ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
Misappropriation Misappropriation (Article 646 of the Italian Criminal Code) is distinct from fraud in that it is considered to take place when the offender is not using deception or schemes to defraud the victim but, rather, already has lawful access to the victim’s money (due, for instance, to a valid contract actually in place or due to any com - mercial relation between the two parties). In misap - propriation claims, the offender takes ownership of money or other mobile assets, even if only for a short period of time and even in cases where the money or assets are later returned to their legitimate owner. As in fraud claims, when misappropriation involves public servants and officials, the offence is sanctioned more severely – given that the statutory provisions are intended to protect both the assets of the victim and the interests of the public administration. Making corrupt payments In transactions involving public servants and officials, corruption practices (eg, bribery) may have an impact on how these transactions are entered into and/or per - formed. These offences most often fall into one of the following categories: • corruption whereby money or another benefit is sought to perform statutory duties or to omit/delay their execution (Articles 318 and 319 of the Italian Criminal Code), where the public function is sys - tematically leaning towards private interests; • corruption whereby the main objective of the cor - ruptor is to illegitimately facilitate or penalise a party in a civil, criminal or administrative proceed - ing (Article 319-ter of the Italian Criminal Code); or • abuse of power by public servants and officials forcing (Article 317 of the Italian Criminal Code) or inducing (Article 319-quater of the Italian Crimi - nal Code) someone to unlawfully give or promise money or any other advantage (in this last case, sanctions are provided not only against the public servants and official, but also against the private subjects who unlawfully give or promise money or any other advantage). Corruption within companies’ management Although the above-mentioned provisions govern cor - ruption of public servants and officials, other statu -
tory provisions (Article 2635 of the Italian Civil Code (ICC)) punish corruption practices within companies’ management. These provisions mainly target direc - tors, general managers, statutory auditors and other management agents. These agents are sanctioned for soliciting or receiving – for the benefit of themselves or others – money or other advantages (or accepting the promise thereof) to perform or omit an act in breach of their company’s duties. Sanctions also apply in the event corruption is not successful and where it remains at the stage of a mere attempt (Article 2635 bis of the ICC). In this last case, sanctions are reduced by one third. Conspiracy and criminal association When criminal actions are committed by two (or more) persons, all of them are sanctioned for the same offence (see 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts ). More severe sanc - tions are imposed against promoters and organisers, as well as when conspiracy involves more than five individuals (Article 112 of the Italian Criminal Code). In addition, Article 416 of the Italian Criminal Code punishes actions within the scope of promoting, constituting, organising, directing or participating in an association composed of three or more persons – planned for the purpose of committing a certain number of offences – in such a way as to concretely endanger public order. The punishment of those responsible for the offence of criminal conspiracy is separate and entirely inde - pendent from the actual commission of individual offences. In brief, a criminal association is a crime in itself, even if it does not commit any offence against third parties. Sanctions upon promoters, constitutors, organisers or leaders are more severe than those pro - Misrepresentations, false statements, trickery and deceit may also have serious consequences from a civil law perspective and, in particular, may negatively affect contractual undertakings between parties at many stages, from negotiation to performance of an agreement. vided for mere participants. Civil and Commercial Law
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