ITALY Law and Practice Contributed by: Alessandro Pistochini, Francesca Lazzeri, Andrea Gaudio and Guido Stampanoni Bassi, Pistochini Avvocati Studio Legale
actions that fall under this provision (Article 346-bis of the Criminal Code); and • Law No 112/24, which introduced Article 314-bis into the Criminal Code, titled “Improper Allocation of Money or Properties”, which punishes certain behaviours previously classified as abuse in office – this law also classifies such crimes as predicate offences under Legislative Decree No 231/01. 2. Bribery and Corruption Elements 2.1 Bribery The Italian legislator punishes corruption offences by means of a complex regulatory system aimed at deal - ing with different types of crimes, which are provided for in Articles 318, 319, 319-ter and 320 (passive brib - ery), and Articles 321 and 322 (active bribery), of the ICC. More specifically, the ICC considers a public official or person performing a public service to have committed a criminal offence if: • to exercise their functions or powers, they unduly receive, for themself or a third party, money or another advantage, or accept a promise thereof (Article 318 – bribery for the exercise of a function); • they receive 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 hav - ing performed acts in breach of their official duties (Article 319 – bribery for the performance of acts in breach of official duties); or • they commit the offences described in the forego - ing to the benefit or detriment of 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 advan - tage 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, mere incitement to corruption is con -
sidered as a minor criminal offence (pursuant to Article 322, the punishment provided for in Articles 318 or 319 is reduced by one-third). Furthermore, even mere agreement (or mere solici - tation) to perform the functions of a public official in return for a bribe constitutes conduct punishable under criminal law. It is important to note that the Criminal Code does not distinguish between a bribe (money or other advan - tage) and gifts, promotional expenditures or other facilitation payments. Thus, the receipt of even a small amount of money can trigger corruption sanctions if it is 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 consider the conduct of indi - viduals who fail to prevent bribery as an offence. In fact, the general provisions set out in Article 40 of the ICC, for cases in which failing to avert a given result is treated as an active act, do not cover corruption offences. Public Officials The definition of “public official” in Article 357 of the Criminal Code is an individual who performs a legisla - tive, judicial or administrative public function (i.e., 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 implemen - tation by means of authority and certifying powers. In addition, anti-corruption provisions also cover acts committed by a “person performing a public ser - vice”, who, under Article 358 of the ICC, is defined as one who performs any activity that is governed in the same manner as a public function, excluding
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