jurisdiction

Italy
Source  of law Italian Criminal Code (s318 et seq. and s346 bis   
Offence 

Bribery/Incitement  to bribery 

Active  bribery: Briber/Instigator 

Giving or promising money or other benefits to a public official or to a person in charge of a public service  for the performance of a function  or for performing (or for having performed) an act conflicting with his/her duties or in exchange for omitting or delaying (or for having omitted or delayed) an act within his/her duties . In the case of “Incitement to bribery” by a private briber , the conduct of the instigator is the same, but the public agent does not accept the offer or the promise of money or other utilities. 

Passive bribery: Recipient/Instigator (public  agent) 

A public official or public service agent unduly receiving a reward for himself/herself or for a  third party/or accepting a promise thereof, for: (i) the performance of a function, or (ii) omitting an act within his/her duties, or (iii) acting in breach of his/her duties. In the case of “Incitement    to bribery” by a public agent , even if the public official or the person in charge of a public     service solicits such reward for himself/herself or for a third party, the person incited does not promise or give anything. 

Judicial  bribery 

The offence set forth in s319 ter of the Italian Criminal Code punishes the conduct of a public agent who commits bribery in order to aid or damage a party within a civil, criminal or administrative proceeding. 

Undue trading of influence   

Unless the conduct involves the complicity in crimes under s318, s319, s319 ter and s322 bis of the Italian Criminal Code, anyone – taking advantage of or relying on his/her existing or alleged relationship with a public official/person in charge of a public service or any of the other   subjects under s322 bis of the Italian Criminal Code – who unduly receives – for himself/herself or others – the promise or offer of undue money or other economic advantages as compensation in exchange for his/her unlawful mediation, or as compensation for the public agent in relation to the exercise of his duties or powers. The penalties are extended to persons who unlawfully give or promise money or other advantage. Penalties are increased in case of aggravating circumstances. 

Undue inducement to give or promise  benefits  

The offence under s319 quarter of the Italian Criminal Code punishes a public official abusing his or her title or powers by inducing a party to unduly give or promise to himself/herself or a third party money or other benefits. In such cases, the party that gives or promises the money or other benefits is also punished.

The bribe  
Is there a presumption that any advantage was given/received corruptly? No
Would facilitation payments be caught? Depends on intent 
Would corporate hospitality be caught? Depends on intent
Is there any de minimis? No
Does the bribe have to be monetary? No
Public officials  
Does the offence only apply to bribing public officials?  No
Acts  performed  outside Italy  
Can bribery performed outside Italy be caught? Yes 
Does the act also need to be illegal in the foreign country of performance?  
  
Italian national? Yes 
Italian company? No
Italian partnership (including limited liability partnership)? No
Director of Italian company? Yes
Italian company if the bribe is committed abroad by its foreign subsidiary? No
Foreign subsidiary of an Italian company if the bribe is committed abroad? No
Foreign national/company/partnership if bribe is committed in Italy? Yes
Foreign national domiciled or “ordinarily resident” in Italy if bribe is committed outside Italy? Yes 
Foreign company/partnership if bribe is committed abroad? 

 

No

Penalties  
Penalties include: 
  • Imprisonment for up to ten years   (for judicial bribery imprisonment for up to 20 years) 
  • Disqualifying penalties, both temporary and permanent   if applicable 
  • Confiscation   
Defences  
Are there any defences available? 
 		Yes

 

Source  of law Italian Civil Code (s2635 and 2635 bis) 

Legislative Decree no 231/2001 (Decree 231)   (s25 and 

25 ter) 

Offence 

Private bribery/Incitement to private  bribery 

Briber/Instigator 

Anyone (either in their own capacity or through a third person ) offering , promising or giving, money or other benefits to an individual who – within the organisation of    the company or private entity – exercises managing functions  (not limited to the persons expressly referred to by law i.e. managers, general directors, directors responsible for the company’s balance sheet), as well as to auditors, liquidators, and/or to anyone who is employed by them, so that they act or omit acts in breach of the duties relating to their office or duties of loyalty . In the case of “Incitement  to private bribery”, anyone offering or promising, without success, money or other benefits to in-house persons for the same purpose. 

Recipient/Instigator 

All persons in the company and/or the private entity having managing functions , as well as auditors, liquidators, and/or anyone who is employed by them, soliciting , receiving or accepting the promise of such advantage. In the case of “Incitement to private bribery”  by  “in-house”  persons: soliciting, without success, the promise or offer of such reward for themselves or on behalf of third parties; in order to act or omit acts in breach of the duties relating to their office or duties of loyalty. 

Bribery  under s25 

Briber 

A company can be held liable under the Decree 231 in cases where its executive/ representative or employee commits offences of bribery/undue trading of influence /undue inducement to give or promise benefits in the interest of and/or for the advantage of the company. 

Private bribery/Incitement to private bribery under s25 ter 

Briber/Instigator 

A company can be held liable under Decree 231 in cases where its executive/ representative or employee, commits private bribery in the interest of and/or for the advantage of the company: this means that the company’s liability is provided for by Decree only in cases where its executive/ representative or employee is the briber.

The bribe   
Is there a presumption that any advantage was given/received corruptly? NoNo
Would facilitation payments be caught? Depends on intent Depends on intent 
Would corporate hospitality be caught? Depends on intent Depends on intent 
Is there any de minimis? No  No 
Does the bribe have to be monetary? NoNo
Public officials   
Does the offence only apply to bribing public officials? NoNo
Acts  performed  outside Italy   
Can bribery performed outside Italy be caught? No  No
Does the act also need to be illegal in the foreign country of performance? NoNo
Who can be liable   
Italian national? YesYes
Italian company?NoNo
Italian partnership (including limited liability partnership)? NoYes 
Director of Italian company? YesYes
Italian company if the bribe is committed abroad by its foreign subsidiary? NoNo
Foreign subsidiary of an Italian company if the bribe is committed abroad? NoNo
Foreign national/company/partnership if bribe is committed in Italy? YesYes
Foreign national domiciled or “ordinarily resident” in Italy if bribe is committed outside Italy? Yes  Yes
Foreign company/partnership if bribe is committed abroad? NoNo
Penalties   
Penalties include: 
  • Imprisonment for up to three years 
  • Disqualifying penalties, if applicable 
  • Financial penalties applied in quotas ranging from EUR 258 to EUR 1,549 calculated on the basis of the company or organisation’s economic and financial position, in order to ensure that the penalty is effective 
  • Disqualifying penalties , if applicable 
  • Confiscation 
  • Publication of the judgment, if applicable 
Defences   
Are there any defences available? Yes  Yes