Frode in pubbliche forniture: il dubbio inquadramento giuridico dell'inadempimento contrattuale. (Nota a sentenza Corte suprema di Cassazione penale sezione VI 8 ottobre 2020, n. 28130)

With the judgment in question, the Italian Court of Cassation adopted an extremely broad interpretation of the constitutive elements of the offence of fraud in public supply. As a matter of fact, the concept of supply also includes the "facere", the taking action, consisting of the performance of labour and technical activities of a company aimed at ensuring the fulfilment of the purposes underlying the public service. Moreover, to determining whether or not a criminally relevant fraud has been committed, a mere bad faith in the breach of contract is sufficient. The solution put forward by the S.C. would, however, result in an undue extension "in malam partem" of art. 356 of the Italian Criminal Code, including conducts without a deceptive connotation