ITALY Law and Practice Contributed by: Alessandro Pistochini, Davide Giorgiadi, Giulia Barattini and Carlotta Scozia, Pistochini Avvocati Studio Legale
• they receive money or any other advantage, or the promise thereof, for themself or a third party to omit or delay – or for having omit - ted or delayed – acts relating to their office, or to perform or for having performed acts in breach of their official duties (Article 319 – bribery for the performance of acts in breach of official duties); or • they commit the offences described in the foregoing to the benefit or detriment of a party to civil, criminal or administrative pro - ceedings (Article 319-ter – bribery in judicial proceedings). Punishment for passive bribery shall also apply to whoever gives or promises money or any other advantage to a public official or person performing a public service if the promise is accepted (Article 321 – active bribery). Conversely, if the offer, promise or request of a bribe is not accepted, mere incitement to cor - ruption is considered as a minor criminal offence (pursuant to Article 322, the punishment pro - vided for in Articles 318 or 319 is reduced by one-third). Furthermore, even mere agreement (or mere solicitation) to perform the functions of a public official in return for a bribe constitutes conduct punishable under criminal law. It is important to note that the Criminal Code does not distinguish between a bribe (money or other advantage) and gifts, promotional expen - ditures or other facilitation payments. Thus, the receipt of even a small amount of money can trigger corruption sanctions if it is related to the exercise of a public function by the receiver. However, many companies and public authori - ties have adopted codes of conduct that specifi -
cally address this issue by regulating the condi - tions and extent of facilitation payments. Finally, it is worth mentioning that the Italian criminal law system does not consider the con - duct of individuals who fail to prevent bribery as an offence. In fact, the general provisions set out in Article 40 of the ICC, for cases in which failing to avert a given result is treated as an active act, do not cover corruption offences. Public Officials The definition of “public official” in Article 357 of the Criminal Code is an individual who performs a legislative, judicial or administrative public function (ie, an administrative function) that is: • regulated by the public law provisions and acts of an authority; and • characterised by the formation and state - ment of the public administration’s will or by its implementation by means of authority and certifying powers. In addition, anti-corruption provisions also cover acts committed by a “person performing a pub - lic service”, who, under Article 358 of the ICC, is defined as one who performs any activity that is governed in the same manner as a public func - tion, excluding the performance of “ordinary” tasks and exclusively manual work. Moreover, according to international conven - tions ratified by Italy, Article 322-bis of the ICC extends the provisions applicable to domestic public officials to foreign public officials. More specifically, the offences of embezzlement (Arti - cle 314 of the ICC), embezzlement by taking advantage of third-party errors (Article 316 of the ICC), blackmail by a public official (Article 317 of the ICC), undue inducement to provide or promise benefits (Article 319-quater of the ICC),
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