Commentary on Judgment No. 27090 of 2024: Embezzlement and Public Service

The recent judgment No. 27090 of April 17, 2024, by the Court of Cassation provides important clarifications regarding the crime of embezzlement, particularly in the context of private companies providing public services under contract. The Court partially annulled the decision of the Court of Appeal of Bari, emphasizing that the appropriation of assets belonging to a private company does not automatically constitute the crime of embezzlement.

The Context of the Judgment

The case involved an employee of a private company responsible for waste collection on behalf of a public entity. The central issue was whether the employee could be considered a "public agent" under the Penal Code, due to the fact that the contracting company was providing a public service. The Court clarified that to constitute the crime of embezzlement, there must be a public destination constraint on the assets in question.

The appropriation of assets belonging to a private company that, without being controlled by a public entity and lacking the public powers derived from a transfer concession, performs a public service under a procurement contract, does not constitute the crime of embezzlement, as the latter does not impose a public destination constraint on the assets intended for the execution of the service and, consequently, does not confer the status of public agent on the employee who disposes of them. (Case concerning the appropriation of fuel belonging to a contractor of the municipal waste collection service).

Legal Analysis

The judgment is based on a strict interpretation of the definition of "public agent" and the necessity to identify a link between the public entity and the appropriated assets. The Court referenced articles from the Penal Code, particularly articles 357 and 358, which outline the boundaries of embezzlement, highlighting how the mere execution of a public service by a private company does not automatically grant its employees the status of public agents.

  • The procurement contract does not create a public destination constraint on the assets.
  • Private companies cannot be considered public entities unless they are controlled by them.
  • The appropriation of assets of a private company does not constitute the crime of embezzlement if the requirements of publicity are lacking.

Conclusions

Judgment No. 27090 of 2024 clarifies a crucial aspect of embezzlement legislation, placing limits on its applicability in public procurement contexts. This jurisprudential orientation is significant not only for legal professionals but also for companies operating in the public service sector. It is essential to be aware that the distinction between public and private is central to the configuration of this crime, and that the absence of public powers from the contracting company excludes the possibility of constituting the crime of embezzlement. The judgment may have significant repercussions in future legal interpretations and business practices related to public procurement.

Bianucci Law Firm