Following the recent amendments enacted by the Italian Government by Law no. 69 of May 27, 2015, Articles 2621, 2621-bis and 2622 of the Italian Civil Code (hereinafter “ICC”) do set forth the offense of imparting or conveying false corporate information (“false comunicazioni sociali“), providing for the criminal liability of directors, general managers, managers responsible for preparing corporate accounting documents, auditors and liquidators, who, in order to procure an unlawful benefit for themselves or others, do intentionally include relevant material facts which turn out to be untrue in balance sheets, reports or other corporate communications, required by the law, which are addressed to shareholders or to the public, or do omit to therein include relevant material facts whose disclosure is required by the law, so making such documentation tangibly suitable to deceive others as to the economic, patrimonial or financial situation of the company or of the group to which this latter belong. In particular, the offense is punished:
(a) With imprisonment from 1 up to 5 years (Art. 2621 ICC), when committed within non-listed companies;
(b) With imprisonment from 6 months up to 3 years (Art. 2621-bis ICC), when committed within non-listed companies, should the offense be possibly deemed minor, considering the nature and size of the company as well as the methods and effects of the criminal conduct;
(c) With imprisonment from 6 months up to 3 years (Art. 2621-bis ICC), when committed within non-listed companies which does not exceed the income/debts thresholds provided for under Art. 1, par. 2 of R.D. No. 267 of March 16, 1942;
(d) With imprisonment from 3 up to 8 years (Art. 2622 ICC), when committed within listed companies, namely companies issuing securities admitted to trading on an Italian regulated market or on a regulated market of another EU country. The same punishment applies when the above acting is put into be within:
- Companies issuing securities for whose trading on an Italian regulated market or on a regulated market of another EU country the formal request for admission has already been filed;
- Companies issuing securities admitted to trading on an Italian MTF (“sistema multilaterale di negoziazione“);
- Companies which do control companies issuing securities admitted to trading on an Italian regulated market or on a regulated market of another EU country;
- Companies collecting savings from the public or otherwise managing it.
As made clear by the letter of the law, the conducts at hand do consist in the fraudulent misrepresentation of the economic, patrimonial and financial situation of the concerned company by way of the making of false statements or the omission of mandatory information within accounting documents or corporate communications prescribed by the law, which are addressed to the public or to the company’s shareholders. In fact, such untruly reporting or omitting to report has to:
- Concern facts relevant for the economic, patrimonial and financial situation of the concerned company or of the group to which this latter belong to be possibly identified, regardless of such facts relating to assets owned by the company or to assets simply held or managed by the company on behalf of third parties;
- As a result, be tangibly suitable to mislead others as to the economic, patrimonial and financial situation of the concerned company or of the group to which this latter belong.
It is worth noting that, should the above false statements or omissions concern data which − even if relevant − are made by evaluation, such statements or omissions cannot found the liability for the offense at hand. This being said, it is important to underline that the untruly reporting or omitting to report as above is in any case significant under the law provisions at hand only if committed by the specific individuals listed therein − namely all those holding the offices of director, general manager, manager responsible for preparing corporate accounting documents, auditor or liquidator − and if put in to be with the mens rea thereby required. In this regard, the criminal liability is triggered only when the concerned corporate individual does knowingly and willingly manipulate balance sheets, reports or the other aforementioned corporate communications:
- with the awareness and intent of fabricating the economic, patrimonial and financial situation of the company or of the group to which this latter belong;
- with the awareness of possibly misleading others as to the economic, patrimonial and financial situation of the company or of the group to which this latter belong;
- with the specific intent of obtaining an unlawful gain for himself/herself or others.
The offense at stake can be prosecuted ex officio, but in the case under c) above. In fact, should the offense be committed within non-listed companies not exceeding the income/debts thresholds set forth in Section 1, par. 2 of R.D. No. 267 of March 16, 1942, it can be prosecuted only upon filing of a criminal complaint by the company, the shareholders, the creditors or any of the other recipients of the concerned corporate communication. In light of the foregoing, the current offenses of false corporate communications do clearly differ from the former criminal responsibility for:
- distinguishing between false corporate communications within listed companies and false corporate communications within non-listed companies;
- worsening the penalties previously provided for by the law, currently punishing both the above offenses with imprisonment;
- excluding the criminal relevance of false statements or omissions concerning data obtained on the basis of evaluations;
- excluding the actual damage to the company, shareholders or creditors as requirement for the criminal relevance of the conducts;
- distinguishing the criminal responsibility for offenses committed within non-listed companies in light of the seriousness of the offense.
