ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
LAWP – Studio legale e tributario Corso Monforte 16 Milan 20122 Italy
Tel: +39 028 699 5564 Email: milano@lawp.it Web: www.lawp.it
1. Fraud Claims 1.1 General Characteristics of Fraud Claims Fraud claims in Italy can give rise to implications from both a criminal and civil law perspective. Criminal Law Fraud Fraud is regulated by Article 640 of the Italian Crimi - nal Code as an offence whereby the offender – using trickery or deception – misleads the damaged party, with the aim of procuring an unfair advantage to them - selves or others and causing detriment to the dam - aged party. Fraud requires the offender to misrepresent reality by giving the appearance of non-existing circumstanc - es. Typically, the fraudster re-enforces their actions through astute schemes and manoeuvres – often with accompanying documents that have been either counterfeited or created to simulate or conceal this reality – in order to first gain the trust of the victim before misleading them into making a mistake. For the fraud to be criminally relevant, it has to cause a reduction in the assets of the victim or cause other damage to them. Victims of fraud can also include the government (or government entities) and fraud may also target the obtainment of public funds. In such cases, the con - duct of the fraudsters is sanctioned more severely and claims may be brought directly by public prosecutors. If the victims of fraud are individuals, they must bring a claim filing a specific complaint, without which the
criminal proceeding cannot be initiated. This require - ment has been strengthened by a recent major reform impacting criminal and civil proceedings, adopted through Legislative Decree No 149/2022 (“Decree 149/2022”), which extended the range of cases requir - ing a private complaint as a condition for the initiation of a criminal proceeding. By way of example, prior to Decree 149/2022, fraud causing huge damage to victims could be prosecuted directly by public authori - ties; now, owing to the introduction of said provision, the victim would need to file a formal complaint to public authorities. Following Decree 149/2022, fraud can be prosecuted directly by public authorities only if: • it is committed against the State or another public authority or the EU; • it is committed by generating fear of an imaginary danger in the victim or convincing the victim of a false need to follow an order by a public authority; and • it is committed by taking advantage of circum - stances to decrease the victim’s capacity for defence. Among fraud claims in business transactions, particu - lar significance in Italian case law has been given to the concept of “contractual fraud” (where the fraud - ster – using deceit, misrepresentations and/or other - wise altering real circumstances – induces the victim to enter into a contract that they would have never signed otherwise, thereby obtaining an unfair profit). In such cases, the offence is committed through the initial intention to defraud the victims, regardless of any concrete damages visited on them.
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