New predicate offense in Legislative Decree 231/01 regarding cross-border transactions

Legislative Decree 2 March 2023, n. 19, published in the Official Gazette on 7 March 2023, it implemented directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019, which amends the previous directive (EU) 2017/1132 on cross-border conversions, mergers and divisions.

The Directive, given the complexity of cross-border conversions, mergers and divisions (collectively «cross-border transactions») and the multiplicity of interests at stake, intends to guarantee a check on the legality of cross-border transactions before they take effect, in order to provide legal certainty .

To this end, it was necessary for the competent authorities of the Member States to be able to decide in a fair, objective and non-discriminatory manner on the approval of the cross-border operation, based on all the relevant elements required by Union and national law.

As far as is relevant for the purposes of the so-called "System 231" the directive specifies that, for the purposes of an adequate division of tasks between the Member States, and the effectiveness and efficiency of the ex ante control of cross-border transactions, it is appropriate to confer on the competent authorities of the Member States of the company or companies carrying out the cross-border operation the power to issue a certificate before transformation, merger or division ('pre-operation certificate').

Legislative Decree 19/2023 therefore introduces, in art. 54, the crime of "False or omitted declarations for the issuance of the preliminary certificate" with which it is sanctioned "1. Whoever, in order to make it appear that the conditions for the issuance of the preliminary certificate referred to in article 29 have been met, forms documents in wholly or partly false, alters true documents, makes false statements or omits relevant information, is punished with imprisonment from six months to three years."

The new crime also provides that "2. In the event of a sentence of not less than eight months' imprisonment, the application of the accessory penalty pursuant to article 32-bis of the penal code follows."

The subsequent art. 55 of the Legislative Decree in question, introduces changes to the legislative decree 8 June 2001, n. 231 and, in particular "1. The following modifications are made to article 25-ter, paragraph 1, of legislative decree 8 June 2001, n. 231:
a) in the line, after the words «from the civil code», the following are inserted: «or from other special laws»;
b) at letter s-bis), the punctuation mark «.» is replaced with the following: «;»;
c) after the letter s-bis) the following is inserted: «s-ter) for the crime of false or omitted declarations for the issuance of the preliminary certificate envisaged by the legislation implementing directive (EU) 2019/2121 of the European Parliament and of the Council, of 27 November 2019, the pecuniary sanction from one hundred and fifty to three hundred quotas"