Abusive Practice of Profession and Obligation to Abstain: The Cassation Court's Interpretation in Ruling no. 25937/2025

The line between lawful and unlawful, especially in criminal matters, is often subject to jurisprudential interpretations and clarifications. A particularly sensitive issue concerns the practice of professions and the conduct obligations for those holding public office. The Court of Cassation, with its recent ruling no. 25937 of May 28, 2025 (filed on July 15, 2025), has provided an important clarification regarding the crime of abusive practice of a profession (Art. 348 of the Italian Criminal Code) in relation to the violation of the obligation to abstain as provided for members of municipal councils. This ruling deserves attention for its practical implications and the clarity with which it outlines the scope of specific regulations.

The Judicial Case and the Supreme Court's Decision

The legal proceedings originated from a case involving P. L., accused of the alleged abusive practice of a profession. The charge was based on the fact that, as a member of the municipal council with responsibilities in urban planning, construction, and public works, P. L. had allegedly carried out professional activities in the private and public construction sector within the administered territory. This conduct was deemed a violation of the obligation to abstain enshrined in Art. 78, paragraph 3, of Legislative Decree of August 18, 2000, no. 267 (Consolidated Law on Local Authorities - TUEL).

The Court of Savona, in its ruling of October 3, 2024, had dismissed the charge. The matter then came before the Court of Cassation, Sixth Criminal Section, which, under the presidency of Dr. R. M. and with Dr. C. A. as the rapporteur, upheld the Court of Savona's decision, rejecting the appeal by the Public Prosecutor (L. P.). The Supreme Court, in fact, excluded the applicability of the crime of abusive practice of a profession, referencing established principles in this area.

The practice, by a member of the municipal council responsible for urban planning, construction, and public works, of professional activities in the private and public construction sector within the administered territory, in violation of the obligation to abstain that Art. 78, paragraph 3, of Legislative Decree of August 18, 2000, no. 267 imposes to protect the impartial exercise of public functions, does not constitute the crime of abusive practice of a profession provided for by Art. 348 of the Italian Criminal Code. This is because the criminal provision, instead, pursues the practice of a profession in the absence of the required state licensing title.

This ruling by the Cassation Court is of fundamental importance. It clearly establishes that the violation of the obligation to abstain, while representing serious misconduct contrary to the principles of impartiality and efficiency of Public Administration, does not automatically translate into the crime of abusive practice of a profession. The crime under Art. 348 of the Italian Criminal Code has a very specific purpose and its own distinct rationale, which should not be confused with other types of offenses.

The Crucial Distinction: Licensing Title vs. Obligation to Abstain

The core of the Cassation Court's decision lies in the distinction between two distinct legal concepts, albeit seemingly connected:

• Abusive practice of a profession (Art. 348 of the Italian Criminal Code): This criminal provision aims to protect the public interest in relying on the actual possession, by those practicing a profession, of the licensing title required by the State. It essentially seeks to prevent unqualified and unauthorized individuals from engaging in professional activities that require specific skills and guarantees for the community.
• Violation of the obligation to abstain (Art. 78, paragraph 3, Legislative Decree 267/2000): This provision of the TUEL has a different purpose. It aims to safeguard the impartiality and transparency of administrative action. A local administrator must indeed refrain from participating in deliberations or decisions that involve their own interests or those of their relatives, to avoid conflicts of interest and ensure the correctness of public operations.

The Supreme Court emphasizes that, although the conduct of an administrator operating in their professional sector within the administered territory violates the obligation to abstain and may constitute an offense (of an administrative or disciplinary nature), it cannot be classified as the crime of abusive practice of a profession if the individual regularly possesses the licensing title. The criminal legislator, with Art. 348 of the Italian Criminal Code, intends to punish those who present themselves as professionals without having the formal requirements, not those who, despite having them, operate in a situation of conflict of interest.

Implications and Jurisprudential Precedents

This interpretation by the Cassation Court is not isolated but aligns with established jurisprudence. The ruling itself refers to important precedents, such as Section U, no. 2 of 1990, and other subsequent rulings that have consistently reiterated the need to distinguish the lack of a licensing title from the non-observance of other ethical or conduct rules governing professional practice or public office. The principle of legality and the strict interpretation of criminal laws require that the scope of a crime not be extended beyond its literal limits and the ratio of the provision.

The decision of the Cassation Court no. 25937/2025 reiterates that criminal law is the ultima ratio and intervenes only to protect specific legal interests, in this case, public trust in professional qualifications. Other violations, even if deserving of sanctions, must find their resolution in other branches of the legal system, such as administrative or disciplinary law.

Conclusions

The ruling of the Cassation Court no. 25937 of 2025 offers essential clarification for all those operating in the public and professional sectors. It reinforces the principle of specialty of criminal laws and the need for correct legal qualification of facts. The violation of the obligation to abstain by a local administrator, while being reprehensible and sanctionable conduct, does not automatically constitute the crime of abusive practice of a profession if the individual possesses the required licensing titles. It is crucial for administrators and professionals to be aware of these distinctions to act in full compliance with the law and to avoid misunderstandings regarding the nature and consequences of their actions.