Aggravated Fraud for Obtaining Public Funds (Art. 640-bis)

Criminal profiles, structure of the offence and defence criteria

Aggravated fraud for obtaining public funds, provided for by Art. 640-bis of the Criminal Code, constitutes an offence of particular gravity within the system of crimes against the public administration, characterised by the use of fraudulent conduct aimed at unduly obtaining public resources. The provision assumes central relevance in the context of economic criminal law, as it is frequently charged in connection with public financing, European funds, state contributions and business incentive instruments.

Regulatory structure and protected legal interest

Art. 640-bis configures an aggravated circumstance of fraud under Art. 640, applicable when the act is committed to obtain contributions, financing, subsidised loans or other disbursements of the same type, however denominated, from the State or public bodies.

The protected legal interest is twofold: public assets, as the body of economic resources allocated to the collective interest, and the proper functioning of administrative activity, particularly in the phase of disbursement of benefits.

Constituent elements of the offence

Conduct — The typical element is the use of artifices or deceptions, capable of misleading the disbursing body. Such conduct may consist of: fraudulent document constructions; altered representations of economic-financial reality; simulations of non-existent requirements or conditions.

Event — The event consists in obtaining the public disbursement, with consequent damage to the disbursing body and profit for the perpetrator. Causal link — The disbursement must be a direct effect of the error induced in the administration through the fraudulent conduct.

Subjective element — Specific intent is required, consisting in the aim of obtaining an unjust profit by misleading the public administration.

Areas of application in corporate criminal law

• Fraudulent access to public financing or European funds
• Use of altered documentation to obtain contributions
• Undue representation of required subjective or objective requirements
• Simulated operations aimed at obtaining economic benefits

In the business context, charges are often based on inspections carried out by the Financial Police and on complex documentary analyses, with implications also of a tax and corporate nature.

Distinction from related offences

• Art. 316-ter (undue perception): absence of artifices or deceptions
• Art. 316-bis (misappropriation): undue allocation of legitimately obtained funds
• Art. 640-bis (aggravated fraud): presence of active fraudulent conduct, capable of deceiving the administration

The Supreme Court has repeatedly emphasised that the demarcation line between undue perception and aggravated fraud lies in the quality of the conduct, namely in the presence of a quid pluris represented by the fraudulent activity.

Precautionary measures and corporate liability

• Application of preventive seizure aimed at confiscation, including by equivalent
• Extension of investigations to personal and corporate assets
• Involvement of the entity under Legislative Decree 231/2001, as a predicate offence

Defence method and technical approach criteria

The defence in proceedings for aggravated fraud for obtaining public funds requires a highly specialised approach, based on the analytical decomposition of the offence.

• Verification of the suitability of artifices or deceptions: ascertaining whether the contested conduct was actually capable of misleading the administration with concrete deceptive capacity
• Analysis of the causal link: verifying that the disbursement was determined by the induced error and not attributable to autonomous assessments by the administration
• Reconstruction of administrative documentation: assessing the actual scope of declarations made, the existence of interpretative ambiguities and the degree of transparency of the information provided
• Exclusion of specific intent: verification of awareness of the alleged fraudulent conduct, the aim of obtaining unjust profit and possible reliance on technical consultancy
• Legality control over precautionary measures: correct identification of profit, existence of the pertinence link and proportionality of the measure
• Coordination with corporate liability (Legislative Decree 231/2001): assessment of organisational structure, prevention models adopted and internal decision-making flows

Assistance in public administration offences

• Aggravated fraud for obtaining public funds (Art. 640-bis)
• Undue perception of public funds (Art. 316-ter)
• Misappropriation against the State (Art. 316-bis)
• Offences related to the management of public funds and business financing