White-Collar Crime 2023 Comparisons

The Italian Criminal Code (ICC) provides for felonies (delitti) and misdemeanours (contravvenzioni). Felonies identify the most serious offences and are punished with imprisonment up to life sentence and fines statutorily provided, while punishments for misdemeanours entail arrest, for periods ranging from 15 days to three years and fines up to EUR10,000 or more, if envisaged by special provisions.

Every offence consists of an objective and a subjective element (actus reus and mens rea).

• Actus reus refers to the act or omission that comprises the physical elements of a crime as required by the law and, in certain cases, an event causally linked to the act or omission.
• Mens rea refers to criminal intent and identifies the state of mind statutorily required in order to convict a defendant.

In relation to felonies, wilful intent is the common mental state required, while punishments for acting negligently or unintentionally or with fault are possible only if statutorily envisaged.

According to their structure, misdemeanours can be punished alternatively for wilful intent or fault.

The Constitutional Court stated that strict liability conflicts with the principle of culpability pursuant to Article 27 of the Italian Constitution (decision No 364/1988).

A person could also be held liable for attempted offences, if their acts are suitable to commit the crime but the offence is not completed or the event does not occur. In these cases, the punishment for the attempted offence is reduced.

Pursuant to Article 157 of the ICC, an offence is time-barred after an amount of time equal to the maximum penalty set forth by the law, and not less than six years for felonies and four years for misdemeanours.

Such term is doubled in relation to certain offences and in particular for health and safety manslaughter offences pursuant to Article 157, paragraph 6, of the ICC.

The most serious offences punished with a life sentence have no limitation periods (eg, murder).

Furthermore, the statute of limitations can also be suspended or interrupted, for instance where precautionary measures apply. Should an interruption cause occur, the limitation period for certain offences, such as bribery or tax offenses, is increased.

Article 161-bis of the ICC – introduced by the so-called Cartabia reform (Law No 134/2021) – provides that the statute of limitations shall cease definitively with the judgment at the end of the first instance trial. Moreover, pursuant to Article 344-bis of ICCP, the appeal trial and the trial before the Italian Supreme Court shall be concluded within two years and one year, respectively.

Pursuant to Article 7 of the ICC, an Italian or a foreign citizen could be punished according to Italian law if they are in a foreign country and commit offences against the Italian State, forge the Italian seal or currencies, commit a crime through abuse of powers or in breach of their duties if they are Italian public officers or when expressly provided for by special rules or international conventions.

Pursuant to Article 9 of the ICC, if an Italian citizen is abroad and commits an offence which is punishable with a life sentence or at least three years of imprisonment, they shall be prosecuted under Italian law, provided that they are found in Italian territory. Otherwise, the offence can be punished only upon the Ministry of Justice’s request or the victim’s complaint.

As set forth by Article 10 of the ICC, under the same conditions, a foreign citizen abroad could be punished under Italian law in the case of the commission of an offence against the Italian State or an Italian citizen, punished with a life sentence or at least one year of imprisonment.

With reference to corporate criminal liability of legal entities, Article 4 of Legislative Decree No 231/2001 provides that legal entities with their head office in Italy could be punished according to Italian law for offences committed abroad, if the foreign country has not prosecuted them yet.

Legislative Decree No 231/2001 provides for the corporate vicarious criminal liability of legal entities in connection with certain offences committed in their interest or for their advantage by their representatives or employees.

Corporate liability may arise in relation to the offences expressly listed in Legislative Decree No 231/2001 itself (predicate offences). Such list has been gradually expanded and now includes – eg, tax, health and safety, environmental and financial offences, crimes against the Public Administration and money-laundering.

Legislative Decree No 231/2001 entails the following sanctions in case of conviction:

• pecuniary sanctions and confiscation of the proceeds of the offence in all cases. Based on the economic conditions of the legal entity, the pecuniary sanction is determined by the court within a range between EUR25,800 and EUR1,549,000, which could vary according to the application of aggravating or mitigating circumstances;
• disqualification measures, applicable only when statutorily envisaged; and
• publication of the court’s decision in one or more newspapers.

Pursuant to Article 185 of the ICC and 2043 of the Italian Civil Code, any convicted individual must provide for the compensation for economic and non-economic damage and restitution in favour of the person who suffered such damage.

The victim of the offence, or their heirs, can obtain compensation for damage by starting a civil action or otherwise by joining the criminal proceedings as a civil party by directly asking for restitution and compensation before the criminal court.

In case of conviction, the criminal judge sentences the defendants to the payment of damages, often requesting the civil court to settle the amount. If requested, the criminal court declares the provisional or interim compensation of damages within the limits of the evidence already gathered during the criminal trial.

The Italian legal system does not allow punitive damages. Moreover, the restorative justice system – recently added by the Cartabia reform – introduced a new mechanism through which the defendant and the victim can pursue an alternative definition of the criminal proceedings, by finding an agreement also concerning compensation for damages.

In addition to the amendments introduced by the Cartabia reform, the most recent case law developments can be summarised as follows.

Italian Supreme Court, Decision No 25369/2023

In this recent ruling, the Supreme Court analysed the difference between bribery and influence peddling pursuant to Articles 321 and 346-bis of the ICC respectively (see 3.2 Bribery, Influence Peddling and Related Offences). Influence peddling implies that the proceeds of the offence are causally linked only to the mediation carried out by the offender and should not be part of the remuneration in favour of the public officer as reward for their corrupt conduct. Therefore, if the offender received money and agreed to divide it with the public officer, the officer shall be convicted of bribery and not the less serious offence of influence peddling.

Italian Supreme Court, Decision No 14840/2023

The suspension of the proceedings pending probation pursuant to Article 168-bis of the ICC implies the bar of the offence if the offender (individual) successfully completes a probation programme drafted by the external criminal enforcement department (UEPE). Its application to legal entities is not expressly provided for by Legislative Decree No 231/2001, but some criminal courts have extended its application to being in favour of legal entities (Criminal Court of Modena). According to the Italian Supreme Court, the application of suspension with probation to legal entities should be excluded: the probation programme can imply restrictions that can only suit individuals and aim at ensuring the offender’s re-education and resocialisation. Notwithstanding the Supreme Court’s decision, the Criminal Court of Bari has delivered a judgment of non-prosecution in favour of a legal entity that successfully completed the probation programme (decision No 3601, 15 June 2023).

The Italian public prosecution service is divided into several prosecutors’ offices throughout the country. Prosecutors’ offices are directed by a chief public prosecutor and often organised into highly skilled departments (tax offences, crimes against public administration, financial crimes, etc).

Moreover, the EPPO shall undertake investigations in the competent courts of EU member states, in relation to crimes against the financial interests of the EU.

With respect to criminal police investigating white-collar crimes, the Italian Tax Police (Guardia di Finanza) and the Revenue Agency have specific expertise concerning tax crimes and fraud, while the Health and Safety Police, the Customs Agency and the Regional Agency for Environment Protection cover investigations in these different sectors.

The National Anti-Corruption Authority (ANAC), Italian national commission for listed companies and the stock exchange (CONSOB) and Bank of Italy and BCE co-operate with the public prosecutors by reporting sensitive information and notitiae criminis which emerges during their monitoring activity on bribery and financial crimes.

With reference to insider trading and market abuse, at the end of an administrative proceedings CONSOB can also apply pecuniary sanctions, disqualification measures and confiscation that could be classified as criminal sanctions from a substantial perspective according to so-called Engel criteria (European Court of Human Rights, Grande Stevens v Italy, 4 March 2014). In order to avoid double sanctions on the same matter according to the ne bis in idem principle, the European Court of Human Rights and the Italian Supreme Court have identified a new standard for assessing the violation of such principle and have stated that criminal and administrative proceedings against the same person and on the same fact can co-exist if a “substantial and temporal connection between them is considered sufficiently close”, provided that the total fine is proportionate to the seriousness of the violation (Italian Supreme Court, decision No 39999/2019).

Pursuant to Articles 326 et seq. of the ICCP, when the public prosecutor has notice of the commission of an offence it shall immediately investigate the notitia criminis, indicating as soon as possible the offence committed and the name of the alleged author, if known.

In this respect, both criminal police and administrative authorities aware of a notitia criminis shall immediately submit a detailed report to the public prosecutor, whose decision to prosecute is mandatory, describing the facts and the evidence gathered, when they detect an offence during their activity (eg, a tax audit carried out by the Italian Tax Police, an inspection by CONSOB, a report of the Environmental Protection Agency).

The investigation file is not disclosed to the defendant until preliminary investigations are either not concluded or an appeal against a precautionary measure is filed by the defendant.

Pursuant to Articles 358 et seq. of the ICCP, the public prosecutor in charge of the investigations shall carry out all the necessary activity in order to decide on the prosecution.

To this end, public prosecutors and criminal police have wide investigative powers aimed at gathering information and documents with respect to white-collar criminal offences.

In particular, they can order and perform the following activities:

• seizures and dawn raids. In this respect, public prosecutors often ask companies to hand over documentation useful for the investigation and a forensic copy of the data contained in electronic devices. If the companies do not comply, search and seizure is performed;
• acquisition of information from banks;
• questioning the person under investigation or gathering information from a person who may provide useful elements for the investigations;
• appointing a technical expert, especially in technical proceedings,
• wire-tapping of conversations or IT communications in specific cases provided by the ICCP; and
• co-operation with foreign judicial authorities.

Administrative authorities also have powers to obtain documents from companies. In particular, if companies do not comply in time with the requests of the Bank of Italy and CONSOB or do not co-operate with the same authorities for the purpose of performing the relevant supervisory functions or delay their activities, they are punished under 187-quinquiesdecies of the Consolidated Financial Act (TUF), with an administrative sanction of up to EUR5 million or 10% of their turnover. The same fines apply to the directors and managers of such companies. Moreover, the obstruction of the supervising activities of the administrative authorities, such as Bank of Italy or CONSOB, may be relevant from a criminal perspective under Article 2638 of the Italian Civil Code (see 3.1 Criminal Company Law and Corporate Fraud). 

Internal investigations are not mandatory, but if a company detects the commission of an offence within its organisation, it would be advisable to gather all the relevant documentation, especially if the offence could trigger corporate liability pursuant to Legislative Decree No 231/2001.

In this respect, a company could appoint a counsel registered at the Bar in order to carry out investigations aimed at searching and collecting evidence useful in possible criminal proceedings pursuant to Articles 327-bis and 391-bis et seq. of the ICCP that regulate the defensive investigation.

In performing such activity, counsel can, inter alia, interview the employees of the company and request the intervention of the public prosecutor in case of refusal, appoint a technical expert, and submit a request for documentation to the public administration and to private parties.

In this respect, such preventive investigations are covered by the duty of secrecy and confidentiality of a lawyer, if the lawyer receives a specific mandate and the activities carried out do not require the authorisation of the judicial authority. Moreover, the legal privilege implies that (i) the counsel is not obliged to hand over documents to the judicial authority, (ii) the counsel has the right not to testify on the content of the communications with the client, and (iii) that conversations between client and lawyer are not wire-tapped.

In recent years, many co-operation mechanisms between EU judicial authorities have been implemented in the EU legal framework, in particular:

• European investigation order – a judicial decision is issued by the judicial authority of one EU member state in order to gather or use evidence in criminal proceedings carried out in another EU member state; and
• European arrest warrant – aims at prosecuting or executing a custodial sentence or detention order. According to the principle of mutual recognition of judicial decisions, it operates in all EU countries via direct contacts between judicial authorities that shall respect the defendants’ rights, such as the right to receive information and to appoint a lawyer.

Extradition to extra-UE countries is regulated both by Articles 696 et seq. of the ICCP and by specific international or bilateral conventions. According to the principle of speciality, the requesting state can only prosecute the offences in relation to whom the extradition was granted and no other offences committed before the extradition or surrender.

When Italy receives an extradition request, the Ministry of Justice is in charge of the relevant procedure and requires a preliminary favourable decision of the Court of Appeal. Extradition shall not be granted for political offences, nor if there is a risk of discrimination because of race, religion, sexuality, nationality, language, political opinions or personal conditions, or if the defendant will be subjected to inhuman and degrading treatment.

With reference to individuals, even in case of white-collar crimes, according to Article 112 of the Italian Constitution, the public prosecutors are subject to the principle of mandatory prosecution. Moreover, a jurisdictional check on the prosecution activity shall be granted: the public prosecutor cannot order the dismissal of the case autonomously but shall issue a request to the Preliminary Investigation Judge.

The above-mentioned principle does not apply to a company’s charges for white-collar offenses pursuant to Legislative Decree No 231/2001. Therefore, the public prosecutor has total discretion to investigate and charge a company. Moreover, it has the discretion to withdraw the case by informing the General Prosecutor of the Court of Appeal. After the decision on the prosecution, the judge shall decide whether to dismiss the case.

Even if the decision to prosecute a company is not mandatory in the Italian legal system (see 2.6 Prosecution) and the Italian legal framework does not specifically regulate deferred prosecution or non-prosecution agreements, the criminal courts have recently adopted innovative and, to a certain extent, “negotiated” decisions that could at least mitigate the sanctions towards companies in case a criminal proceeding is filed.

In particular, with regards to Legislative Decree No 231/2001, public prosecutors have started to appoint a monitor pursuant to Article 15 of the decree and the application of monitoring pursuant to Article 34 of Legislative Decree No 159/2011 (the “Anti-Mafia Decree”) in order to encourage compliance with laws and the internal organisation of companies under investigation, especially in relation to tax offences and illicit employment. If the company complies, the case could be dismissed or, in case of conviction, the sanctions could be reduced.

In recent months, the Court of Milan has ruled for the suspension of the decision on the application of monitoring pursuant to the Anti-Mafia Decree against a supermarket multinational, since the company voluntarily committed itself to carry out a corporate reorganisation aimed at enhancing internal controls.

Pursuant to Article 444 of the ICCP, the defendant and the public prosecutor can ask the court to impose a sanction, reduced up to one-third, if the sanction does not exceed five years of imprisonment, considering such reduction and the circumstances.

The Cartabia reform recently amended this matter by allowing the defendant and the public prosecutor to ask the court not to apply or soften the ancillary punishment and the confiscation, or to limit its application in relation to specific assets.

The reduced sanction agreed by the defendant and the public prosecutor must be submitted to the judge who shall deliver a judgment of application of punishment upon request of the parties only if the formal requirements set forth by the law are met.

The plea bargain does not cover compensation for damages whose quantification shall be submitted to the civil judge.

In relation to some offenses, the ICCP provides for specific plea bargain limitations: for instance, with reference to tax crimes, the parties can make an agreement, only if the defendant has fully paid its tax debt and has regularised its tax position. Moreover, with reference to the recent amendment introduced by the Cartabia reform, the Italian Supreme Court denied that agreements concerning tax crimes could exclude or reduce mandatory confiscation (decision No 25317/2023).

Plea bargaining is applicable to legal entities in relation to criminal corporate liability pursuant to Article 63 of Legislative Decree No 231/2001.

The Italian Civil Code provides for the following corporate offences:

• Articles 2621 and 2622 – false accounting (see 3.6 Financial Record-Keeping);
• Article 2625, paragraph 2 – punishes directors who hinder the control activities carried out by the shareholders or other corporate bodies, when the conduct creates economic damage to the shareholders (imprisonment of up to one year);
• Articles 2626 and 2627 – illegal restitution of contribution to shareholders and illegal distribution of profit and reserves, punishable with imprisonment of one year;
• Article 2628 – illegal operations on the company shares, punishable with imprisonment up to one year;
• Article 2629 – operations to the detriment of the creditors, punishable with imprisonment ranging from six months to three years;
• Article 2629-bis – omitted communication of a conflict of interests, punishable with imprisonment from one to three years if the omission causes damage to the company or others;
• Article 2632 – fictitious generation of share capital, punishable with imprisonment up to one year;
• Article 2634 – breach of trust, committed by a director who causes damage to a company by pursuing his own or others’ interest, in conflict with the company, punishable with imprisonment from six months to three years;
• Article 2636 – illegal influence on the shareholders’ meeting, committed when the author determines a fictitious majority pursuing an unfair profit, punishable with imprisonment ranging between six months and three years;

• Article 2637 – insider trading and market manipulation punished under TUF (see 3.4 Insider Dealing, Market Abuse and Criminal Banking Law); and
• Article 2638 – obstruction to the regulatory authorities among which CONSOB, Bank of Italy or IVASS (the Italian insurance regulator), punishable with imprisonment from one to eight years.

According to Article 2639 of the Italian Civil Code, the same offences shall apply to both legal and de facto representatives of a company. In all these cases, confiscation of the proceeds of the crime is provided for by Article 2641 of the Italian Civil Code.

Most of the above-mentioned offences may trigger corporate liability pursuant to Article 25-ter of Legislative Decree 231/2001, when committed in the interest, or for the benefit, of the company by one of its representatives or employees.

Moreover, a company could be held liable in relation to fraud against the state or other public entities pursuant to Article 24 of Legislative Decree 231/2001.

The Italian criminal law system punishes specifically identified forms of corruption, as follows.

In particular, the public officer who receives or accepts money or other goods, or their offer, in order to perform his public duties (Articles 318 ICC) or to carry out or omit or delay a specific act related to his public duty (Article 319 ICC) is punished with imprisonment for a period ranging between three and ten years.

The same provisions apply if the offender is a person in charge of a public service and to the individual who promises and gives money or other goods to the public officer, in case of instigation of bribery, and in cases involving foreign and international public officials and EU Institutions or State Members.

In the above-mentioned cases, confiscation of the proceeds offered or given to the public official is mandatory.

As far as influence peddling is concerned, Article 346-bis of the ICC punishes, with imprisonment for periods between one and four years, anyone who, by taking advantage of an existing or an alleged relationship with a public officer or a person in charge of a public function, receives or accepts money or other goods as a price for his intermediation with the public officer, or in order to pay the public officer for carrying out or omitting to do its public duties. The Bill of Law No 808/2023 (DDL Nordio), currently under discussion, suggests amending such provision by excluding its application in relation to boasting, that could still be relevant as fraud, increasing the sanctions and extending the application of the exemption from punishment.

Relating to so-called private bribery, pursuant to Article 2635 of the Italian Civil Code, the directors or managers, as well as their employees, who solicit or receive money or other assets or accept them, to perform or to omit an act in violation of their obligation of loyalty, will be subject to imprisonment ranging between one to six years.

All the above-mentioned offences could trigger vicarious corporate liability pursuant to Legislative Decree No 231/2001.

Except for state-controlled companies or companies controlled by other public institutions, Italian law does not impose a specific duty on companies to adopt a compliance programme aimed at preventing bribery offences.

However, since bribery and influence peddling may trigger vicarious corporate liability under Legislative Decree No 231/2001, a company could adopt an organisational and control model pursuant to Articles 6 and 7 of Legislative Decree No 231/2001, in order to be exonerated from such liability. Such model must include specific internal procedures aimed at preventing, among other offences, bribery and influence peddling so as to be effectively implemented.

The court has pointed out that the adoption of such model is mandatory in connection with the fulfilment of the duty of care of the executives of the company.

Insider Trading

Article 184 of TUF punishes anyone who, being in possession of inside information of a company listed on a stock exchange, carries out transactions on financial instruments using such information or discloses such information to others or recommends or induces others to carry out financial transactions on the basis of such information. Even the insider that created the information (so-called self-insider) is relevant from a criminal perspective.

Imprisonment for a period from two to 12 years and a fine of up to EUR3 million will apply if the offender is aware of the inside information by virtue of (i) his participation in corporate governance bodies of the company, or (ii) his stake in the share capital of the company or (iii) his job, functions or office or is a criminal insider (ie, the person who has inside information “by virtue of the preparation or execution of criminal activities”). Otherwise, if the offender is a so-called insider secondario, the punishment for such offence is the imprisonment (for a period from one to six years) and a fine up to EUR2,5 million.

Market Manipulation

Article 185 of the TUF and Article 2637 of the Civil Code prohibit the dissemination of false information and simulated transactions that could mislead the market operators.

“Dissemination” is defined as the communication of information to a potentially indeterminate number of people. “False information” covers all the information concerning supposed past or future developments or events that relate to either an issuer or a financial instrument that are materially likely to produce a significant alteration in the price of financial instruments.

Market manipulation concerning listed companies is punished with imprisonment for a period ranging from two to 12 years and a fine of up to EUR10 million, while the penalty for unlisted companies, under Article 2637, of the Italian Civil Code, entails imprisonment for a period of between one and five years.

The same above-mentioned conduct can be sanctioned by CONSOB with severe administrative fines (see 2.1 Enforcement Authorities).

Moreover, legal entities can be held liable in connection with such offences pursuant to Articles 25-sexies and 25-ter of Legislative Decree No 231/2001.

Criminal Banking Law

With respect to bank law, Legislative Decree No 385/1993 (the “Consolidated Banking Act” or TUB) sanctions many unauthorised banking activities such as unauthorised collection of savings (Article 130 TUB), illicit banking activity (Article 131 of TUB) or illicit financial activities (Article 132 of TUB). Furthermore, Article 166 of TUF punishes illicit investment and asset management services. In these cases, the maximum penalty applicable is imprisonment for a period of eight years.

Moreover, pursuant to Article 644 of the ICC, imprisonment for a period of up to ten years applies when banks grant loans at interest rates above the statutory threshold.

Legislative Decree No 74/2000 provides for tax offences that can arise in relation to corporate income tax (IRES) and value added tax (IVA).

• Article 2 punishes the filing of a fraudulent tax declaration by using invoices or other documents relating to non-existing operations; ie, when the tax income has been illicitly reduced by deducting costs for operations that have never been carried out or in relation to invoices issued to or by a wrong person or entity. The punishment is imprisonment for a period between four and eight years.
• Article 3 punishes the filing of a fraudulent tax declaration through fraudulent means, such as simulated operations or by using false documents, if the thresholds of punishment are met. The punishment is imprisonment for a period between three and eight years.
• Article 4 punishes false tax declaration in order to pursue tax avoidance when the thresholds set forth by the law are met. The punishment is imprisonment for a period between two and four-and-a-half years.
• Article 8 punishes issuing false invoices with imprisonment for a period between four and eight years.
• Article 10 punishes the concealment and destruction of financial statements aimed at avoiding tax payment. The punishment is imprisonment for a period between three and seven years.
• Article 10-quater punishes undue tax compensation with imprisonment for a period between six months and four years.
• Article 11 punishes fraudulent tax payment omission with imprisonment for a period between six months and four years.

The above-mentioned offences are listed in Legislative Decree No 231/2001 as predicate offences in relation to whom the corporate liability may arise.

In order to ensure the transparency of financial records with respect to both the market and shareholders, Articles 2621 and 2622 of the Italian Civil Code punish false accounting in both non-listed and listed companies. If the director, auditor or financial reporting manager intentionally reports in the financial records and balance sheets (or in other communications to the public set forth by the law) false material facts or omits to report material facts whose communication is mandatory, on the economic, financial situation of the company or the group, they are punished with imprisonment for a period ranging between one and five years, and three and eight years, if the offence involves listed companies.

Such offences could also trigger corporate liability under Legislative Decree No 231/2001.

Furthermore, Article 2630 of the Italian Civil Code also punishes non-filing of financial records with an administrative sanction.

Violations of antitrust and competition regulation may produce consequences from a civil or administrative perspective.

In particular, according to Article 15 of Law No 287/1990, the breach of antitrust regulation can lead to administrative sanctions of 10% of the turnover achieved by the legal entity in the last financial year before the notice. In this respect, in 2014, AGCOM (Antitrust Authority) approved its guidelines for quantifying the administrative fines imposed by the Authority and provided for their exclusion or mitigation in case of leniency programmes.

Moreover, pursuant to Articles 2598 and 2599 of the Italian Civil Code, acts of unfair competition – such as spreading news on a competitor’s product aimed at causing discredit – using distinctive names or symbols to cause confusion, can lead to a civil liability. Through the judgment ascertaining unfair competition, the judge orders the perpetrator to cease such illicit conduct and to remove their effects, and may order the compensation for damage and the publication of the decision.

If, on the other hand, the unfair competition is committed with violence or menace, imprisonment for a period from two up to six years may apply as set forth by Article 513-bis of the ICC. Moreover, the disruption of the freedom of industry and trade is punished upon complaint pursuant to Article 513-bis of the ICC. Such offences may also trigger corporate criminal liability as per Legislative Decree No 231/2001.

Consumer law is regulated by Legislative Decree No 206/2005, which provides for administrative sanctions in relation to the violation of marketing bans or the standards of fair business, advertising and competition.

Moreover, with reference to hygiene, production, traceability and sale of food and beverages, specific misdemeanours are set forth by Law No 283/1962. In this respect, in 2022, the Cartabia reform deeply amended such regulation, providing for the extinction of these offences through restorative and compensatory actions.

Other offences set forth by the ICC may also find application in relation to consumer protection, such as:

• Article 473 – counterfeiting, alteration or use of trade marks or distinctive marks or patents, punished with imprisonment for a period from six months to six years and a fine;
• Article 474 – introduction into the state and trade of products with fake marks, punished with imprisonment for a period from one to four years and a fine;
• Article 515 – fraud in trade, punished with imprisonment for a period up to two years and a fine;
• Article 516 – sale of non-genuine food products as genuine, punished with imprisonment for a period up to six months and a fine; and
• Article 517 – sale of industrial goods with false trade marks, punished with imprisonment for a period up to two years and a fine.

Legal entities could be held accountable for the above-mentioned offences if committed in their interest or for their benefit by one of their representatives or employees pursuant to Article 25-bis and 25-bis.1 of Legislative Decree No 231/2001.

Article 615-ter et. seq. of the ICC provide for several cybercrimes partially amended by Law No 238/2021, in order to comply with EU Directive No 2013/40/EU on cyber-attacks.

Such provisions punish, among other things, unauthorised access to an IT system, detention, diffusion of access codes or other means in order to access IT or telematic systems, or detention of software aimed at damaging or interrupting an IT or telematic system or other conduct which damages IT systems of the state or other public authority, and cyber fraud.

In these cases, the maximum penalty provided for by the law is imprisonment for a period of five years and a fine.

Presidential Decree No 43/1973 (Customs Consolidated Act) provides for both administrative and criminal sanctions, in particular in relation to smuggling.

Moreover, Legislative Decree No 75/2020 added smuggling to the list of predicate offences under Article 25-sexiesdecies of Legislative Decree No 231/2001, punished with pecuniary sanctions and disqualification measures, together with confiscation.

In Italian criminal law, concealment can identify a constituent element of different offences, among which:

• Article 2638 of the Italian Civil Code punishes, among other things, the concealment of mandatorily disclosable documentation or information from regulatory authorities (see 3.1 Criminal Company Law and Corporate Fraud);
• concealment of financial or accounting documentation aimed at avoiding tax payment can be punished pursuant to Article 10 of Legislative Decree No 74/2000;
• fraudulent concealment of assets may trigger fraudulent bankruptcy punished with imprisonment for a period up to ten years under Article 322 of Legislative Decree No 14/2019; 
• concealment of the proceeds of an offence could be relevant under Article 648 of ICC (receiving stolen goods) and 648-ter.1 of the ICC (self-money laundering); and
• concealment can be relevant as an aggravating circumstance when a crime is committed in order to conceal other offences pursuant to Article 61, paragraph 2, of the ICC.

According to Article 110 of the ICC, when two or more people commit an offence, the same sanctions may find application for all the offenders. Articles 112 and 114 of the ICC provide for aggravating and mitigating circumstances.

Aiding and abetting could entail both a material and a psychological input, for example, when the offender is encouraged and instigated to commit a crime. 

Legislative Decree No 195/2021 amended the provisions set forth in the ICC related to money laundering and self-laundering by extending the predicate offences of such crimes to both the offences committed with negligence and misdemeanours.

Money laundering under Article 648-bis of the ICC punishes a person who transfers or replaces or does operations with money or other goods proceeding from an offence in order to conceal their provenance. The sanctions are: imprisonment for a period ranging between four and 12 years and fine of up to EUR25,000, if the predicate offence is a felony, otherwise, imprisonment for a period from two to six years and fine of up to EUR12,500, if the predicate offence is a misdemeanour.

Self-laundering under Article 648-ter.1 of the ICC punishes a person who uses, transfers or replaces in economic financial or entrepreneurial activities money or other goods originating from an offence that they had committed, in order to conceal their provenance. The sanctions are: imprisonment for a period from two to eight years and fine of up to EUR25,000, if the predicate offence is a felony, otherwise, imprisonment for a period from one to four years and fine of up to EUR12,500 if the predicate offence is a misdemeanour.

In case of conviction, the judge orders the mandatory disgorgement of the proceed of such offences.

Moreover, corporate liability pursuant to Legislative Decree No 231/2001 may arise and the legal entities could be punished with disqualification measures.

In this respect, Legislative Decree No 231/2007 provides for specific duties of adequate assessment of the client and the beneficial owner that shall be fulfilled by certain operators, such as banks, financial institutions, audit firms, asset management companies, insurers, etc.

Failing to comply with such provisions can lead to the application of administrative sanctions. In particular, banks and financial institutions that omit to undertake controls can be punished with a fine of up to EUR5 million or 10% of their total annual turnover.

According to Articles 6 and 7 of Legislative Decree No 231/2001, a legal entity could be exonerated from corporate vicarious liability if it adopted and effectively implemented the organisational and control model provided by Legislative Decree No 231/2001 in order to prevent the offences, and appointed an independent, autonomous, adequately budgeted and professional supervisory body in order to monitor the effectiveness and the correct implementation of the model.

In order to be considered effective, the organisational model shall not be limited to mere ethical principles, but continuous monitoring, inspection activities and training programs should be carried out in order to ensure its actual effectiveness.

Article 131-bis of the ICC provides for an exemption from punishment when the offence is not serious. In particular, after the Cartabia reform amendments, this may find application if the following requirements occur:

• the offence is punishable with imprisonment for a period of at least two years, together with a pecuniary sanction;
• the offence can be considered not serious, considering the characteristics of the conduct and of the harm caused and the remedial actions carried out post factum by the offender;
• the offence has not been repeated; and

• corruption, usury, money laundering, insider trading and market abuse are excluded.

Other exceptions are set forth by the law (for example, provision of thresholds of punishment in tax crimes).

Concerning corporate liability, unlike in the US legal framework, Legislative Decree No 231/2001 does not strictly provide for the mitigation of sanctions or the dismissal of the proceedings in case of self-disclosure or co-operation of legal entities, except for the negotiated justice case law path described above (see 2.7 Deferred Prosecution). Nonetheless, the law provides for a rewarding mechanism in relation to certain remedial actions implemented by the companies after the offence, for instance related to the late adoption of an organisational model. It is reasonable that such rewarding mechanism will be expanded to co-operating or self-disclosing legal entities.

In relation to individuals’ offences, in 2019, Article 323-ter of the ICC introduced a new exemption from punishment related to corruption. If the author of the offence self-reports and provides for elements in order to collect evidence and find the other authors, before acknowledging the beginning of the investigations against him or within four months from the offence.

With respect to tax crimes, Article 13 of Legislative Decree No 231/2001 and Decree-Law No 34/2023 provide for further exemptions.

Legislative Decree No 24/2023 introduced a new regulation on whistle-blowing, in compliance with EU Directive No 2019/1937 on the protection of persons who report infringements of European Union law.

Companies that adopted an organisational model pursuant to Legislative Decree No 231/2001 and that have employed, in the last year, an average of at least 50 employees, and other legal entities listed in the decree itself shall comply with the provisions of the above-mentioned decree and in particular:

• implement an internal reporting channel that ensures the confidentiality of the identity of the whistle-blower and the people involved in the report;
• entrust a specifically trained person or a dedicated internal officer with the management of such internal reporting channel;
• prohibit acts of retaliation or discrimination against the person who made the report; and
• provide for sanctions against those who breach confidentiality, obstruct or otherwise attempt to obstruct the reporting, as well as those who make false reports.

After receiving the report, the person in charge of its management shall carry out investigations and inform the whistle-blower of their results.

National Anti-Corruption Authority (ANAC) has recently implemented an external reporting channel that could be used by a whistle-blower if:

• their company had not implemented the internal reporting channel or, even if activated, it does not comply with the above-mentioned provisions;
• no investigation was carried out after the report; and
• they had reasonable grounds to believe that they could suffer retaliation in case of reporting and that an imminent danger to the public interest may occur.

The ANAC shall inform the whistle-blower of the outcomes of the procedure and could sanction the company for omitting to implement an adequate reporting channel in compliance with the provisions set forth by the Legislative Decree No 24/2023.

Pursuant to Article 27, paragraph 2 of the Italian Constitution, the defendant is not considered guilty until a final judgment of conviction. Under Article 533 of the ICCP, the judge delivers a judgment of conviction only when the defendant is proven guilty beyond any reasonable doubt.

In the Italian criminal trial, the burden of proof is on the public prosecutor. Nonetheless, pursuant to Article 6 of Legislative Decree No 231/2001, the legal entity could avoid corporate liability by proving that it has adopted an effective organisational and control model, appointed a supervisory body in charge of monitoring its correct implementation and that its representative committed the offence by fraudulently circumventing the preventive rules of the organisational model itself.

According to Articles 132 and 133 of the ICC, the judge applies the penalty on a discretionary basis between the minimum and the maximum of penalty set forth by the law, considering the seriousness of the offence that can be inferred by:

• the kind of offence, the time, the place and any other aspect of the conduct;
• the seriousness of the damage or of the risk caused by the offence; and
• the level of mens rea or fault.

Moreover, the judge shall assess the tendency of relapse from:

• the reasons that led the offender to commit the crime and the character of the offender;
• the criminal and judicial records of the offender;
• the conduct held during and after the commission of the offence; and
• the individual and social background.

The judge can increase the pecuniary sanctions in relation to the economic conditions of the offender, should the punishment statutorily provided be ineffective.