The waste island operator is entrusted with a public service

The operator of the ecological island is a public service appointee; therefore, if he resells the 'noble waste' he has come into possession of for reasons of service, he commits the crime of embezzlement. This is the principle established by the Court of Cassation (judgment 4 March 2025, no. 8391), upholding the order of the judge for preliminary investigations at the Court of Naples applying the house arrest to a number of employees of a company awarded the municipal contract for the waste management of a Campania municipality. The latter, in their capacity as employees of the ecological island, had 'taken possession sine titulo of noble waste' delivered to the ecopiazzola and had illicitly given it to third parties for a fee.

The Court of Cassation points out that Law 86/1990, in reformulating the text of Articles 357 and 358 of the Criminal Code, went beyond the 'subjective conception' of the notions of public official and person in charge of a public service. Therefore, before the 1990 reform the relationship of dependence on the State or other public body was privileged; afterwards, however, 'the criterion of the public discipline of the activity carried out and its content has been positivised'.

Therefore, the public nature of the activity is independent of the nature of the entity and the public nature of the employment relationship, since what matters is the nature of the activity that is carried out by the entity and, if it has public characteristics, it is the activity actually carried out by the person.

Therefore, without prejudice to the fact that thewaste collection activity is attributable to a public service, the Court, also on the basis of its previous case law (Court of Cassation, 3106/1990), excludes the qualification of persons in charge of a public service only for the "assignee of mere orderly tasks".

However, according to Article 358 of the Criminal Code, the activity of the person in charge of a public service is ancillary and complementary to public functions and is characterised by the performance of tasks of intermediate rank between the latter and merely executive tasks (in this sense, United Sections no. 7959/1992). The applicants carried out custodial and supervisory duties in the area, and assessment functions concerning the nature of the waste conferred. In fact, as employees of the ecological island, they distinguished between hazardous and non-hazardous waste, those destined fordisposal or recovery; they also assessed the non-conferability of the waste due to the potential exposure of the health, environment and safety of the operators to danger. These activities are attributable to a public service and are not limited to the performance of executive and material activities (such as putting the waste in the bin and/or filling out a form), but presuppose both adiscretionary assessment of the type and nature of the delivery and the autonomous decision not to accept waste that does not comply with the regulations.