ITALY Law and Practice Contributed by: Alessandro Pistochini, Francesca Lazzeri, Andrea Gaudio and Guido Stampanoni Bassi, Pistochini Avvocati Studio Legale
Abuse in Office The reform of the legislation for crimes against public administration through Law No 114/24 has repealed the crime of abuse in office established by Article 323 of the Criminal Code. According to Article 323 of the ICC, a public official is punished whenever they intentionally break the law or, in a conflict of interest situation (even in the case of a third-party’s interest), obtain an undue profit for themself or others or act to the detriment of others. However, following the amendment, these actions are no longer criminally relevant. Endangerment of Fairness of Tenders Conduct linked to favouritism on the part of a pub - lic official, who guarantees an undue advantage to a third party by acting in breach of the law by 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 (“disturb - ing 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 imprison - ment) are increased. In this case, the designated per - son 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 proceed - ings intended to determine the content of the call for bids, or any other equivalent notice, with the inten - tion to influence the methods adopted by the tender authority for choosing the successful bidder.
• The benefit given or promised to the mediator must be economic in nature. • “Free mediation” is limited to the remuneration of the public official in relation to the exercise of their functions, and no longer extends to the exercise of their powers. • “Onerous mediation” is considered as such only if it is aimed at inducing the public official to perform an act contrary to their official duties that consti - tutes a crime, and from which an undue advantage may arise. 2.3 Financial Record-Keeping As required by international conventions, the Italian legislator criminalises certain conduct deemed “pre - paratory” to bribery offences. For this reason, Article 2621 of the Civil Code punishes directors, general managers, 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 others, falsify financial statements, reports or other corporate communications addressed to shareholders or the public, thereby presenting a misleading picture of the financial situation of the company (or group). More severe penalties are envisaged for accounting fraud by listed companies (Article 2622 of the Civil Code). 2.4 Public Officials Within the Criminal Code, the misappropriation of public funds by a public official is considered under the offence of embezzlement, as set forth by Article 314 of the ICC. In greater detail, the Code punishes any public official who takes for their own (embezzles) money or other things in their possession by reason of their functions. No unlawful request or order should come from the public official. The taking of interest or showing of favouritism by such official might be classified as “endangerment of fairness of tenders” (the crime of abuse in office is no longer punishable under the Criminal Code).
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