Negotiated settlement for corruptions offences: position in Italy

When responses from the US and EU to the fight against bribery in international business transactions are compared, it becomes evident that there is little record of EU member States enforcing their bribery laws. The successful enforcement of the Foreign Corrupt Practices Act (FCPA), which criminalizes the bribing of foreign government officials, is relatively new. Indeed, only over the last decade have the twin regulators, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) been seriously investigating cases of international corruption involving multinational corporations with worldwide business interests. The enforcement activity has frequently resulted in high-profile FCPA settlements. These settlements include maintaining the possibility that the US government may formally decline prosecution (declination) or agree to a non-prosecution agreement (NPA). In terms of the practical application of the FCPA, negotiated settlements are concluded by two Agencies which have enforcement powers to investigate and prosecute alleged wrongdoing, to impose significant fines for violations and to decline prosecution or to enter in a non-prosecution agreement. Neither prosecutors, nor courts are involved in the ʿnegotiationsʾ concerning a settlement relating to criminal conduct. The American experience, from the point of view of the enforcement authority, is a success story and could be adopted as a model for fighting corruption in international business. Moreover the increasing number of EU based international companies prosecuted by the DOJ and SEC through the FCPA, urges a critical analysis of the reform of the anti-bribery enforcement systems in Europe. Given the lack of a general competence on the part of the EU in criminal matters, each EU member State retains the sovereign power to design its criminal justice system according to its own domestic tradition. Before considering the importation of external models and practices into any legal order, it is necessary to assess if the importing legal order has the minimum standards required to allow the foreign inspired reform to work in a different legal environment. This chapter provides an overview of the Italian legal framework considering both the substantive and procedural rules. Considering the specific characteristics of the Italian criminal justice system, the possibility of extending the practice of negotiated settlement to Italy is discussed using the US FCPA negotiated settlement model.