ITALY Law and Practice Contributed by: Alessandro Pistochini, Davide Giorgiadi, Giulia Barattini and Carlotta Scozia, Pistochini Avvocati Studio Legale
ing the amendment, these actions are no longer criminally relevant. Law No 112/24 has introduced Article 314- bis into the Penal Code (Improper Allocation of Money or Properties – see 1.4 Recent Key Amendments to National Legislation ). Unless an act constitutes embezzlement, this provi - sion punishes the public official, or the person entrusted with a public service, who, by reason of their office or service, possesses or has con - trol over someone else’s money or properties and allocates it for a use different from that pro - vided by specific legal provisions that leave no room for discretion, thereby intentionally procur - ing an unjust financial advantage for themselves or others, or causing unjust harm to others. With this provision, the legislator aimed to pre - vent the risk of leaving behaviours involving the misappropriation of public assets unpun - ished; such behaviours would previously have been sanctioned by Article 323. This crime has been included in the list of predicate offences for corporate criminal liability pursuant to Law No 231/2001 (amendment enacted by Law No 112/24 – see 1.4 Recent Key Amendments to National Legislation ). Endangerment of Fairness of Tenders Conduct linked to favouritism on the part of a public official, who guarantees an undue advan - tage to a third party by acting in breach of the law by ensuring free and equal access to bidders for the granting of contracts, is relevant from a criminal law perspective and is punished by two different provisions included in the Criminal Code. The offence under Article 353 of the ICC (“dis - turbing the fairness of tenders”) punishes any - one who, by means of violence or threat, gifts,
promises, collusion or other fraudulent means, prevents or disrupts the fair course of the tender, or prevents tenderers from competing in it. Moreover, in the event such conduct is carried out by a person designated by law or a public authority to manage the tender, the sanctions (fine and imprisonment) are increased. In this case, the designated person is considered to hold the office of a public official. The second offence to be considered is the crime or offence of “Disrupting the fairness of the procedure for choosing a bidder”, as set forth in Article 353-bis of the ICC. This legal provision punishes anyone who, by means of violence or threat, gifts, promises, collusion or other fraudulent means, alters the administrative proceedings intended to deter - mine the content of the call for bids, or any other equivalent notice, with the intention to influence the methods adopted by the tender authority for choosing the successful bidder. Crimes under both Article 353 and Article 353- bis of the ICC have been included in the list of predicate offences for corporate criminal liabil - ity pursuant to Law No 231/2001 (amendment enacted by Law No 137/2023). 2.5 Intermediaries Some of the specific offences against the pub - lic administration (ie, Articles 317, 318, 319 and 319-quater of the ICC) provide for the liability of a public official, both in the event that the act is committed by them and in the event that an advantage or money (as forms of payment for the performance or omission of a due or undue act, or merely as a result of the role the public official holds) is received by a third party.
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