An accusation of aggravated fraud for obtaining public funds can stem from a grant application, documents attached to a reporting statement, or the use of funds after disbursement. The first doubt is often very concrete: is an error in the requirements, an incomplete declaration, or an actual trick being contested? And if the funding concerns European resources or the NRRP, what changes?
The qualification of the act matters right from the start. I want to help you distinguish the aggravated fraud of Article 640-bis of the Italian Criminal Code from malversation and the undue receipt of public funds. We will see what elements must emerge, why an administrative check does not automatically coincide with a crime, and which steps deserve attention when a company, directors, employees, or external professionals are involved.
When We Speak of Aggravated Fraud to Obtain Public Funds
Article 640-bis of the Italian Criminal Code concerns fraud aimed at obtaining a public grant. The provision applies when the act exhibits the elements of the fraud provided for by Article 640 of the Italian Criminal Code and has as its object contributions, grants, financing, subsidized loans, or similar benefits granted by the State, other public bodies, or the European Union. The penalty indicated by the provision is imprisonment from two to seven years and proceedings are initiated ex officio. The text of the article is referenced in Law no. 161 of 2017, Article 30.
It is not enough that the contribution turned out to be non-entitled. The reference to Article 640 of the Italian Criminal Code requires the accusation to identify artifices or deceptions, the misleading of the disbursing entity, unfair profit, and prejudice to others. In simple terms, it is necessary to distinguish a missing or debated requirement from a deceptive conduct that would have led the administration to grant the benefit. The structure of fraud and its elements are set forth in Legislative Decree no. 150 of 2022, Article 2.
The decisive moment may be the application, but not always. If the accusatory hypothesis concerns untrue data entered to obtain financing, the core of the problem is the relationship between that information and the entity's decision. If, on the other hand, the sum was granted regularly and the contestation concerns its subsequent use, the comparison must shift to the obligation of destination provided for by the call for applications, the granting decree, or the agreement.
Fraud, Undue Receipt, and Malversation: Three Hypotheses Not to Be Confused
Aggravated Fraud Requires the Deception Provided for by Article 640 of the Italian Criminal Code
Aggravated fraud is the broadest hypothesis from the perspective of deception. The accusation must describe which artifice or deception would have misled the administration and why that error played a role in the disbursement. A generic reconstruction based solely on the subsequent negative outcome of an audit does not clarify by itself whether all the elements of the crime exist.
The sequence of events must be read with precision. It matters to know what declarations were made, who prepared them, which document was available to the applicant, and what checks were planned before admission to the contribution. The concrete rule of access to the benefit also counts: data irrelevant to the purpose of the grant does not play the same role as a requirement expressly requested by the provision.
Undue Receipt Concerns False Declarations or Owed Omissions
Article 316-ter of the Italian Criminal Code governs a different and residual hypothesis compared to Article 640-bis. It concerns the undue obtaining of public grants through false declarations or documents, untrue attestations, or omissions of owed information, unless the act constitutes the more serious aggravated fraud. The provision includes contributions, grants, financing, subsidized loans, and other public disbursements.
The threshold of €3,999.96 does not turn every minor act into a crime. For sums unduly received equal to or less than that amount, Article 316-ter provides only for an administrative pecuniary sanction, within the limits set by the rule. However, an examination of the sum actually contested and the precise qualification of the act remain necessary. For hypotheses that offend the financial interests of the European Union and exceed €100,000 in damage or profit, the provision provides for a different sanctionatory treatment. The updated text of Articles 316-bis, 316-ter, and 640-bis is reported in the Official Journal, Law no. 25 of 2022.
Malversation Concerns the Use of Sums After Granting
Article 316-bis of the Italian Criminal Code looks at the destination of money already obtained. Malversation of public grants is configured, according to the rule, when a person outside the public administration has obtained contributions or financing destined for one or more purposes and does not allocate them to the expected aims. The central point is therefore not the way in which the money was requested, but compliance with the restriction of use after disbursement.
A real expense is not necessarily a financiable expense. The purchase can be documented and yet extraneous to the project, incurred outside the permitted period, or inconsistent with the authorized cost item. Likewise, the failure to complete the initiative does not demonstrate the diversion of sums by itself: it is necessary to understand whether the financing allowed for remodulations, extensions, restitutions, or other administrative tools and what concretely happened to the resources.
NRRP Funds: Checks, Recovery of Sums, and Criminal Profile
NRRP funding does not create an autonomous crime called “NRRP fraud”. Criminal accusations continue to require the elements of the individual offenses provided for by the criminal code. However, the European origin of the resources makes traceability, checks, the absence of double financing, and the correspondence between declared data, activities carried out, and reported costs central.
Financial checks are not equivalent to proof of guilt. The European regulation establishing the recovery and resilience facility requires member states to take measures to prevent, detect, and correct fraud, corruption, and conflicts of interest, in addition to the recovery of amounts unduly paid or used. This explains why an audit can involve multiple documents and multiple subjects; however, it does not replace the ascertainment of the elements required by criminal law. The reference is Article 22 of Regulation (EU) 2021/241.
Administrative recovery and criminal liability follow distinct plans. The revocation of the contribution, the redetermination of the benefit, or the request for restitution may also depend on non-compliance with conditions of the call. For the criminal charge, on the other hand, it is necessary to verify what conduct is attributed to the person, when it was implemented, and what effect it would have had on obtaining or using the sums.
It is a mistake to treat all irregularities as equivalent. An incomplete document, an inaccurate declaration, an ineligible cost, an invoice referring to another assignment, and the use of resources for extraneous purposes are different facts. They may also require different responses on an administrative level. Criminal defense must start from the actual contestation, not from the generic label of “fund fraud”.
Facts That Truly Affect the Defensive Position
The call for applications and the granting provision define the concrete restriction. It is not sufficient to know that a contribution existed; it is necessary to understand which requirements were requested, which expenses were admitted, in which period, with which documents, and according to which communication obligations. The distinction is important because a conduct can be incompatible with a rule of the call without automatically demonstrating the deception required by fraud.
The authorship of declarations must not be presumed. In an application submitted by a company, directors, employees, consultants, technicians, and intermediaries can intervene. Who signed, who had disposal of the data, who transmitted the document, and who knew the contested circumstances are different questions. The simple formal role in the company does not describe, by itself, the concrete contribution to the hypothesized conduct.
Chronology can clarify the meaning of an anomaly. A project variation communicated before reporting does not have the same significance as a silenced modification; an expense advanced and then authorized does not coincide with an expense extraneous to the financed purpose. Communications with the entity, requests for clarification, and integration acts can also explain whether data was known, rectified, or still contested.
The restitution of sums deserves attention, but does not solve everything by itself. Returning the amount or initiating a comparison with the entity can be relevant on an administrative level and, depending on the context, in the overall evaluation of the fact. However, it does not automatically eliminate the necessity to ascertain whether the original conduct integrates a crime or not. For this reason, it is not advisable to confuse the choice of regularizing with an indistinct admission of responsibility.
Companies, Directors, and Corporate Liability
The position of the natural person and that of the company can be separated. If the affair concerns a business or an entity, in addition to the accusation directed at single subjects, the issue of corporate liability for crimes governed by Legislative Decree no. 231 of 2001 can open. Article 24 includes Articles 316-bis, 316-ter, and 640-bis of the Italian Criminal Code among the offenses relevant for the purposes of sanctions for the entity.
The consequences for the entity are not a secondary detail. Article 24 provides for pecuniary sanctions and, in the contemplated cases, disqualifying sanctions. The analysis must therefore keep personal roles, applicable organizational rules, and any prospective interest or advantage toward the company distinct. The text of the article is reported in Legislative Decree no. 75 of 2020, Article 5.
A coherent defense avoids improper overlaps. Corporate documentation can be useful to clarify who had decision-making powers, how the transmitted data was formed, and whether expenses were actually incurred. However, it must not become a set of abstract explanations: each document must be connected to a contested fact, the moment it occurred, and the subject to whom the accusation attributes it.
What Choices to Consider When Facing an Accusation
The first choice is to understand what fact is truly being contested. A notice of investigation, an invitation to appear, a seizure decree, or a request for documents do not have the same function. Reading the provision immediately allows distinguishing the hypothesis of artifices or deceptions from the contestation of an omitted declaration, an inadmissible expense, or a diversion of resources.
Defending oneself also means avoiding hasty statements. Explanations offered without knowing the files can confuse roles, overlap administrative and criminal planes, or overlook already documented steps. It is more useful to reconstruct in order the application, grant, payments, variations, reporting, and interlocations with the entity, keeping the correction of a material error distinct from the response to an accusation of fraudulent conduct.
Procedural options depend on the contestation and the phase. In some cases, the priority theme is demonstrating the absence of the elements of the crime; in others, it is necessary to evaluate the consequences of an administrative request for restitution and the position of the entity. If there are margins for alternative proceedings or remedial initiatives, their utility cannot be evaluated in the abstract: it depends on the charge, available evidence, and the patrimonial and professional effects that remain at stake. If you want to address these aspects with documents in hand, you can contact me.
Frequently Asked Questions
Does a revoked contribution automatically mean aggravated fraud?
No, revocation alone does not prove the crime. It can depend on the lack of a requirement, an inadmissible cost, or the violation of an obligation of the call. For Article 640-bis of the Italian Criminal Code, it is also necessary to verify the presence of the elements of fraud, including artifices or deceptions, error of the entity, unfair profit, and damage.
What is the difference between Article 640-bis and Article 316-ter of the Italian Criminal Code?
Article 640-bis requires the act of fraud. Article 316-ter instead concerns undue obtaining through false declarations or documents, untrue attestations, or omissions of owed information, unless the facts constitute aggravated fraud. The distinction depends on concrete conduct, not solely on the name of the contribution received.
Can I return the contested contribution?
Restitution can be requested or opportune on an administrative level. Its meaning depends on the entity's provision, the conditions of the financing, and the moment it intervenes. However, it does not constitute an automatic response to the criminal accusation by itself: it remains to be verified whether the original fact has all the elements of the contested crime.
Can a company answer together with the director?
Yes, the question can also concern the entity. Article 24 of Legislative Decree no. 231 of 2001 includes Articles 316-bis, 316-ter, and 640-bis of the Italian Criminal Code among relevant crimes. The company's liability is distinct from that of the natural person and requires an autonomous examination of the presuppositions provided by the discipline.
Do NRRP checks concern only those who received money from the European Union?
No, the check can concern the entire chain of resource utilization. In NRRP projects, the compliant use of funds, the correctness of information, the prevention of double financing, and the traceability of costs assume significance. This does not mean that every administrative finding integrates a criminal offense.
Essential Normative References
Normative texts help identify the rule, not replace the analysis of facts. For the offenses of malversation, undue receipt, and aggravated fraud, it is useful to consult the text reported in Law no. 25 of 2022 published in the Official Journal. For checks connected to the resources of the European recovery and resilience facility, Article 22 of Regulation (EU) 2021/241 governs the protection of the financial interests of the Union, checks, and the recovery of amounts unduly paid or used.