ITALY Trends and Developments Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills
of unlawful collusion between public and private sectors that are nonetheless similarly damag - ing to the collective interest, such as bid rigging (since 2023) and trafficking of unlawful influences (since 2024). As Decree 231/2001 excludes liability for those entities that: (i) adopted and effectively implemented a compliance organisational model suitable to prevent those offences (“Model 231”); and (ii) appointed a supervisory board with inde - pendent controlling powers to monitor Model 231’s functioning, compliance and updating, corpo - rations have been incentivised to regulate and monitor their business, thus shifting from an anti- corruption system based on repression to one also valuing prevention. • The introduction of the criminal offences of com - mercial bribery and instigation to commit such bribery (see Articles 2635 and 2635-bis of the Italian Civil Code, introduced by Law No 190/2012 and later amended). • The establishment and empowerment of Italy’s anti-corruption authority, the National Anti-Corrup - tion Authority ( Autorità Nazionale Anticorruzione ANAC): With Law No 190/2012, the Italian Par - liament established ANAC, with the mandate of promoting transparency, preventing corruption and improving public procurement processes in the country. ANAC was progressively tasked with more functions and provided with corresponding pow - ers in view of implementing a preventive approach to corruption, including the authority to: (i) adopt the National Anti-Corruption Plan; (ii) formulate guidelines for anti-corruption measures; (iii) provide advice to public administrations on anti-corruption and transparency; (iv) monitor public administra - tion entities and impose administrative penalties on them in case of certain compliance failures; and (v) monitor whistle-blowers’ complaints and impose administrative penalties in certain cases (eg, retali - ation against whistle-blowers). • A general increase in criminal penalties for corrup - tion offences coupled with the provision of leniency schemes in case of voluntary self-disclosure (see Law No 3/2019). • The provision of more effective investigative tools to the prosecuting authorities (including under - cover agents, wiretapping and trojans) or a greater
scope of the authority to employ them (see Law No 3/2019). • The introduction of regulations aimed at protecting persons who report certain breaches of law (since Law No 190/2012 and, most recently, Legislative Decree No 24/2023; see infra paragraph 3). Second, the positive trend mentioned above has also been effected, or at least strongly facilitated, by a cul - tural evolution – ie, the installation and progressive diffusion among economic operators of a culture of compliance as an important element for both enter - prise risk management and the creation of sustainable medium- and long-term value. As corporations operating in Italy began to under - stand the impact of Decree 231/2001 on their opera - tions, they adopted the measures outlined in the Decree to mitigate the risk of unlawful conduct and, ultimately, avoid corporate liability. Over time, this led to the development of new business ethics and cor - porate governance standards, resulting in a paradigm shift. Corporations were not only strongly incentivised to prevent employee misconduct, but they began to view Model 231 as more than just a collection of “paper tools” aimed at demonstrating the absence of organisational faults in criminal proceedings. Instead, the model evolved into a real corporate governance instrument designed to integrate regulatory compli - ance into the daily management of business activities. A positive future outlook for Italy in relation to corrup - tion will strongly depend on the impact of two main tools: (i) Italy’s whistle-blower protection regime; and (ii) Artificial Intelligence (AI). The first of these tools is already established within the Italian system, but has been recently reformed and still requires full imple - mentation to reach its potential. The second tool, however, is still in the early stages of consideration by regulators and economic players, but is expected to have a revolutionary impact in both the public and
private sectors. Whistle-blowing
The Italian government recently adopted Legislative Decree of 10 March 2023, No 24 (“Decree 24/2023”), a framework of rules for reporting suspect illicit behav - iours within public and private entities (“whistle-blow -
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