On 9 October 2023, Law no. 137 was published in the Official Gazette, converting with amendments Decree-Law no. 105 of 10 August 2023, which, among other things, implemented a new extension of the catalogue of ‘predicate offences’ for the liability of entities for offences, regulated by Legislative Decree no. 231/2001.
In particular, the legislator, by means of the so-called ‘Justice Decree’, intervened by adding three new types of offences by amending only the following two articles:
– 24, Legislative Decree no. 231/2001, under the heading “Undue receipt of funds, fraud to the detriment of the State, a public body or the European Union or for the purpose of obtaining public funds, computer fraud to the detriment of the State or a public body and fraud in public supplies“, is increased by two new “predicate offences”, specifically: (i) the offence referred to in art. 353 of the Criminal Code “Obstructing the freedom to bid“, which punishes the conduct of anyone who, with violence or threats, or with gifts, promises, collusion or other fraudulent means, prevents or disrupts the bidding process in public tenders or private tenders on behalf of public authorities, or drives away the bidders; and (ii) the offence referred to in art. 353 bis of the Criminal Code “Obstructing the choice of contractors“, which punishes, unless the offence constitutes a more serious offence, anyone who, by means of violence or threats, or with gifts, promises, collusion or other fraudulent means, disrupts the administrative procedure aimed at establishing the content of the call for tenders or other equivalent act in order to influence the manner in which the public administration chooses the contractor.
It should be specified that for both offences, the entity is subject to a monetary penalty of up to five hundred quotas (or from two hundred to six hundred quotas, in the event of a significant profit or particularly serious damage), as well as the disqualification sanctions of prohibition from contracting with the public administration, exclusion from facilitations, financing, contributions or subsidies and the possible revocation of those already granted; and prohibition from advertising goods or services.
– 25-octies.1, Legislative Decree no. 231/2001, entitled “offences relating to non-cash means of payment”, is increased by the offence referred to in art. 512 bis of the Criminal Code “fraudulent transfer of valuables“, which punishes the conduct of anyone who, unless the fact constitutes a more serious offence, fictitiously attributes to another person the ownership or availability of money, goods or other utilities in order to evade the provisions of the law on asset prevention measures or smuggling, or to facilitate the commission of one of the offences of receiving, laundering or using money, goods or utilities of unlawful origin.
In this case, the company will be subject to a fine of between 250 and 600 quotas and all the disqualification sanctions provided for in Article 9(2) of Legislative Decree No. 231/2001 (disqualification from engaging in commercial activities; suspension or withdrawal of authorisations and licences; prohibition from contracting with the public administration; exclusion from facilitations, financing, contributions or subsidies and the possible withdrawal of those already granted; prohibition from advertising goods or services).
This further intervention to supplement the catalogue of predicate offences confirms the importance and centrality of the prevention and control system outlined in Legislative Decree no. 231/2001, which remains a priority for the legislator regardless of changes in government.
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