The qualification of a person in charge of public service: analysis of Supreme Court Ruling no. 18966/2025 and the limits for 'in-house' employees

Italian criminal law, with its complex legal figures, requires precise interpretation for the correct qualification of offenses. The distinction between "public official" and "person in charge of public service" is fundamental, as these categories determine the configurability of specific offenses, particularly those against the Public Administration. The Supreme Court Ruling no. 18966 of May 21, 2025 intervenes in this delicate balance, clarifying the limits within which an employee of an 'in-house' company can be considered a person in charge of public service, with immediate repercussions on criminal liability.

The importance of the distinction: public service and 'in-house' companies

To grasp the scope of the ruling, it is crucial to refer to Article 358 of the Criminal Code, which defines "person in charge of public service" as someone who exercises a function governed by rules of public law, but with lesser discretionary powers or without authoritative powers. This distinction is vital: an employee in this category may be subject to offenses such as embezzlement, with more severe penalties. In 'in-house' companies, private entities controlled by a public entity, the line is thin. The question is whether the duties reflect an activity of public service or are limited to merely executive and material tasks.

An employee of an 'in-house' company who performs executive duties and purely material tasks does not hold the subjective qualification of a person in charge of public service, regardless of whether they are required to attest to the activities performed for internal verification purposes related to the proper execution of the employment relationship.

This maxim from Ruling no. 18966/2025 redefines criminal liability for employees of 'in-house' companies. The Supreme Court clarifies that formal affiliation with a "public" entity is not enough to attribute a criminally relevant qualification. The intrinsic nature of the duties matters. If the employee is limited to practical tasks lacking discretion, even if they document their work for internal controls, this does not make them a "person in charge of public service." The Court reiterates a substantial, not formal, assessment, in line with a strict interpretation of criminal law. Internal attestation serves the private employment relationship, not the exercise of a public function.

The specific case and the reclassification of the offense

The ruling stems from the case of R. G., an employee of an 'in-house' company, who had misappropriated sums to pay traffic fines for company vehicles. Although he was required to produce receipts, the Court of Appeal had qualified the conduct as embezzlement. The Supreme Court overturned this decision, reclassifying the act as misappropriation (Art. 646 of the Criminal Code) aggravated by the abuse of a service relationship (Art. 61, no. 11 of the Criminal Code). This reclassification is crucial: embezzlement carries much more severe penalties. The Supreme Court recognized that R. G.'s duties were purely executive and material, not involving the management of public funds with decision-making powers. Keeping receipts was a mere internal bureaucratic fulfillment.

• Embezzlement (Art. 314 c.p.): An offense specific to a public official/person in charge of public service who appropriates money/movable property that they possess by reason of their office/service.
• Misappropriation (Art. 646 c.p.): A common offense committed by anyone who appropriates money/movable property belonging to another that they possess, for unjust profit.
• Aggravating circumstance (Art. 61, no. 11 c.p.): If the act is committed by abusing a service relationship.

Conclusions: a warning for the correct attribution of qualifications

Supreme Court Ruling no. 18966/2025 is a landmark decision on the qualification of a person in charge of public service for employees of 'in-house' companies. It reiterates the importance of a rigorous and substantial analysis of duties, detached from formal automatisms. For legal practitioners, it is a reminder to be cautious in attributing criminally relevant qualifications, based on the actual exercise of public functions. For employees of these companies, it clearly outlines the boundaries of criminal liability, distinguishing between offenses against the Public Administration and common offenses. A striking example of how interpretive precision is fundamental for justice and proportionality. In doubtful cases, it is always advisable to seek legal professionals.