The framework before the reform
The repression of private bribery has always been a sensitive issue at international level. Such attention is grounded on the widespread idea, originating from an economic and sociological analysis of the phenomenon, that the repression of "public bribery" must be pursued also through the control over "private bribery" that is equally prejudicial for economic traffic and, hence, for public economy.
In the Italian legal system, private-to-private bribery is punished by Article 2635 of the Italian Civil Code introduced by Article 1 of Legislative Decree 61/2002 and, lastly, amended by Legislative Decree 38/2017, published in the Official Gazette of the Italian Republic on 30 March 2017 and entered into force on 14 April 2017.
In its formulation before the 2017 reform, Article 2635 of the Italian Civil Code contemplated:
- a first type of so-called passive bribery with reference to directors, general managers, managers in charge of the drafting of the company's accounting documents and liquidators, who, following the giving or promise of money or other benefits, for themselves or for others, acted or omitted acts in breach of the duties relating to their office or of the duties of loyalty to the detriment of the company (Article 2635, paragraph 1 of the Italian Civil Code);
- a second type of so-called passive bribery relating to persons under the direction and supervision of the persons mentioned in paragraph 1 (Article 2635, paragraph 2 of the Italian Civil Code);
- a third type of so-called active bribery carried out by those giving or promising benefits (so-called "external persons") to the persons indicated in paragraphs 1 and 2 in order to induce "in-house persons" (namely persons within the company who act or omit acts in breach of the duties relating to their office) to act or omit acts causing a detriment to the company. Moreover, this was (and has remained, as we will see below) the only conduct relevant with regard to the administrative liability of the entity for whose benefit or in whose interest such conduct was carried out pursuant to Legislative Decree 231/20011 (Article 2635, paragraph 3, of the Italian Civil Code).
The regulations referred to above has been, over time, subject to criticisms, including those resulting from the Evaluation Report on Italy and formulated by the Group of States Against Corruption in 2012: "Firstly, as regards the range of possible perpetrators, the article merely covers managers, director generals, directors in charge of drafting the company's accounting documents, statutory auditors and liquidators. (...) Secondly, as regards the beneficiaries of the bribe, nothing is said in Article 2635 of the Civil Code as to third parties. Thirdly, with particular reference to the material acts that characterize bribery, the offering of a bribe and the request of a bribe are not explicitly covered. Fourthly, there is no explicit reference as to the indirect commission of the offence, e.g. through intermediaries. Fifthly, under Italian law damage to the legal person needs to concur, which is not required by the Convention. Finally, the offence is not punishable ex-officio, but requires a complaint from the victim."
Also in light of the foregoing, it was possible to identify some scope for improvement in the national legislation on repression of the private bribery offence.
Let's now examine the main news introduced, in concrete, by Legislative Decree 38/2017.
The contents of the reform of Legislative Decree 38/2017
Most of the amendments introduced by the recent 2017 reform concerned the text of Article 2365 of the Italian Civil Code. Compared to the formulation previously in force:
- the category of the so-called "in-house" persons has been widened to include also who, within the organisation of the company or of the private entity, exercises managing functions different from those pertaining to the persons referred to in the previous period;
- the applicability of the regulation has been extended also to non-corporate private entity (such as, by way of example, no-profit entities);
- references to the solicitation or offer of benefits have been included among behaviours that may lead to a bribery agreement;
- punishment has been extended also to the cases in which the offence is committed through a third party;
- it is no longer necessary, in order for the offence to be punished, that the company had suffered a detriment.
Moreover, Article 2635-bis was introduced, which relates to the new offence of instigation to private bribery. Such new type of offence punishes: (i) on the one hand, anyone offering or promising, without success, money or other benefits to in-house persons so that they act or omit acts in breach of the duties relating to their office or of the duties of loyalty; (ii) on the other hand, in-house persons soliciting, without success, for themselves or on behalf of third parties, the promise or giving of money or other benefits to act or to omit acts in breach of the duties relating to their office or of the duties of loyalty.
Finally, Article 6 of Legislative Decree 38/2017 made harsher the punishment in case of administrative liability of entities under Article 25-ter of Legislative Decree 231/2001 for the aforesaid offences of active bribery and active instigation committed by in-house persons belonging to said entities. Monetary sanctions reach now a maximum of more than 900,000 Euros in case of active bribery and of more than 600,000 Euros for the offence of active instigation. Moreover, the Prohibitory measures under Article 9, paragraph 2, of legislative Decree 231/2001 may also be applied2.
The main unresolved issues after the reform
As mentioned above, apparently the news introduced by the 2017 reform has not resolved all of the problems connected to the effectiveness of the punishment of private bribery.
First of all, if it is true that Legislative Decree 38/2017 has brought the Italian legislation closer to the concerns arising from the considerations made at supranational level, it cannot yet be said that such requests have been completely satisfied.
Indeed, the extension of the subjective nature of the private bribery offence, even if now including also those who perform their working activity through the exercise of managing functions, does not seem to fully reflect the recommendations of Framework decision 2003/568/GAI of the Council of the European Union. Article 2, paragraph 1, letter a) of said Decision recommends in fact that Member States adopt the necessary measures to ensure that the promise, offer or granting, directly or through an intermediary, in exchange for the breach of a duty, of an illegal advantage to a person carrying out managerial or working functions of any kind (and not only managerial ones) on behalf of an entity of the private sector becomes a criminal offence.
Moreover, no changes were made to the element that has often prevented the applicability of the provision under Article 2365 of the Italian Civil Cod3 that is the admissibility of prosecution on complaint "unless the fact gives rise to distortion of competition in the acquisition of goods and services" (such a derogation is not contemplated instead with regard to the offence of instigation to private bribery under Article 2365-bis of the Italian Civil Code, given its nature of dangerous offence). Someone may consider this choice as partially inconsistent with the rationale underlying the reform: the conciliation of the Italian system punishing corruption with the aforesaid concerns for public protection may be prejudiced if the protection of the interests underlying the private bribery offence can be activated only under the impulse of single individuals.
Finally, with regard to the amendments introduced by Article 25-ter of legislative decree 231/2001, it should be noted that the establishment of administrative liability of entities remains only for the case of active bribery and active instigation. If said limitation could be justifiable in light of the requirement of detriment to the company, which de facto prevented passive bribery from being carried out to the benefit of the entity, the same limitation is less clear in light of the textual amendment that deleted from Article 2365 of the Italian Civil Code any reference to such requirement.
So, we look forward to knowing more about the position that will be adopted by case law on the issue.
1 Legislative Decree 231/2001 has introduced in the Italian legal system the so-called administrative liability of entities (including corporations) resulting from certain offences peremptorily provided for by the legislator (including different cases of bribery), committed in the interest or for the benefit of the entity, by individuals in the senior management of the same or by their subordinates.
2 Article 9, paragraph 2 of Legislative Decree 231/2001 provides, as prohibitory measures: the ban on performing activity; the suspension or revocation of authorisations, licences or concessions functional to the commission of the tort; the prohibition to negotiate with the public administration; the exclusion from benefits, financings, contributions or subsidies and the possible revocation of those already granted; the prohibition to advertise goods or services.
3 Suffice to say that the report accompanying the reform project highlights that in the two-year period 2013-2014 only two trials for private bribery at the pleading stage were counted.
This Article was first published on www.nctm.it
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