ITALY Trends and Developments Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
The EU Anti-Corruption Directive The Commission ’ s vision and the legislative journey The Commission’s May 2023 proposal aimed to replace the fragmented pre-existing framework (Council Framework Decision 2003/568/JHA on pri - vate-sector bribery and the 1997 Convention on cor - ruption involving EU officials) with a comprehensive minimum-standards instrument. The original proposal was particularly bold, since it: • required member states to criminalise various corruption offences (including the “abuse of func - tions”); • proposed minimum and maximum sanctions, limitation period rules and prevention obligations, including independent anti-corruption bodies; and • enhanced cross-border co-operation mechanisms. The Council’s general approach of June 2024 signifi - cantly watered down the abuse of functions provision, removing any explicit reference to “abuse of office” as a labelled offence. Trilogue negotiations (among the Council of the EU, the Parliament and the Commis - sion) between December 2024 and December 2025 were dominated by the abuse of functions issue, ulti - mately producing the compromise reflected in the final text. The adopted text : key provisions The adopted Directive introduces a number of provi - sions that will reshape the anti-corruption landscape across the EU. I) Harmonised offence definitions These are common minimum definitions for the fol - lowing offences: • bribery in the public sector (active and passive); • bribery in the private sector (active and passive); • misappropriation; • trading in influence (Article 6 of the Directive); • unlawful exercise of public functions (Article 7 of the Directive) – the renamed version of the original “abuse of functions” provision; • obstruction of justice; • enrichment from corruption offences; and
A New Architecture for European Anti-Corruption Law: Italy at the Crossroads of Directive (UE) 2026/1021 On 11 May 2026, the Directive (EU) 2026/1021 was published in the Official Journal of the European Union (Directive (EU) 2026/1021 of the European Parliament and of the Council of 29 April 2026 on combatting corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Commu - nities or officials of Member States of the European Union and amending Directive (EU) 2017/1371 of the European Parliament and of the Council (hereinafter, the “Directive”). The issuing of the EU’s first dedicated anti-corruption Directive represents the most significant development in European criminal law in the financial crime sphere since the adoption of the PIF Directive (No 2017/1371). Built on the Commission’s proposal of 3 May 2023 (COM(2023) 234) and refined through two years of often contentious negotiations, the Directive estab - lishes a harmonised criminal law framework for cor - ruption across the EU’s 27 member states. The Directive will enter into force on 31 May 2026. Member states must transpose the Directive by 1 June 2028, except for the provisions of Article 20 (5) (measures to prevent corruption) and Article 21 (national strategy against corruption), which may be transposed by 1 June 2029. For Italy, the timing and content of this instrument are significant. The Italian government voted in favour of the Directive in the Council of the EU, and its parlia - mentary delegation – including members of the Italian parliamentary majority coalition – voted in favour in Strasbourg. Yet the provisions of the Directive on the criminali - sation of the “unlawful exercise of public functions” appear to be in contrast to one of the current Italian government’s most prominent criminal justice reforms: the abolition of the offence of “abuse of office” ( abuso d ’ ufficio ; formerly Article 323 of the Italian Criminal Code, hereinafter ICC) enacted in July 2024.
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