Italy’s Court of Cassation upholds embezzlement conviction over 2015 gaming levy

Italy's Court of Cassation upheld a conviction for embezzlement over sums not passed to the concessionaire under the extraordinary levy introduced by the 2015 Stability Law, according to the court's ruling. The Sixth Criminal Section issued judgment 36931/2026 on 22 September 2026, confirming the conviction of the legal representative of a gaming-machine management company. The ruling was reported on 26 October 2026.

The dispute concerns the failure to pay the concessionaire sums corresponding to the extraordinary levy provided for by Article 1, paragraph 649, of Law 190 of 2014. A lower court had found the manager criminally liable for embezzlement, and the Court of Appeal confirmed that decision. In the appeal to the Court of Cassation, the defence argued that the obligation to pay the Treasury fell solely on the concessionaire and that any missed payments by managers should be treated as part of the economic and contractual relations within the gaming chain. Under that reading, the levy would have reduced the fees and percentages due to operators rather than representing a share of sums originally destined for the public administration. The defence also cited administrative and accounting court rulings on the allocation of the economic burden between concessionaires and other parties in the chain.

The Court of Cassation rejected that reconstruction, citing the position of the Joint Sections that all sums placed into the lawful gaming circuit retain their public character from the moment of collection, as revenue from an activity exercised under a state monopoly and subject to public control. The court said it must therefore be excluded that the failure to pay the contested sums could be reduced to a mere contractual matter between private operators in the gaming chain.

On the position of the machine manager, the court restated that the person entrusted with management takes part in the accounting and movement of receipts within the public service awarded under concession. Although the manager does not formally hold the status of accounting officer, the manager holds the money for reasons connected with the service performed. That circumstance can give rise to the status of person entrusted with a public service and, consequently, the application of Article 314 of the Criminal Code where collected sums are appropriated.

The defence also cited a 2026 ruling of the civil Joint Sections on the entrepreneurial nature of the manager's activity and the distribution of economic risk in contractual relations. The Court of Cassation considered that precedent not relevant to the criminal question, stating that the private-law classification of the commercial relationship does not affect the nature of the sums collected or the obligations arising from management of the receipts.

On the amounts at issue, the appeal argued that the impossibility of determining precisely the credit claimed by the concessionaire should have prevented a finding of criminal liability. The judges distinguished proof of the appropriating conduct from the exact determination of the sum owed. The Court of Appeal had noted that the amount claimed could not be automatically derived from the accounts produced, without questioning the existence of the obligation to pay over the sums or the retention of the money. According to the Court of Cassation, uncertainty over the quantum did not prevent a finding that the offence existed, since it was sufficient to establish the failure to pay over sums certainly owed and retained.

The ruling also addressed the regulatory uncertainty surrounding application of the 2015 extraordinary levy, which has been the subject of numerous disputes before administrative, civil and accounting courts. The defence argued that the complexity of the rules, differing judicial interpretations and pending litigation over the economic obligations amounted to a excusable error excluding the subjective element of the offence. The court rejected that argument too, observing that questions about the levy's legitimacy and its compatibility with European law do not affect the criminal classification of the sums or the manager's position. It cited the Court of Justice of the European Union's judgment of 22 September 2022 on the Italian levy, saying that ruling left further checks on observance of the principle of legitimate expectations to the national judge without directly affecting whether embezzlement was made out.

The judges also excluded that notice of withdrawal from the relationship with the concessionaire and a request to disconnect the machines from the telematic network could change the nature of sums already collected or remove the obligation to pay them over. The court rejected the complaint concerning the alleged retroactive application of the rules introduced by Law 208 of 2015, stating that the finding of criminal liability rests on the original public character of the receipts and on the manager's status, independently of later legislative changes. The question of limitation, raised by the defence in the event the conduct were reclassified as misappropriation, was therefore absorbed.