In a move resonant of an enhanced global focus on anti-corruption, Italy has just adopted a new anti-corruption law (Law No 190 of 6 November 2012) which focuses on the prevention of corruption in the public sector, but which has implications for commercial organisations active in Italy.
Adequate Procedures for Public Administrations
Under the new law, which will enter into force on 28 November 2012, all public administrations in Italy will have to:
- conduct a risk assessment of the corruption risks faced;
- adopt an “anti-corruption plan” assessing and preventing corruption risks;
- appoint a senior executive in charge of the prevention of corruption (who, inter alia, will be required to ensure that adequate procedures are implemented, including focused training to employees in high-risk sectors, and who will be held personally liable if such procedures are not implemented and crimes are subsequently committed);
- increase transparency of selected public activities (e.g., procurement and the issuing of public licences);
- incentivise/protect whistleblowers; and
- rotate senior roles in high-risk sectors.
In an effort to provide the new law with some teeth, an existing national committee will be re-branded as the “National Anticorruption Authority.” The National Anticorruption Authority will be equipped with powers to mandate the adoption of measures to comply with the “anticorruption plan,” to provide advice to any public administration, and to make an annual report to Parliament on anti-corruption performance. It will also enjoy powers of inspection over public administrations.
Key Changes to the Existing Criminal Framework
The new law has made a number of complex changes to the criminal framework in the anticorruption area. In particular, the definition of passive bribery (concussione) has been amended with a new standalone crime introduced to cover public officials soliciting bribes. In addition, jail and statute of limitation terms have been amended for a number of crimes.
Of note is the introduction of two new offences:
- “trafficking of illicit influences,” which criminalises the exploitation of relationships with public officials where a benefit is offered, requested or received in return for unlawful favours (punishable by between one and three years’ imprisonment); and
"private corruption,” (which replaces the existing crime of “disloyalty following the receipt or promise of an advantage”) which criminalises (in the context of commercial organisations):
- persons bribing key specified employees or associated persons, e.g., directors, members of the supervisory board or auditors (the active offence); and
- such persons being bribed when they act, or fail to act, in breach of their fiduciary duties or other duties connected with their roles, and damage the company as a result (the passive offence).
These offences are punishable by between one and three years’ imprisonment, although terms are doubled in the case of companies listed within the EU. These crimes can be prosecuted even without formal complaint if they distort competition in the acquisition of goods or services.
What Do Commercial Organisations Need to Do?
Commercial organisations based or active in Italy will have to understand the implications that the new anti-corruption law will have for their existing anti-bribery risk assessment/profile and will need to:
- update their anti-bribery compliance materials so that they accommodate new crimes applicable to commercial organisations (i.e., passive bribery and private corruption). Under existing laws (i.e., D.Lgs. 231/2001) companies can be held liable for a number of crimes if inter alia they do not have adequate procedures in place; and
- consider the extent to which their business falls within one of the sectors identified by the Italian Parliament as being “particularly exposed to Mafia-infiltration risks.” If that is the case, commercial organisations will have to make sure that they comply with the provisions of the new law in order to maintain eligibility to be selected for contracts with public authorities. Such sectors currently include, inter alia, logistics/transport, waste management, and production of ready-mix concrete and bitumen.