ITALY Trends and Developments Contributed by: Giuseppe Fornari, Enrico Di Fiorino, Emanuele Angiuli and Lorena Morrone, Fornari e Associati
an increasing threat to businesses, particularly those operating in the critical digital infrastruc - ture sector. Indeed, according to data from the National Cybercrime Centre for the Protection of Critical Infrastructure (C.N.A.I.P.I.C.) these attacks accounted for 34% of “serious attacks” in 2023. Decree Law No 92/2024 (as amended and con - verted by Law No 112/2024) has added a new crime to the list of offences triggering corporate liability: “Misappropriation of money or mov- able property” in cases involving damage to the financial interests of the EU (Section 314-ter (2) of the Italian Criminal Code). The crime of “misappropriation of money or movable property” punishes “a public official or a person in charge of a public service who, by virtue of their office or service, has possession or availability of money or other movable prop- erty belonging to others and allocates it to a use different from that prescribed by specific legal provisions or acts having the force of law, leav - ing no margin for discretion, and who intention - ally obtains an unfair financial advantage from themselves or others or causes unjust damage to others” (paragraph 1). The penalty is increased “when the act affects the financial interests of the European Union and the unfair financial advantage or unjust damages exceeds €100,000” (paragraph 2). The crime of “misappropriation of money or movable property” falls under offences trigger - ing corporate liability only if the act affects the financial interests of the EU and causes damage exceeding EUR100,000. By setting this thresh - old, the legislature appears to have wanted to criminally punish the entity only when the harm to the EU is significant, leaving the enforcement
of less severe offences to the administrative sys - tem. The scope of this provision within the offences triggering corporate liability is further limited, considering that it only punishes a public official or a person in charge of a public service. This means that corporate liability may only arise if the entity is a public economic body, is partially owned by a public administration or is under public control. Alternatively, liability may also be established if a private individual within the entity has contributed to the commission of the crime by the public official. Beneficial Owner Legislative Decree No 90/2017 was issued to implement EU Directive No 2015/849 (the so- called Fourth AML Directive). As required by Leg - islative Decree No 90/2017, Decree No 55/2022 of the Ministry of Economy and Finance (MEF) was then published in the Official Gazette on 25 May 2022. It contained “provisions relating to communication, access and consultation of data and information relating to beneficial ownership of businesses with legal personality, of private legal persons, of trusts producing legal effects relevant for tax purposes and legal institutions similar to trusts” . With the aim of tackling the use of the economic and financial system for the purpose of money laundering and terrorism financing, this Decree introduced new measures regarding the collec - tion of data relating to company owners through the register of beneficial owners (the “Register” ). Section 1, paragraph 2, letter pp) of Legisla - tive Decree No 231/2007 defines the beneficial owner as “the natural person or natural persons, other than the customer, in whose interest or of which, ultimately, the continuous performance of
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