Unlawful Obtainment of Public Funds (Art. 316-ter)

Unlawful Obtainment of Public Funds (Art. 316-ter Criminal Code)

Criminal profiles, offence structure and defence criteria

The unlawful obtainment of public funds, governed by Art. 316-ter of the Criminal Code, occupies a distinct position in the system of offences against public administration as an autonomous offence compared to aggravated fraud, characterised by lower harmfulness but an extremely broad scope of application in practice.

The provision assumes strategic importance in the context of economic criminal law, as it is frequently challenged in relation to access to public grants, subsidised financing, European funds and business support measures.

Regulatory structure and protected legal interest

Art. 316-ter of the Criminal Code punishes anyone who: 'by using or presenting false declarations or documents, or documents attesting to untrue facts, or by omitting required information, unlawfully obtains, for themselves or others, grants, financing or other benefits of the same kind'.

The protected legal interest is the correct allocation of public resources, with particular reference to the initial phase of disbursement, i.e. the moment at which the administration decides to grant the benefit.

Constituent elements of the offence

Conduct

The typical conduct is structured in two alternative modes:

• active, through the use or presentation of false declarations or documents;
• omissive, through the failure to communicate required information relevant to the disbursement.

Result

It consists in the unlawful obtainment of the public disbursement, even if of modest amount or partially obtained.

Mental element

General intent is required, consisting in the awareness that the benefit is not due and the will to obtain it.

Areas of application in corporate criminal law

The offence is frequently applied in the business context, with reference to:

• access to public grants and state incentives;
• European or regional financing;
• tax breaks or tax credits;
• emergency economic support measures.

Criminal relevance is often based on documentary and declaratory elements, making the analysis of the administrative investigation phase and the documentation produced central.

Distinction from aggravated fraud (Art. 640-bis)

The distinction between unlawful obtainment and aggravated fraud for obtaining public disbursements represents an interpretive crux of primary importance.

• Art. 316-ter applies in the absence of artifice or deceit, the mere presentation of untruthful data or the omission of relevant information being sufficient;
• Art. 640-bis instead requires fraudulent conduct characterised by artifice and deceit capable of misleading the administration.

The correct legal classification significantly affects the sanctioning regime and the configurability of any precautionary measures.

Criminal relevance threshold

• if the amount unlawfully obtained is less than €4,000, an administrative sanction applies;
• above this threshold, the conduct becomes criminally relevant.

This element introduces a technical aspect of particular relevance in the assessment of the specific case.

Precautionary measures and corporate liability

The charge may entail:

• preventive seizure aimed at confiscation, including by equivalent;
• extension of investigations to personal assets;
• possible involvement of the entity under Legislative Decree 231/2001, where the offence was committed in the interest or to the advantage of the company.

Defence method and technical approach criteria

The defence in matters of unlawful obtainment of public funds requires a structured approach, based on the analysis of administrative documentation and the procedural sequence that led to the disbursement.

1. Verification of the relevance of contested information

It is essential to ascertain whether the contested declarations or omissions had an actual causal impact on the granting of the benefit, or whether they are marginal or non-determinative elements.

2. Analysis of the administrative procedure

The reconstruction of the investigative process allows verification of:

• the degree of control exercised by the administration;
• the presence of discretionary assessments;
• the possible knowability of the information by the disbursing entity.

3. Exclusion of intent

The demonstration of the absence of the mental element may be based on:

• interpretive errors regarding sector regulations;
• complexity of financing access procedures;
• reliance on technical or tax consultants.

4. Correct legal classification of the fact

Particular importance attaches to the distinction between: unlawful obtainment (Art. 316-ter); aggravated fraud (Art. 640-bis); situations lacking criminal relevance. An incorrect classification may lead to an unjustified worsening of the suspect's position.

5. Review of real precautionary measures

In the presence of preventive seizure, the defence analysis focuses on: determination of the proceeds of crime; existence of the pertinence nexus; proportionality of the measure adopted.

6. Coordination with corporate liability (Legislative Decree 231/2001)

In corporate contexts, the defence extends to the verification of: the organisational structure and internal controls; the traceability of declarations made; the adequacy of prevention models.

Relevance of the preliminary investigation phase

In proceedings for unlawful obtainment of public funds, the preliminary investigation phase plays a decisive role, as it allows: the production of supplementary documentation; the clarification of the content of declarations made; technical dialogue with the proceeding authority.

Assistance in public administration offences

Defence activity extends to proceedings relating to:

• unlawful obtainment of public funds (Art. 316-ter);
• misappropriation of public funds (Art. 316-bis);
• aggravated fraud for obtaining public disbursements (Art. 640-bis);
• offences related to the management of public financing and business grants.