Primary foreign anti-bribery legislation and enforcement agencies
Articles 318 to 322-bis of the Italian Criminal Code (ICC)
The ICC prohibits the corruption of foreign and domestic public officials or persons appointed to the provision of a public service.
Investigating agency: Judiciary Police
Prosecuting agencies: Public Prosecutors
Offenses
Corruption (Sections 318, 319, 320 and 321 of the ICC)
Constitutive elements:
- a public official, or a person appointed to the provision of a public service, who unduly receives, for him/her or a third party, money or other advantages or accepts their promise
- to perform his/her functions or powers (Section 318 of the ICC), or
- to omit or delay, or having omitted or delayed, an act relating to his/her office, or to act or having acted in breach of his/her duties (Section 319 of the ICC).
Concussione (Extortion committed by public officials – Section 317 of the ICC)
Constitutive elements:
- a public official, or a person appointed to the provision of a public service who unduly forces someone
- through the abuse of his/her qualification or powers
- to give or promise, to him/her or a third party, money or other advantages
- in order to prevent an unfair damage.
In such case, the private party is the victim of the crime and is not criminally liable.
Undue persuasion to give or promise advantages (Section 319-quater of the ICC)
Constitutive elements:
- a public official, or a person appointed to the provision of a public service who unduly induces someone
- through the abuse of his/her qualification or powers
- to give or promise, to him/her or a third party, money or other advantages.
In such case, the private party is punished as well as the public party, although the penalty for the latter is more severe.
Corruption of foreign public officials (Section 322-bis of the ICC)
Constitutive elements:
- EU public officials
- one of the abovementioned crimes committed by, or in participation with, a public official in EU Institutions or EU member states;
- Non-EU public officials
- offering or promising money or other advantages to a non-EU public official for performing his/her functions and powers, or for omitting or delaying, or having omitted or delayed, an act relating to his/her office, or for acting or having acted in breach of his/her official duties;
- the offense should be committed in order to obtain an undue advantage in an international business transaction; or
- to obtain or maintain a business or financial activity;
- the non-EU public official is not punished under Italian law.
Corporate liability arises under Legislative Decree n°. 231/2001 if an employee, or a corporate entity officer commits any of the abovementioned crimes in the interest or to the advantage of the corporation.
In order to avoid the liability for crimes committed by their employees and officers, corporations must prove the adoption and effective implementation of organizational models and protocols aimed at preventing such crimes, and that these have been committed by means of the fraudulent elusion of the models and protocols.
Extraterritorial application (Sections 7, 9 and 10 of the ICC)
When the above mentioned conducts:
- are committed wholly or partly within Italy; or
- are committed by Italian citizens or residents, or by a corporation located in Italy
Penalties for individuals
- Corruption pursuant to Section 318 of the ICC:
- Imprisonment from one year up to six years
- Corruption pursuant to Section 319 of the ICC:
- Imprisonment from six years up to 10 years
- Concussione:
- Imprisonment from six years up to 12 years
- Undue persuasion to give or promise advantages:
- The public official is punished with the imprisonment from six years up to 10 years and six months.
- The private party is punished with imprisonment of up to three years.
Penalties for corporations
- Fine of up to 200 quotas (the amount of a quota ranges from a minimum of EUR258 to a maximum of EUR1,549) in the case of bribery of a public official for performing his/her functions and powers (Section 318 of the ICC)
- Fine from 200 to 600 quotas in the case of bribery of a public official for omitting or delaying, or having omitted or delayed, an act relating to his/her office, or for acting or having acted in breach of his/her official duties (Section 319 of the ICC)
- Disqualifying penalties up to two years
a. Ban on contracting with the Public Administration
b. Suspension or revocation of authorizations or concessions that facilitated the crime
c. Exclusion from subsidies and contributions and revocations of those already in place
d. Exclusion from subsidies and contributions and revocations of those already in place
e. Exclusion from carrying on the activity
- Confiscation of the proceeds descending from the crime