Commentary on Judgment No. 27090 of 2024: Embezzlement and Public Service

The recent judgment No. 27090 of April 17, 2024, by the Court of Cassation offers important clarifications regarding the crime of embezzlement, particularly in the context of private companies performing public services under contract. The Court partially overturned the decision of the Court of Appeal of Bari, emphasizing that the appropriation of assets belonging to a private company does not automatically constitute the crime of embezzlement.

Context of the Judgment

The case concerned an employee of a private company responsible for waste collection on behalf of a public entity. The central issue was whether the employee could be considered a "public agent" under the Criminal Code, by virtue of the fact that the contracting company performed a public service. The Court clarified that for the crime of embezzlement to be established, it is essential that there be a public purpose link to the assets in question.

The appropriation of assets of a private company, which, without being owned by a public entity and lacking public powers derived from a transfer of concession, performs a public service by virtue of a contract, does not constitute the crime of embezzlement. The latter does not impose a public purpose link on the assets intended for the performance of the service and, consequently, does not confer the status of public agent upon the employee who disposes of them. (Case concerning the appropriation of fuel belonging to a company contracted for municipal waste collection services).

Legal Analysis

The judgment is based on a strict interpretation of the definition of "public agent" and the need to identify a connection between the public entity and the appropriated assets. The Court referred to articles of the Criminal Code, particularly Articles 357 and 358, which define the scope of embezzlement, highlighting that the mere performance of a public service by a private company does not automatically grant its employees the status of public agents.

• The contract does not create a public purpose link to the assets.
• Private companies cannot be considered public entities unless they are owned by them.
• The appropriation of assets of a private company does not constitute the crime of embezzlement if the public requirements are not met.

Conclusions

Judgment No. 27090 of 2024 clarifies a crucial aspect of embezzlement legislation, setting limits on its applicability in public procurement contexts. This jurisprudential trend is significant not only for legal professionals but also for companies operating in the public services sector. It is essential to be aware that the distinction between public and private is central to the configuration of this crime, and that the absence of public powers on the part of the contracting company excludes the possibility of establishing the crime of embezzlement. The judgment could have significant repercussions on future legal interpretations and business practices related to public contracts.