LexisNexis

Corruption through ‘other benefits’: differing applications and the need for a clarification in Italy

Friday 29 October 2021

Piero Magri
R&P Legal, Milan
piero.magri@rplt.it

Letizia Catalano
R&P Legal, Milan
​​​​​​​letizia.catalano@rplt.it

In Italy, we are witnessing an increasing number of convictions in cases where corruption did not involve money but what are defined as ‘other benefits’. Such ‘other benefits’ might include, for example, travel, holidays, dining, gifts, or exclusive use of goods or property.

The provisions of the criminal code punish, on one hand, the private person who gives or promises money or other benefits to the public official or public service provider and, on the other, the public officials who allow themselves to be given, promised, or accept the promise of money or other benefits.

There are often different applications of the concept of ‘other benefits’ which, in practice, includes every advantage, satisfaction, or means for satisfying an interest, even if not financially assessable, of the recipient of the benefit.

In the first applications, the Italian Supreme Court, for example, affirmed that sexual favours also fall within the benefits category as they represent an advantage for the official who obtains the promise or the actual service.[1]

More recently, the Supreme Court intervened in a case relating to requests for sponsorships, promises of interest and political mediations carried out by some subjects holding public office at regional and ministerial levels, stating that the notion of ‘other benefits’ should not only be limited to benefits of a patrimonial nature, but also include all social advantages whose patrimonial repercussions are mediated and indirect.[2]

According to an even broader interpretation of the concept of ‘other benefits’, any material or moral, patrimonial or non-patrimonial advantage that has value for the public agent, can be the object of the corruption. The case submitted to the attention of the Supreme Court concerned, in particular, a local government councillor who, in exchange for the vote in favour of a resolution, had received a promise of help aimed at obtaining career progression in the institution where he worked.[3] Therefore, even the promise of career advancement could have relevance as a benefit tending to corrupt.

From a preventive point of view, therefore, the extensiveness of the concept of ‘other benefits’ implies the need to pay a great deal of attention to a variety of situations or activities, as they were instrumental or that they could be used as a bribe.

One should think of the management of donations, gifts, entertainment expenses, invitations to events, dinners or conferences, the management of personnel selection processes and the progression of personnel, the qualification processes of certain suppliers and the procurement processes.

The concept of ‘other benefits’ is, however, limited to assets greater than a certain, modest value. Anything that has a modest value cannot be effective enough in influencing a decision or judgement and, therefore, could not assume relevance as the object of a corrupt conduct.

Consequently, customary gifts, having a modest value and falling within the normal realms of courtesy, could not themselves fall within the concept of ‘other benefits’ having a corrupting significance (eg, small gifts or low-value gifts given on the occasion of events or holidays).

At this point, it is therefore necessary to ask when exactly can a gift be said to be of ‘modest’ value.

The answer could be offered by the Code of Conduct for public employees which sets a limit of €150 to define the distinction between modest value (less than €150) and significant value (greater than €150). Only gifts of modest value are permitted for public employees.

On the basis of this deduction, for example, the irrelevance of the offer or the promise of modest donations (in this case, the sum of €50) was affirmed, as a manifestation of gratitude or appreciation for the activity already carried out by the public official in terms consistent with official duties, due to the harmlessness of the agent’s conduct.[4]

Despite this regulatory clarification, the practical applications of this concept in the context of corruption processes are still very different from each other.

Since the limit of €150 does not derive from criminal legislation, but from the regulatory legislation of the public sector, a criminal Judge can use discretion to evaluate an item as corrupting even at a lower value or as non-corrupting at a higher value.

Indeed, it should be considered that the Court did not consider the payment of dinners, conferences or gifts relevant in the context of some corruption trials, despite payments being greater than €150.[5]

In other recent cases, however, the same benefits have been deemed criminally relevant, and the doctor who had been invited to participate in conferences by a company operating in the medical devices sector was sentenced.[6]

This highlights that, in many cases of law in Italy, the interpretation of the concept is different. Therefore, an intervention by the legislator is hoped for, the purpose of which would be to limit interpretative discretion and thus avoid contradictory applications.

 

Notes

[1] Supreme Court, United Sections, 11 May 1993.

[2] Supreme Court, Section VI, 18 June 2010, no 24656.

[3] Supreme Court, Section VI, 27 June 2013, no 29789.

[4] Supreme Court, Section VI, 10 February 2017, no 19319.

[5] Milan’s Court of Appeal, Section II, 17 January 2020, no 375.

[6] Court of Milan, Section X, 3 March 2020, no 3046.