Misappropriation and SME Financing: Reflections on Judgment No. 14874 of 2024

Judgment No. 14874 of 2024, issued by the Court of Cassation, provides an important interpretation regarding misappropriation in assisted financing intended for small and medium-sized enterprises (SMEs) affected by the economic effects of the Covid-19 pandemic. In particular, the decision clarifies the responsibilities of professionals who, benefiting from emergency measures, divert the use of funds for personal purposes rather than for the purposes provided by law.

The Regulatory Context

The emergency legislation, specifically Decree Law April 8, 2020, No. 23, introduced extraordinary measures to support SMEs, ensuring access to assisted financing. Article 13, letter m), of this decree extends access to the guarantee of the SME Fund, creating opportunities for professionals to obtain vital funds for their activities. However, this has also raised questions regarding the proper allocation of financing.

The Crime of Misappropriation

As highlighted in the judgment, misappropriation is configurably when a professional allocates the received funds for personal purposes, thus violating legal obligations. The key points of the judgment can be summarized as follows:

  • Configuration of the crime of misappropriation pursuant to Article 316-bis of the Penal Code.
  • Improper allocation of assisted financing for personal purposes.
  • Specific responsibility of the professional who received the financing.
Assisted financing with a guarantee for SMEs affected by the Covid-19 pandemic - Professionals - Allocation for different purposes - Misappropriation under Article 316-bis of the Penal Code - Configurability. In the context of emergency legislation aimed at supporting businesses affected by the effects of the Covid-19 pandemic, the crime of misappropriation under Article 316-bis of the Penal Code is configurably when the professional, to whom, pursuant to Article 13, letter m), Decree Law April 8, 2020, No. 23 (so-called liquidity decree), converted, with modifications, by Law June 5, 2020, No. 40, access to the guarantee issued by the Fund for Small and Medium Enterprises is extended, allocates the financing granted in his favor to personal needs rather than to the professional activity to which it is legally intended.

Conclusions

Judgment No. 14874 of 2024 represents an important step forward in the legal qualification of illicit conduct related to the improper use of public financing. It emphasizes the importance of correct and transparent use of resources intended to support SMEs, highlighting that failure to comply with such obligations can lead to significant criminal consequences. It is essential that professionals understand their responsibilities in managing public funds so that they can contribute ethically and legally to the revival of economic activities affected by the health crisis.

Bianucci Law Firm