ITALY Law and Practice Contributed by: Alessandro Pistochini, Davide Giorgiadi, Giulia Barattini and Carlotta Scozia, Pistochini Avvocati Studio Legale
In addition to increases in the penalty, recidivism produces further negative and indirect effects for the offender (eg, increasing the statute of limita - tions and the time necessary to obtain rehabili - tation). Aggravation for Legal Entities On top of the monetary penalty for the offences under Decree No 231/2001, disqualifying meas - ures regulated by Article 9, paragraph 2, of the same Decree can be applied to the legal entities convicted. These measures are temporary and include: • prohibition of exercising activities; • suspension or revocation of authorisations related to the commission of the offence; • prohibition of contracting with public adminis - tration, except for obtaining public services; • exclusion from benefits and possible revoca - tion of those already granted; and • prohibition of advertising goods or services. Under Article 13 of the same Decree, those measures are applied in relation to the offences for which they are expressly provided. Furthermore, according to Article 21 of Decree No 231/2001, when the entity is responsible for multiple offences committed through a single act or omission, or committed during the same activity, the monetary penalty applicable for the most serious offence is increased by up to three times. 7.5 Recent Landmark Investigations or Decisions Many recent Italian cases could be considered as landmarks in case law. On 15 May 2024, the Court of Cassation, sitting as a unified section, affirmed that there is no normative continuity between the crime of fraudulently claiming credit
(Article 346, paragraph 2, of the ICC – abolished by Law No 3 of 2019) and influence peddling (Article 346-bis of the ICC). The Court of Cassation has clarified that, fol - lowing the 2019 reform, falsely claiming non- existent relationships no longer constitutes the offence of influence peddling. The latter, in fact, is distinguished from fraudulently claiming credit for this reason. However, anyone who pays a mediator who falsely claims to have non-existent relationships may, at most, be considered a vic - tim of fraud (if the relevant elements are present). In conclusion, with Article 346-bis of the ICC, the legislator intended to refer not to a scenario where a subject is deceived by a mediator, but rather to one where an individual is participating in a criminal agreement. In fact, such individual is punishable precisely because they choose to rely on the mediator’s potential ability to estab - lish a business relationship, thereby endangering the fairness of the public administration. On 22 July 2024, the Unified Sections of the Italian Supreme Court clarified the application boundaries of Article 629 of the ICC, which pun - ishes the crime of extortion, and Article 353 of the ICC, which punishes the offence of disturb - ing the fairness of tenders. The Court noted that, for the purposes of assess - ing the financial damage caused by the loss of a chance due to the coercive removal of a bidder from a competition, the specific position of the bidder is relevant: it is necessary that they have submitted a suitable and serious offer. Therefore, the Court specified that if the coercive removal from a competition results in identifiable harm, the crimes under both Article 353 and Arti - cle 629 of the ICC may be considered.
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