ITALY Law and Practice Contributed by: Alessandro Pistochini, Davide Giorgiadi, Giulia Barattini and Carlotta Scozia, Pistochini Avvocati Studio Legale
of corporate events following the perpetration of the crimes. Indeed, according to Articles 28, 29 and 30 of Legislative Decree No 231/01, in the case of changes to a legal entity’s organi - sational structure, the company remains liable for the offences committed before the date on which the changes took effect; in the same way, in the event of a merger or takeover, the result - ing legal entity is liable for the offences for which the previous entities were responsible before the merger or takeover. However, in the event of a partial split-up, the divided company remains lia - ble for crimes committed before the split. On 20 February 2024, the chief of staff of the Ministry of Justice established a working group to formulate a proposal for amending the regulations on the criminal liability of entities. The working group will have one year to prepare a document aimed at addressing some of the critical issues related to Legislative Decree No 231/2001. In general terms, the Italian criminal system is founded on the presumption of innocence, so that the burden of proof in demonstrating that a crime has been committed lies with the prosecu - tor. This means that, if there is any doubt about the defendant’s guilt, they must be acquitted in accordance with the in dubio pro reo rule. With regard to an individual’s liability, the first defence for any crime (not only bribery or other crimes against the public administration) may be based on the demonstration that the so-called objective elements of the offence have not been satisfied or sufficiently proved by the prosecutor. Another defence strategy may consist of attempting to demonstrate the lack of intent by 4. Defences and Exceptions 4.1 Defences
the defendant to commit a crime (lack of mens rea), which is a mandatory condition for punish - ment. Another argument that may be used as a defence for the above-mentioned offences relates to so- called mitigating or exonerating circumstances (see 7.4 Discretion for Mitigation and Aggra- vation and 4.5 Safe Harbour or Amnesty Pro- gramme ). Regarding the legal entity’s liability, see 8. Com- pliance Expectations . 4.2 Exceptions There are no exceptions to the aforementioned defences. 4.3 De Minimis Exceptions In general, there are no de minimis exceptions under Italian Law: a bribe of any value will con - stitute an offence. The only exception – the relevance of which is, in any case, subject to the court – is if the “advan - tage” is permitted by law or if its value is very small as, for instance in the case of a mere cour - tesy gift (the so-called munuscula). Please note that Decree No 62/2013 provides exceptions for munuscula or donations of modest value to be identified, for public employees, to the amount of EUR150. According to Article 323-bis of the ICC, the value of the bribe could also be taken into account by the court as a mitigating factor in determining the quantum of sanction to be imposed (see 7.4 Discretion for Mitigation and Aggravation ). 4.4 Exempt Sectors/Industries In Italy, no sectors or industries are exempt from corruption offences.
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