Undue Receipt of Public Contributions: Criminal Liability of Partners in Partnerships (Cassation No. 23472/2025)

The Italian legal landscape is constantly evolving, and rulings by the Court of Cassation represent fundamental cornerstones for correctly interpreting and applying laws. A recent and significant intervention by the Supreme Court, with judgment no. 23472, filed on June 24, 2025 (President V. O., Rapporteur P. G. A. R.), has shed light on a crucial aspect of criminal law and preventive measures, more precisely outlining the liability of partners in partnerships that benefit from public funding.

The case concerned the defendant P. C., who was charged with the undue receipt of public funding, a crime provided for by Article 316-ter of the Criminal Code. The central issue revolved around the omission by the partner and legal representative of a simple partnership to declare, at the time of applying for a community contribution, that he was subject to a personal preventive measure. Conduct that the Judge of the Preliminary Hearing of Rome had rejected, but which the Cassation Court instead recognized as constituting the offense.

The Offense of Undue Receipt and Preventive Measures

Article 316-ter of the Criminal Code punishes anyone who, by using or submitting false declarations or documents or those attesting to untrue facts, or by omitting required information, unduly obtains, for themselves or for others, contributions, financing, subsidized loans, or other payments of the same type, however named, granted by the State, other public bodies, or the European Communities. This is a crime aimed at protecting the integrity and proper use of public resources, preventing them from being diverted or received by unauthorized individuals.

The core of the issue, in this specific case, lies in the intersection between this offense and the regulations on personal preventive measures, particularly Legislative Decree of September 6, 2011, no. 159, commonly known as the Anti-Mafia Code. This decree establishes a series of prohibitions, forfeitures, and suspensions for individuals subject to preventive measures, in order to prevent them from accessing public resources or holding certain positions.

The conduct of the partner and legal representative of a simple partnership who obtains a community contribution for the entity, by failing to declare, at the time of submitting the application, that they are subject to a personal preventive measure, constitutes the offense of undue receipt of public funding, as per art. 316-ter of the Criminal Code. This is because, in partnerships, unlike in corporations, pursuant to articles 83 and 85, paragraph 2, of Legislative Decree of September 6, 2011, no. 159, individual partners are also required to report any personal grounds for forfeiture, suspension, or prohibition referred to in art. 67 of the same decree.

The ruling of the Cassation Court is extremely clear and of fundamental importance. It establishes that the omission to declare being subject to a personal preventive measure, by the partner and legal representative of a simple partnership applying for a community contribution, constitutes the crime of undue receipt. The focal point of the decision lies in the distinction between partnerships and corporations.

The Crucial Distinction Between Partnerships and Corporations

The Cassation Court's ruling highlights a substantial difference in the regulations applicable to partnerships compared to corporations, concerning the communication obligations provided for by Legislative Decree no. 159/2011. In partnerships, such as the simple partnership that was the subject of the ruling, the partner's role is intrinsically linked to the management and representation of the entity. The partner's identity is inseparable from the company's activity, unlike in corporations, where capital plays a predominant role over the identity of the partners.

Articles 83 and 85, paragraph 2, of Legislative Decree no. 159/2011, cited by the Court, require that, in partnerships, individual partners are also obliged to report any personal grounds for forfeiture, suspension, or prohibition provided for by Article 67 of the same decree. These grounds include, among others, being subject to personal preventive measures. The omission of this information, therefore, is not a mere administrative irregularity but has criminal relevance, as it prevents the funding body from correctly assessing the beneficiary's subjective requirements.

This ruling reinforces the principle that transparency and correctness are indispensable pillars in accessing public funds, especially when dealing with subjects potentially at risk of criminal infiltration. The personal nature of partnerships necessitates stricter control over individual members, given their direct impact on the entity's management and reliability.

• The importance of transparency in applications for public and community funds.
• The specific regulations for partnerships, which directly involve the partners.
• The serious criminal consequences arising from the willful omission of relevant information.
• The need for scrupulous verification of subjective requirements by funding bodies.

Practical Implications for Businesses and Professionals

Judgment no. 23472 of 2025 has significant practical implications for all economic operators and professionals involved in public tenders and financing. It is crucial that partnerships, their partners, and their legal representatives are fully aware of the declaration obligations imposed by the Anti-Mafia Code. Ignorance of the law, or negligence in fulfilling these obligations, cannot be invoked as an excuse and can lead to severe criminal consequences, in addition to the revocation of already received contributions.

For lawyers and consultants, this means the need for even more thorough due diligence during the phase of assisting companies accessing public funds, verifying not only the objective requirements of the project but also the subjective requirements of all partners and directors, especially in the case of partnerships.

Conclusions

The Court of Cassation, with judgment no. 23472/2025, has firmly reiterated the importance of legality and transparency in accessing public funding. The decision emphasizes how, within partnerships, the conduct of an individual partner subject to a preventive measure, who fails to declare such status, is sufficient to constitute the offense of undue receipt. This serves as a clear warning to all businesses and professionals: vigilance and compliance with anti-mafia regulations are essential requirements for operating correctly and legally within the Italian and European economic system.