Private-to-private corruption may concern you if, within a company or private entity, a personal advantage is linked to a disloyal decision: the choice of a supplier, the omission of a check, the granting of commercial terms or the transmission of confidential information. However, not every gift or corporate irregularity constitutes this crime.
I help you distinguish a corrupt agreement from a lawful benefit, understand when a mere promise is enough and what changes if the offer is rejected. We will also see why the recipient's position is decisive, when the company may be held liable pursuant to Legislative Decree 231, and which elements must be addressed separately in the defense of the individual and the entity.
When an exchange becomes private-to-private corruption
Article 2635 of the civil code punishes an exchange between an undue benefit and a disloyal act. On the internal side of the company, the conduct consists in soliciting or receiving money or another undue benefit, or accepting the promise thereof, in order to perform or omit an act contrary to official duties or duties of loyalty. On the external side, the person who offers, promises or delivers that advantage is held liable.
The core point is therefore not the mere existence of a payment, a gift or a personal relationship. It is necessary to prove the purpose-driven link between the advantage and the conduct requested from the recipient. Compensation provided for under a transparent contract has a different cause from a reserved benefit personally intended for someone who must alter a decision in the entity's interest.
"Other advantage" does not mean only sums of money. A non-due concrete advantage granted to the recipient or a third party may take on significance: a free service, a trip, a business opportunity or a personal benefit. Form and value do not decide on their own: the reason for the allocation, its actual recipient and the act it is supposed to remunerate are what count.
Duties pertaining to the office derive from the law, the bylaws, the contract, delegations and the rules defining the function. Duties of loyalty instead require not sacrificing entrusted interests to obtain a concealed personal advantage. The concrete content of the breached duty must be identified: it is not enough to state generically that a decision was inconvenient.
Under the current text, it is not required that the company suffer damage. Nor is it necessary for the agreed act to be materially performed when the corrupt agreement has already been perfected through the receipt or acceptance of the promise. The text of Articles 2635, 2635-bis and 2635-ter can be consulted in the Civil Code on Normattiva.
Who can be involved and why the function performed matters
On the side of the person receiving or soliciting the benefit, Article 2635 indicates directors, general managers, managers in charge of drawing up corporate accounting documents, statutory auditors and liquidators. The same penalty provided for these subjects applies to those who, within the organization of the company or private entity, exercise other managerial functions, even if the formal title of the position is different.
The qualification does not depend solely on the business card. Effective powers count: autonomy in decisions, ability to commit resources, coordination of people and influence on corporate proceedings. A purchasing manager with selection power may find themselves in a different position from someone performing merely executive tasks, even when both are called "employees".
The provision furthermore includes those subject to the direction or supervision of the subjects indicated in the first paragraph, but provides a lower penalty for this hypothesis. Reconstructing the actual function thus serves both to establish whether the provision applies and to identify the relevant sanctioning treatment.
On the side of the person offering, promising or giving the benefit, the crime can be committed by anyone, even through an intermediary. The interposition of a consultant, agent or other person does not automatically interrupt the connection with the subject promoting the operation. However, awareness of the pact must be proven: an intermediary is not liable solely because they transmitted money, if proof that they knew and shared the illicit purpose is lacking.
Consummated corruption and incitement: the recipient's response changes the crime
Private-to-private corruption and incitement are not two equivalent ways of describing the same fact. If the offer or promise is accepted, or the benefit is received within the scope of the pact, the crime under Article 2635 may materialize. Acceptance marks the decisive passage, even if the disloyal performance is scheduled for a later time.
Article 2635-bis instead governs the offer or promise that is not accepted. The provision punishes anyone who proposes the benefit to a qualified subject so that they breach their duties, but encounters a refusal. This is not simply a disciplinary offense or an attempt without consequences: it is an autonomous form of incitement, with the penalty provided for the corresponding hypothesis reduced by one third.
Initiative coming from the inside can also constitute incitement. If a director, manager or other worker with managerial functions solicits an advantage to perform the disloyal act, but the counterpart does not accept, the second paragraph of Article 2635-bis operates. If the solicitation is accepted, the matter instead enters the scope of the corrupt agreement.
Evidence must distinguish an illicit proposal from normal negotiation. Asking for a discount intended for the company, negotiating declared commission or proposing sponsorship subject to internal procedures does not equate to promising a personal advantage. Incomplete messages, ambiguous expressions and out-of-context conversations require reading alongside contractual relationships, the recipient's powers and the actual destination of the benefit.
Penalties, procedural requirements and patrimonial consequences
For directors, expressly indicated subjects and persons exercising managerial functions, Article 2635 provides for imprisonment from one to three years. If the recipient is a subject subject to their direction or supervision, the penalty reaches up to one year and six months. Anyone who corrupts suffers the penalty connected to the position of the person to whom they offer, promise or give the benefit.
Penalties are doubled when the fact concerns companies with securities listed on regulated markets in Italy or other European Union States, or securities widely distributed among the public to a significant extent according to financial regulations. Conviction may also produce accessory consequences in the cases provided for by Article 2635-ter.
The crime is now prosecutable ex officio: the complaint of the company or another injured party is not necessary. Law no. 3 of January 9, 2019 repealed the paragraphs providing for prosecution upon complaint for Articles 2635 and 2635-bis; the amendment entered into force on January 31, 2019. The relative intervention is reported in Law no. 3 of 2019 on Normattiva.
For historical facts dating back in time, the date of the conduct remains essential. The substantive wording was deeply amended by Legislative Decree 38/2017, which entered into force on April 14, 2017, while prosecutability changed in 2019. The current text cannot be applied automatically to any past event: the successive regulations and the individual contested conducts must be compared.
The patrimonial dimension does not concern only the penalty. Articles 2635 and 2641 provide for confiscation within the limits established by law, even by equivalent value when it is not possible to directly target what derives from the crime. For Article 2635, the equivalent measure cannot be lower than the value of the benefits given, promised or offered. Seizure and confiscation therefore require an independent calculation, which does not necessarily coincide with the entire value of the commercial deal.
When the company is also held liable pursuant to Legislative Decree 231
The liability of the natural person does not automatically entail that of the entity. Article 25-ter of Legislative Decree 231/2001 includes active corruption provided for by the third paragraph of Article 2635 and active incitement of the first paragraph of Article 2635-bis in the catalog of corporate crimes. The 231 risk therefore concerns the side of whoever offers, promises or gives the benefit to favor the entity.
This distinction has an important consequence. If a manager receives a bribe betraying their company for a personal advantage, the damaged company does not liability, for that sole fact, for the predicate crime indicated in letter s-bis. The position of the enterprise whose administrator, employee or intermediary pays the manager of another organization to obtain a contract or preferential treatment is different.
Based on Article 5, the entity may be held liable when the crime is committed in its interest or advantage by an apical person, by someone who also de facto exercises management and control, or by a subject subject to their direction or supervision. Interest concerns the purpose pursued at the time of the conduct; advantage can emerge from the benefit concretely obtained. The entity is not liable if the author acts in their exclusive personal interest or that of third parties.
For active corruption, Article 25-ter provides for a pecuniary sanction from four hundred to six hundred quotas; for active incitement, from two hundred to four hundred quotas. Furthermore, the disqualifying sanctions of Article 9, paragraph 2 apply, capable of affecting activity, authorizations, relations with the public administration, concessions and advertising. If the entity achieves a profit of significant entity, the pecuniary sanction increases by one third. The discipline is reported in Legislative Decree 38/2017, Article 6.
The organizational model is not merely a formal defense
For a crime committed by an apical subject, Article 6 requires the entity to prove that it has adopted and effectively implemented, prior to the fact, a model suitable for preventing crimes of the same type, entrusting supervision to a body endowed with autonomous powers. It is also required that the author fraudulently evaded the model and that there was no omitted or insufficient supervision. The text of Article 6 of Legislative Decree 231/2001 specifies these conditions.
A generic document is not enough. In corporate processes exposed to corruption risk, the separation between those who propose and those who authorize an expense, the traceability of payments, checks on consultants and intermediaries, the management of gifts and hospitality, the declaration of conflicts of interest and flows toward the supervisory body take on significance.
When the crime is committed by a subordinate, the entity's liability depends on the non-observance of direction or supervision obligations that made the conduct possible. Here too, the actual implementation of protocols, training, checks and reactions to anomalies count. The subsequent adoption of new procedures does not cancel the previous fact, although it may assume significance in the various stages of the proceedings provided for by the decree.
How to set up the defensive verification
The first question is whether a corrupt pact truly exists. The defense must separate advantage, recipient, counterpart and timing of the agreement. A transfer of money can have a contractual cause; a gift may not be linked to a decision; a questionable choice can depend on corporate criteria and not on a personal advantage. However, these elements must find confirmation in the facts, not in an ex-post-constructed explanation.
The second point concerns the recipient's function and the duty they should have breached. Delegations, procedures, contract and effective organization clarify whether the person had managerial powers, was subject to others' supervision or could not influence the decision. The disloyal act must be identifiable: a contestation that does not clarify which obligation was betrayed presents a different problem from one founded on a precise alteration of the procedure.
It is then necessary to establish whether the proposal was accepted. The difference between Article 2635 and Article 2635-bis affects qualification and penalty. Silence, an interlocutory response or the continuation of commercial contacts do not always have the same meaning. The context can show acceptance, refusal or lawful negotiation extraneous to the personal request.
For the entity, the defensive line is autonomous compared to that of the individual. Any corporate interest or advantage, the author's position, the powers concretely exercised and the effectiveness of existing controls must be distinguished. An apparent advantage does not prove the entity's interest on its own, especially if the operation imposed costs, risks or conditions contrary to its choices.
If an assessment is underway, it is prudent to preserve messages, contracts, accounting records, authorizations and original versions of documents. Erasures, late modifications or direct contacts to harmonize reconstructions can aggravate the evidentiary problem. Collection must respect the rights of the people involved and separate internal analysis from defensive decisions in the proceedings.
Frequently Asked questions
Does a gift to a manager always constitute private-to-private corruption?
No, a gift is not enough on its own. It must be an undue benefit linked to the request to perform or omit an act contrary to official duties or duties of loyalty. Recipient, timing, transparency, internal rules and relationship with the decision count. A permitted gift devoid of counterpart does not automatically coincide with a corrupt pact.
Does the crime exist even if the agreed act is not performed?
Yes, the execution of the act is not always necessary. Article 2635 can be perfected with the solicitation, receipt or acceptance of the promise within the scope of the illicit agreement and, for the corrupter, with the conducts provided for by the rule. If the proposal is not accepted, the autonomous provision of incitement under Article 2635-bis may instead apply.
If the offer is rejected, is there no crime?
The refusal can integrate incitement. The unaccepted offer or promise is legally relevant when it concerns an undue benefit intended for a qualified subject and aims to obtain the breach of their duties. If this purpose is lacking, the recipient does not hold the required function or the proposal has a lawful cause, the qualification must be re-examined.
Does the company bear liability if one of its managers receives a bribe?
Not automatically for the predicate crime under examination. Article 25-ter recalls active corruption and incitement, i.e., the side of whoever offers, promises or gives the benefit. If the manager betrays their company for personal interest, the natural person is primarily liable. Any liability of the entity requires a distinct predicate crime and related imputation criteria.
Does a 231 model always avoid company liability?
No, effective implementation counts. For apical subjects, the conditions of Article 6 must recur, including a suitable preventive model, autonomous supervision, fraudulent circumvention and absence of shortcomings of the supervisory body. For subordinates, direction and control obligations are relevant. Generic procedures or those remaining on paper do not automatically produce an exempting effect.
The first step facing a contestation
A contestation for private-to-private corruption requires precisely separating the individual's position, that of the company and any incitement. Date of facts, function performed, cause of the benefit and proof of the agreement guide the entire analysis. If you need to understand a request from the authority, an internal investigation or a risk pursuant to Legislative Decree 231, you can contact me to frame these elements without overlapping different legal liabilities.