v. reports on enforcement in oecd convention countries - Begroting

Inadequacies in legal framework: There are some inadequacies. There is no criminal liability for companies, only
administrative liability, and the defence of concussione (extortion) still exists in cases of foreign bribery. The statutes
of limitation are fi ve and seven-and-a-half years, and run until the last appeal, which is highly problematic.
Inadequacies in enforcement system: Resources for enforcement are inadequate, and there is a lack of awarenessraising
carried out by the government. Further, there is a lack of whistle-blower protection and adequate complaints
procedures, as there is no single, comprehensive whistle-blower law, nor are there provisions for anonymous
reporting in public sector laws. There is no systemic collection of data on the number of whistle-blowing disclosures
or the proportion of cases that result in legal action. 232
Legal framework and enforcement system regarding subsidiaries, agents and other intermediaries: There
are some potential loopholes in the provisions regarding subsidiaries, agents and other intermediaries. Legislative
Decree 231/2001 covers agents, as it extends to persons serving as representatives or holding administrative or
senior executive positions within the body or an organisational unit of a corporation, as well as persons actually
exercising management and control of same; and to persons under the direction or supervision of one of these
persons. One weakness is that Article 5 of the decree allows a defence if it is claimed that a company-related person
acted in his or her own interest. It does not call for company internal controls to prevent this. 233 Moreover, Italian
authorities may not pursue a case if a case is brought in the jurisdiction where the crime is committed. Where
the law provides that the guilty party is punishable subject to a request being made by the Minister of Justice,
prosecution is only brought against the body if the request is also made against the latter. There have been no
prosecutions in which parent companies have been held liable for bribery of a foreign public offi cial committed
by their subsidiaries or other intermediaries. However, the above-mentioned investigation of ENI involves bribery
via a subsidiary. For lack of cases it is not possible to assess to what extent the responsibility of the company is
admitted, including any of the following situations: (1) persons serve as representatives, or hold administrative or
senior executive positions within the body or an organisational unit of same, being fi nancially and functionally
independent; (2) persons actually exercise management and control of same; (3) persons under the direction or
supervision of one of the [above-mentioned] persons or (4) persons act in the interest of the company (not in their
own interest or in a third party’s interest).
Recent developments: Parliament is currently discussing a new draft law proposed by the government which
includes a provision for a central supervising body, the Osservatorio sulla Corruzione. The tasks of this body are
to include the compilation and analysis of all corruption cases in the country. 234 In July 2010 there were protests
against a parliamentary bill proposed by the government, which claimed to safeguard privacy. 235 According to a
leading Italian newspaper most of Italy’s editors, judges and prosecutors said it was intended to shield politicians,
and particularly the prime minister. This “gagging law” would curb the ability of police and prosecutors to record
phone conversations and plant listening devices. Law enforcement offi cials, the National Magistrates’ Association
and the press have reportedly said that this “gagging law” would shield politicians, in particular the prime minister;
would curb the ability of police and prosecutors to use phone tapping technology; would stop journalists from
publishing the resultant transcripts; and would have very serious consequences for the fi ght against crime and
for the administration of justice. Though the bill excludes mafi a and terrorism investigations, the police unions
have reportedly said it would cripple inquiries into money-laundering and drug-traffi cking offences, thus indeed
affecting mafi a and terrorism investigations. 236 The draft Law against Corruption was presented to the Senate in
May 2010 and amendment 2.0.3 on whistle-blower protection was introduced in September 2010. The law is still
under discussion by both the Commission for Constitutional Affairs and the Commission of Justice. Discussions
have stalled, as the commissions have asked for the opinion of a third commission, the Budget Commission, in order
to analyse the impact of the law on the state budget.
232 Transparency International “Timed Out: Statutes of Limitations and Prosecuting Corruption in EU Countries”,
http://www.transparency.org/regional_pages/europe_central_asia/projects_and_activities/statutes_limitations
233 Article 5 of the Legislative Decree 231/2001 is the provision that would cover crimes committed abroad by subsidiaries and
agents. It covers acts of “persons serving as representatives, or holding administrative or senior executive positions within the body
or an organisational unit of same, and being fi nancially and functionally independent, as well as by persons actually exercising
management and control of same; or by persons under the direction or supervision of one of the [above mentioned] persons”. On the
other hand, “companies are not responsible if the person acted in his own interest or in a third party’s interest.” According to Article 4,
the liability for foreign bribery applies “provided that prosecution is not brought by the State in the place where the act is committed.”
234 The Guardian, 9 July 2010, “Silvio Berlusconi’s “gag law” sparks media strike in Italy”,
http://www.guardian.co.uk/world/2010/jul/09/silvio-berlusconi-media-gag-law
235 Ibid.
236 Ibid.
Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention
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