Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
The main provisions relating to corruption carried out by individuals are:
- Article 317 of the Criminal Code regulates the “extortion committed by a public official”, punishing the public official who, abusing his or her powers, forces someone to give or promise money or other benefits unduly to him or her, or a third party;
- Articles 318 to 322 of the Criminal Code govern the main bribery offences relating to domestic public officials, such as:
- ‘proper bribery’;
- ‘bribery for the performance of the function’, which applies also in the absence of a specific act or omission by the official in exchange of the bribe;
- ‘bribery in legal proceedings’; and
- ‘undue induction to give or promise benefits by public officials’, which provides for penalties both for the official and the individual that gives or promises the bribe;
- Article 322bis extends to foreign officials the above-mentioned provisions (originally provided for domestic public officials);
- Articles 2635 and 2635bis of the Italian Civil Code govern ‘private bribery’ and ‘incitement to private bribery’, the latter providing penalties for both:
- individuals offering benefits to ‘in-house’ persons so that they act or omit acts in breach of the duties relating to their office; and
- ‘in-house’ persons soliciting the promise or giving of benefits to act, or to omit acts, in breach of the duties relating to their office; and
- Article 25 of Legislative Decree 231/2001 envisages the company’s administrative liability in case of corruption and bribery committed in the interest or to the advantage of the company by directors, executives and their subordinates, agents and other individuals acting on behalf of the legal entity.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
Scholars and case law both consider that gifts and other benefits related to hospitality can be the object of transactions that may amount to corruption or bribery.
In fact, the relevant provisions of the Criminal Code and the Civil Code refer to “money or other benefit”, thus including anything that could provide an advantage to the corrupted party.
What are the rules relating to facilitation payments?
Facilitation payments (ie, payments made to Italian public officials aiming to expedite or secure the performance of such officials’ duties) are prohibited as they fall under the offence of ‘bribery for the performance of the function’ pursuant to Article 318 of the Criminal Code, which occurs when the public official, in connection with the performance of his or her functions or powers, unduly receives, for him or herself or for a third party, money or other benefits or accepts the promise of them.
Scope of liability
Can both individuals and companies be held liable under anti-corruption rules in your jurisdiction?
Yes, Articles 317 to 322bis of the Criminal Code and Articles 2635 and 2635bis of the Civil Code provide the main rules concerning the liability of individuals committing bribery and corruption.
In addition, Legislative Decree 231/2001 foresees that legal entities may be held liable for a group of offences (including corruption and bribery) committed in their interest or to their advantage by directors, executives and their subordinates, agents and other individuals acting on behalf of the legal entity.
Can agents or facilitating parties be held liable for bribery offences and if so, under what circumstances?
Yes, Article 231 of the Criminal Code states that all the penalties provided for the offences of ‘proper bribery’ and ‘bribery for the performance of the function’, as well as the relevant aggravating circumstances, apply to any person who provides or promises money or other benefits to public officials (ie, active corruption).
Can foreign companies be prosecuted for corruption in your jurisdiction?
The general principles concerning the liability of foreign individuals and companies operating in Italy are laid down by the Italian Criminal Code, according to which:
- Italian criminal law applies to all those, citizens or foreigners, who are in Italy (Article 6 of the Criminal Code);
- anyone who commits an offence on Italian territory will be punished under Italian criminal law (Article 3 of the Criminal Code); and
- any offence is deemed to have been committed in the territory of Italy when the relevant act or omission (or the event that is its consequence) has taken place, in whole or in part, in Italian territory.
With regard to foreign companies’ administrative liability pursuant to Legislative Decree 231/2001, scholars and recent case law have recognised the possibility to apply the decree to all foreign companies, in relation to unlawful acts committed on the Italian territory by them, under the condition that these companies have operated in Italy.