Contribution by Avv. Lucia Rapallo published on N&T Plus Diritto – Il Sole 24ORE.

In Official Gazette No. 284 of 29 November 2021, Legislative Decree of 8 November 2021, No. 184, was published, which represents the implementation of Directive (EU) 2019/713 on combating fraud and counterfeiting of payment instruments other than cash: this provision, which shall enter into force as of 14 December 2021, constitutes the latest safeguard in a field of increasing importance both in the fight against organized crime and in market security.

First and foremost, it is noted that Legislative Decree No. 184/2021 introduces important amendments to the Criminal Code, and in particular:

• – Article 493 ter (Improper use and counterfeiting of payment instruments other than cash) is amended, which already contained provisions regarding improper use and counterfeiting of credit and payment cards, extending its scope of application to all payment instruments other than cash;
• – Article 493 quater (Possession and distribution of equipment, devices or computer programs intended to commit offences concerning payment instruments other than cash) is introduced, containing a new criminal offence that punishes with imprisonment of up to two years and a fine of up to 1,000 euros (unless the act constitutes a more serious offence), anyone who produces, imports, exports, sells, transports, distributes, makes available or in any manner procures for themselves or others equipment, devices or computer programs which, by their technical-constructive or design characteristics, are constructed primarily to commit offences concerning payment instruments other than cash, or are specifically adapted for the same purpose;
• – Article 640 ter (Computer fraud) is amended to provide, inter alia, as an aggravating circumstance, the transfer of money, monetary value or virtual currency.

The aforementioned legislative intervention also has an important impact on the discipline relating to administrative liability of entities under Legislative Decree No. 231/2001, as a new article is introduced, Article 25-octies, titled “Offences concerning payment instruments other than cash”.
The catalogue of predicate offences under 231 is thus expanded: indeed, offences constituting predicate offences for administrative liability of entities also include the offences provided for in the Criminal Code concerning payment instruments other than cash, such as Article 493-ter, with a pecuniary sanction from 300 to 800 quotas, and Article 493-quater, with a pecuniary sanction of up to 500 quotas.
Moreover: the predicate offence under 231 of Article 24 bis of Legislative Decree No. 231/2001 is amended, providing that, with reference to Article 640-ter of the Criminal Code, for the aggravated case involving the realization of a transfer of money, monetary value or virtual currency, the pecuniary sanction reaches up to 500 quotas.
Furthermore, a general enhancement of sanctions is provided for in the event of unlawful transfers of payment instruments other than cash: indeed, unless the act constitutes another administrative violation sanctioned more severely, in relation to the commission of any other offence against public faith, against property or that in any case offends property provided for in the Criminal Code, having as its object payment instruments other than cash, the following pecuniary sanctions shall be applied to the entity:

a) if the offence is punished with imprisonment of less than ten years, a pecuniary sanction of up to 500 quotas;

b) if the offence is punished with imprisonment of not less than ten years, a pecuniary sanction from 300 to 800 quotas.

Furthermore, in cases of conviction for one of the offences referred to in paragraphs 1 and 2, the interdictory sanctions provided for in Article 9, paragraph 2, shall be applied to the entity.

To date, the catalogue of predicate offences under Legislative Decree No. 231/2001 is as follows:

• – Improper receipt of disbursements, fraud against the State, a public entity or the European Union for the purpose of obtaining public disbursements, computer fraud against the State or a public entity and fraud in public supplies (Article 24 of Legislative Decree No. 231/2001);
• – Computer crimes and unlawful processing of data (Article 24 bis of Legislative Decree No. 231/2001);
• – Organized crime offences (Article 24 ter of Legislative Decree No. 231/2001);
• – Embezzlement, extortion, improper inducement to give or promise benefits, corruption and abuse of office (Article 25 of Legislative Decree No. 231/2001);
• – Counterfeiting of coins, public credit instruments, stamp values and recognition instruments or signs (Article 2 bis of Legislative Decree No. 231/2001);
• – Offences against industry and commerce (Article 2 bis.1 of Legislative Decree No. 231/2001);
• – Corporate offences (Article 25 ter of Legislative Decree No. 231/2001);
• – Offences with purposes of terrorism or subversion of democratic order provided for in the Criminal Code and special laws (Article 25 quater of Legislative Decree No. 231/2001);
• – Practices of female genital mutilation (Article 25 quater.1 of Legislative Decree No. 231/2001);
• – Offences against individual personality (Article 25 quinquies of Legislative Decree No. 231/2001);
• – Market abuse offences (Article 25 sexies of Legislative Decree No. 231/2001);
• – Offences of culpable homicide and serious or very serious culpable injuries, committed in violation of occupational safety and health and hygiene protection regulations (Article 25 septies of Legislative Decree No. 231/2001);
• – Receiving stolen goods, money laundering and use of money, goods or benefits of illicit origin, as well as self-laundering (Article 25 octies of Legislative Decree No. 231/2001);
• – Offences concerning payment instruments other than cash (Article 25 octies.1 of Legislative Decree No. 231/2001);
• – Offences concerning copyright infringement (Article 25 novies of Legislative Decree No. 231/2001);
• – Inducement not to make statements or to make false statements to the judicial authority (Article 25 decies of Legislative Decree No. 231/2001);
• – Environmental offences (Article 25 undecies of Legislative Decree No. 231/2001);
• – Employment of citizens of third countries whose stay is irregular (Article 25 duodecies of Legislative Decree No. 231/2001);
• – Racism and xenophobia (Article 25 terdecies of Legislative Decree No. 231/2001);
• – Fraud in sports competitions, unauthorized exercise of gambling or betting and gambling games conducted through prohibited devices (Article 25 quaterdecies of Legislative Decree No. 231/2001);
• – Tax offences (Article 25 quinquiesdecies of Legislative Decree No. 231/2001);
• – Smuggling – Border duties (Article 25 sexiesdecies of Legislative Decree No. 231/2001);
• – Transnational offences (Law No. 146/2006, as amended by Law No. 236/2016).

It remains absolutely necessary for enterprises to proceed with the updating of Organization, Management and Control Models under Legislative Decree No. 231/2001 in order to continue to ensure corporate compliance and maintain the exonerating effectiveness of such Models.