ITALY Law and Practice Contributed by: Alessandro Pistochini, Francesca Lazzeri, Andrea Gaudio and Guido Stampanoni Bassi, Pistochini Avvocati Studio Legale
the performance of “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), embezzle - ment by taking advantage of third-party errors (Article 316 of the ICC), blackmail by a public official (Arti - cle 317 of the ICC), undue inducement to provide 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 involving: • members of EU institutions; • contracted EU officials and agents, in accordance with the respective staff regulations; • any person seconded to the EU by the member states or by any public or private body that carries out functions corresponding to those performed by officials or agents of the EU; • members and servants of bodies created on the basis of the founding treaties of the EU; • individuals within EU member states who carry out functions or activities corresponding to those performed by public officials or persons providing a public service; • members of the International Criminal Court; • persons exercising public functions or activities within the framework of international public organi - sations, members of international parliamentary assemblies or an international or supranational organisation, and judges and officials of interna - tional courts (introduced by a paragraph in Law No 3/2019); or • persons exercising functions or activities corre - sponding to those of public officials and persons in charge of a public service in states that are not part of the EU, but where the financial interests of the EU are affected (introduced by a paragraph in Legislative Decree No 75/2020). Private Bribery In accordance with the Council of Europe’s Criminal Law Convention on Corruption, the Italian legislator criminalises bribery between private parties.
More specifically, Article 2635 of the Italian Civil Code punishes directors, general managers, manag - ers 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 anyone who, even through an intermediary, offers, promises or gives money or other undue benefits to the persons men - tioned in the foregoing. 2.2 Influence-Peddling In addition to corruption offences, the Criminal Code also punishes active and passive trading in influence. In particular, Article 346-bis of the ICC, as recently reformed by Law No 114/24, punishes any private per - son or official who, by intentionally exploiting a real influence on a public official or a person in charge of a public service, unduly receives money or some other financial advantage to remunerate a public official or a person entrusted with a public service, or any of the other subjects mentioned in Article 322-bis, in con - nection with the exercise of their functions or to carry out another illicit mediation. The Article also defines the concept of “illicit mediation”, explaining that this term refers to mediation aimed at inducing a public official (or a person entrusted with a public service or any of the other subjects mentioned in Article 322- bis) to perform an act contrary to their official duties that constitutes a crime, and from which an undue advantage may arise. Due to the above-described reform, the actions falling within this provision have decreased. It is important to further highlight the amendments that have been made to Article 346-bis of the ICC. • For criminal liability, the relationship between the mediator and the public official must be genuine, rather than merely claimed. • The relationship must be used intentionally for the purpose of carrying out actions that constitute a crime.
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