Ciao, come possiamo aiutarti?


A restrictive interpretation of this type of offence prevails with the Supreme Court

Attorney Marta Sottocasa reports on decision no. 5536 of 28/10/2021 with which the Supreme Court has once again circumscribed the scope of application of the crime referred to in art. 353-bis of the penal code.

The Court denies the view whereby, on the strength of an extensive interpretation of the notion of “equivalent act”, it would be possible to include the type of crime referred to in art. 353-bis of the penal code even those direct award contracts aimed at evading the call for a public tender.

An interpretation governed by compliance with the principle of legality requires restricting the scope of art. 353-bis of the penal code, including those disruptive conducts that seep into “an administrative procedure that contemplates a competitive process, the publication of a tender or suchlike procedures”. Therefore, in the absence of a tender, albeit informal, the case cannot be established.

In the present case, the Supreme Court annulled the judgment by the Court of Appeal of Trento, which had sentenced the defendants for proceeding through a direct award contract, thus avoiding a public tender.

Interestingly, the parenthetical remark concerning the principles adopted by the decision “are an expression of the view shared by the Division which emerged during the meeting, pursuant to Royal Decree no. 12 of 30 January 1941 art. 47 quater to overcome any divergent readings regarding art. 353-bis of the penal code “.

#public procurement #Supreme Court