The PIF directive implementation in Italy and the ‘evergreen’ article 316-ter of the Italian Criminal Code
The 2017/1371 directive on the protection of EU financial interests poses interesting questions about its implementation in the Italian legal system. As to anti-fraud measures, inter alia, the controversial relationship between articles 316-ter and 640-bis of the Italian Criminal Code is noteworthy. Such a matter has been debated at length among scholars and case law, including the Constitutional Court. The directive implementation process, however, has not solved the said problem, while additional critical issues are in sight
The paper analyzes the ‘dynamics’ of non-punishment of tax crimes perpetrated by individuals. Being an indispensable keystone of criminal provisions aimed to collect taxes, non-punishment after the Legislative Decree no. 158/2015 and even more after the Law no. 157/2019 ‘completes’ the protective tools of the said legal interest, notwithstanding some uncertainties and legal provisions non always in line with the deep trend lines of the system.
The entry of tax offenses into Legislative Decree 231/2001 as a result of Law 157/2019, now followed by Legislative Decree 75/2020, appears completely physiological, in light of the structure and the rationale of corporate liability and furthermore it constitutes a late response to that substantive tendency which has hitherto fueled interpretative distortions in malam partem. Overall, the system seems to offer already possible remedies, in terms of the sanctioning proportion, to potential collisions with the ne bis in idem declined according to the parameter of the idem factum and on the basis of the jurisprudential criteria of substantial and procedural connection, with particular regard the regulation of the payment of the tax debt. Nonetheless, the legislative intervention appears at times incomplete or ambiguous but, at the same time, it lends itself to initiating a decisive case law revirement in terms of delegation of functions
Law Decree no. 124/2019 (conv. into Law. N. 157/2019) lastly amended Leg. Decree n. 74/2000 in order to enhance its effectiveness in combatting tax evasion, through the introduction of more severe criminal sanctions. Notably, both the provisions on extended confiscation (Artt. 12 ter Leg. Decree n. 74/2000) and the new direct liability of legal entities for tax fraud committed by their representatives (Art. 25 quinquiesdecies Leg. Decree no. 231/2001, lastly amendend by Decree Law n. 75/2020) increase powers of confiscating and freezing proceeds of fiscal offences. Thus, it is essential to ensure that the fight against tax evasion respects fundamental rights and the requirements of fairness and proportionality, as required by European Court of Human Rights and Italian Constitutional Court
Law Decree no. 124/2019, later confirmed by Law no. 157/2019, the lawmaker modified significantly tax criminal offences, providing also for the applicability of the so-called ‘enlarged’ confiscation under art. 240-bis of the Italian Criminal Code and inserting certain tax crimes in the list of offences that trigger corporate liability. This paper aims to highlight – on one hand – the (re)organizational burdens on companies, in order to update their compliance models, and – on the other hand – the relevant systemic inconsistencies in respect to the relationship between individual and corporate liability.
Tax crimes in Italy were repeatedly reformed in the last decades, quite irrationally and in a contradictory way from a criminal policy standpoint. The so-called ‘declaration’ offences, still the architrave of tax criminal law, are very controversial and they need to be rationally reformed, also in order to characterize each criminal provision.
The decision 53/2019 of the Madrid Provincial Court (sec. 17) from the 22nd of January 2019, convicted Cristiano Ronaldo as author of four crimes against the Spanish Treasury. The prison sentences imposed have been substituted by fines. Below we will make a summary of the facts and will critically analyze them, its consequences and also its relation to the preventive function of criminal law
The application of the Taricco judgment to the principle of assimilation underlies a comparison between serious VAT fraud and the crime set forth in Article 291-quater TULD. However, a close analysis of this smuggling crime calls into question the assumption of the Luxembourg Court and points out the political nature of the Taricco judgment. Therefore, this paper will focus on the consequences on the EU criminal policy arising from this decision, with particular attention to the PIF Directive.