The Real Estate Search Notice as a Tender: The Court of Cassation Extends the Crime of Undue Interference in the Contractor Selection Process (Judgment no. 18241/2025)

The Italian legal landscape is constantly evolving, and rulings by the Supreme Court of Cassation often serve as a beacon for interpreting and applying laws. The recent Judgment no. 18241, filed on May 14, 2025, offers a significant clarification regarding crimes against Public Administration, particularly concerning the offense of undue interference in the contractor selection process, provided for by Article 353-bis of the Criminal Code. This decision is of fundamental importance for public bodies, economic operators, and professionals, as it extends the scope of application of the rule to instruments that, at first glance, may not appear as traditional "tenders" but effectively serve the same function.

The Offense of Undue Interference in the Contractor Selection Process: Foundations and Purpose

Article 353-bis of the Criminal Code aims to protect transparency, impartiality, and equal treatment in the contractor selection procedures by Public Administration. This crime occurs when, through violence, threats, gifts, promises, collusion, or other fraudulent means, the regular conduct of a procedure aimed at identifying a contractual partner is disrupted. The protected legal interest is the public interest in the correctness and genuineness of competition, so that the choice falls on the most advantageous offer. Although traditionally associated with formal tenders, administrative reality resorts to less formalized instruments. And it is precisely on one of these that the Court of Cassation has shed light.

Judgment 18241/2025: Equating the Real Estate Search Notice

The case examined by the Supreme Court concerned the "Fondazione Lombardia Film Commission," a public law body. The defendants had induced the adoption of a "real estate search notice" for the purchase of a new headquarters, "specifically tailored" to the characteristics of a property already available to one of them, Mr. A. D. R., thereby disrupting competition. The Court of Cassation, with the judgment in question, reaffirmed the configurability of the crime.

The maxim of the judgment, delivered by President G. De Amicis and extended by Rapporteur F. D'Arcangelo, is crystal clear:

For the purpose of configuring the offense of undue interference in the contractor selection process, provided for by Art. 353-bis of the Criminal Code, a "real estate search notice" constitutes an act equivalent to a tender, as it initiates a procedure characterized, in the event of multiple bidders, by a competitive evaluation segment based on criteria of impartiality and equal treatment inherent in public law discipline.

This statement is the heart of the decision. The Court did not stop at the mere documentary form but looked at the substance of the procedure. The real estate search notice, while not a "tender" in the strictest sense, was deemed equivalent because it effectively triggers a competitive selection mechanism. When a public body searches for real estate and this search involves the possibility of receiving multiple offers to be evaluated according to criteria of impartiality and equal treatment, that procedure takes on the characteristics of a tender. The "tailoring" of the notice to a specific property, in this context, becomes a fraudulent means to disrupt the freedom of competition.

Practical Implications and Advice for Bodies and Professionals

Judgment 18241/2025 sends a clear message: the protection of free competition and impartiality is not limited to formally intended tenders but extends to all those procedures that, despite different names, share the aim of selecting a contractor through a comparison of offers. This implies that:

• Nature of the Procedure: Public bodies must carefully evaluate the nature of their acquisition procedures. If they involve multiple bidders and a comparative evaluation, they fall within the scope of Art. 353-bis of the Criminal Code.
• Criteria of Impartiality: Every phase of these procedures must be guided by transparency, objectivity, and equal treatment, avoiding any form of "tailoring" or favoritism.
• Criminal Risk: The ruling reinforces the warning for officials and managers who manage these processes, exposing them to criminal liability in case of conduct that disrupts free competition.

Vigilance must be paramount, and the adoption of clear and verifiable internal procedures becomes imperative to prevent wrongdoing and ensure the legality of administrative action.

Conclusions: A Warning for Administrative Transparency

The Court of Cassation Judgment no. 18241 of 2025 represents an important piece in the fight against corruption and the protection of legality in public procedures. It strongly reiterates that substance prevails over form: what matters is that every contractor selection procedure, which involves a comparison between multiple bidders, is conducted with the utmost impartiality and transparency. This not only protects public funds and competition but also strengthens the trust of citizens and economic operators in the integrity of Public Administration. For bodies and professionals in the sector, it is a call for extreme diligence and scrupulous adherence to the principles governing public action.