False Communications & Other Offences

False corporate communications (Articles 2621 and 2622 Civil Code)

False corporate communications punish corporate officers who, in financial statements, reports or other corporate communications addressed to shareholders or the public, present materially relevant facts that are not true or omit materially relevant facts regarding the economic, financial or asset situation of the company or group.

The offence requires:

• the objective relevance of the altered or omitted information
• the concrete capacity of the conduct to mislead recipients
• the aim of obtaining an unjust profit for oneself or others

The law distinguishes:

• Unlisted companies (Art. 2621 Civil Code): imprisonment from 1 to 5 years
• Listed companies or equivalent (Art. 2622 Civil Code): imprisonment from 3 to 8 years

In the system of administrative liability of entities, these offences are among the predicate offences under Article 25-ter of Legislative Decree 231/2001, with consequent exposure of the entity to pecuniary sanctions and, in the most serious cases, disqualification measures.

The correct maintenance of corporate information, the quality of internal controls and the effective operation of the 231 Model are, in this area, of decisive importance both in a preventive and defensive context.

Other main types of Corporate Crimes

Alongside false corporate communications, Title XI of Book V of the Civil Code provides for further offences of relevance in corporate criminal law, many of which are also relevant for entity liability under Article 25-ter of Legislative Decree 231/2001.

▪ Improper return of contributions (Art. 2626 Civil Code)

This arises when directors return contributions to shareholders or release them from the obligation to make them outside the cases permitted by law, compromising the integrity of share capital as a guarantee for creditors.

▪ Illegal distribution of profits and reserves (Art. 2627 Civil Code)

Concerns the distribution of profits not actually earned or legally designated for reserves, as well as the distribution of non-distributable reserves, damaging the financial balance of the company.

▪ Transactions prejudicial to creditors (Art. 2629 Civil Code)

Sanctions corporate transactions – such as capital reductions, mergers or demergers – carried out in violation of creditor protection rules and capable of causing them financial harm.

▪ Fictitious formation of capital (Art. 2632 Civil Code)

Arises when share capital is formed or increased through simulated allocations, reciprocal subscriptions or overvaluations of contributions, altering the actual financial substance of the entity.

▪ Private-to-private corruption (Art. 2635 Civil Code)

Punishes directors, general managers or liquidators who receive or promise benefits to perform or omit acts in violation of their duties of office or obligations of loyalty, affecting the fairness and correctness of economic relations.

▪ Unlawful influence on the assembly (Art. 2636 Civil Code)

Consists of the fraudulent formation of the assembly majority through simulated acts or other artifices, altering the genuineness of the corporate decision-making process.

▪ Corporate market rigging (Art. 2637 Civil Code)

Concerns the dissemination of false news or the carrying out of simulated transactions capable of altering the price of unlisted financial instruments or affecting public confidence in the financial stability of the company.

▪ Obstruction of supervisory functions (Art. 2638 Civil Code)

Arises in the presence of false or concealing conduct in communications to supervisory authorities (such as Bank of Italy or CONSOB), carried out by fraudulent means in order to prevent or obstruct the exercise of supervisory powers.

Relevance for 231 liability

When these offences are committed in the interest or to the advantage of the entity, they may give rise to the administrative liability of the company under Article 25-ter of Legislative Decree 231/2001, with exposure to pecuniary sanctions and, in the most serious cases, disqualification measures.

In this area, the quality of corporate governance, the effectiveness of internal controls and the adequacy of the Organisational Model play a decisive role, both in a preventive and defensive context.