Obstruction of Public Supervision: Analysis of Judgment 20174/2025 on Article 2638 of the Civil Code

In an increasingly interconnected and regulated economic system, transparency and accurate information play a crucial role. Public supervisory authorities, whether CONSOB, Bank of Italy, IVASS, or others, are the bulwark protecting market integrity and investor confidence. Any action that obstructs their work represents a serious threat, not only to the individual entity but to the entire system. It is in this context that the importance of Article 2638 of the Civil Code, which penalizes the crime of obstructing the functions of public supervisory authorities, becomes evident. A recent ruling by the Court of Cassation, Judgment No. 20174 of 30/04/2025 (filed on 29/05/2025), offers fundamental clarifications on the nature and consummation of this offense, providing valuable insights for professionals and businesses.

The Regulatory Framework and the Relevance of Article 2638 of the Civil Code

Article 2638 of the Civil Code aims to protect the functionality and effectiveness of the supervisory authorities' control activities. These authorities are tasked with monitoring strategic sectors of the economy, such as banking, finance, insurance, and markets, to prevent abuses, fraud, and ensure stability. With this provision, the legislator intended to penalize all conduct that, directly or indirectly, impedes or makes it difficult to ascertain the real economic, patrimonial, and financial situation of the entities subject to supervision. The stakes are high: accurate information is the pillar on which economic decisions and public trust are founded.

Judgment 20174/2025: Clarity on the Nature of the Offense

The Court of Cassation, with judgment 20174/2025, rapporteur S. I., has reiterated and clarified essential aspects concerning the crime of obstructing supervision. In the specific case, which involved defendant C. V. against the Public Prosecutor's Office, the Court of Appeal of Venice had previously partially annulled a judgment without referral, bringing the matter to the attention of the Supreme Court. The legal principle expressed by the Cassation Court is of particular relevance:

The crime of obstructing the exercise of functions by public supervisory authorities, as referred to in Article 2638, paragraph 1, of the Civil Code, is a crime of mere conduct, constituted by either the omission of required information or the use of fraudulent means aimed at concealing from the supervisory body the existence of facts relevant to the economic, patrimonial, and financial situation of the company. It is consummated at the moment one of the alternative conducts provided for by the aforementioned provision is carried out, aimed at concealing the effective economic, patrimonial, or financial reality of the subjects under the control of public supervisory authorities.

This maxim is illuminating. Firstly, it defines the offense as a "crime of mere conduct." This means that for its consummation, it is not necessary for an actual harmful event to occur (e.g., the collapse of a bank or financial loss for investors), but it is sufficient that the typical conduct described by the provision is carried out. In other words, the act of obstructing supervision is in itself sufficient to constitute the crime, regardless of immediate consequences. The judgment further specifies that the crime can be constituted by two types of alternative conduct:

• Omission of required information: This is a passive behavior, consisting of not providing data, documents, or information that, by law or regulation, should be transmitted to the supervisory authority.
• Use of fraudulent means: This is an active conduct and involves the use of deceptive stratagems to hide from the supervisory body facts or situations relevant to the company's economic, patrimonial, and financial condition.

The moment of consummation of the crime is identified with the implementation of one of these conducts, at the precise instant the intent to conceal the real situation manifests itself. This underscores the severity with which the Italian legal system intends to protect transparency towards control authorities.

Practical Implications and Market Protection

The consequences of this jurisprudential interpretation are significant for all entities subject to supervision. The clarity on the nature of a "crime of mere conduct" imposes a high standard of diligence and proactivity in managing relationships with authorities. Companies and their directors must be aware that even a simple omission, if relevant and required, can constitute the elements of the crime. The excuse of not having caused concrete damage is not admissible, as the law punishes the obstruction of the control function itself.

This principle reinforces the need to implement robust internal control systems and clear procedures for information communication. Regulatory compliance is no longer just an administrative burden but a true shield against criminal liability. The protection of the market and investors also depends on the certainty that supervisory authorities can operate without impediments, based on complete and truthful information.

Conclusions: Towards Greater Corporate Transparency

Judgment No. 20174/2025 of the Court of Cassation serves as a beacon in the interpretation of Article 2638 of the Civil Code, reinforcing the message that obstruction of public supervision is a serious crime, consummated by the mere omission or fraudulent conduct. For companies and their management bodies, this means increased responsibility and the imperative to adopt a proactive approach to transparency. Specialized legal advice therefore becomes indispensable for navigating a complex regulatory framework, ensuring full compliance and preventing criminal risks. Only through a constant commitment to correctness and collaboration with the authorities can one contribute to a healthier and more reliable economic system.