ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
Herbert Smith Freehills Kramer LLP Via Rovello 1 20121 Milano Italy
Tel: +39 023 602 1371 Fax: +39 023 601 9535 Email: milan.info@hsfkramer.com Web: www.hsfkramer.com
1. Legal Framework and General Principles 1.1 Scope of Financial Crime and General Criminal Law Principles Definition of Financial Crimes Italian law does not provide a single statutory definition of “financial crime”. Criminal offences are distributed across multiple sources – the Italian Criminal Code ( Codice Penale ; ICC), the Consolidated Finance Act ( Testo Unico della Finanza (TUF), Legislative Decree No 58/1998), the Banking Act ( Testo Unico Bancario (TUB), Legislative Decree No 385/1993), the Insolven - cy and Business Crisis Code and various standalone statutes. Notwithstanding the absence of a unified statutory framework, the descriptive umbrella concept of reati economici (financial crimes) is commonly employed to group offences committed in an economic or commercial context and primarily affecting economic interests, the proper functioning of markets or pub - lic finances – including fraud, bribery and corruption, money laundering, market abuse, tax evasion and cyber-enabled financial crimes. Constituent Elements of the Offence Under the ICC, any criminal offence, including finan - cial crimes, requires the presence of three essential constituent elements. Objective element This element broadly corresponds to the common law concept of actus reus, comprising the defend - ant’s conduct and, in the case of a result crime, the
prohibited result together with the causal connection between the conduct and that result. It also comprises attendant circumstances – ie, factual conditions that must already exist at the time of the conduct (eg, in the offence of insider dealing, the possession of inside information at the moment of the relevant transaction). Lack of justification An offence is punishable only where no justifica - tion applies. Recognised justifications – such as self-defence or the victim’s valid consent – exclude criminal liability by negating the unlawfulness of the conduct. Subjective element The subjective element broadly corresponds to the common law concept of mens rea. The ICC recog - nises two principal categories of fault: dolo (intent) and colpa (negligence). Dolo is the default requirement and governs the vast majority of financial crimes. Italian scholars distinguish three forms. • Dolo intenzionale (direct intent): the prohibited result is the agent’s direct purpose. • Dolo diretto (oblique intent): the agent foresees the result as a virtually certain consequence of their conduct, even if it is not the primary objective. • Dolo eventuale : the agent foresees the prohibited result as a real possibility and accepts the risk. Dolo eventuale represents the lower threshold of dolo , occupying a conceptual space between the common law concepts of “intent” and “reckless - ness”.
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