{"id":944,"date":"2024-12-04T09:17:05","date_gmt":"2024-12-04T08:17:05","guid":{"rendered":"https:\/\/www.ggmavvocati.it\/?p=944"},"modified":"2024-12-12T09:22:14","modified_gmt":"2024-12-12T08:22:14","slug":"the-application-of-articles-353-and-353-bis-of-the-penal-code-in-the-context-of-legislative-decree-231-2001","status":"publish","type":"post","link":"https:\/\/www.ggmavvocati.it\/en\/the-application-of-articles-353-and-353-bis-of-the-penal-code-in-the-context-of-legislative-decree-231-2001\/","title":{"rendered":"The Application of Articles 353 and 353-bis of the Penal Code in the Context of Legislative Decree 231\/2001"},"content":{"rendered":"

Articles 353 and 353-bis of the Penal Code<\/b>, which respectively regulate the crimes of disruption of freedom of tenders<\/b> and disruption of the procedure for choosing a contractor<\/b>, are fundamental tools for ensuring the transparency and fairness of public tenders. Their recent integration into the system of administrative liability of entities, as outlined in Legislative Decree 231\/2001<\/b>, broadens their scope, focusing not only on criminal repression but also on prevention through organizational mechanisms.<\/p>\n

What do Articles 353 and 353-bis of the Criminal Code provide for?<\/b><\/p>\n

(a) Article 353 (Disturbing the freedom of auctions)<\/b>: This article punishes anyone who, by violence, threats, gifts, promises or other fraudulent means, disturbs the freedom of auctions (public auctions) in order to influence their outcome.<\/p>\n

(b) Article 353-bis (Disturbing freedom of the procedure for choosing a contractor)<\/b>: This article expands protection by including any stage of contractor selection in public procedures, punishing anyone who, by fraudulent means, disturbs the freedom or regularity of the proceedings.<\/p>\n

By way of example, the crime of disrupting the freedom of<\/b> auctions takes place when a contractor, in agreement with other participants in a public auction, agrees not to raise more than a certain amount in order to win the asset at a price below market value.<\/p>\n

Again, in the context of calls for tenders — in any form, including private bidding — published by contracting stations, a company attempts to be favored by entering<\/b> into a sponsorship agreement or determining to make a donation to the contracting station, for the sole purpose of getting money in exchange, precisely, for an advantage.<\/p>\n

As for the crime related to disturbing the freedom of the procedure for choosing a contractor, <\/b>consider, for example, the case where a public official alters the criteria for evaluating bids in a tender in order to favor a particular competitor, ensuring that the latter wins despite the fact that the bid is not the most advantageous.<\/p>\n

The Impact of Legislative Decree 231\/2001<\/b><\/p>\n

Legislative Decree 231\/2001 (Decree 231)<\/b> introduces a system of administrative liability for entities that benefit or profit from certain crimes committed in their interest or advantage. Therefore, Articles 353 and 353-bis are among the predicate offenses – in Article 24 of the Decree – that can result in the liability of the entity.<\/p>\n

This liability is triggered if the crime is committed by:<\/p>\n