JUDGMENT NO. 185
YEAR 2025
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
Composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following
JUDGMENT
in the constitutional legitimacy review proceedings concerning Article 1, paragraph 1, letter e), of Law 9 August 2024, no. 114 (Amendments to the Penal Code, the Code of Criminal Procedure, the Judicial Organization, and the Military Organization Code), substituting Article 346-bis of the Penal Code, initiated by the Preliminary Hearing Judge of the Ordinary Court of Rome, in the criminal proceedings against A.V. T. and others, by order of 31 January 2025, registered under no. 47 of the register of reference orders for 2025 and published in the Official Gazette of the Republic no. 13, special series, of the year 2025.
Having seen the statements of appearance of A.V. T., S. srl, J.E. S.S.A., D.A. S.C., G. srl, as well as the statement of intervention by the President of the Council of Ministers;
Having heard in the public hearing of 7 October 2025 the reporting Judge Francesco VIGANÒ;
Having heard the lawyers Alfonso Celotto and Giorgio Perroni for A.V. T., Bruno Andò for S. srl, Luca Ripoli for J.E. S.S.A., D.A. S.C. and G. srl, as well as the State Attorneys Massimo Di Benedetto and Lorenzo D’Ascia for the President of the Council of Ministers;
Deliberated in the council chamber of 7 October 2025.
Having Considered in Fact
1.– By order of 31 January 2025, registered as no. 47 of the reference orders for 2025, the Preliminary Hearing Judge of the Ordinary Court of Rome raised questions of constitutional legitimacy regarding Article 1, paragraph 1, letter e), of Law 9 August 2024, no. 114 (Amendments to the Penal Code, the Code of Criminal Procedure, the Judicial Organization, and the Military Organization Code), which substituted Article 346-bis of the Penal Code, in reference to Articles 11 and 117, first paragraph, of the Constitution, in relation to Article 12 of the Criminal Law Convention on Corruption, done at Strasbourg on 27 January 1999, ratified and enacted by Law 28 June 2012, no. 110 (hereinafter: Strasbourg Convention).
1.1.– The referring judge is holding the preliminary hearing against numerous defendants, both natural persons and companies, in proceedings where, among other things, the crimes of illicit influence peddling, money laundering, and self-money laundering, as well as the corresponding administrative offenses connected to the crime, are contested.
1.2.– Concerning relevance, the referring judge states that they must apply Article 346-bis of the Penal Code to decide both on the request for application of a sentence made by one of the defendants and on the request for committal for trial against the others (who have not requested alternative procedures).
The charges, according to the prosecution's account, concern a "onerous mediation," aimed at "the commission of acts which, under the legislation in force at the time, constituted instances of abuse of office (Article 323 of the Penal Code) to the undue advantage of private parties." The defendant M. B. (meanwhile deceased, as appears from the hearing minutes transmitted with the main proceedings file), exploiting existing relationships with the then Extraordinary Commissioner for the national health emergency, D. A., allegedly was promised and received over 11.9 million euros from the entrepreneur and co-defendant A.V. T., who acted in concert with other entrepreneurs also defendants. This sum allegedly constituted the compensation for his illicit mediation with the Extraordinary Commissioner, aimed at inducing the latter to grant the T. group a privileged position in the supply of protective masks from China, "in open violation of the duties of impartiality expressly referred to in Article 122 of Decree-Law no. 18/2020 (so-called 'Cura Italia' decree) and the rules on written form ad substantiam for public administration contracts."
In fulfillment of the illicit mandate, M. B. allegedly effectively "accredited" A.V. T. with the Commissioner, who allegedly assured the entrepreneur the possibility of selecting the Chinese companies with which the Commissioner would conclude contracts for the supply of approximately 800 million protective masks, for a total amount of approximately 1,250,000,000 euros; and this without any formal mandate or written contract with A.V. T., who would thus have been able to collect commissions on the prices paid by the Government, without any public control.
However, following the repeal of the crime of abuse of office and the reduction of the scope of the illicit influence peddling offense by Law no. 114 of 2024, the act contested against A.V. T. and the other co-defendant entrepreneurs would now be devoid of criminal relevance.
1.3.– Still on admissibility, the referring judge recalls that one of the exceptions to the preclusion of constitutional review in criminal matters with in malam partem effects (such as those that would result from the hoped-for revival of the criminal provision preceding Law no. 114 of 2024) is identified by the constitutional jurisprudence as the conflict between the contested provision and supranational obligations relevant under Articles 11 and 117 of the Constitution (citing, among others, judgments No. 37 of 2019 and No. 8 of 2022). This case, the judge argues, falls under this exception, as the legislator allegedly violated "a true obligation to criminalize" illicit influence peddling, stemming from Article 12 of the Strasbourg Convention.
1.4.– Regarding the non-manifest groundlessness of the questions, the referring judge dwells on the evolution of the criminal offense under Article 346-bis of the Penal Code, introduced by Law 6 November 2012, no. 190 (Provisions for the prevention and repression of corruption and illegality in public administration) and reformed for the first time by Law 9 January 2019, no. 3 (Measures to combat crimes against public administration, as well as on the statute of limitations for the crime and on the transparency of political parties and movements).
With the 2019 amendment, in implementation of the international obligation deriving from the Criminal Law Convention on Corruption, the legislator allegedly broadened the scope of application of the crime, punishing with imprisonment from one year to four years and six months the conduct of anyone who, outside the cases of complicity in proper and improper corruption, "exploiting or claiming existing relationships with a public official or a person in charge of a public service or one of the other subjects referred to in Article 322-bis, unduly causes to give or promise, to himself or to others, money or other benefits, as the price of his illicit mediation towards a public official or a person in charge of a public service or one of the other subjects referred to in Article 322-bis, or to remunerate him in relation to the exercise of his functions or powers," a penalty also extended to "whoever unduly gives or promises money or other benefits."
Law no. 114 of 2024, with the contested provision, allegedly reduced "to a considerable extent" the scope of application of the offense under several profiles: a) firstly, the illicit mediation must now consist of the "intentional utilization of existing relationships with the public agent," excluding those merely "claimed"; b) the benefit given or promised is then limited to money or other "economic" benefit; c) finally, onerous mediation is criminally relevant only insofar as it is aimed at the commission, by the public agent, of "an act contrary to official duties constituting a crime from which an undue advantage may derive."
The simultaneous repeal of abuse of office, carried out by the same Law no. 114 of 2024, allegedly rendered the offense under the amended Article 346-bis of the Penal Code "difficult, if not impossible, to apply" in cases of onerous mediation (such as the one at issue in the referring judgment), as "one of the most frequent crimes targeted by onerous mediation was precisely abuse of office."
This being established, the referring judge emphasizes the mandatory nature of Article 12 of the Strasbourg Convention, highlighted by the expression "shall adopt [...] as criminal offences." From the Convention, therefore, an "actual obligation to criminalize" influence peddling derives for the Contracting States and not merely a "recommendation" or an "obligation to consider," as provided instead, also for influence peddling, by the United Nations Convention against Corruption, adopted by the UN General Assembly on 31 October 2003, ratified and enacted by Law 3 August 2009, no. 116 (hereinafter: Mérida Convention).
In light of the aforementioned Article 12 of the Strasbourg Convention, which identifies a minimum core of conduct that must necessarily be the subject of criminalization, the Italian legislator allegedly has the duty to ensure relevance, for the purposes of punishability, to the exploitation by the intermediary of relationships "not only existing but also claimed/boasted," as well as to the promise or giving, as consideration for the illicit conduct, of "any undue advantage and not only [of] economic benefits."
Furthermore, the Strasbourg Convention does not limit "the concept of illicit mediation to that aimed at causing the public official to commit an act contrary to their official duties constituting a crime."
Nor can it be argued that the conventional definition of influence peddling, "by delineating in a detailed manner the conduct that must be provided as a crime by the member states (as a 'minimum content')," is itself in conflict with the principles of specificity and determinacy of the criminal provision derivable from Article 25, second paragraph, of the Constitution "or with other fundamental principles of the Constitutional Charter"; therefore, it can well be taken as an interposed parameter in the constitutional legitimacy review. Nor, again, can the reservations made by the Italian Government at the time of lodging the ratification of the Strasbourg Convention with regard to illicit influence peddling be invoked, availing itself of the faculty provided for in Article 37 of the Convention itself, since the Italian State allegedly decided not to confirm them upon the approval of Law no. 3 of 2019.
In conclusion, the referring judge doubts the constitutional legitimacy of the contested provision because it allegedly restricted the scope of the criminal offense to "a range of conduct much more limited than the 'minimum content' provided for by Article 12" of the Strasbourg Convention. More specifically, it should be deemed constitutionally illegitimate, "as far as relevant in the present case, in the part where, by requiring that illicit mediation be only that aimed at the commission of an act contrary to official duties constituting a crime, it does not include among the possible purposes of the conduct the acts falling within [the] now repealed hypothesis of abuse of office."
2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, requesting that the questions of constitutional legitimacy be declared inadmissible or unfounded.
2.1.– Inadmissibility would result from the "granite jurisprudence" of the Constitutional Court according to which, "as a rule, questions of constitutional legitimacy that tend to obtain declarations of unconstitutionality with in malam partem effects in the field of substantive criminal law are inadmissible."
The present case would not fall under any of the exceptions to the principle delineated by the case law of this Court, since all the judgments directly or indirectly cited by the referring judge "expressed themselves in relation to cases where a source of European Union law, and not conventional international law, militated in favor of the declaration of unconstitutionality" (citing, among others, judgments No. 37 of 2019, No. 32 of 2014, and No. 28 of 2010). Moreover, the referring judge allegedly failed to "in the least motivate on the reasons for the deemed possibility of including the hypothesis of a provision of conventional international law providing for the obligation to criminalize among the exceptions delineated by constitutional jurisprudence [...]." The questions would therefore be inadmissible due to the erroneous assimilation between conventional law and European Union law, which has "a different, more intense hierarchical value than what occurs for conventional international law, which justifies the non-automatic extension to international law of every ruling relating to EU law."
The principle of strict legality of crime and punishment (along with its corollary of the reservation of law), established by Article 25, second paragraph, of the Constitution, "which expresses not a generic constitutional principle, but a fundamental principle, also relevant as a counter-limit," would prevent a ruling of unconstitutionality due to violation of Article 117, first paragraph, of the Constitution with in malam partem effects. The State, eventually non-compliant with the international agreement, would at most be "exposed to political responsibility (or, in any case, to the consequences provided for by international treaty law for the violation of the pacta servanda rule) before the International Community," and "the principle of strict legality/absolute reservation of law in criminal matters [...] cannot be subordinate and recessive in the face of a hypothetical violation of Article 117 of the Constitution (from the perspective [...] of conventional international law, and not of European Union law)."
2.2.– The questions would also be inadmissible due to lack of relevance, under three different profiles:
a) because the referring judge allegedly "radically omitted to ascertain the definability of the judgment pursuant to Article 129 of the Code of Criminal Procedure," verifying, in particular, that the prerequisite of the so-called obvious innocence" of the defendant is lacking, in the presence of which the acquittal grounds "because the fact did not occur" and "because the defendant did not commit it" would prevail, as being more favorable, "even in a possible concurrence with the acquittal ground relating to abolitio criminis";
b) because the judge allegedly omitted to provide reasons for which "the concrete facts would not also be subsumable under the conceptual perimeter of the new version of Article 346-bis of the Penal Code," even in the face of an amendment to the charge by the Public Prosecutor following the introduction of the contested provision;
c) because the referring judge allegedly leveled the criticisms at three aspects of novelty in the reformulated criminal offense (referring to the necessity of relationships that are "existing" and not only merely "claimed but non-existent," of a benefit of only "economic" nature, and of a mediation "teleologically oriented towards the commission of a crime"), which, however, at least in part, would have no relevance in the main proceedings. The concrete hypothesis described by the referring judge, in fact, would be "susceptible of satisfying [...] both [the first two] requirements even considering the new version of Article 346-bis of the Penal Code, because: − the accusation alleges the exploitation of existing relationships; − the accusation hypothesized the promise/delivery of eleven million" euros.
2.3.– On the merits, the questions would be "manifestly unfounded."
2.3.1.– Firstly, the State's defense considers that Article 12 of the Strasbourg Convention does not impose an obligation, and "in any case not an obligation of the type held by the referring judge," as evidenced by the fact that some of the adhering States have not introduced the crime in question into their legal systems (among others, Germany, the Netherlands, Denmark, and the United Kingdom), and that, instead, the "criminalization of illicit influence peddling facts" is provided for in the "EU directive project (Proposal COM-2023-234 final), on corruption": which, according to the intervening party, presupposes "the awareness of the non-existence, to date, of such an obligation."
The conventional provision, moreover, does not deliver to interpreters "a rigid, complete, and analytical definition of the crime that States must simply transpose into their legal system," but only indicates "general guidelines in relation to which States must legislate," and the international obligation can be satisfied "also through the joint reading of multiple criminal provisions."
In particular, the supranational source does not intend to criminalize "any influence peddling, any lobbying activity," as "the essence of criminal disvalue is subjectively oriented only towards that particular influence peddling that is illicit." According to the Explanatory Report to the Criminal Law Convention on Corruption, in fact, the "improper influence must contain a corrupt intent by the influence peddler: acknowledged forms of lobbying do not fall under this notion." Therefore, a provision (like the one contested) that limits "the cases in which influence is illicit to those in which mediation tends towards the commission of a crime by the public agent" would be legitimate, as the national legislator has gone "even beyond the minimum theorized by the Convention (precisely by criminalizing mediation aimed at the commission of any crime, and not only the commission of a corrupt act)."
In any case, the Strasbourg Convention, "by not exactly and completely defining the acts of illicit influence peddling to be criminally sanctioned, nor by illuminating the boundary between the crime and lobbying activity," does not impose an unchangeable obligation of criminalization on States, but leaves them "a margin of discretion to concretely define the offense [...] in consideration of 'their domestic law' (and, therefore, in the case of interest, in consideration of the need to further value the principles of offensiveness and determinacy)."
2.3.2.– The questions would also be unfounded because the criticisms are directed against a provision that allegedly did not have the innovative effect attributed to it by the referring judge, but was limited to specifying what the Court of Cassation had already affirmed with reference to the previous wording of Article 346-bis of the Penal Code, namely that "illicit" mediation must be understood as that "aimed at the commission of a criminal offense – a crime – capable of producing advantages for the instructing private party" (citing Supreme Court of Cassation, Sixth Criminal Section, judgment 14 October 2021 - 13 January 2022, no. 1182 and judgment 8 July - 9 November 2021, no. 40518).
The jurisprudence of the Court of Cassation, therefore, allegedly already excluded "the hermeneutic option of considering illicit the mediation aimed at causing the public official to commit any illegality (in theory, only disciplinary, or civil, administrative, or accounting)." This solution would be "very reasonable, also in consideration of the uncertain application outcomes that such an interpretation would have delivered to interpreters."
2.3.3.– As for the criticism directed at the loss, in the new wording of the crime, of the criminal relevance of hypotheses where relationships are only claimed but not actually existing, the intervening party maintains that the text of Article 12 of the Strasbourg Convention does not necessarily require the criminalization of hypotheses of non-existent relationships. In fact, the pair of verbs "asserts or confirms" used in the cited Article 12 does not seem "to necessarily mean 'asserts non-existent relationships, or confirms existing relationships,' but more simply 'asserts (in the sense of claiming existence) or confirms (in the sense of proving existence),' without the conventional legislator having dealt with the issue of the truth or falsity of what is asserted in the first hypothesis"; an issue on which, therefore, the contracting State retains a residual margin of appreciation and discretion.
2.3.4.– Similar considerations, finally, would apply to the limitation, by the 2024 legislator, of the notion of relevant "benefit" to that of an economic nature: in this case too, the conventional provision does not seem necessarily to require that the undue advantage may be of a nature "not only economic."
3.– A.V. T., defendant in the main proceedings for the crime under Article 346-bis of the Penal Code, entered an appearance in the proceedings, requesting that the questions be declared inadmissible or unfounded.
3.1.– Inadmissibility would derive, firstly, from the lack of relevance of the question, the contested conduct being compliant with the new wording of the criminal offense. The current second paragraph of Article 346-bis of the Penal Code, moreover, would constitute "an explicitiation (almost literal) of the interpretation that the Supreme Court of Cassation had repeatedly already given to the term 'illicit mediation' contained in the previous Article 346-bis of the Penal Code," reducing it to that "aimed at the commission of a 'criminal act' capable of producing advantages for the instructing private party" (citing, in this case too, the judgments of the Court of Cassation no. 40518 of 2021 and no. 1182 of 2022, the latter rendered in the context of the same main proceedings): a criminal act which should also "constitute an act contrary to the official duties to which the 'trafficked' subject is held" (referring to Supreme Court of Cassation, Fifth Criminal Section, judgment 18 May - 2 August 2022, no. 30564).
3.2.– The questions would, in any case, be manifestly unfounded.
3.2.1.– Firstly, Article 12 of the Strasbourg Convention does not impose "a generalized obligation to criminalize illicit influence peddling," as this provision is "simultaneously (and strongly) 'weakened'" by the possibility for States to affix reservations, renewable every three years, concerning this offense, pursuant to Articles 37 and 38 of the Convention itself. Moreover, the Italian State, when ratifying the Strasbourg Convention, availed itself of the option to affix reservations, "maintaining the non-punishability of the private party who, faced with only claimed influence, pays money or other benefits to the alleged intermediary."
As the State Attorney's Office also noted, several other signatory States—such as Germany, the United Kingdom, Denmark, and the Netherlands—have not even introduced the crime in question into their domestic legal systems: an introduction that, conversely, is provided for in the draft EU directive on corruption, presented by the Commission and "currently under discussion."
Nor does the failure to renew the reservations by Italy seem to be "an element capable of leading to the imposition, by the Convention in question, of a generalized obligation to criminalize illicit influence peddling."
3.2.2.– Secondly, the Strasbourg Convention does not identify "a minimum core of sanctionable conduct," but leaves each national legislator, "according to their domestic law," a wide margin of appreciation regarding the "necessary measures to define the criminal offense of illicit influence peddling" and its "boundaries with legitimate lobbying activity." As clarified by the Explanatory Report to the Criminal Law Convention on Corruption, in fact, criminal repression should only be directed towards "forms of mediation that appear illicit," leaving aside " 'acknowledged' forms of lobbying (i.e., permitted by domestic law, even implicitly or by force of general principles)."
3.3.– The questions would finally also be inadmissible due to the potential "in malam partem effect of a judgment of acceptance."
Under this profile, the party denounces the conflict between Article 12 of the Strasbourg Convention and Article 25 of the Constitution. The conventional provision, in fact, would be so generic as to "not allow the national legislator to clearly define the scope of what is criminally relevant, i.e., the boundary between lobbying activities and illicit influence on the actions of holders of public office or those exercising public services." This would compromise "the principle of legality" and its "corollaries of precision and/or determinacy and offensiveness." The principle of legality, as a "supreme principle of the legal system, safeguarding the inviolable rights of the individual," would thus act as a "counter-limit," neutralizing the " 'external' constraint of supranational origin."
4.– S. srl, which is charged in the main proceedings with the administrative offense under Articles 5 and 25 of Legislative Decree 8 June 2001, no. 231 (Provisions on the administrative liability of legal persons, companies, and associations, including those without legal personality, pursuant to Article 11 of Law 29 September 2000, no. 300), in relation to the charge of the crime under Article 346-bis of the Penal Code, entered an appearance. The party requests that the questions be declared inadmissible or unfounded, based on arguments identical to those put forward by A.V. T.
5.– J.E. S.S.A., co-defendant in the main proceedings for the crime under Article 346-bis of the Penal Code, entered an appearance, likewise requesting that the questions be declared inadmissible or unfounded.
5.1.– The arguments developed by the party are substantially coincident with those proposed by A.V. T. regarding the inadmissibility of the questions, under the dual profile of inadequate motivation on relevance and the preclusion of in malam partem review, in the face of an obligation of conventional origin which would conflict with the principles of legality and offensiveness under Article 25 of the Constitution.
5.2.– Regarding the substantive profiles, the party traces the origins and legislative evolution of the criminal offense, focusing on the jurisprudential interventions that would have subjected it to a "typifying and determinative reading" (citing the judgment of the Penal Sections of the Court of Cassation, 29 February - 15 May 2024, no. 19357), before concluding that the Strasbourg Convention does not derive an obligation to criminalize illicit influence peddling, considering the "provision for the right to raise reservations pursuant to Art. 37."
Arguments entirely overlapping with those already summarized in relation to the appearance of the co-defendant A.V. T. are also developed regarding the failure to identify, by the Strasbourg Convention, a minimum core of sanctionable conduct and the wide margin of appreciation left to national legislators in defining the criminal offense, according to their domestic law.
In this context, the "so-called 'democratic deficit' of European institutions also reflects inevitably on the formation process of Community norms," and "precisely this circumstance, however, must lead to greater consideration when it comes to empowering the European Union (or the International Community) to make penetrating interventions in criminal matters."
In consideration of these observations and the "substantial value of the reservation of law," which lies in "the wide freedom of the national Parliament, as an expression of popular sovereignty," there are no judgments in the constitutional jurisprudence—since the establishment of the Judge of Laws to date—declaring criminal norms unconstitutional for alleged violations of obligations to criminalize derived from European or international conventions, in clear conflict with the principle of (state) reservation of law, a corollary of the principle of legality under Article 25, paragraph 2 of the Constitution, as well as in disregard of the prohibition of revival, following abolitio criminis (total or partial), of the more unfavorable criminal norm.
6.– D.A. S.C., defendant in the main proceedings for the crime of money laundering and legal representative of the company G. srl, in relation to conduct concerning the illicit profits derived from the crime of illicit influence peddling, entered an appearance. The party requests that the questions be declared inadmissible or unfounded, with arguments identical to those put forward by J.E. S.S.A.
7.– G. srl, which is charged in the main proceedings with the administrative offense under Articles 5 and 25 of Legislative Decree no. 231 of 2001 in relation to the charges of illicit influence peddling and money laundering, entered an appearance. The party requests that the questions be declared inadmissible or unfounded, based on arguments identical to those developed by J.E. S.S.A.
8.– Near the hearing, explanatory memoranda were filed by the defenses of A.V. T., S. srl, and, out of time, J.E. S.S.A., D.A. S.C., and G. srl.
In its memorandum, the defense of A.V. T. particularly emphasizes, as proof of the "absolute irrelevance of the question," that "the charge formulated from the beginning (and, therefore, well before the legislative reform) and definitively formalized in the indictment of the current intervenor literally retraces the requirements listed in the current Article 346-bis of the Penal Code, as in the prosecution's view: the onerous mediation would have been exercised exploiting existing relationships between the 'intermediary' M. B. and the Extraordinary Commissioner for the Covid Emergency, Dr. D. A.; the consideration for the illicit mediation would have consisted of an economic benefit (achievement of 12 million euros by the Company attributable to B.); the mediation would have been aimed at causing the public official to commit acts contrary to their official duties constituting a crime (abuse of office)."
The same defense finally raises the inadmissibility of the question raised with reference to Article 11 of the Constitution: the referring judge, in fact, does not clarify "for what reason the violation of obligations of conventional international law would lead to a violation (in addition to, hypothetically, Article 117 of the Constitution) also of Article 11 of the Constitution" (citing this Court's judgment No. 95 of 2025).
Having Considered in Law
1.– With the order above, the Preliminary Hearing Judge of the Court of Rome raised questions of constitutional legitimacy regarding Article 1, paragraph 1, letter e), of Law no. 114 of 2024, which substituted Article 346-bis of the Penal Code, in reference to Articles 11 and 117, first paragraph, of the Constitution, in relation to Article 12 of the Strasbourg Convention on Corruption.
According to the referring judge, the rewriting of the illicit influence peddling offense under Article 346-bis of the Penal Code by the contested provision allegedly resulted in a reduction of its scope of application incompatible with the obligations arising from Article 12 of the Strasbourg Convention, ratified by Italy and enacted into the domestic legal system by Law no. 110 of 2012. Hence the alleged violation of both Article 11 and Article 117, first paragraph, of the Constitution.
2.– For a better framing of the questions, it is appropriate first to summarize the content of the conventional norm taken as an interposed parameter, and to trace the sequence of provisions by which the conventional obligation has been implemented from 2012 to the present day.
2.1.– Article 12 of the Strasbourg Convention reads, in the official English text: "Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision-making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result."
Article 37 of the Convention provided for the possibility, for the contracting States, to affix reservations to certain provisions upon ratification, including Article 12 itself. Various contracting States—including Denmark, Finland, Germany, the Netherlands, the United Kingdom, and Sweden—availed themselves of this faculty, particularly choosing not to bind themselves to the obligation to introduce the criminalization of influence peddling into their domestic legal systems. Italy also, upon ratification of the instrument, affixed two reservations, effective from 1 October 2013 to 1 October 2019, limiting the implementation of the obligation, inter alia, to conduct, committed within the context of an existing relationship with the public agent, aimed at remunerating the performance of an act contrary to official duties.
2.2.– Law no. 190 of 2012, for the first time, provided, in a new Article 346-bis of the Penal Code, for an offense of illicit influence peddling, placed alongside the pre-existing offense of claiming undue influence, regulated by Article 346 of the Penal Code.
The first two paragraphs of this new provision textually provided:
"Whoever, outside the cases of complicity in the crimes referred to in Articles 319 and 319-ter, exploiting existing relationships with a public official or a person in charge of a public service, unduly causes to give or promise, to himself or to others, money or other proprietary advantage, as the price of his illicit mediation towards the public official or the person in charge of a public service or for remunerating him, in relation to the performance of an act contrary to official duties or the omission or delay of an act of his office, shall be punished with imprisonment from one to three years.
The same penalty applies to whoever unduly gives or promises money or other proprietary advantage."
Thus:
– in contrast to the conventional text focused on the act of one who "asserts or confirms" to be able to exert an "improper influence" over a public agent's decision-making process, the 2012 text required the exploitation of "existing" relationships with a public agent, thus marking a clear distinction from the hypothesis (then maintained in force in parallel) of claiming undue influence, in which—based on the literal wording of Article 346 of the Penal Code—the perpetrator had to precisely "claim" credit with the public agent, that is, boast of relationships that in reality did not exist with the latter;
– the provision then required the receipt or acceptance of the promise (or, in the hypothesis of the second paragraph, the giving or promise) of "money or other proprietary advantage";
– and alternatively described the object of the agreement, similarly to what was already provided for in the parallel criminal provision on claiming undue influence, a) in terms of "illicit mediation" towards the public agent, or b) in terms of "remuneration" of the latter, "in relation to the performance of an act contrary to official duties or the omission or delay of an act of his office": the latter clause, which clearly evoked the hypothesis of corruption under Article 319 of the Penal Code, and which jurisprudence has referred to both alternative hypotheses of agreement (Supreme Court of Cassation, Sixth Criminal Section, judgment 5 March - 1 July 2024, no. 25650; Fifth Criminal Section, judgment 18 May - 2 August 2022, no. 30564).
2.3.– The text of Article 346-bis of the Penal Code was then significantly amended by Law no. 3 of 2019.
In particular, the first two paragraphs of the provision were reformed as follows:
"Whoever, outside the cases of complicity in the crimes referred to in Articles 318, 319, 319-ter and in the crimes of corruption referred to in Article 322-bis, exploiting or claiming existing or claimed relationships with a public official or a person in charge of a public service or one of the other subjects referred to in Article 322-bis, unduly causes to give or promise, to himself or to others, money or other benefits, as the price of his illicit mediation towards a public official or a person in charge of a public service or one of the other subjects referred to in Article 322-bis, or to remunerate him in relation to the exercise of his functions or powers, shall be punished with imprisonment from one year to four years and six months.
The same penalty applies to whoever unduly gives or promises money or other benefits."
Thus, the scope of application of the offense was broadened, specifically providing:
– that the intermediary exploits or claims "existing or claimed relationships" with a public agent, this change logically following the simultaneous repeal of the crime of claiming undue influence under Article 346 of the Penal Code;
– that the promise or giving concern, generally, "money or other benefits," as opposed to the previous specific reference to "money or other proprietary advantage";
– that the agreement alternatively concerned, a) an "illicit mediation" towards the public agent, in identical terms to the previous wording (except for the extension of the crime to foreign public officials under Article 322-bis of the Penal Code), or b) the "remuneration" of the same public agent "in relation to the exercise of his functions or powers": the latter expression being much broader than the previous one, which referred instead to the concrete performance of an act contrary to official duties, or the omission or delay of an act of the office, and therefore capable of including the hypothesis of corruption for the exercise of functions under Article 318 of the Penal Code.
These legislative changes were explicitly justified, in the explanatory report accompanying the government bill that resulted in Law no. 3 of 2019 (Introductory Report to Bill H.R. no. 1189 - XVIII Legislature, concerning "Measures to combat crimes against public administration and on the transparency of political parties and movements," presented to the Chamber of Deputies by the Minister of Justice on 24 September 2018, points 3 et seq.), on the basis of the opportunity to align the new regulation with the model of Article 12 of the Strasbourg Convention, also taking into account the observations made regarding the previous regulation by the Group of States against Corruption (GRECO)—that is, the body to which Article 24 of the Convention delegates the verification of the implementation of conventional obligations by the contracting States (Addendum to the Second Compliance Report on Italy, adopted on 22 June 2018).
Consequently, Law no. 3 of 2019, in Article 1, paragraph 10, also committed the Government not to renew, upon its expiration on 1 October 2019, the reservations originally affixed in relation to Article 12 of the Convention. This indeed happened, as is evident from the official website of the Council of Europe.
2.4.– The current wording of Article 346-bis of the Penal Code, against which the referring judge's challenges are directed, is due—as anticipated—to the contested provision, i.e., Article 1, paragraph 1, letter e), of Law no. 114 of 2024.
Article 346-bis of the Penal Code, paragraph 1, was first reformulated as follows:
"Whoever, outside the cases of complicity in the crimes referred to in Articles 318, 319, and 319-ter and in the crimes of corruption referred to in Article 322-bis, intentionally utilizing relationships existing with a public official or a person in charge of a public service or one of the other subjects referred to in Article 322-bis for this purpose, unduly causes to give or promise, to himself or to others, money or other economic benefit, to remunerate a public official or a person in charge of a public service or one of the other subjects referred to in Article 322-bis, in relation to the exercise of his functions, or to realize another illicit mediation, shall be punished with imprisonment from one year and six months to four years and six months."
It is immediately worth noting:
– that the new wording restricts the criminalized conduct to the "intentional utilization" of "existing relationships," with the consequent exclusion from the area of criminal relevance of the hypothesis of boasting of non-existent relationships, now no longer covered by the offense of claiming undue influence, repealed in 2019;
– that the object of the promise or giving reverts to "money or other economic benefit," according to the model that—in essence—was followed by Law no. 190 of 2012;
– that the agreement alternatively concerns, in inverted order compared to previous wordings, a) the "remuneration" of the public agent "in relation to the exercise of his functions," and therefore—again—a corruption (in this case, even only under Article 318 of the Penal Code), or b) another "illicit mediation" with the latter.
The most significant novelty of the 2024 reform, however, consists in the introduction of a new second paragraph in Article 346-bis of the Penal Code, which defines illicit mediation as follows:
"For the purposes of the first paragraph, illicit mediation means mediation aimed at inducing the public official or the person in charge of a public service or one of the other subjects referred to in Article 322-bis to commit an act contrary to official duties constituting a crime from which an undue advantage may derive."
The second hypothesis in which the illicit agreement criminalized by Article 346-bis of the Penal Code consists must therefore consist in inducing the public agent to commit an act characterized by three cumulative requirements: a) contrary to official duties, b) constituting a "crime," and c) capable of producing an "undue advantage."
Since—as just noted—the hypothesis of "remuneration" clearly alludes to the corruption of the public agent, the hypothesis of other illicit mediation requires, therefore, that the two parties to the illicit transaction agree to induce the public official to commit a different type of criminal conduct, in the interest of the subject giving or promising the benefit to the "intermediary."
Finally, the third paragraph of Article 346-bis of the Penal Code extends punishability to the subject who gives or promises money or other economic benefit to the intermediary.
3.– The questions of constitutional legitimacy now under the Court's review proceed from the premise that the amendments made to Article 346-bis of the Penal Code by the 2024 reform, by restricting the scope of application of the illicit influence peddling offense as previously configured following the 2019 reform, produce a result inconsistent with the obligation incumbent upon the contracting States under Article 12 of the Strasbourg Convention.
Consequently, the referring judge invokes an ablative intervention by this Court on the modifying provision—Article 1, paragraph 1, letter e), of Law no. 114 of 2024—with the declared intention of "reviving" the text of Article 346-bis of the Penal Code as resulting from the 2019 reform; a text that the referring judge implicitly assumes to be compliant with the aforementioned obligation to criminalize.
Upon closer inspection, moreover, the petitioner's request—although it dwells, in the reasoning of the referral order, on all the amendments made to the criminal provision by Law no. 114 of 2024, and on their alleged aspects of conflict with Article 12 of the Convention—ends up focusing on a single aspect, namely the definition of "illicit mediation" in the new second paragraph of Article 346-bis of the Penal Code.
As the Advocate General of the State correctly points out, the other two novel aspects of the new wording of Article 346-bis of the Penal Code, included in the first paragraph and represented by a) the replacement of the phrase "exploiting or claiming existing or claimed relationships" with "intentionally utilizing existing relationships for this purpose," and b) the replacement of the phrase "money or other benefits" with "money or other economic benefit," are in no way relevant to the concrete case object of the referring judgment. In that criminal proceeding, in fact, the public prosecution charges the defendants with having paid considerable sums of money to the intermediary, who allegedly exploited his existing relationships with the Extraordinary Commissioner, as demonstrated by the fact that—according to the indictment itself—the latter was effectively determined to carry out the acts, allegedly contrary to his official duties, desired by the defendants themselves.
The referring judge appears to be aware of this, as after asserting the conflict of all three of these amendments with the obligations arising from Article 12 of the Strasbourg Convention, he concludes his reasoning by requesting that the constitutional illegitimacy of the contested provision be declared, "as far as relevant in the present case, in the part where, by requiring that illicit mediation be only that aimed at the commission of an act contrary to official duties constituting a crime, it does not include among the possible purposes of the conduct the acts falling within [the] now repealed hypothesis of abuse of office."
Although the operative part of the referral order formally concerns the entirety of Article 1, paragraph 1, letter e), of Law no. 114 of 2024, and therefore the set of amendments made to the text of Article 346-bis of the Penal Code, the reasoning of the order itself shows, therefore, that the challenges are directed only at the new second paragraph of that provision, and more specifically at the clause "constituting a crime" (highlighted in italics by the referral order itself), which already prima facie leads to the criminal irrelevance of the act charged by the public prosecution against the defendants.
In short, the referring judge asks this Court exclusively about the compatibility of this requirement, established by the new second paragraph of Article 346-bis of the Penal Code, with the obligation to criminalize deriving from Article 12 of the Convention. And precisely this question defines the limits of the thema decidendum submitted to this Court today.
4.– With the object of the judgment thus circumscribed, the profiles of admissibility of the questions can first be examined.
4.1.– Firstly, the exception, raised by the defense of A.V. T. in its supplementary memorandum, of inadmissibility of the question formulated with reference to Article 11 of the Constitution is founded.
The referring judge invokes exclusively Article 12 of the Strasbourg Convention as the interposed parameter: that is, a rule of conventional international law, which is not suitable to constitute the parameter under Article 11 of the Constitution (Judgment No. 95 of 2025, point 5.3 of the Considered in Law).
4.2.– The Advocate General of the State and all appearing parties further object to the inadmissibility of the questions as they tend to achieve a ruling in malam partem in criminal matters, outside the hypotheses admitted by the case law of this Court. In particular, the alleged violation of rules of conventional international law imposing obligations to criminalize cannot be leveraged for this purpose, since the principle of legality, specifically in its expression as a reservation of law in criminal matters, under Article 25, second paragraph, of the Constitution, would oppose the upholding of the questions in such a case. The derogation from the preclusion of in malam partem rulings, recognized by the case law of this Court when the respect for supranational obligations is in question, would, in fact, be referable only to obligations deriving from European Union law, and not to those of a conventional nature.
An identical exception was recently examined and held unfounded by this Court with Judgment No. 95 of 2025, based on considerations (points 5.3.1 to 5.3.4 of the Considered in Law) which are fully reiterated here.
In response to the specific arguments put forward by the intervening party and the parties, it is sufficient to briefly observe:
– that Article 117, first paragraph, of the Constitution subordinates the legitimate exercise of State and regional legislative power to compliance with both "the constraints arising from the Community legal order" and "international obligations," so that the violation of both by State and regional law results—according to the constant case law of this Court—in the identical consequence of its constitutional illegitimacy; without prejudice, of course, to the possibility for the common judge to disapply the law when it conflicts with a rule of only European Union law, provided it has direct effect (a possibility that stems from the principle of supremacy of Union law, recognized by the Italian State on the basis of Article 11 of the Constitution), as well as the different scope of the limits to these constraints and obligations (Judgment No. 95 of 2025, point 5.3.2 of the Considered in Law);
– that any declaration of constitutional illegitimacy of a criminal law conflicting with an international or EU obligation, which would result in in malam partem effects for the citizen, is not incompatible with the principle of legality in criminal matters under Article 25, second paragraph, of the Constitution, and specifically with the reservation of law, provided that the resulting criminal liability still derives from State law, and not directly from the international or EU rule (Judgment No. 95 of 2025, point 5.3.3 of the Considered in Law);
– that this principle also applies in the hypothesis, specifically under consideration here, in which this Court is not asked to fully restore the validity of a criminal provision repealed by the legislator in violation of an international obligation, as had occurred in the cases decided by Judgment No. 95 of 2025, but to eliminate a single requirement of a criminal provision, introduced by a legislative amendment in alleged violation of an international obligation, since even in this hypothesis the criminal liability of individuals would continue to be based not directly on the international rule, but on the domestic criminal law, as resulting from the judgment of this Court;
– that the argument based on the supposed "democratic deficit" of the interposed parameter—which, moreover, the defense of J.E. S.S.A., D.A. S.C., and G. srl refers to "Community rules," rather than the rule of conventional international law under consideration here—also lacks merit, considering only that the Strasbourg Convention was ratified on the basis of a parliamentary authorization law, which also provided for its full and complete implementation. Furthermore, as already observed in Judgment No. 95 of 2025, the Italian State always remains free to depart from the conventional obligation "by the methods provided for by international law itself, and in particular by promoting an amendment to the treaty, or by denouncing it. An event that can also occur thanks to the intervention of Parliament, in the exercise of its essential function of guidance and control" (point 5.3.4 of the Considered in Law);
– that, finally, the argument made by the defense of A.V. T., according to which the international rule invoked as an interposed parameter would be too generic to found a precise obligation on the national criminal legislator, relates, upon closer inspection, to the merits of the question rather than its admissibility, concerning in reality the interpretation of the rule itself and the precise delineation of the obligations that derive from it for the contracting States.
4.3.– The Advocate General of the State also objects to inadmissibility due to lack of motivation on the relevance of the remaining question (the one raised with reference to Article 117, first paragraph, of the Constitution), because the referring judge allegedly "radically omitted to ascertain the definability of the judgment pursuant to Article 129 of the Code of Criminal Procedure," verifying whether it is not possible to acquit the defendants with acquittal grounds other than and more favorable than the one according to which the fact is no longer provided for as a crime.
The exception is unfounded.
This Court has already held that the criminal judge who raises a question of constitutional legitimacy "is not required to expressly motivate on the absence of causes of non-punishability or non-prosecutability ascertainable under Article 129, paragraph 1, of the Code of Criminal Procedure," as "[h]is (legitimate) silence on this matter can only be understood [...] as indicative of the lack of recognition, at this stage, of such negative conditions of criminal responsibility of the defendant" (Judgment No. 27 of 2025, point 3.2 of the Considered in Law).
In any case, in a legal system based on the principle of legality in criminal matters, the mere lack of abstract conformity between the description of the act contained in the indictment and a legal definition of a crime already determines the judge's obligation to immediately dismiss the defendant, without the need—and indeed, without the possibility—to proceed with an assessment of the evidence gathered against him, even just to pronounce a judgment of acquittal because the material fact did not occur or the defendant did not commit it. The "fact" in criminal proceedings is solely that which, according to the accusation, corresponds to a precise abstract legal definition, and which the prosecution has the burden to describe in the indictment in a manner exactly conforming to that definition. Therefore, where the description of the conduct contained in the indictment is no longer congruent with the normative definition (nor with any other currently in force into which the concrete fact could be subsumed), no further assessment is required or permitted for the judge: whose task is not to establish the truth or falsity of allegations extraneous to the legal model, but solely—to verify the validity of an accusation hypothesis that exactly corresponds to a legal definition of a crime.
4.4.– The Advocate General of the State also objects to the lack of relevance of the question because the referring judge allegedly omitted to motivate on the reasons why the contested facts, following the amendment of the indictment made by the Public Prosecutor during the same preliminary hearing, would no longer also be subsumable under the offense of Article 346-bis of the Penal Code as amended in 2024.
The exception is unfounded.
The referring judge clearly illustrated that the contested facts can no longer be subsumed under the offense redefined by Law no. 114 of 2024, because the conduct that the illicit mediation was allegedly aimed at achieving—the abuse of office originally charged against the same Extraordinary Commissioner—no longer constitutes a crime, following the repeal of Article 323 of the Penal Code ordered by the same Law no. 114 of 2024. Since the new offense of illicit influence peddling requires, conversely, that the object of the agreement be the inducement of the public agent to commit a crime, the legislative amendment has deprived the conduct contested against the current defendants of criminal relevance.
4.5.– The irrelevance of the question is also alleged with a different argument by various parties appearing in the proceedings, particularly by the defense of A.V. T. They emphasize that the Public Prosecutor has already charged the facts in a manner corresponding to the new offense; thus, the legislative change that occurred would not have had any effect on the charge. The payment of sums to the deceased co-defendant M. B. would, in fact, have occurred so that the latter, according to the description provided by the Public Prosecutor himself, would induce the Extraordinary Commissioner to "commit acts contrary to his official duties constituting the crime of abuse of office better specified in charge f of the indictment." This indication, which would be perfectly overlapping with the abstract normative description contained in the new text of Article 346-bis of the Penal Code.
Although undoubtedly suggestive, this exception cannot be accepted either.
The clause just cited simply intends to identify, factually, the object of the illicit agreement, represented by the conduct of the Extraordinary Commissioner that the intermediary allegedly undertook to obtain: conduct that is better described in a subsequent and separate charge against the same Commissioner, and which, at the time of the facts, constituted—according to the prosecution's account—the crime of abuse of office.
However, the abolition of the crime of abuse of office by Law no. 114 of 2024 would not, in itself, have resulted in the loss of criminal relevance for the conduct of illicit influence peddling charged against the current defendants, if it had not also been accompanied by the restrictive amendment of the offense under Article 346-bis of the Penal Code. In fact, as previously recalled (supra, 2.3.), the text of Article 346-bis of the Penal Code in force at the time of the facts simply required that the agreement concern an "illicit mediation" towards the public agent, or his remuneration "in relation to the exercise of his functions or powers": wording that would certainly have been compatible also with an agreement aimed at inducing the public official to commit conduct contrary to his official duties, even if no longer constituting a crime.
It is only as a result of the simultaneous amendment of Article 346-bis of the Penal Code that the agreement described in the indictment against the current defendants lost, already in abstract, criminal relevance, as it now requires that the agreement concern the inducement of the public official to commit not a generic act contrary to official duties, but conduct constituting a crime.
Proof of this is the consideration that, if the current question were upheld, the act charged against the defendants would regain—at least in abstract—criminal relevance, despite the intervening abolition of the crime of abuse of office, already held to be constitutionally legitimate by this Court with the frequently mentioned Judgment No. 95 of 2025. This confirms the relevance of the question under review for the definition of the referring judgment.
Nor is the further argument convincing, developed by the defense of A.V. T., according to which the jurisprudence of the Court of Cassation had effectively anticipated the 2024 legislative amendment, requiring that the pactum concerned the inducement of the public official to commit a crime (Cass., no. 1182 of 2022 and no. 40518 of 2021). In fact, apart from the relevance that this orientation could not yet be considered an expression of living law (the requirement in question is not, for example, mentioned in the judgments of the Sixth Criminal Section of the Court of Cassation of 25 June - 23 September 2021, no. 35280, concerning the same facts object of the referring judgment, and of 22 October 2019 - 12 June 2020, no. 18125), it is clear that the jurisprudential trend in question was based on a completely different systemic context, characterized by the co-presence of the criminalization of abuse of office: which ensured, in any case, the abstract criminal relevance of conduct such as that charged against the current defendants. The criminal relevance of such conduct has now, however, ceased, precisely as a result of the legislative amendment that is the object of the current question of constitutional legitimacy, the relevance of which for the definition of the referring judgment is thus confirmed—once again.
4.6.– Finally, regarding the exception, raised by the Advocate General of the State, of irrelevance of the question with respect to the two novel aspects of the new wording of Article 346-bis of the Penal Code represented by the replacement of the phrase "exploiting or claiming existing or claimed relationships" with "intentionally utilizing existing relationships for this purpose," and the replacement of the phrase "money or other benefits" with "money or other economic benefit," its examination is absorbed by the redefinition of the thema decidendum already performed previously (supra, 3).
5.– On the merits, the remaining question—thus defined as to its object (supra, 3) and parameter, which is solely Article 117, first paragraph, of the Constitution (supra, 4.1.)—is unfounded.
Article 12 of the Strasbourg Convention implies an obligation on the contracting States to criminalize the conduct of influence peddling (infra, 5.1.).
This obligation binds Italy in its entirety, as Italy did not renew the reservations affixed upon ratification of the Convention in 2019 (infra, 5.2.).
It frequently occurs that international conventional instruments imposing obligations to criminalize use deliberately elastic and generic formulas in describing the offense, which does not negate the binding nature of the obligation, but opens up a space for discretion for the national legislator, who has the constitutional duty to precisely formulate the scope of application of the criminal provision implementing the international obligation (infra, 5.3.).
The description of the offense of influence peddling contained in Article 12 of the Convention leaves significant margins of discretion to national legislators as to the definition of the concept of "improper influence over the decision-making" of the public agent, which the intermediary undertakes to exert in exchange for payment or promise of compensation (infra, 5.4.).
The Italian legislator of 2024 used this discretion by tracing the boundaries of the offense of illicit influence peddling in an undoubtedly restrictive manner, but in the opinion of this Court, not incompatible with the obligation deriving from Article 12 of the Convention (infra, 5.5.).
5.1.– Contrary to what is argued by the Advocate General of the State and the parties, Article 12 of the Strasbourg Convention implies the obligation for the contracting State to establish as criminal offenses under its domestic law ("establish as criminal offences under its domestic law") the conduct described therein, summarily designated in the title as "Trading in influence."
That this is a true obligation to criminalize is evident from the formula used—"shall adopt"—which marks an essential difference from the language used in Article 18 of the UN Mérida Convention, where the milder expression "shall consider adopting" is used with respect to the offense of influence peddling (on which meaning, in relation to the offense of abuse of office, see Judgment No. 95 of 2025, point 7.3.1 of the Considered in Law).
This conclusion is confirmed, ad abundantiam: by the placement of the rule in the chapter dedicated to "Measures to be taken at national level" (i.e., measures that must be adopted at the national level); by the concomitant imposition of an obligation to adopt effective, proportionate, and dissuasive sanctions, including, when the offenses are committed by natural persons, those involving deprivation of liberty that may lead to extradition (Article 19, paragraph 1); and by the equally binding provision to introduce measures that allow for the confiscation or other seizure of the instruments and proceeds of the offenses, direct and equivalent (Article 19, paragraph 3).
The existence of such an obligation is in no way "weakened," as argued in particular by the defense of A.V. T., by the provision in the subsequent Article 37 of the possibility for the State to affix reservations, concerning, among other things, Article 12; nor by the fact that the criminal law system of various contracting States does not provide for the crime of influence peddling. Article 37 proves, if anything, the contrary: that the contracting State, once it has ratified the Convention, must be considered bound by the obligation deriving from Article 12, unless it has formulated specific reservations regarding this obligation.
Nor does the fact that the European Commission's proposal for a directive on corruption (EU COM-2023-234 final) expressly provides for an obligation to criminalize influence peddling support the non-existence of the obligation: which—according to the Advocate General of the State and the defense of A.V. T.—would be indicative of the awareness of the non-existence of such an obligation in international law, otherwise rendering its reproduction in an EU instrument useless.
The argument does not hit the mark. On the one hand, in fact, it is entirely usual for Union law to substantially reproduce, even in criminal matters, obligations already provided for under conventional international law for the Member States, in order to confer upon these obligations the special binding force secured to them by the Union source—which entails, among other things, the exposure of the non-compliant Member State to infringement proceedings pursuant to Articles 258 and 260 of the Treaty on the Functioning of the European Union. On the other hand, the very fact that some of the States party to the Strasbourg Convention (such as Germany or the Netherlands), benefiting from the reservations they once made, still do not provide for the criminalization in question in their domestic legal systems, confirms the practical utility, from the perspective of the European Commission, of providing for a Union obligation that also binds these States to take action in that regard.
5.2.– As already recalled (supra, 2.1.), upon ratification of the Convention, Italy formulated, pursuant to Article 37, two reservations to Article 12, with the aim of circumscribing the obligation to establish the crime of illicit influence peddling to terms corresponding to those resulting from the original version of Article 346-bis of the Penal Code, introduced by Law no. 190 of 2012, and in particular to be authorized to limit criminalization to the context of an existing relationship between the intermediary and the public agent, as well as to an agreement concerning the remuneration of the same public agent for conduct by the latter contrary to official duties.
However, as already pointed out at the time (supra, 2.3.), these reservations were not renewed by the Government upon their expiration, in accordance with Article 1, paragraph 10, of Law no. 3 of 2019. Consequently, the obligation imposed by Article 12 of the Convention is now fully applicable to Italy.
5.3.– The issue that this Court must instead resolve concerns not the existence of the obligation under Article 12, but its concrete scope: in order to establish whether the 2024 legislator, by restricting the scope of the criminalization of illicit influence peddling in the manner previously described, violated this obligation.
Before addressing this question, however, a preliminary point must be clarified, in response to the arguments of the intervening party and the parties, who variously insisted on the vagueness and imprecision of Article 12 of the Convention, questioning its compatibility with the Constitution with reference to the principle of specificity or sufficient precision in criminal matters, which is itself a corollary of the principle of legality under Article 25, second paragraph, of the Constitution.
These arguments also fail to hit the mark.
The principle of legality in criminal matters undoubtedly obliges the national legislator to precisely define the contours of every criminal offense, so as to provide clear warning to citizens about the scope of the criminally sanctioned precept, and to prevent the identification of the boundary between lawful and unlawful conduct from being left to the free interpretation of the judge, in violation of the principle of separation of powers itself; thus ensuring, at the same time, the uniformity of the application of the criminal law, in conformity with the principle of equality of all before the law (on this principle, judgments No. 110 of 2023, point 4.3.2.1 of the Considered in Law; No. 98 of 2021, point 2.4 of the Considered in Law; No. 134 of 2019, point 3.2 of the Considered in Law and, more recently, Judgment No. 54 of 2024, point 4 of the Considered in Law).
But this principle binds, precisely, the Italian legislator at the time of introducing a criminal law into the domestic legal system; not the States (including the Italian State) in the phase of negotiation and ratification of an international instrument that imposes obligations to criminalize. Such obligations are, in fact, physiologically characterized by the use of elastic and relatively generic formulas, which ensure the contracting States the necessary discretion to adapt the obligation to achieve the objectives indicated by the international instrument in a manner congenial to the peculiarities of each national legal system: and in particular to its specific normative categories (strictly connected to national legal tradition), to the overall system into which the criminalization will fit, as well as to domestic constraints of a constitutional nature, which may also differ from one contracting State to another.
It is entirely possible, therefore, that the international instrument establishing an obligation to criminalize uses broad formulations that, if mechanically transposed into the criminal legislation of the individual State, would lead to a violation of the principle of legality in criminal matters. It will then be up to the national legislator to configure the criminal law in the domestic system in such a way as to ensure its conformity with the purposes pursued by the treaty, as interpreted in light of the general criterion of good faith under Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties, while ensuring that the contours of the criminal offense are drawn with precision, in compliance with the constitutional constraint deriving, in our country, from Article 25, second paragraph, of the Constitution.
5.4.– This established, it must be recognized that the obligation established by Article 12 of the Strasbourg Convention, to criminalize the conduct of one who promises, gives, or offers undue advantages to anyone who asserts or confirms that he or she is able to exert "an improper influence over the decision-making" of a public agent—and conversely the conduct of one who receives the advantages claiming to be able to exert such improper influence—presents a notable degree of elasticity, which requires concretization and clarification by the national legislator.
The provision does not specify, in fact, what is meant by "improper influence"; indeed, the corresponding French text of the Convention, equally official, is even more generic on this point, requiring that the object of the agreement be the undertaking "to exert an influence" on the decision of the public agent, without further qualification.
The Explanatory Report of the Convention—relevant as a complementary means of interpretation for reconstructing the meaning of the treaty pursuant to Article 32 of the cited Vienna Convention on the Law of Treaties—illustrates the purpose of the criminalization, which Contracting States are required to introduce. It aims to protect transparency and impartiality in the decision-making process of public administrations, by targeting the "corrupt behaviour" of people in proximity to power who seek to obtain advantages from this position, which contributes to creating what the Report itself defines as an "atmosphere of corruption," or "background of corruption," that undermines the trust placed by citizens in the impartiality and correctness of public administration.
The subsequent paragraph 65 identifies the essence of the crime in the commitment, which the intermediary ("peddler") undertakes towards the one who pays or promises him an undue advantage, to exert an "improper influence" on the decision-making process of the public agent himself, specifying in this regard that a "[i]mproper influence' must contain a corrupt intent by the influence peddler: acknowledged forms of lobbying do not fall under this notion."
Regarding the latter point, it must first be specified that the concept of "corrupt intent" evidently recalls the notion of "corruption": a term that, in English, has a broader semantic area than the Italian "corruzione" (indicated as "bribery" in conventional language), including the generality of crimes committed against public administration that disrupt its correct and impartial functioning. This is confirmed, moreover, by the fact that the Strasbourg Convention itself, as well as the parallel Mérida Convention adopted within the United Nations, define themselves as aimed at combating corruption, while providing for obligations to criminalize within them relating to a plurality of conduct that in our legal system are traceable to different titles of crime. Paragraphs 2 and 3 of the Explanatory Report confirm, moreover, that a universally shared notion of "corruption" cannot be identified at the international level.
Secondly, in the cited passage of paragraph 65, it is stated that the "acknowledged" forms of lobbying do not fall under the notion of "improper influence." However, the boundaries of the lawfulness of lobbying, which is also characterized by an agreement whereby one party undertakes to influence, in the interest of the other, the determinations of public agents, are in no way specified.
5.5.– Given such vague conventional data, where the only reasonably certain indication relates to the necessity of excluding phenomena of (legitimate) lobbying from the area of criminalization, it is up to the national legislator to specify the boundaries of punishable conduct, taking into account the principle of sufficient precision of criminal law, directly traceable to Article 25, second paragraph, of the Constitution.
Now, the legislator adopted, between 2012 and 2024, three different techniques for transposing the conventional requirement of "improper influence."
5.5.1.– With Law no. 190 of 2012, the legislator alternatively required: a) an "illicit mediation" towards the public agent, or b) that the agreement between the private subject and the intermediary concerned the "remuneration" of the public agent, "in relation to the performance of an act contrary to official duties or the omission or delay of an act of his office": the latter clause, which jurisprudence, as just recalled, also referred to the hypothesis of "illicit mediation," due to the obvious necessity of assigning a more precise content to the concept of "illicitness" of the mediation itself (supra, 2.3.).
In this way, the 2012 version covered both cases where the agreement concerned a subsequent corruption of the public agent for an act contrary to the duties of his office under Article 319 of the Penal Code; and those in which the intermediary nonetheless promised to intervene with the public agent—evidently using means other than an illicit payment or promise of money or other benefits—to obtain conduct that was not only favorable to the private party, but also contrary to the official duties of the same public agent.
5.5.2.– With Law no. 3 of 2019, hypothesis a), relating to "illicit mediation," was first confirmed, while hypothesis b), relating to the "remuneration" of the public agent, saw its scope of application broadened, requiring only that the illicit payment occurred "in relation to the exercise of his functions or powers," and not in view of conduct contrary to those duties; with the consequent inclusion of every hypothesis of corruption—including that provided for by Article 318 of the Penal Code—among the possible objects of the agreement constituting illicit influence peddling (supra, 2.3.).
Consequently, the textual argument that had allowed jurisprudence to anchor the hypothesis under letter a) (illicit mediation) to the commitment to obtain from the public agent—by means other than corruption—conduct contrary to his official duties, now no longer required even for hypothesis b) (remuneration), lapsed. This ended up accentuating the vagueness of the concept of "illicit mediation," not specified in any way by the legislator, and now linked simply to the finalization of the mediation itself to any conduct in any way connected to the exercise of the public official's functions or powers—so as to potentially include, in abstract, any form of lobbying.
Consequently, jurisprudence had to take on the task of identifying practicable criteria to distinguish illicit forms of mediation from lawful ones: criteria that were identified now in the persisting need—despite the changed textual data of the provision—for the conduct of the public agent that the intermediary undertook to obtain to be contrary to official duties (Cass., no. 35280 of 2021 and no. 18125 of 2020), now in the even more demanding requirement that such conduct also constitute a crime (Cass., no. 1182 of 2022 and no. 40518 of 2021), to be understood in a systemic framework characterized by the co-existence of the criminalization of abuse of office.
5.5.3.– Finally, with Law no. 114 of 2024, it was confirmed that the agreement can alternatively concern, in inverted sequence compared to previous versions of the provision: a) the remuneration of the public agent "in relation to the exercise of his functions"—in terms, therefore, compatible also with the hypothesis of corruption under Article 318 of the Penal Code—; or b) another "illicit mediation." However, it is the legislator itself that, this time, took on the task of defining, in the new second paragraph of Article 346-bis of the Penal Code, what is meant by illicit mediation, clarifying that such is mediation aimed at obtaining from the public agent conduct not only contrary to official duties (as was already the case under Law no. 190 of 2012, based on the interpretation adopted by jurisprudence), but also "constituting a crime," which produces an undue advantage for the one who gave or promised money or other economic benefit to the intermediary (supra, 2.4.): a solution, the latter, only apparently consistent with that adopted in the meantime by a part of jurisprudence under Law no. 3 of 2019, for the obvious and already highlighted reason that, following Law no. 114 of 2024 itself, mere abuse of office no longer constitutes a crime.
5.5.4.– The combination of the rewriting of Article 346-bis of the Penal Code and the repeal of Article 323 of the Penal Code evidently results in an incisive reduction of the scope of application of the criminal offense of illicit influence peddling. This crime now excludes, in particular, all onerous agreements between private parties and intermediaries concerning the commitment of the latter to obtain from public agents—by means other than corruption—conduct that is not only favorable to private parties, but also contrary to the official duties of the same public agents, where it does not constitute another crime.
Such agreements—which essentially result in a pact whereby the private party aims to obtain undue favors from a public agent, through the intervention of an intermediary remunerated for this service—remain criminally irrelevant today: both in the hypothesis where the intermediary subsequently does not act, or in any case fails to obtain from the public agent the contrary-to-duty conduct desired by the private party; and in the hypothesis where, conversely, the intermediary effectively succeeds in obtaining the illicit result hoped for from the public agent, through means other than corruption (for example, by leveraging prior personal relationships, fear caused by his criminal standing, or common political affiliation), thus causing a concrete distortion of administrative activity to the advantage of the private party.
Likewise, the hypothesis where the intermediary is himself a public agent remains unpunished by law today, when his intervention with another public agent, aimed at obtaining—by means other than corruption—a measure favorable to the private party, is not in itself connected to the exercise of his function or powers.
5.5.5.– Nevertheless, this Court does not believe that such a rewriting of the provision, even if significantly limiting the criminal protection of the good administration and impartiality of public administration, is in itself incompatible with the obligation established by Article 12 of the Strasbourg Convention.
On the one hand, in fact, the conventional rule leaves—as highlighted above—ample room for the national legislator to specify and define what constitutes that "improper influence" that the intermediary undertakes to exercise towards the public agent.
On the other hand, the choice of the 2024 legislator to directly define the concept of "illicit mediation," previously subject to oscillating jurisprudential readings determined by its undoubted semantic vagueness, appears itself consistent with the constitutional principle of sufficient precision of criminal law, which binds the Italian legislator in the phase of transposing obligations assumed internationally. This is true even in the face of the persistent lack of regulation of lobbying, and therefore in the absence of a legislative demarcation line between illicit and lawful forms of intermediation with public officials, aimed at representing and supporting the interests of single individuals and companies, or diffuse and collective interests, towards public administrations and the legislator itself.
The choice, then, not to anchor the legislative definition of illicit mediation to the mere contrariness of the conduct to official duties, but to require that the conduct sought from the public agent that is the object of the agreement also constitute a crime, is consistent with the parallel choice to abolish the crime of abuse of office: a choice, the latter, which is not in conflict with the Strasbourg Convention, which does not oblige the legislator to introduce or maintain this type of crime, nor with the parallel Mérida Convention, as already affirmed by this Court (Judgment No. 95 of 2025). Both interventions of Law no. 114 of 2024 are, in fact, in line with the long-standing concerns that this notion also left judges, and even before that, public prosecutors, excessive discretion in identifying punishable conduct, resulting in prejudice to the predictability of the application of criminal law (Judgment No. 8 of 2022, point 2.3 of the Considered in Law).
In this framework, the definition of "illicit mediation" that resulted, although restrictive, still appears, in the opinion of this Court, within the space of discretion that the Strasbourg Convention itself leaves open to the national legislator, called upon to realize the general clauses contained in the international instrument in harmony with the principles of its own legal system, including the constitutional principle of precision of criminal law.
Consequently, it must be excluded that the choice of the legislator contested here conflicts with Article 117, first paragraph, of the Constitution.
6.– This Court deems it, however, appropriate to invite the legislator to introduce an organic regulation of lobbying activities, long and widely advocated. Such regulation appears necessary to clearly define the conduct of illicit influence on public officials and to provide sanctions for non-compliance with the related requirements; thus guaranteeing transparency in the practices of interlocution with institutions, in order to ensure citizens the possibility of more accurate control over the operations of the public administration and its elected representatives.
This could possibly allow the legislator to reconsider the current choices regarding the criminal regulation of illicit influence peddling, so as to ensure a more incisive protection of the same collective interests—which are also of constitutional rank—in the impartiality and good administration of public administration against conduct of undoubted gravity, which currently remain entirely unpunished.
for these reasons
THE CONSTITUTIONAL COURT
1) declares inadmissible the question of constitutional legitimacy of Article 1, paragraph 1, letter e), of Law 9 August 2024, no. 114 (Amendments to the Penal Code, the Code of Criminal Procedure, the Judicial Organization, and the Military Organization Code), which substituted Article 346-bis of the Penal Code, raised, in reference to Article 11 of the Constitution, by the Preliminary Hearing Judge of the Ordinary Court of Rome with the order indicated above;
2) declares unfounded the question of constitutional legitimacy of Article 1, paragraph 1, letter e), of Law no. 114 of 2024, raised, in reference to Article 117, first paragraph, of the Constitution, in relation to Article 12 of the Criminal Law Convention on Corruption, done at Strasbourg on 27 January 1999, ratified and enacted by Law 28 June 2012, no. 110, by the Preliminary Hearing Judge of the Ordinary Court of Rome with the order indicated above.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 7 October 2025.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Rapporteur
Roberto MILANA, Chancellor Director
Filed in the Chancellery on 16 December 2025
The anonymized version conforms, in text, to the original