ITALY Trends and Developments Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Studio Legale
First, the Italian legislator progressively intro - duced several reforms aimed at tackling cor - ruption, both in the public and private sector, including the following. • The introduction of a corporate criminal liability regime: With Legislative Decree 8 June 2001, No 231 (“Decree 231/2001”), the Italian Government introduced a new form of liability for corporations for certain offences committed in their interest or advantage. While the list of crimes giving rise to corpo - rate criminal liability has been substantially extended through the years to encompass many different crimes, the primary purpose of Decree 231/2001 was countering corrup - tion by making entities accountable for the behaviour of their managers and employees. Pursuant to the most recent updates to the Decree, corporations may also be prosecuted for behaviours that, though not falling under the definition of corruption, represent forms of unlawful collusion between public and private sectors that are nonetheless similarly damaging to the collective interest, such as bid rigging (since 2023) and trafficking of unlawful influences (since 2024). As Decree 231/2001 excludes liability for those entities that (i) adopted and effectively implemented a compliance organisational model suitable to prevent those offences (“Model 231”) and (ii) appointed a supervisory board with inde - pendent controlling powers to monitor Model 231’s functioning, compliance and updating, corporations have been incentivised to regu - late and monitor their business, thus shifting from an anti-corruption system based on repression to one also valuing prevention. • The introduction of the criminal offences of commercial bribery and instigation to commit such bribery (see Articles 2635 and 2635-bis
of the Italian Civil Code, introduced by Law No 190/2012 and later amended). • The establishment and empowerment of Italy’s anti-corruption authority, the National Anti-Corruption Authority ( Autorità Nazi- onale Anticorruzione ANAC): With Law No 190/2012, the Italian Parliament established ANAC, with the mandate of promoting trans - parency, preventing corruption and improving public procurement processes in the country. ANAC was progressively tasked with more functions and provided with corresponding powers in view of implementing a preventive approach to corruption, including the author - ity to (i) adopt the National Anti-Corruption Plan, (ii) formulate guidelines for anti- corruption measures, (ii) provide advice to public administrations on anti-corruption and transparency, (iii) monitor public administra - tion entities and impose administrative penal - ties on them in case of certain compliance failures, and (iv) monitor whistle-blowers’ complaints and impose administrative penal - ties in certain cases (eg, retaliation against whistle-blowers). • A general increase in criminal penalties for corruption offences coupled with the provi - sion of leniency schemes in case of voluntary self-disclosure (see Law No 3/2019); • The provision of more effective investigative tools to the prosecuting authorities (including undercover agents, wiretapping and trojans) or a greater scope of the authority to employ them (see Law No 3/2019); • The introduction of regulations aimed at pro - tecting persons who report certain breaches of law (since Law No 190/2012 and, most recently, Legislative Decree No 24/2023; see infra paragraph 3). Second, the positive trend mentioned above has also been effected, or at least strongly facilitated,
270 CHAMBERS.COM
Powered by FlippingBook