Lobbying and Influence Peddling committed by private parties: Limits

Lobbying is increasingly present in our society. Either by importing Anglo-Saxon customs and habits, or by human nature, it is a common reality. And it borders – in a very blurry line- on the provisions of article 429 of the Penal Code on the Crime of Influence Peddling committed by a private individual. The Supreme Court’s Judgment in the ” Matas Case” has compiled its trajectory. And, incidentally, it has served to delimit where the limit of permitted conduct ends and where prohibited conduct begins.

The crime of influence peddling committed by a private individual, except in the active subject, coincides with the conduct provided for in Article 429 of the Criminal Code.

What does Article 429 of the Criminal Code say?

Any individual who influences a public official or authority by taking advantage of any situation derived from his personal relationship with the latter or with another public official or authority to obtain a resolution that may directly or indirectly generate an economic benefit for himself or for a third party, shall be punished with a prison sentence of six months to two years and a fine of twice the amount of the benefit sought or obtained. If he obtains the benefit sought, these penalties shall be imposed in the upper half.

What does the Supreme Court Jurisprudence say?

The Jurisprudence of the Supreme Court (Cfr. Sentence 480/2004, of April 7) declares that the joint use of the terms influence and prevalence indicates… That (1) the mere suggestion is not enough but that this suggestion must be made by those who hold a certain situation of ascendancy and (2) that the influence has sufficient entity to assure its efficiency due to the prevalent situation occupied by the one who influences.

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What is influence?

Influence consists of efficient moral pressure on the action or decision of another person, derived from the position or status of the influencer. This is the concept deduced from our jurisprudence.  “The act of influencing must be equated to the use of procedures capable of getting another to carry out the will of the one who influences”. (SSTS October 29, 2001 and April 5, 2002, cited and reiterated in that of April 7, 2004).

What is “obtaining a resolution”?

The inclusion by the Legislator of the expression “resolution”, which has a specific technical meaning, leaves outside the scope of this type of crime those actions that, although exerting undue moral pressure, are not aimed at obtaining a real resolution.

Excludes acts of formality, reports, consultations or opinions, expediting of files, information on data, preparatory acts, etc.. (SSTS of January 28, 1998, February 12, 1999, June 27, 2003, November 14, 2003, April 9, 2007, December 1, 2008, July 1, 2009 and February 2, 2011),

The influence, must therefore have sufficient entity to ensure its efficiency due to the prevalent situation occupied by the influencer.

That is the key. And that a typical conduct can only exist when it is apt  and with sufficient entity to alter the process of evaluation and weighing of interests that the  person in charge of dictating the resolution shall take  into account , as our jurisprudence says that it is effective to alter the motivating process for reasons unrelated to the public interest.

If this article has been of interest, we also suggest you to read the following article published on our website: Practical guide to corporate crime.