Criminal Cassation no. 12436/2024: embezzlement of PREU and no compensation for the concessionaire
The ruling we are commenting on – Cass. pen., Section VI, judgment of November 6, 2024 (filed March 31, 2025), no. 12436 – addresses a recurring issue in the legal gaming sector: who can be defined as the "aggrieved party" when the operator appropriates the single state levy (PREU) due to the Treasury? The Court replies by denying the concessionaire such a qualification and, consequently, the right to claim compensation for moral damages. Let's see why.
Case Background
The defendant S. G., an operator of gaming machines pursuant to art. 110 TULPS, was accused of embezzlement for having retained sums intended for the PREU. The Court of Appeal of Salerno recognized the crime and granted the concessionaire compensation for moral damages. In Cassation, the Public Prosecutor's Office complained of a violation of articles 314 of the Criminal Code and 185 of the Criminal Code: according to the appellant, the concessionaire would not suffer damage of his own, as the money is public from the moment of collection.
In matters of embezzlement, the concessionaire, in case of appropriation of the single state levy by the operator or licensee of legal gaming machines referred to in art. 110, sixth and seventh paragraphs, TULPS, does not hold the status of an aggrieved party to the crime, given that the collected money belongs to the public administration from the moment of collection, and therefore has no right to compensation for moral damages.
The core of the reasoning is here: the Court refers to Joint Sections no. 6087/2021 and reiterates that the PREU is born "public"; the operator acts as a mere solvens on behalf of the State. This has cascading consequences on both the criminal and civil levels.
The Public Nature of PREU and the Figure of "Aggrieved Party"
To establish the qualification of an aggrieved party, a direct and immediate interest harmed by the crime is required. In embezzlement (art. 314 of the Criminal Code), this interest coincides with the ownership of the asset. The PREU, pursuant to art. 1, paragraph 498, of law 266/2005, is a tax that falls on the player but is paid by the operator to the concessionaire only in transit. The money, therefore, belongs to the State from the moment of collection. The concessionaire acts as a contractual auxiliary of the Customs and Monopolies Agency; if the operator retains the sum, they exclusively harm public assets.
- Art. 314 of the Criminal Code: embezzlement protects the proper functioning and assets of the Public Administration.
- Arts. 1223 and 2059 of the Civil Code: moral damages are compensable only if the interest is one's own and not another's.
- Arts. 110, paras. 6-7, TULPS: define the operator-concessionaire-State chain.
It follows that the concessionaire may, at most, act in recourse for the part of the pecuniary penalty or contractual penalty provided for by the concession, but cannot constitute itself as a civil party for moral damages in the criminal proceedings.
Implications for Damage Compensation and Legal Practice
Excluding the concessionaire's standing to claim moral damages has two practical effects:
- In investigations, their report will not have the status of an aggrieved party (art. 408 of the Code of Criminal Procedure); they may still report the facts but will not enjoy the related rights (e.g., opposition to a request for dismissal).
- In court, they cannot constitute themselves as a civil party for moral damages; however, they may claim compensation for patrimonial damages only if they demonstrate a personal economic impact (e.g., penalties or coverage costs).
The decision is part of a line of case law that, also in light of art. 83 TFEU and EU Directives on online gaming, aims to strengthen the protection of the treasury and simplify the identification of the truly harmed party in crimes against the Public Administration.
Conclusions
Judgment no. 12436/2024 clarifies an essential principle: in cases of embezzlement of PREU, the concessionaire is not directly harmed, because the money belongs to the State from the moment of collection. Lawyers assisting concessionaires will therefore have to focus their compensation claims on the contractual aspect, avoiding applications to constitute as civil parties for moral damages, which are destined to be rejected. For the defense of operators, the decision confirms the aggravating circumstance of the subjective qualification of a public service appointee, but reduces the number of subjects legitimately able to claim compensation in criminal proceedings, with implications also for the calculation of any compensation offers during plea bargaining.
