The strategies of contrasting bribery and corruption in the Italian legal system are founded on two pillars: repression and prevention. These are regulated by criminal law and administrative law tools respectively, which have led to a comprehensive stratification of norms governing anti-corruption efforts in Italy.

Several forms of corruption and bribery are penalized in the Italian Criminal Code, particularly in the part concerning offenses against the public administration (Art. 314 and following). There are also provisions in the Italian Civil Code governing bribery of corporate officials (Art. 2635) and instigation of the corruption of corporate officials (Art. 2635-bis), which constitute corporate offenses. Both private and public corruption can have corporate liability implications under Legislative Decree no. 231/2001, which provides inter alia for the liability of a legal entity under certain conditions when these offenses are committed in the interest or to the benefit of a company.

The preventive administrative response to corruption was strengthened through the passing of Law no. 190/2012, which governs the prevention and combating of corruption and illegality in the public administration, in the implementation of international anti-corruption conventions. Crucially, this law provided for the establishment of the National Anticorruption Authority ("ANAC"), which is the central body tasked with monitoring, preventing and combatting corruption and illegality in the public administration. ANAC among other things defines the National Anticorruption Plans, monitors the activities of the public administration, analyses phenomena of corruption, and carries out investigative actions.

In the last ten years, a series of legislative reforms have been introduced with respect to bribery and corruption.

Among these, as hinted above, Law no. 190/2012 constituted an important stepping stone, through which the legislature complemented the repressive response to corruption with a specific focus on prevention in the administrative sphere. According to this law, the Public Administration bodies must adopt individual Anti-Corruption plans in line with the National Anti-Corruption Plan, which identifies activities at risk of corruption, and must define internal systems and controls and provide for the appointment of a person in charge of anti-corruption within the institution.

Three years following the introduction of this legislation, Law no. 69/2015 was passed to further strengthen the criminal response governing corruption. This law had three significant effects: it heightened the gravity of criminal penalties, introduced the rule on pecuniary compensation in case of conviction, and included incentives to cooperate with the judicial authorities post-dictum.

The legislature also reformed the corruption of corporate officials' offenses contained in the Italian Civil Code and reinforced the Anti-Mafia Code in 2017 by extending preventive measures to suspects of criminal associations aimed at committing corruption crimes.

On January 31, 2019, a new anti-corruption Law, no. 3/2019, entered into force introducing penetrating amendments to the criminal response to corruption. Among other things, the bill introduced new offenses or partially redrafted some preexisting ones, significantly heightened the severity of the penalties of imprisonment in some cases, introduced some accessory penalties, including severe disqualification penalties preventing one from holding public office or from contracting with the Public Administration. The law incentivized voluntary, timely and factual cooperation with the authorities. It also amended the law governing corporate liability for corruption (Legislative Decree 231/2001), inter alia by prolonging potential disqualification measures for corruption offenses for companies as well.

Furthermore, the Legislative Decree no. 75/2020 on the fight against fraud affecting the financial interests of the European Union by the means of criminal law implemented Directive (EU) 2017/1371 (so-called “PIF Directive”). The Decree included embezzlement (Art. 314 and 316, Criminal Code) and abuse of office (Art. 323, Criminal Code), when damage is caused to the financial interests of the European Union, within the list of corruption offenses that are capable to trigger the liability of companies depending on the commission of certain predicate offenses under Legislative Decree 231/2001 (please see below for a description of Legislative Decree no. 231/2001 governing corporate liability). It also increased penalties in those cases where embezzlement (Art. 316, Criminal Code), undue receipt of funds (Art. 316-ter, Criminal Code) or undue solicitation to give or promise money or value committed by a public official (Art. 319-quarter, Criminal Code) cause damages to the financial interests of the European Union that are greater than €100.000. Moreover, it extended the applicability of active foreign bribery offenses listed in Art. 322-bis of the Criminal Code to "persons exercising functions or activities corresponding to those of public officials and persons in charge of a public service within non-EU States", whenever the Union’s financial interests are harmed.

It is also noteworthy that Law no. 120/2020 converting Decree no. 76/2020 has significantly amended the criminal provision concerning abuse of office by reducing its area of applicability, in order to address the issue of administrative inefficiencies arising from the criminalization of “the violation of any norm or regulation”, as previously stated in Art. 323 of the Criminal Code. Therefore, the area of liability of public officials has been narrowed by establishing that their conduct constitutes an abuse of office only if (i) it collides with specific rules of conduct expressly provided for by law and if (ii) no margin of administrative discretion is left.

At the domestic level, the Italian legal framework prohibits and punishes both the conduct of the corrupt public official or person charged with a public service who receives or accepts the promise of goods or other benefits (passive corruption) as well as the conduct of the corruptor who gives or promises money or other benefits (active corruption).

In the latter regard, the Criminal Code establishes, among others, that certain penalties provided for the corrupted official also apply to the corruptor, namely the individual who gives or promises money or other benefits to the public official or to the person charged with public service (Art. 321, Criminal Code).

Further, when it comes to the offense of undue induction to give or promise benefits (Art. 319-quater, Criminal Code), this provision punishes not only the public official who, abusing his or her capacity or powers, induces a person to unduly give or promise money or other benefits to him or herself or a third party, but also punishes the person who gives or promises the money or other benefit.

It should be noted that the Criminal Code also penalizes whoever offers or promises money or other benefits to a public official or person charged with public service, even when the offer or promise is not accepted (Art. 322, Criminal Code).

Law no. 3/2019 introduced the punishment for the conduct of any private person or official who, by exploiting or claiming a real or apparent influence on a public official or a person in charge of public service, unduly receives money or other financial advantages (Art. 346-bis, Criminal Code).

With the increasing internationalization of the phenomenon of corruption, provoked by the growth of transnational business transactions and of international institutions, the legislature extended the scope of application of certain corruption offenses to include bribes paid to officials of European Union member states and institutions, of foreign states and of international public organizations.

More specifically, international corruption is provided for in Art. 322-bis of the Criminal Code. On the one hand, this provision extends corruption offenses inter alia to members of European Union institutions and public officials of its member states, as well as to officials of the International Criminal Court. On the other hand, this norm also punishes the corruptor and instigator when the money or other benefit is given, offered or promised to inter alia: (i) members of European Union institutions and public officials of its member states, as well as to officials of the International Criminal Court; (ii) persons who exercise functions or activities corresponding to those of public officials and persons charged with a public service in other foreign States or international public organizations when the conduct is committed to procure for oneself or for others an undue advantage in international economic operations or to obtain or maintain economic or financial activity.

Until the recent amendment by Law no. 3/2019, bribery of foreign officials was punished only when the conduct was committed to procure for oneself or for others an undue advantage in international economic operations or to obtain or maintain economic or financial activity. This restriction has been deleted so that at present the offense punishes the corruptor independently from this latter element pertaining to the ‘mens rea’.

The law governing this aspect is particularly fragmented and articulated.

First and foremost, the law punishes the public official or person charged with a public service who, abusing his or her official capacity or powers, “obliges” another to unduly give or promise him, her or a third person money or other benefits. (Art. 317, Criminal Code). The law also penalizes the public official or individual charged with a public service who, abusing his or her official capacity or powers, “induces” another to unduly give or promise, to him or herself or to a third person, money or other benefits (Art. 319-quater, Criminal Code).

Moreover, the crime of corruption for the exercise of a function punishes the public official who, for the exercise of his or her functions or powers, unduly receives, for himself or for another, money or other benefit or accepts the promise thereof (Art. 318, Criminal Code). At the same time, the public official is also punished where he or she, in order to omit or delay or for having omitted or delayed an act of his or her office or to carry out or for having carried out an act contrary to the duties of the office, receives, for him or herself or for a third party, money or other benefits, or accepts the promise thereof (Art. 319, Criminal Code). These provisions, punishing corruption for the exercise of a function and corruption for an act contrary to the duties of office respectively, also apply to a person charged with public service.

With respect to private corruption, the Italian Civil Code penalizes inter alia directors, directors-general, directors in charge of drafting corporate accounting documents, auditors and liquidators of companies and private entities, which, also through an intermediary, solicit or receive, for themselves or for others, undue money or other benefits, or accept the promise thereof, to carry out or omit an act of violation of the duties inherent to their office or the duties of loyalty. The penalty of imprisonment is applied also if the fact is committed by those subject to the management or supervision of one of the persons indicated in the first paragraph (Art. 2635, Civil Code). Furthermore, the instigation of corruption between private individuals is also punished (Art. 2635-bis, Civil Code).

Please note that under Law no. 3/2019 the previous need for a criminal complaint to be filed by the victim is no longer requested.

With respect to offenses against the Public Administration, the corruption and extortion offenses contained in the Criminal Code necessarily imply the involvement of a public official or of a person charged with public service.

The notions of a public official and of a person charged with a public service are expressly provided for by the Criminal Code. For purposes of criminal law, the public official is he or she who exercises a public legislative, judicial or administrative function (Art. 357, Criminal Code), while the person charged with public service is he or she who, at whatever title, provides a public service (Art. 358, Criminal Code).

As noted above, the criminal law provisions are extended under certain conditions to foreign public officials. Private citizens are also subject to the application of the criminal law provisions governing corruption to the extent that they participate in corrupt acts or act as the corruptor.

With respect to private corruption, as mentioned above, the Italian Civil Code penalizes directors, directors-general, directors in charge of drafting corporate accounting documents, auditors and liquidators of companies and private entities.

As will be seen in Point 7. below, these provisions also extend to companies.

Italian law provides for the administrative liability of legal persons, companies, and associations without legal personality under Legislative Decree 231/2001 governing corporate liability. While the law formally refers to “administrative” corporate liability, such liability is in substance criminal in that the liability of the company depends on the commission of certain criminal offenses (predicate offenses) and the criminal courts are the competent authority.

The list of predicate offenses that can lead to corporate liability under Legislative Decree 231/2001 includes corruption offenses. In particular, a company can be held liable if certain crimes of corruption provided in the Criminal Code are committed (or attempted to be committed) in the interest or to the advantage of the company by a person with a representative, administrative or directive capacity, also de facto, or by a person subject to their direction or surveillance.

In practice, if a corruption offense is committed by a corporate officer, a company might be charged with the administrative offense provided for in Article 25 (extortion, undue induction to give or promise benefits and corruption of public officials) and Article 25-ter, paragraph 1, s-bis) (the corruption of corporate officials) of Legislative Decree 231/2001, consisting in the failure to put in place and effectively implement systems and controls that are adequate to prevent the commission of the same type of crime as the one which was committed.

The penalty for individuals will depend on the specific offense with which the individual accused is charged.

In general terms, the penalties for public corruption include imprisonment and, under certain conditions, disqualification depending on the type of offense. Under art. 319 of the Criminal Code, for instance, both the corrupted persons and the corruptors are punished from between six to ten years imprisonment.

The disqualification penalty can consist among others of a ban from holding public office, even for a lifetime, and a ban from contracting with the Public Administration.

Further, in case of conviction for certain corruption offenses in the public sector, the court will also order pecuniary reparation in addition to any compensation for the harm caused to be paid to the victims (art. 332-quater Criminal Code).

A conviction for private corruption can lead to imprisonment up to three years (up to six years for listed companies), and, under certain conditions, to the application of a temporary disqualification sanction.

In the case of conviction, confiscation is ordered of the proceeds of the crime both in public corruption and private corruption cases.

In general, terms, if a company is held liable under Legislative Decree 231/2001, it may be subject to (i) pecuniary sanctions; (ii) disqualification sanctions; (iii) confiscation of the proceeds of the crime; (iv) publication of the judicial decision.

With respect to corruption offenses, the penalties will vary depending on whether the entity is liable for public corruption or private corruption.

With respect to corruption involving public officials, Art. 25 of Legislative Decree 231/2001 provides for the application of pecuniary sanctions which can vary and, in the worst case, can reach up to around EUR 1.2 million. This amount can rise, under certain conditions, in the case of the commission of concurrent offenses.

Following the amendments introduced by Law no. 3/2019, in case of conviction for certain corruption offenses, disqualification sanctions can also be imposed on the company for a period ranging from between two to four years or four to seven years, depending on whether the crime is committed by a top-level individual or a person subject to their direction or surveillance. Disqualification sanctions can consist of: ban from exercising business activity; suspension or revocation of authorizations, licenses or concessions functional to the commission of the offense; prohibition to contract with the Public Administration, unless if to obtain the provision of public service; exclusion from benefits, funding, grants or subsidies and the possible revocation of those already granted; and prohibition to advertise goods or services.

With respect to private corruption, Art. 25-ter, paragraph 1 s-bis, of Legislative Decree 231/2001, in the case of private corruption, provided for in Art. 2635, paragraph 3 of the Civil Code, a pecuniary sanction of up to EUR 900,000 will apply, and in cases of instigation to corruption provided for in Art. 2635-bis, paragraph 1 of the Civil Code, a pecuniary sanction of up to EUR 600,000 will apply. Disqualification sanctions can also be applied.

Moreover, in case of conviction, the judge will also always order the confiscation of the price or profit of the offense, except for the part that can be returned to the injured party. This is without prejudice to the rights acquired by third bona fide parties. When confiscation of the price or profit cannot be applied, the confiscation will concern money, goods or other benefits of an equivalent value to the price or profit of the offense.

Finally, during the proceeding, precautionary measures, as well as seizure, can be ordered.

In the event of the commission of one of the listed crimes, the company may avoid liability if it is ascertained that the company had put in place adequate systems and controls fit to prevent the commission of the same type of crime as the one committed by the corporate office. More specifically, according to Legislative Decree 231/2001, the company can avoid liability if, among others: (i) it had adopted and effectively implemented, prior to the commission of the relevant fact, an organizational and management models (“231 Model”) fit to prevent the crimes in question; (ii) it had entrusted an internal, yet independent, supervisory board to oversee the enforcement of the control system; (iii) the agent, being a manager or another high-level corporate official, who committed the crime, fraudulently eluded the control system; and (iv) the supervisory board had duly overseen the enforcement of the control system.

In addition, under certain conditions, the adoption and implementation of an adequate and effective 231 Organizational Model and of other systems and controls after the commission of the offense could lead to, inter alia, a reduction of pecuniary sanctions and to the non-applicability of disqualification measures.

Although the adoption and implementation of systems and controls provided for by Legislative Decree 231/2001 are not mandatory, it represents one of the most effective defenses for a company charged with an offense under the decree.

With respect to corruption offenses, the recently introduced para 5-bis of Art. 25 of Legislative Decree 231/2001 provides for a reduction of the duration of disqualification sanctions (from not less than three months to not more than two years) if, before the first instance decision, the company (i) has made effective efforts to prevent any further consequences of the criminal activity, to provide evidence of criminal offenses and identify the perpetrators, or to allow the seizure of the sums or other benefits which were given; and (ii) has removed the organizational deficiencies that determined the commission of the offense through the adoption and implementation of a 231 Model fit to prevent offenses of the same type.

The Italian legal system does not provide for deferred prosecution agreements ("DPAs") but envisages the possibility of a plea bargain. A plea bargain constitutes an agreement between a prosecutor and a company that must necessarily be ratified by the criminal judge.

Art. 63 of Legislative Decree 231/2001 provides that a company may obtain a plea bargain if the decision with respect to the individual accused is also concluded or can be concluded with a plea bargain, as well as in all cases in which the offense of the company is punished only with a pecuniary sanction.

In cases where a plea-bargain can be requested, the disqualification sanction and the total amount of the pecuniary sanction will be reduced up to one-third. The judge will reject the request for a plea bargain if he or she deems that a definitive disqualification sanction should be applied.