ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
of the money, property or assets, which may consist of the product (the immediate result of the offence), the profit (the economic advantage gained) or – according to some – the price paid to the perpetrator. AML Compliance Obligations The principal regulatory framework is Legislative Decree No 231/2007. AML obligations apply to bank - ing and financial intermediaries, other financial opera - tors (eg, credit brokers, currency exchange dealers), professionals (eg, chartered accountants, notaries and lawyers – limited to extrajudicial assistance aimed at financial or real estate transactions, not to judicial assistance or defence activities) and other non-finan - cial operators (eg, dealers in works of art, real estate agents). The main obligations include: • customer due diligence; • suspicious transaction reporting to the competent authorities; • record-keeping of due diligence and transactional documentation; • refraining from carrying out risky transactions or entering into risky business relationships; and • internal controls, including AML compliance, staff training and internal reporting procedures. Sanctions for Non-Compliance Most sanctions are administrative: fines of up to EUR5 million (or 10% of turnover or double the illicit gain) for serious and systematic breaches, as well as manager disqualification. Criminal sanctions apply in limited cases. In addition, failure to maintain adequate AML com - pliance may ground corporate criminal liability under Decree 231 (see 1.1 Scope of Financial Crime and General Criminal Law Principles ) where the entity’s compliance framework is deemed inadequate to pre - vent money laundering offences that subsequently occurred. 3.4 Financial Services Crime Italian criminal law does not have single statutes exclusively dedicated to each category of financial
market misconduct. The principal offences are as fol - lows. • Insider dealing (Article 184 TUF), punishing any qualified individual who, in possession of inside information, knowingly trades, discloses it outside the normal exercise of their function, or recom - mends or induces a third party to trade on its basis; secondary insiders (tippees) are equally liable. The penalty is imprisonment of two to 12 years and fines from EUR20,000 to EUR3 million, subject to upward multipliers; the penalty is lower for tippees. • Market manipulation (Article 185 TUF), punishing anyone who knowingly disseminates false informa - tion, carries out fictitious transactions, or employs any other artifice or device apt to cause a material alteration in the price of financial instruments. The penalty is imprisonment from one to six years and fines from EUR20,000 to EUR5 million, aggravated where AI systems are used; all penalties are sub - ject to upward multipliers. • False corporate communications (Articles 2621– 2622 of the Italian Civil Code), punishing qualified individuals (including directors, general managers, auditors and liquidators) who, for the purpose of obtaining an unjust profit, knowingly make mate - rially false statements or omit material facts in financial statements and other relevant corporate communications in a manner apt to mislead. The penalty is imprisonment from one to five years (non-listed companies) or three to eight years (listed companies). • Obstruction of supervisory authorities (Article 2638 of the Italian Civil Code), punishing qualified individuals (including directors, general manag - ers, auditors and liquidators) who misrepresent material facts in mandatory communications to supervisory authorities or conceal facts with the aim of obstructing the exercise of supervisory func - tions. The penalty is imprisonment from one to four years, doubled for listed companies. • Unauthorised exercise of financial services or activities (Article 166 TUF) and unauthorised bank - ing activity (Article 131 TUB), both punishable with fines and imprisonment from one to eight years.
112 CHAMBERS.COM
Powered by FlippingBook