Accountants, no offence for using Covid emergency funds for personal purposes
The resources provided are not bound by a legal purpose: those affected by the pandemic can also use them for private reasons
Key points
Excluding the offence ofmisappropriation to the detriment of the State for theaccountant who employs Covid emergency funds for a legal personal purpose. Unless a lawful purpose of the loan agreement is conventionally provided for. Therefore, without prejudice to the borrower's obligation to realise the agreed purpose, as well as to repay the capital disbursed, plus interest, the Covid emergency loans disbursed in favour of professionals, although assisted by the guarantee of the Fund for Small and Medium-Sized Enterprises, are not characterised by alegal purpose.
Consequently, for the professional, who has suffereddamage from the pandemic and uses the funds obtained for personal purposes even if not directly related to his activity, the offence of embezzlement to the detriment of the State does not arise.
No legal prediction for professionals
The Supreme Court of Cassation, with judgement 17022/2026, changed its orientation and upheld the appeal of an accountant against the judgement of the Court of Appeal that, in line with the Court, had confirmed his conviction for the crime of embezzlement to the detriment of the State (Article 316-bis of the Penal Code). Because after having obtained, as a self-employed professional, a loan of 25 thousand euro, based on law 23/2020 on access to credit during the pandemic emergency for small and medium-sized enterprises, he had not allocated the amount to the business activity damaged by Covid-19, but had diverted it in favour of his nephew.
For the Court of Cassation, the offence does not exist and it explains the reasons why. According to the jurisprudence of legitimacy, loans granted to SMEs are to be traced back to the paradigm of the purpose loan. The offence of embezzlement is thus triggered in the event that the company, after accessing the financing backed by the public guarantee, does not allocate the sums to the purpose laid down by law, or in the event that it has obtained the sums on the basis of a false declaration. The rule does not, however, extend the same constraint as the legal prediction to professionals and other categories.
The Supreme Court therefore distances itself from the precedent of legitimacy according to which the offence of embezzlement would be conceivable in the event that the professional destines the financing granted in his favour to personal needs rather than to the professional activity to which the resources are reserved by law.
