) order the replacement of the persons involved in the investigation in corporate bodies and, if the company fails to comply, impose extraordinary and temporary management of the company with specific reference to the execution of the public contract related to the potential unlawful conduct; or

b) impose extraordinary and temporary management of the company with specific reference to the execution of the public contract related to the potential unlawful conduct.

On 1 June 2021, the European Public Prosecutor’s Office (commonly referred to as EPPO), started its investigatory and prosecutorial tasks. The EPPO is an independent and decentralised prosecution office of the European Union, with the competence to investigate, prosecute and bring to judgment crimes against the EU budget, such as fraud and corruption.

Pursuant to EU Regulation No 2017/1939 and to EU Directive No 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law (the so-called PIF Directive), which sets forth the minimum provisions that must be adopted and transposed into national law by the participating member states, the EPPO is empowered to investigate and prosecute the following offences against EU financial interests:

• fraud relating to EU expenditures and revenues;
• cross-border value-added tax (VAT) fraud involving total damages of at least EUR10 million;
• passive and active corruption (covering both requesting/receiving bribes by a public official and offering/giving bribes to a public official) that damages, or is likely to damage, the EU’s financial interests;
• misappropriation of EU funds or assets by a public official;
• money laundering involving property derived from one of the above-listed offences; and
• incitement, aiding and abetting, or attempted commission of the above-listed offences.

With reference to mitigation powers, it is important to highlight that they concern two different fields: administrative law and criminal law.

From the administrative perspective, it is worth mentioning the ANAC Resolution No 949/2017, which introduced the possibility of extinguishing the administrative pecuniary sanctions issued by the ANAC, in the event that no disqualifying sanctions are applicable, by means of the payment of a reduced fine.

Payment of the fine is due within 60 days from the notification of the violation, at a rate of EUR500 in the case of failure to provide the information requested and EUR1,000 in the case of providing false information.

However, regarding potential mitigation powers in the criminal field, the Criminal Code and the Criminal Procedure Code provide for three different mitigation measures which may be applied by the Criminal Courts to reduce the sanctions described in 5.1 Penalties on Conviction.

Plea Bargain Proceedings

According to Articles 444 and following of the Criminal Procedure Code, individuals may settle the charge through a plea-bargain agreement, with the prosecutor setting out the pecuniary sanctions (fines) and the duration of imprisonment.

The main positive outcomes of plea bargain proceedings are as follows:

• the sanctions agreed with the prosecutor are reduced by a maximum of one third;
• if the judgment does not exceed two years of imprisonment (or two years of imprisonment combined with a financial penalty), the judgment itself does not entail the cost of the proceedings or the application of ancillary penalties and security measures, except for confiscation in cases set forth by Article 240 of the ICC; and
• if the judgment does not exceed two years of imprisonment (or two years of imprisonment combined with a financial penalty), the offence shall be extinguished if, within five years (if the judgment concerns a crime) or two years (if the judgment concerns a misdemeanour), the accused does not commit a crime or misdemeanour of the same kind.

Note that, as set forth by Article 444 paragraph 1-ter of the Criminal Procedure Code, in the event of prosecution of any of the crimes set forth in Articles 314, 317, 318, 319, 319-ter, 319-quater and 322-bis of the ICC, the request for plea-bargain proceedings is subject to the full restitution of the price or the profit arising from the offence.

The court assesses whether the latter condition is met and, in general terms, whether the plea-bargain agreement complies with the law. If the evaluation is positive, the court delivers the plea-bargain sentence.

Furthermore, Law No 3/2019 added paragraph No 3-bis to Article 444 of the Criminal Procedure Code, which states that, in the event of prosecution for any of the crimes provided for by Articles 314 paragraph 1, 317, 318, 319, 319-ter, 319-quater paragraph 1, 320, 321, 322, 322-bis and 346-bis of the ICC, the plea-bargain request may be subject to the exclusion or suspension of the accessory penalties provided for by Article 317-bis of the ICC. Should the court deem it mandatory to apply these accessory penalties, it shall reject the plea-bargain request.

Finally, it is important to highlight that, pursuant to Article 63 of Legislative Decree No 231/2001, administrative liability may also be settled through a plea-bargain agreement. Indeed, the company is entitled to settle its potential administrative liability with an agreement on pecuniary sanctions and on the duration of disqualifying measures (if applicable).

Two Special Mitigating Circumstances Set Forth by Article 323-bis of the ICC

The special mitigating circumstance under the first paragraph is met when the offences under Articles 314, 316, 316-bis, 316-ter, 317, 318, 319, 319-quater, 320, 322, 322-bis and 323 of the ICC are particularly slight. In such an event the sanction is reduced by up to one third.

In greater detail, such a mitigating circumstance occurs when the whole offence is barely offensive and, therefore, not very serious, with reference to the conduct carried out, the amount of economic damage or profit attained, the subjective attitude of the perpetrator and the event (see latest Court of Cassation, Section VI, 23 May 2019, No 30178). Therefore, the application of such a mitigating circumstance cannot be determined by the mere slightness of the advantage gained by the perpetrator.

The second mitigating circumstance has been introduced by Law No 69/2015 and occurs if the perpetrator made effective efforts to:

• prevent any further consequences of the criminal activity;
• provide evidence of criminal offences and identify other perpetrators; or
• allow the seizure of the profits.

In accordance with Article 25, paragraph 5-bis, Legislative Decree No 231/2001, the same mitigating measure is applicable to the benefit of the legal entity which meets all the above-mentioned conditions and adopts an organisational model suitable to prevent crimes of the same type.

This circumstance (which is applicable only with reference to the offences under Articles 318, 319, 319-ter, 319-quater, 320, 322, 322-bis and 323 of the ICC) is a kind of active repentance post delictum and determines a reduction of from one third to two thirds of the penalties.

It is important to point out that, in accordance with the case law referred to, similar legal provisions (see Court of Cassation, Section IV, 14 April 2016, No 32520) state that any such mitigating circumstance cannot be granted in the case of reticence, even if only partial, on the part of the perpetrator, as collaboration is required to be full and effective.

Non-punishable Clause Set Forth by Article 323-ter of the ICC

Law No 3/2019 introduced a special non-punishable clause in the event of self-incrimination and effective co-operation with the judicial authority.

In greater detail, this clause requires that:

• one of the offences pursuant to Articles 318, 319, 319-ter, 319-quater, 320, 321, 322-bis, 353, 353-bis and 356 of the ICC is perpetrated;
• the author voluntarily reports the crime to the authority, provides evidence of the crime and helps to identify the other perpetrators; and
• the perpetrator discloses the crime before being informed that they are under investigation and within four months of the offence being perpetrated.

Furthermore, the perpetrator is required to make available the benefit received or, where this is not possible, make available a sum of money of equivalent value, or provide useful information to identify the beneficial owner of the advantage. This initiative must also be carried out within four months of perpetration of the crime.

The non-punishable clause is not applicable if the self-incrimination is aimed at perpetrating the crime reported or at uncovering the agent who has acted in breach of the law.

Exonerating Circumstance for Legal Entities

Article 17 of Legislative Decree No 231/2001 states that disqualifying sanctions are not applicable if, after the unlawful behaviour but before the beginning of the trial, the company is able to meet three requirements:

• full compensation for damage and the removal of any detrimental or dangerous consequence of the crime;
• removal of the organisational inefficiencies that determined the crime through the adoption and implementation of an organisational model pursuant to Legislative Decree No 231/2001; and
• making available the “profit” arising from the crime for it to be confiscated.

See 7.4 Discretion for Mitigation.

In recent Italian judicial news, there are many cases of corruption which could be considered as landmarks in case law.

On 17 March 2021, the Milan Criminal Court acquitted two important energy groups, the chief executive and managers of USD1.1 billion corruption charges related to the 2011 acquisition of OPL-245, a Nigerian offshore oil-prospecting licence. Italian prosecutors argued that parts of the purchase price were bribes that landed in the pockets of middlemen and politicians, including the Nigerian former oil minister. The Criminal Court acquitted the defendants as there was no case to answer because there was no evidence that the money was channelled to politicians and intermediaries. Italian prosecutors and the Nigerian State appealed against the acquittal. In July 2022, the Public Prosecutor’s Office at the Court of Appeal of Milan revoked its appeal against the acquittal judgment, which therefore became legally binding.

Another recent and important case – currently pending at the Court of Milan – is the so-called Ruby-ter criminal proceeding against the former Prime Minister, Mr Silvio Berlusconi, and other defendants charged of bribery in judicial proceedings, pursuant to Article 319-ter of the Criminal Code, for having paid money and other benefits with the aim of inducing some witnesses to give false testimony in other criminal proceedings.

With regard to the crime of “trading in influence”, pursuant to Article 346-bis of the Criminal Code, in January 2022 the Court of Cassation dealt with a case involving the purchase and sale of Chinese surgical masks in the first phase of the pandemic emergency due to the worldwide spread of COVID-19, addressing, in particular, the issue of the conditions for establishing the lawfulness or unlawfulness of the so-called “onerous mediation”. The Court held that, in the absence of a legal regulation of the activity of lobbying groups, the unlawfulness of the mediation can only be derived from the purpose of the influence, which must consist in the commission of a criminal offence capable of producing advantages for the principal.

It is also worth mentioning that the Criminal Court of Cassation has recently had the opportunity to examine some issues related to whistle-blowing. In greater detail, two different principles are regularly affirmed by the case law:

• in the event that an employee carries out investigative activity aimed at filing a whistle-blowing complaint and this activity – breaching the law – could trigger a crime, this conduct cannot be justified by the rules protecting the whistle-blower (30 November 2017, Law No 179); and
• confidentiality over the identity of the whistle-blower is for disciplinary purposes only, but in the criminal field it cannot be guaranteed in a case where the report becomes an accusatory statement and the identification of the whistle-blower is absolutely essential for the defendant’s defence.

See 7.6 Recent Landmark Investigations or Decisions Involving Bribery or Corruption.

Italian legislation is regularly monitored and periodically assessed both by National Authorities (such as the Ministry of Justice and the Supreme Court) and by bodies of several International Organisations. The last reports on bribery and corruption in Italy have been provided by the OECD and by the GRECO, as well as by the National Anti-Corruption Authority (ANAC).

OECD

On 18 October 2022, the OECD (Organisation for Economic Co-operation and Development) published its Phase 4 Report – Italy, which assesses Italy’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Paris, 1997). The report shows that Italy has considerably strengthened its regulatory system for combating this type of corruption, by lengthening the statute of limitations of the offence, increasing imprisonment and disqualification penalties, and introducing a protection system for whistle-blowers. It has also made considerable investments in the digitisation and modernisation of the judicial system, extremely useful in the fight against bribery. According to the report, new challenges for Italy will concern the issues of the liability of entities, greater protection for whistle-blowers, the extension of the application of the confiscation of the profit of the crime and disqualification penalties, as well as in raising public awareness of the phenomenon.

GRECO

In the last compliance report published on 14 September 2022, the GRECO focused on the status of implementation of the Council of Europe Anti-bribery Conventions in Italy, with regard to corruption of parliamentary members, judges and public prosecutors. On this issue, the report concluded that Italy has implemented satisfactorily four of seven pending recommendations contained in the previous round's evaluation report [(a) introduction of the code of conduct in the Internal Rules of the Chamber of Deputies and the Senate of the Republic; (b) limitation of subsidies, gifts, hospitality, favours and other benefits for Members of Parliament; (c) restrictions on the prevention of conflicts of interest to be applied to former Members of Parliament; (d) the introduction by law of the incompatibility between the simultaneous exercise of Judiciary office and of member of a local authority].

In general terms, the update recognised the effectiveness of the initiatives following the recommendations concerning the status of magistrates, while a similar result has yet to be achieved regarding Members of Parliament, due to the persistent absence of codes of conduct for Chambers.

ANAC Report

In the annual report published in June 2022, the Italian Anti-corruption Authority (ANAC) assessed the current enforcement law on bribery and corruption-related crimes, highlighting its strengths and areas for improvement.

The report stated that the effects of the COVID-19 pandemic and the recent events in Eastern Europe have forced institutions to deploy extraordinary resources, resulting in the need to reorganise public spending actions and identify priorities deemed essential to meet the needs and requirements of the community, bearing in mind the new risks of corruption that may result. In these new risk areas, an essential strategic point is the innovative use of information technologies in the service of the modernisation of public administration through digital transformation.

See 6.2 Regulation of Lobbying Activities.