ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
Failure to Prevent – No Direct Equivalent Italy does not have a general failure-to-prevent bribery offence. However, Decree 231 achieves a comparable outcome: where a company’s organisational model is inadequate to prevent bribery committed by its offic - ers or employees, the company faces direct corporate liability. 3.3 Money Laundering Principal Money Laundering Offences Italian law provides for three principal money launder - ing offences: • money laundering (Article 648-bis ICC), punishing those who (without having contributed to a crimi - nal offence) substitute, transfer or handle money, property or other assets of criminal origin so as to obstruct the identification of their provenance – imprisonment of four to 12 years and a fine of EUR5,000–25,000; • use of money, property or assets of illicit origin (Article 648-ter ICC), punishing those who (without having contributed to a criminal offence) employ in economic or financial activities money, property or other assets derived from said criminal offence in such a manner as to obstruct the identification of their criminal origin – imprisonment of four to 12 years and a fine of EUR5,000–25,000 (the offence is applicable only where the perpetrator is not liable for money laundering); and • self-laundering (Article 648-ter.1 ICC), punishing those who, having committed or participated in the predicate offence, employ, substitute or transfer the resulting money, property or assets in econom - ic, financial, entrepreneurial or speculative activi - ties so as to concretely obstruct the identification of their criminal origin – imprisonment from two to eight years and a fine of EUR5,000–25,000. Upon conviction or plea bargain, confiscation of the assets of criminal origin (or, where not possible, con - fiscation of equivalent value) is mandatory. Predicate Offences Following a 2021 legislative reform, all criminal offenc - es may serve as predicate offences for money laun - dering crimes (with reduced penalties where the predi - cate offence is less severe). The link is the illicit origin
ted or delayed) an act of their office – imprison - ment from six to ten years. • Bribery for the exercise of a function (Article 318 ICC): a public official receives money or other ben - efits either in exchange for carrying out a specific act not conflicting with their duties or for making themselves potentially available to the briber, even without reference to a specific act – imprisonment from three to eight years. • Bribery in judicial acts (Article 319-ter ICC): the offences under the foregoing bullet points are committed to benefit or damage a party in a civil, criminal or administrative proceeding – imprison - ment of six to 12 years. • Unlawful inducement to give or promise anything of value (Article 319-quater ICC): a public official induces someone to unlawfully give or promise them, or a third party, money or other benefits by abusing their position or powers – imprisonment from six years to ten years and six months. • Extortion by a public official (Article 317 ICC): a public official forces another person to give or promise a bribe – imprisonment of six to 12 years. The same offences also apply to persons in charge of public services. Liability extends to bribe payers or promisors as well, except for the extortion by a public official, where the private party is regarded as a victim. Furthermore, Article 322 ICC extends the corruption framework to inchoate conduct, criminalising instigation to bribery in certain scenarios. Article 322-bis ICC extends all corruption offences to foreign public officials and officials of international organisations. Private Sector Bribery Article 2635 of the Italian Civil Code makes directors, managers, statutory auditors and liquidators of a com - pany liable for soliciting or accepting undue advantag - es in exchange for acts or omissions in breach of their corporate duties that cause harm to the company. Lia - bility extends equally to the bribe-giver. The penalty is imprisonment from one to three years, increased for listed companies.
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