Anti-Bribery and Corruption Laws in Italy
jurisdiction
| Source of law | Italian Criminal Code (s318 et seq. and s346 bis 1 |
|---|---|
| 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 4 for the performance of a function 5 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 6 . In the case of “Incitement to bribery” by a private briber 7 , 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 8 , 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 9 Unless the conduct involves the complicity in crimes under s318, s319, s319 ter and s322 bis of the Italian Criminal Code, any person who intentionally exploits existing relationships with a public official/person in charge of a public service or any other subjects under s322 bis of the Italian Criminal Code, and unlawfully causes or has caused money or other economic advantage to be given or promised, either to themselves or to others, as compensation for a public official or a person in charge of a public service, or any of the other persons referred to in Article 322-bis, in connection with the performance of their official duties, or in return for another unlawful mediation. For the purposes of the first paragraph, "unlawful mediation" refers to mediation aimed at inducing a public official, a person in charge of a public service, or any of the other persons mentioned in Article 322-bis to perform an act in violation of their official duties that constitutes a criminal offence and from which an undue benefit may result. The same penalties to anyone who unlawfully gives or promises money or other economic advantage. Aggravating circumstances as well as extended penalties apply if the mediator or promise‑giver is a public official, for conduct related to judicial activity, or for other specified reasons. Aggravated penalties apply if:
Undue inducement to give or promise benefits 10 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 18 |
| Does the bribe have to be monetary? | No |
| Public officials | |
| Does the offence only apply to bribing public officials? | No 21 |
| Acts performed outside Italy | |
| Can bribery performed outside Italy be caught? | Yes 22 |
| 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 26 |
| Foreign company/partnership if bribe is committed abroad? |
No |
| Penalties | |
| Penalties include: | |
| Defences | |
| Are there any defences available? | Yes 32 |
| Source of law | Italian Civil Code (s2635 and 2635 bis) 2 | Legislative Decree no 231/2001 (Decree 231) 3 (s25 and 25 ter) |
|---|---|---|
| Offence | Private bribery/Incitement to private bribery Briber/Instigator Anyone (either in their own capacity or through a third person 11 ) offering 12 , promising or giving, money or other benefits to an individual who – within the organisation of the company or private entity – exercises managing functions 13 (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 14 . 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 15 , as well as auditors, liquidators, and/or anyone who is employed by them, soliciting 16 , 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 17 /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? | No | No |
| 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 19 | No 20 |
| Does the bribe have to be monetary? | No | No |
| Public officials | ||
| Does the offence only apply to bribing public officials? | No | No |
| Acts performed outside Italy | ||
| Can bribery performed outside Italy be caught? | No 23 | No 24 |
| Does the act also need to be illegal in the foreign country of performance? | No | No |
| Who can be liable | ||
| Italian national? | Yes | Yes |
| Italian company? | No | No |
| Italian partnership (including limited liability partnership)? | No | Yes 25 |
| Director of Italian company? | Yes | Yes |
| Italian company if the bribe is committed abroad by its foreign subsidiary? | No | No |
| Foreign subsidiary of an Italian company if the bribe is committed abroad? | No | No |
| Foreign national/company/partnership if bribe is committed in Italy? | Yes | Yes |
| Foreign national domiciled or “ordinarily resident” in Italy if bribe is committed outside Italy? | Yes 27 | Yes |
| Foreign company/partnership if bribe is committed abroad? | No | No |
| Penalties | ||
| Penalties include: |
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| Defences | ||
| Are there any defences available? | Yes 33 | Yes 34 |
