- The 17th December 1997 OECD Convention, (about Bribery of Foreign Public Officials in International Business Transactions) laid down the administrative liability for some kind of offences.
The 29th September 2000 Law no. 300, ratified the OECD and EU conventions against bribery in international trade and fraud in detriment to the EU. The aforesaid Law’s art. 11 delegated the Government to draw up a provision which regulates such liability.
The Government, therefore, adopted the Legislative Decree 231/2001 on the ground of which institutions are held liable only for offences against the Public Administration (arts 24 and 25).
2. Subsequently, other types of offences have been added and the Decree has been integrated by the following provisions:
- Art. 6 of 23rd November 2001 Law, no. 409 “Urgent provisions concerning the introduction of the Euro” introduced offences like forgery currency, public credit card and stamp revenues (art. 25-bis).
- Art. 3 of 11th April 2002 Legislative Decree, no. 61, “Rules and regulations of criminal and administrative offences with regard to commercial companies according to art. 11 of the 3rd October 2001 Law, no. 366”, that introduced the subsequent art. 25-ter, which extended the administrative liability of institution to cover corporate related offences as well, but with sanctions limited to fines without disqualifications.
- Art. 3 of 14th January 2003 Law, no. 7, introduced, with art. 25-quarter, crimes concerning terrorism and overturning of democracy. In particular, paragraph 3 of art. 25-quarter provides that if the Entity or one of its organization units operates with the only or prevailing intention of allowing the perpetration of such offences, it will be imposed to the entity the sanction of the interdiction from the activity, according to the Decree’s art. 16, paragraph 3.
- Art. 5 11th August 2003 Law, no. 228, added to the offences’ list, through the art. 25-quinquies, offences against individuals (such as the exploitation of prostitutes, underage pornography, and treating people as slaves or reducing them to slavery).
- Art. 9 18th April 2005 Law, no. 62, extended corporate liability to the so-called market abuse crimes (abuse of privileged information and market manipulation art. 187-quinquies Unified Text on Finance).
- 28th December 2005 Law, no. 262, which provides for “Provisions for the protection of savings and discipline of financial markets”, introduced changes that, directly or indirectly, affected the Legislative Decree 231/2001, in particular:
Art. 31 of Law 262/2005 included, amongst the company’s offences referred to in Art. 25-ter of the Legislative Decree 231/2001, the Omitted communication of conflict of interests offense, provided for by Art. 2629-bis of the Civil Code;
Art. 34 abrogated Art. 2623 of the Civil Code and introduced the “Falsification in statement” offence inside the Consolidation Act, which refers to the 24th February 1998 Legislative Decree, n.58 (Art. 173-bis), without providing, inside the Legislative Decree, for any reference to this rule;
Art. 39 doubles the pecuniary sanctions, provided for by Art. 25-ter of the Legislative Decree 231/2001.
3. Chronologically, the latest intervention was the approval of the 16th March 2006 Law, no.146 Ratification of the Convention and the UN Protocols against transnational organized crime, adopted by the General Assembly on 15th November 2000 and 31st May 2001. Though there are no formal changes to the text of the Legislative Decree 231/2001, the above mentioned Law considerably extends the field of the Legislative Decree operativeness. In fact:
Art. 10 (Entities’ Administrative Liability) provides for:
- for all the offences foreseen by Art. 416 and 416-bis of the Italian Criminal Code (Criminal Association and Mafia-like structures), Art. 291-quater of the Consolidation Act which refers to the 23rd January 1973 Italian Republic President’s Decree, no.43 (Criminal Association aimed at smuggling of foreign processed tobaccos), and Art. 74 of the Consolidation Act which refers to the 9th October 1990 President of the Republic’s Decree, no.309 (Association aimed at the illegal trafficking of drugs and psychotropic substances), a pecuniary administrative sanction from 400 up to 1000 shares is imposed, on the entity. If the entity or one of its organizational units is permanently used only or mainly to allow or facilitate the aforesaid offences, the administrative sanction of final disqualification from the exercise of the activity, will be imposed according to the Art. 16, paragraph 3 of the Legislative Decree 231;
- for all the offences concerning money laundering (Art. 648-ter of the Italian Criminal Code) is imposed on the entity an administrative pecuniary sanction ranging from 200 up to 800 shares; disqualifying sanctions provided for by Art. 9, paragraph 2 of Legislative Decree 231, are imposed for a period of two years;
- for all the offences concerning the so-called migrant trafficking (Art. 12, paragraphs 3, 3-bis, 3-ter and 5 of the Legislative Decree of 25 July 1998, no.286) a pecuniary administrative sanction ranging from a fee of 200 up to 1000 shares is imposed on the entity; the disqualifying sanctions provided for by Art. 9, paragraph 2 of Legislative Decree 231 will be imposed for a period of two years;
- for all the offences concerning an impediment to justice (Art. 377-bis and 378 of the Italian Criminal Code), a pecuniary administrative sanction of 500 shares wil be imposed on the entity .
4. The legal entities’ administrative liability is nowadays the object of several integration proposals, and the EU, the OECD and the Italian legislators as well, are screening the hypothesis of extending the field of application for such liability.
Furthermore, the OECD, in 2004, addressed Italy for a chain of important recommendations in connection with the here considered rules, by a wide report drawn up at the end of the examination of the Italian anti-corruption rules, which accepted the OECD 1997 convention in connection with the war against the foreign public officers’ corruption in international economic operations. |
