Fraud in Public Procurement: Cassation Court Ruling No. 28655/2025 and the Limits of Article 356 of the Criminal Code

The relationship between private entities and Public Administration is often subject to complex legal dynamics, especially concerning public supply contracts or service concessions. In this context, jurisprudence is called upon to define the boundaries of criminal liability, while simultaneously ensuring the protection of public interests and legal certainty. A recent ruling by the Court of Cassation, judgment No. 28655 of July 10, 2025, offers important clarifications on the crime of fraud in public procurement, as defined by Article 356 of the Criminal Code, specifying when such an offense can indeed be attributed to a private concessionaire of a public service.

The Crime of Fraud in Public Procurement: An Overview of Article 356 of the Criminal Code

Article 356 of the Criminal Code aims to penalize fraudulent conduct by those who, in the execution of a supply contract or the undertaking of a public service, alter the quality or quantity of goods or works, or fail to perform them according to the agreed terms. This provision safeguards the Public Administration's interest in the correct execution of contracts and services essential for the community. Traditionally, jurisprudence has interpreted this offense as requiring the fraud to be perpetrated directly against the contracting Public Administration, understood as the recipient of the supply or service.

The Specific Case: Concessionaire's Defaults and Public Benefit

The case that led to the Cassation ruling involved a public service concessionaire, accused of defaults related to activities directly benefiting the public. The Tribunal of Liberty of Genoa, on May 2, 2025, had expressed an opinion that was subsequently appealed. The central issue was to determine whether these defaults, despite having negative repercussions on the community, could constitute the crime of fraud in public procurement, considering that the ultimate direct beneficiary of the activities was not the Public Administration in the strict sense, but the users.

The crime of fraud in public procurement, under Article 356 of the Criminal Code, cannot be attributed to a private entity holding a public service concession for defaults related to activities benefiting the public, as the offense presupposes that the direct recipient of the supply is the contracting public administration.

This legal principle, extracted from judgment No. 28655/2025 of the Supreme Court (President F. G., Rapporteur D. G. P.), is of fundamental importance. It unequivocally clarifies that for the offense under Article 356 of the Criminal Code to be established, it is essential that the Public Administration be the "direct recipient" of the supply. In other words, if the concessionaire's default concerns a service or activity whose ultimate benefit is directed to the public, and not to the PA itself as the "consumer" of the supply, then the crime of fraud in public procurement cannot be charged. The Court reiterates a principle already expressed in previous rulings (cf. Section 6, No. 28130 of 2020), consolidating the view that the provision protects the direct patrimonial or functional interest of the PA that is harmed, and not generically the interests of the community that may be harmed by a poor public service.

Implications of the Ruling for Criminal and Contractual Liability

The Cassation Court's decision has significant practical implications. It does not, of course, mean that the defaults of a public service concessionaire go unpunished. On the contrary, the ruling emphasizes the need for a correct legal qualification of the facts. Fraudulent or defaulting conduct by a concessionaire could indeed fall under other criminal offenses or generate contractual or compensatory liability. Specifically:

• **Distinction between direct and indirect beneficiary:** The ruling highlights the importance of analyzing who the real recipient of the service subject to fraud is. If the recipient is the public, other criminal or civil provisions may apply.
• **Need for precise analysis of the contractual relationship:** Each concession contract must be carefully examined to understand the concessionaire's obligations and the direct recipients of the services.
• **Orientation towards other offenses:** In cases of defaults that harm the public, other offenses may be applicable (e.g., interruption of public service, fraud, or other specific regulatory violations), as well as administrative sanctions, in addition to civil consequences.

This interpretation ensures that Article 356 of the Criminal Code is not applied expansively to situations that, while problematic, do not fall within its specific rationale. The Public Prosecutor N. L., who supported the prosecution, now faces jurisprudence that mandates a more stringent qualification.

Conclusions

Judgment No. 28655/2025 of the Court of Cassation, presided over by F. G. and reported by D. G. P., represents a firm point in the interpretation of the crime of fraud in public procurement. By reiterating that the offense presupposes the Public Administration as the direct recipient of the supply, the Court draws a clear line between defaults that directly affect the public entity and those that, while serious, primarily impact the public user of the service. This distinction is crucial for the correct application of criminal law and for the protection of economic operators and the Administration itself, calling for greater precision in qualifying illicit conduct within the complex relationship between the State and private entities.