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Provisions on offences against public administration, mafia conspiracies and false corporate disclosures

29/05/2015

Provisions on offences against public administration, mafia conspiracies and false corporate disclosures On May 21, 2015, the Chamber of Deputies definitely approved anti bribery bill (AC 3008). The main amendments of the bill concern:

  • the increase of additional and principal penalties provided by the offences of "Misappropriation”, " Bribery in the exercise of the functions”, “Bribery to obtain an act contrary to official duties", "Bribery in judicial acts", "Improper inducement to give or promise a benefit";
  • the amendment of the offence of "Extortion” (“Concussione”) by including as responsible of the offences also people in charge of public service;
  • the introduction of a new hypothesis of mitigating circumstances and the institution of monetary compensation in respect of the Administration injured by the offence;
  • the modification to the provisions of the suspension of the penalties and the plea bargain;
  • the reinforcement of the role of the National Authority for Anti Corruption (ANAC);
  • the increase of penalties for the offence of "Mafia conspiracies including foreign";
  • the reform of the accounting frauds: false corporate disclosure returns to be expected as an offence in relation to all companies, not only for quoted companies.

More specifically:

- it was reformulated Section. 2621 of Italian Civil Code, which punishes false corporate disclosures in unquoted companies, with the application of the penalty of imprisonment from 1 to 5 years;

- it was reformulated Section 2622 of Italian Civil Code, which punishes the offence of false corporate disclosures of quoted companies, providing for the application of the penalty of imprisonment from 4 to 8 years.

In the formulation of both the offences:

- was eliminated the so called "thresholds of non-punishment”, provided for in the text previously in force;

- was eliminated the reference to the omission of "information" replaced by the omission of "relevant facts";

- was introduced further the objective element of the "concrete" suitability of the action or omission to mislead third persons;

- has changed the reference to intention of the offence: in particular, remains the purpose of achievement for themselves or other persons an unjust profit, but was eliminated "the intention of deceiving shareholders or the public" and is explicitly introduced the reference to "awareness "in relation to the false relevant facts exposed;

 - with regards to the false corporate disclosures of unquoted companies, were introduced two new provisions (under Section 2621 bis and 2621 ter of Italian Civil Code) regarding, respectively, the "Facts of special lightness" and "cause of non-punishment in relation to facts of special lightness";

  • the amendments in the matter of "Administrative responsibility of entities " pursuant to the Legislative Decree no. 231/2001: was amended Section. 25 ter of the Legislative Decree no. 231/2001, concerning corporate offences; in particular:

- it was eliminated the limitation provided for in first paragraph, letter a) of Section 25 ter the Legislative Decree no. 231/2001, regarding the possible responsible for the crime (directors, general managers, liquidators or persons subject to their supervision);

- with regards to the offence under Section 2621 of Italian Civil Code, was elevated the maximum fine applicable to companies in the case of conviction from 300 to 400 quotas (while the minimum fine of 200 quotas remains the same);

- it was introduced the new letter a) bis in the first paragraph of Section 25 ter of the Legislative Decree no. 231/2001, as a result of the introduction of the new Section 2621 bis of Italian Civil Code (False corporate disclosures of low relevance in unquoted companies), providing for in relation to this offence the application of a fine from 100 to 200 quotas;

 - it was changed the letter b) of the first paragraph of Section 25 ter of the Legislative Decree no. 231/2001, by introducing a reference to the new offense of false corporate disclosures of quoted companies , with the application of a fine from 400 to 600 quotas.

Source
CMS AACS Newsletter | 21 May 2015
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Authors

Picture of Emilio Battaglia
Emilio Battaglia
Partner
Rome