Court of Cassation: Failure to Communicate and the Crime of Undue Receipt of Public Funds (Judgment No. 11969/2024)

The Court of Cassation, with Judgment No. 11969 (filed March 26, 2025, hearing November 28, 2024), presided over by M. C. and with rapporteur G. D. A., has clarified the boundaries of criminal liability for the undue receipt of public funds (Art. 316-ter of the Italian Criminal Code) in cases of informational omissions. This article analyzes the decision, offering guidance for businesses and professionals.

The Case in Question: Omissions and Undue Benefits

The case involved T. Z. S.R.L. in liquidation, accused of having unduly received social security benefits for redundant workers, by failing to communicate an obstructive condition (Art. 8, paragraph 4-bis, Law No. 223/1991, then in force). Art. 316-ter of the Italian Criminal Code punishes those who unduly obtain public funds through informational omissions, to protect public assets.

The Ruling of the Court of Cassation: The Principle Stated

The Court of Cassation rejected the company's appeal, confirming the judgment of the Court of Appeal of Lecce of May 17, 2023. The ruling, which represents the principle of law stated, unequivocally clarifies the scope of the provision:

The undue obtaining of the right to social security benefits and the reduction of contributions due for redundant workers, as a result of the failure to communicate the existence of the obstructive condition provided for by Art. 8, paragraph 4-bis, of Law of July 23, 1991, No. 223 (repealed, effective January 1, 2017, by Art. 2, paragraph 71, letter b), of Law of June 28, 2012, No. 92), constitutes the crime of undue receipt of public funds, provided for by Art. 316-ter of the Criminal Code, without the methods of obtaining the economic advantage deriving from the breach of the contribution obligation being relevant for this purpose.

This principle is fundamental: the omission of required information, which prevents the recognition of a right or the obtaining of a benefit, is sufficient to constitute the crime. Active fraudulent conduct (Art. 640-bis of the Italian Criminal Code) is not necessary. Simple silence, in the presence of a communication obligation, can have criminal consequences. The Court of Cassation reiterated the irrelevance of the "methods of obtaining the economic advantage," focusing on the undue obtaining of the disbursement, direct or through non-spending.

Distinction and Practical Implications

It is essential to distinguish Art. 316-ter of the Italian Criminal Code from Art. 640-bis of the Italian Criminal Code (Aggravated fraud for obtaining public funds):

• Art. 640-bis of the Italian Criminal Code requires artifices or deceptions capable of misleading the Public Administration.
• Art. 316-ter of the Italian Criminal Code is constituted even by a simple omission of required information or untrue declarations, without the deceptive complexity of fraud.

This judgment serves as a warning to businesses and professionals: it is imperative to pay the utmost attention to the correct completion of documentation and the timely communication of all relevant information for public benefits. Constant vigilance and adequate legal advice are indispensable to prevent criminal risks.

Conclusions

Judgment No. 11969/2024 reiterates the importance of transparency and completeness in information provided to the Public Administration. Relevant omissions for the right to a benefit, even if not intentionally fraudulent, constitute a crime with criminal consequences. Preventive legal advice is fundamental for security in the landscape of public disbursements.