BENI SEQUESTRATI E COMPATIBILITÀ ECONOMICA

UNIVERSITY OF MESSINA
Department of Political and Legal Sciences (SCIPOG)

PROF. ILENIA RAPISARDA

ANTI -CORRUPTION PRIVATE LAW

(ilenia.rapisarda@unime.it)
 National regulatory
framework on anti-corruption
 Private Corruption
The Grubman Affair (2003)
 Jack Grubman, financial analyst at Citygroup in New York, he had climbed all the steps to success. Son of a modest
family of Philadelphia had achieved an important position of power. His only worry was not being able to fit her
twins into the 92nd Street Y pre-school.
 But Jack was used to winning and after a night of reflection he arrives the brilliant idea. What will a donation of 1
million be for Citygroup Dollars to a major New York school? he asks his boss Stanford Weill.

 Said and done replies Weill. It's just enough that AT&T's rating changes from on Hold to to Buy one month before
the public takeover offer of the company's shares

 The rating was promptly changed. The donation was promptly made. After two years the scandal broke out due to an
email from Grubman ad a friend. Grubman was sentenced to a fine of 15 million dollars and a lifetime ban on his
professional activity. His daughters they regularly attended the 92nd Street Y pre-school.
 Art. 2635 (private corruption)
 Unless the fact constitutes a more serious crime, the directors, general managers, managers
responsible for drawing up corporate accounting documents, auditors and liquidators of
companies or private entities who, even through a third party, solicit or receive, for for
themselves or for others, money or other utilities not owed, or they accept the promise
thereof, to carry out or omit an act in violation of the obligations inherent to their office or
of the obligations of loyalty, are punished with imprisonment from one to three years.

 The same penalty applies if the act is committed by someone who, within the
organizational context of the company or private entity, exercises managerial functions
other than those belonging to the subjects referred to in the previous period.

 The penalty of imprisonment of up to one year and six months is applied if the act is
committed by someone subject to the direction or supervision of one of the subjects
indicated in the first paragraph.
 Whoever, even through a third party, offers, promises or gives money or other benefits not
due to the persons indicated in the first and second paragraphs, is punished with the
penalties provided for therein.

The corruptor is also punished

 In the fourth paragraph the provision of the aggravating circumstance is confirmed for the
case in which the corruption episode involves companies with securities listed in regulated
markets in Italy or other European Union states or spread between the public to a
significant extent.
 Incitement to corruption between private
individuals
Art. 2635 bis
 Anyone who offers or promises money or other utilities not owed to the
administrators, general managers, managers in charge of drawing up corporate
accounting documents, auditors and liquidators of private companies or entities, as well
as to those who carry out work in them with the exercise of managerial functions, in
order to carry out or omit an act in violation of the obligations inherent to one's office
or of the obligations of loyalty, is subject, if the offer or promise is not accepted, to
the penalty established in the first paragraph of article 2635 , reduced by a third.
 The penalty referred to in the first paragraph applies to administrators, general
managers, managers responsible for drawing up corporate accounting documents,
auditors and liquidators of private companies or entities, as well as to those who carry
out work activities within them with the exercise of managerial functions, who solicit
for themselves or for others, even through a third party, a promise or gift of money or
other utilities, to carry out or omit an act in violation of the obligations inherent to their
office or of the obligations of loyalty, if the solicitation is not accepted.
 CONCEPT OF
OTHER UTILITIES

 BEHAVIORAL PROTOCOLS

Any gift, economic advantage or other benefit must: do not consist of a cash payment; be
carried out in relation to legitimate business purposes and in good faith; not be motivated by
the desire to exercise illicit influence o from the expectation of reciprocit; be reasonable under
the circumstances and in good taste and compliant with generally accepted standards of
professional courtesy.

 LEGITIMATE AND GOOD FAITH BUSINESS PURPOSES: to promote, demonstrate or

illustrate products or services o participation in training seminars or workshops
 CORRUPTION BETWEEN PRIVATE INDIVIDUALS - CRIMINAL HYPOTHESES

Corporate situations at risk of crime:

 Acquisition of new customers/new supplies

 Consolidation of already acquired customers (contractual renewal)

 Acts of unfair competition

 Management and selection of suppliers

 Acquisition of new customers/new supplies: Tizio, administrator of Company X, bribes
Caio, purchasing director of the company Y, thus obtaining a significant supply of
goods/services;

 Tizio, administrator of Company X, part of the evaluation commission of a private tender

launched to assign a important works contract or supply of goods by Company Y.

 Consolidation of already acquired customers:Tizio, administrator of Company X,

bribes Caio, administrator delegate or purchasing director of Company Y, for the purposes
of consolidating the customer relationship.
 Unfair competition:
Tizio, director of Company X, bribes Sempronio, director of Company board of
auditors of Company Y, in order to acquire confidential information on the
competing company.

Tizio, director of Company X, bribes Sempronio, the manager commercial of

Company Y, in order to prevent the latter from participating to a public/private
tender.

Tizio, director of Company X, bribes Sempronio, the manager research and

development of Company Y, in order to delay the research and subsequent
launch of a competing product
 Management and Selection of Suppliers:

The client of a procurement contract bribes contractors so that they do not comply the
obligations established by legislation regarding health and safety at work or in environmental
matter, transferring the undoubted benefits of immediate savings into the price of the contract
itself, with obvious interest or advantage for the entity active subject.
Corruption between private individuals?

 The manager of company, in which hiring is blocked, asks one of his loyal supplier to
temporarily hire a valid element,, channeling the remuneration within the scope of the
supply contract

 Hospitality in a beauty farm by company Y of potential managers customer or

representation expenses aimed at business development activities

 Request from a multinational pharmaceutical company to one of its suppliers participate in

a donation program in favor of an NGO in a country third World
Formation of the supply for the purposes of the corrupt act:

 Gifts, sponsorships, donations in favor of the corrupt party;

 Investment opportunities for the corrupt individual;

 Hiring of personnel linked to the corrupt individual;

 Personal discounts or credits in favor of the corrupt person;

 Facilitation Payment for the corrupt party;

 Conferences in tourist destinations to cheer up the corrupt subject;

 Support for the family members of the corrupt individual

 THE EFFECTS ON THE ORGANIZATIONAL
MODEL

Provide for the updating of the organizational model to end of:

 Map the sensitive processes in which it can occur potentially the commission of the crime
of corruption between private individuals, as a corrupting company;

 Identify appropriate control protocols to prevent commission of the crime.

 D. lgs. n. 231/2001
 With Legislative Decree 8 June 2001 n. 231 (Legislative Decree no. 231/2001) the regulation
of the "liability of entities for administrative offenses resulting from crime" was dictated.

 This regulation applies to entities with legal personality and to companies and associations
even without legal personality.

 According to the regulations introduced by Legislative Decree no. 231/2001, companies can
be held "responsible" for certain crimes (generally malicious, sometimes negligent)
committed or attempted, in the interest or to the advantage of the companies themselves, by
members of the company's top management (the so-called "top management" subjects), and
by those who are subject to the management or supervision of the latter (the so-called
"subordinates").
 This expansion of responsibility essentially aims to involve the assets of
the companies and, ultimately, the economic interests of the shareholders
in the punishment of certain crimes.
 Fundamental aspect of Legislative Decree no. 231/2001 is the attribution
of an exempt value to the organisation, management and control
models of the company.
 In fact, in the case of a crime committed by a person in a top position, the
company is not liable if it proves that:
 the management body has adopted and effectively implemented, before
the commission of the crime, organizational and management models
suitable for preventing crimes of the type that occurred;
 The task of supervising the functioning and observance of the models and
ensuring their updating has been entrusted to a company body with
autonomous powers of initiative and control
 the people committed the crime by fraudulently evading the organization and management
models there was no omitted or insufficient supervision by the supervisory body;

 However, in the case of a crime committed by a person subject to the management or

supervision of another, the company is liable if the commission of the crime was made
possible by the violation of the management or supervisory obligations which the company
is required to comply with.
 Control protocols
Active cycle:
 Clear segregation of functions and
responsibilities
hand, to with
authorization regard,
powers on the
of one
sales
processes and, on the other
authorization powers of expense. hand, to the
 Clear division of tasks between the
various
sales, functions
in within
particularthe organisatio
betweenof
responsibilities
customer in
(so-called relations
account with
manager),the
responsibility
and the in defining the offer price
 payment conditions/times (and related
penalties),
settlement liability
resolutions in definition
in the of
event any
of
disputes.
 General and transparent criteria for
determining
aanomaly
single can a
productmaximum
or price
service, of
so offer
that for
any
be easily detected.
 Planning of benchmarking activities
(comparison
market). with the economic values o
​
 Passive cycle

 Clear division of tasks between the various functions within the scope
of the purchasing organization, in particular between the function that
identifies and selects the supplier, consultant or service provider, a
function which ratifies the purchase order, function that authorizes
payment and function that carries out management control and
traceability of operations.
 Identification of general and transparent criteria for determining a
maximum purchase price for a single product or service, through the
acquisition of multiple estimates (at least three).
 Determination of general rules especially on terms and conditions
payment.
 Planning of benchmarking activities (comparison with the economic
values ​o market).
 Preparation of adequate company protocols for: purchases of goods
and services; assignment of consultancy and other professional
 Staff Training and Control

 The updating of the Model must be adequately carried out knowledge of all staff, not
just managers

 The management staff is required: to disseminate the principles contained in the Model
e in the Code of Ethics; to ensure that each employee participates and concludes
training activities on anti-corruption; to review annually i results obtained and
methodologies adopted

 There must be a clear segregation of functions and responsibilities, i.e. one clear
division of tasks between the various functions and therefore between those who
prepare and who signs the documentation to be presented to suppliers or partners
commercial

 Any critical issue or conflict of interest that arises in the context of the relationship
with private third parties must be communicated to the Supervisory Body with written
note
 Liquidity and Accounting Management

 It is forbidden:
 Make cash donations and gifts to public officials and partners commercial,
collaborators, suppliers or receive them outside of what was expected from
generally accepted practices
 Make payments in cash, unless expressly authorized by the administration
and finance management
 Recognize compensation, or provide services, in favor of collaborators
external parties who do not find adequate justification in relation to the type
of assignment to be carried out, the compensation received, the characteristics
of the relationship partnerships and current practices;
 In any case, make payments without respecting the established procedures by
the management software adopted by the company
 Communication of the following information
 sales transactions exceeding a given amount that may represent the risk threshold;

 sales transactions exceeding the price by a given percentage average of the product, as
resulting from the aforementioned general criteria;

 collection operations below standard payment terms (e.g example, invoices paid on
sight);

 purchase transactions carried out at non-market values, which do not reflect the
standards adopted by the company;

 collection operations below/above the ordinary payment terms (for example, invoices
paid on demand).
 Public corruption
 Law no. 190 of 2012, containing provisions for the prevention and repression of
corruption and illegality in the public administration, is aimed at implementing
the international conventions on the matter, with particular regard to the 2003 UN
Merida Convention (ratified with law no. 116 of 2009) and the Criminal
Convention on Corruption of 1999 (law no. 110 of 2012).
Italy thus outlines its own preventive model characterized by numerous new
elements and essentially based on three "pillars":
 Anti-corruption plans;
 transparency;
 impartiality of public officials
… And on three key concepts:
 Prevention
 Accountability
 transparency
 The tasks of the National Anti-Corruption Authority (ANAC) and the other bodies
responsible for coordinating measures to prevent and combat illegality and corruption are
also defined.
 There are also three legislative decrees that constitute its natural completion:
 Legislative Decree no. 33 of 2013 (concerning publicity and transparency obligations);
 Legislative Decree no. 39 of 2013 (on the regime of non-transferability and
incompatibility of positions in public administrations);
 and Legislative Decree no. 235 of 2012 (discipline of ineligibility).
 The picture is completed by the Presidential Decree. n. 62 of 2013 (concerning the rules
of conduct of public employees) and Legislative Decree no. 150 of 2009 (on the
performance cycle).
 l. 190/2012

 Ratio → as specified in the explanatory report of the relevant bill, the objective is the
prevention and repression of the phenomenon of corruption through a multidisciplinary
approach, in which the sanctioning tools are configured only as some of the factors for the
fight against corruption and 'illegality in administrative action.

 Specifically, the legislative provision is supported by reasons of transparency and control

coming from citizens and the adaptation of the Italian legal system to international
standards. The explanatory report specifies how corruption causes damage to credibility
which translates into economic damage, since it discourages investment, including foreign
investment, consequently slowing down economic development.
 Subjective scope of application
 the legislation applies, as well as all public bodies, to companies controlled by the State,
private law entities controlled by central administrations and private law entities subject to
the control of regions, autonomous provinces and local authorities.

 It also applies to public economic bodies and professional associations; to associations,

foundations and bodies governed by private law, however named, even without legal
personality, with a budget exceeding five hundred thousand euros, whose activity is
mainly financed for at least two consecutive financial years in the last three years by
public administrations and in which all the owners or members of the administrative or
steering body are designated by public administrations.

 The ratio of the law is to extend the corruption prevention and transparency measures, and
the related planning tools, to subjects who, regardless of their legal nature, are controlled
by public administrations, make use of public resources, carry out public functions or
public interest.
 Anac
 The Italian Anticorruption Authority (from now on: ANAC) was created with the
aim of implementing article 6 of the United Nations Convention against
Corruption (UNCAC).
 ANAC is an independent authority. ANAC’s board is comprised of five members
appointed with a non-renewable mandate of six years. The proposed nominations
are approved by the Council of Ministers and the candidates are appointed by the
President of the Republic. ANAC has a staff of 350 employees.
 Law 190 of 2012 gave ANAC the responsibility : • To draw up a preventive
strategy against corruption; • To supervise the anticorruption strategy of each
public entity (through the adoption of Three Year Plans for integrity and
transparency), • To guarantee transparency in public administrations • To
guarantee the integrity of civil servants, and to disseminate a culture of integrity
and legality
 Anac
 The Authority pursues its goals through regulatory and supervisory activities, has an
advisory function and some inspection and sanctioning powers.
 These tasks are accompanied by an important monitoring activity through the collection of
data on public tenders.
 For this purpose ANAC has set up a National Database on Public Contracts. The BDNCP is
a database that collects, integrates and reconciles data concerning public contracts
transmitted by contracting authorities. The system is open to interoperability, under
application cooperation, both with internal systems of the Authority, and with similar
systems of other administrations.
 The BDNCP, which incorporates all the information contained in existing databases,
including at the territorial level, in order to ensure unified accessibility, transparency,
publicity and traceability of the whole procurement process. ANAC establishes the
modalities for the holders of such databases, subject to signatures of interoperability
protocols, to ensure the confluence of the data. This database is available to the public
through our institutional website, in order to increase the transparency of the market.
 In addition, ANAC has the duty to report to the Italian Parliament on its activities and
exercises an advocacy function by submitting proposals for new legislation or modifications
of existing laws to both Parliament and the Government.
 ANAC’s tasks
Prevention of Corruption
 Drafting and implementation of the National Anticorruption Plan
 Supervision and monitoring of the adoption of the three-year Anticorruption Plans and
Codes of Conduct by public administrations and state-controlled enterprises
 Sanctioning of entities in the event of failure to adopt the three-year Plans and/or the
Codes of Conduct
 Supervision of the appointment of the Officers for the Prevention of Corruption and
Transparency by each public administration
 Integrity of Public Employees

 Supervision of the requirements of public officials’ appointments and conflicts of interest

 Management of whistleblower complaints
 Guidance and supervision over the adoption of Codes of Conduct by each public
administration.
 whistleblowing
 In implementation of Directive (EU) 2019/1937, Legislative Decree no. was issued. 24 of 10
March 2023 concerning "the protection of people who report violations of Union law and
containing provisions regarding the protection of people who report violations of national
regulatory provisions".
 WHAT YOU CAN REPORT: Behavior, acts or omissions that harm the public interest or the
integrity of the public administration or private entity and which consist of: administrative,
accounting, civil or criminal offences; significant illicit conduct pursuant to Legislative Decree
231/2001, or violations of the organization and management models provided therein; offenses that
fall within the scope of application of European Union or national acts relating to the following
sectors: public procurement; financial services, products and markets and prevention of money
laundering and terrorist financing; product safety and compliance; transport safety; environmental
Protection; radiation protection and nuclear safety; food and feed safety and animal health and
welfare; public health; consumer protection; protection of privacy and protection of personal data
and security of networks and information systems acts or omissions detrimental to the financial
interests of the Union; acts or omissions relating to the internal market; acts or behavior that
frustrate the object or purpose of the provisions set out in Union acts.
 whistleblowing
REPORTING CHANNELs:

 internal (within the work context);

 external (ANAC);

 public dissemination (through the press, electronic means or means of dissemination capable of
reaching a large number of people);

 report to the judicial or accounting authority.

The reports must be made in the public interest or in the interest of the integrity of the public
administration or private entity. The reasons that led the person to report, denounce or publicly
disclose are irrelevant to their protection.
 whistleblowing
Protection of whistleblower confidentiality

 The identity of the reporter cannot be revealed to people other than those competent to
receive or follow up on the reports;

 Protection concerns not only the name of the whistleblower but also all the elements of the
report from which the identification of the whistleblower can be derived, even indirectly;

 The report is exempt from access to administrative documents and the right of generalized
civic access;

 The protection of confidentiality is extended to the identity of the people involved and the
people mentioned in the report until the conclusion of the proceedings initiated due to the
report, in compliance with the same guarantees provided in favor of the reporting person
 retaliation
 Any behaviour, act or omission, even if only attempted or threatened, carried out as a
result of the report, the report to the judicial or accounting authority, or the public
disclosure and which causes or may cause, to the reporting person or to the person who has
reported the reporting, directly or indirectly, of unjust damage, to be understood as
unjustified damage.
 whistleblowing
 Anyone who reveals or disseminates information on violations is not punishable:

 covered by the obligation of secrecy, other than professional legal and medical secrecy, or

 relating to the protection of copyright or

 to the protection of personal data or if, at the time of the report, complaint or disclosure,
you had reasonable grounds to believe that the disclosure or dissemination of the
information was necessary to make the report and the same was done in the manner
required by law.
 Transparency
 Guidance and supervision over the inclusion of transparency rules in the three-
year Anticorruption Plan by each public administration and state-controlled
entities
 Sanctioning power in the event of failure to adopt such rules
 Definition of standards and templates for the mandatory publication of
documents, information and data related to the "Transparent Administration"
section of each entity
 Adoption of guidelines regarding FOIA (freedom of information act), in
agreement with the Personal Data Protection Authority
 FOIA
 The so-called FOIA (Freedom of Information Act) legislation, introduced with legislative
decree no. 97 of 2016, is an integral part of the public administration reform process,
defined by law 7 August 2015, n. 124.

 Generalized civic access guarantees anyone the right to access data and documents held
by public administrations, if there is no risk of compromising other relevant public or
private interests, indicated by law

 With the FOIA legislation, the Italian legal system recognizes the freedom to access
information held by public administrations as a fundamental right. The principle that
guides the entire legislation is the preferential protection of the cognitive interest of all
subjects of civil society: in the absence of obstacles attributable to the limits established
by law, the administrations must give priority to anyone's right to know and access
information information held by the public
 ANAC’S TASKS
Public Procurement
 Supervision of public contracts for works, services and supplies, including those of regional interest, in
ordinary and special sectors
 Supervision of the qualification system for economic operators, including sanctioning powers
 Collaborative supervision” through the signing of memorandum of understanding with contracting
authorities, to give support in the preparation and management of tenders, in order to prevent criminal
activities
 Advisory function through the issuing of consultative or binding opinions on legislation and
prelitigation cases
 Regulatory function through the adoption of guidelines, standard documents on tenders, and other
soft regulatory tools, aimed at facilitating the exchange of information, and the development of best
practices
 Management of the qualification system for contracting authorities, and the register of in-house
companies in the case of serious violations of the Code of Contracts, ANAC can contest the
contracting authorities’ measures before the Administrative Judge