The Anti-Corruption Bill “Provisions for the prevention and repression of corruption and lawlessness in public administration”, approved in October 31, 2012 by the Lower House of Parliament, introduces, among other things, the new offence of “Induction to give or promise undue advantages”, punished according to article 319 quater of Italian Penal Code, and the crime of “Corruption in private sector”, according to article 2635 of the Italian Civil Code, whose objective is to fill the gaps that our system featured in the fight against corruption.
The new article 319 quater provides that, unless the fact constitutes a more serious criminal offence, the public official or whoever in charge of public service, abusing his office or his powers, induces someone to unduly give or promise, him or a third party, money or other advantages shall be punished with imprisonment from three to eight years. The fact constitutive of the crime in this case would be represented by coarctation of the will of the individual, that is realized when the public official, abusing his powers and qualities, induces the private to submit his requests.
To highlight that the criminal offence, with imprisonment up to three years, also extends to those giving or promising money or other utility, are victims of abuse by the Public Administration.
The offence of “Corruption in private sector” provides that, unless the act constitutes a more serious criminal offence, directors, general managers, managers responsible for drafting of financial reports, auditors and liquidators, whose, following the offer or the promise of money or other advantage, for themselves or others, fulfil or omit to fulfil some acts in violation of the obligations deriving from their office and loyalty duty, causing harm to the company, shall be punished with imprisonment from one to three years. Imprisonment up to one year and six months shall be applied if the fraudulent act is committed by whoever is subjected to the direction or supervision of one of the aforementioned individuals. Penalties shall be doubled if the concerned company is listed on the Stock Exchange or if the company’s shares are held by the general public.
To highlight that the criminal offence is not confined to top management (managing directors, general managers, executives who draw up their financial reports, auditors and liquidators), but extends to anyone within the company is employed by such persons.
The Bill not only introduces the aforementioned crimes in our system, but places them in the catalogue of offences assumption of administrative liability of legal persons pursuant to Legislative Decree n. 231/2001, and specifically according to article 25, paragraph 3, it is placed the reference to new art. 319-quater of Penal Code , and article 25-ter, paragraph 1, adds the letter s-bis) which invokes the new crime of corruption in private sector, referred to in the third paragraph of article 2635 of Civil Code.
Consequently, companies need to implement new procedures to comply with the above legislation. More specifically, companies must pursue the goal to update their internal control system, acquiring anti-corruption procedures which would make the implementation of the models of the organization, management and control more effective and efficient, pursuant to Legislative Decree n.231/2001.