Disturbance of the Procurement Process: Judgment 24341 of 2025 and the Differences Between Art. 353 and 353-bis of the Italian Criminal Code
Transparency in public procurement is crucial. The Judgment of the Court of Cassation No. 24341 of 2025 (filed 07/02/2025), presided over by A. C. and with Reporting Judge P. D. G., offers fundamental clarifications on the distinction between the crime of disturbing public auctions (art. 353 of the Italian Criminal Code) and that of disturbing the contractor selection process (art. 353-bis of the Italian Criminal Code). This ruling, which quashed without referral the judgment of the Court of Appeal of Milan of 10/25/2024 concerning the defendant M. F., is essential for understanding the legal and practical implications in the public procurement sector.
The Regulatory Framework: Art. 353 vs. Art. 353-bis of the Italian Criminal Code
Both articles 353 and 353-bis of the Italian Criminal Code aim to protect the regularity of contractor selection procedures. Art. 353 of the Italian Criminal Code punishes fraudulent conduct that disrupts the tender during the comparative phase. Art. 353-bis of the Italian Criminal Code, introduced in 2010, extends protection to unlawful conduct that occurs in phases prior to or different from the mere alteration of the tender, covering the entire contractor selection process.
The Ruling of Judgment 24341/2025: The Timing of the Unlawful Conduct
The Judgment No. 24341 of 2025 precisely defines the boundary between the two offenses. The ruling of the Court of Cassation establishes:
The crime provided for by art. 353-bis of the Italian Criminal Code is constituted when the conduct aimed at favoring one of the potential contractors occurs from the preparation of the tender notice or equivalent act, regardless of its actual impact on the selection of the contractor or the correctness of the tender, whereas the crime under art. 353 of the Italian Criminal Code is applicable only if the unlawful conduct is carried out after the adoption of the tender notice and alters the comparative procedure.
This passage is crucial. The Court of Cassation clarifies that art. 353-bis of the Italian Criminal Code applies when the illegality manifests itself already in the "preparation of the tender notice," even without an actual impact on the final outcome. It is a crime of endangerment. Art. 353 of the Italian Criminal Code, on the other hand, requires an alteration of the "comparative procedure" subsequent to the adoption of the tender notice. This temporal distinction is the cornerstone of the ruling.
The Extension of Criminal Protection to Preliminary Phases
Judgment 24341/2025 extends criminal protection upstream, including pre-tender conduct such as:
- Drafting tender notices with specific requirements for only one operator.
- "Tailor-made" evaluation criteria to favor a company.
- Premature disclosure of confidential information.
- Unreasonably short deadlines for submitting offers.
This interpretation reinforces the obligation of impartiality and transparency of the Public Administration from the very conception of the contract, counteracting conditioning and favoritism. It serves as a warning to all parties involved.
Implications and Protection of Competition
The implications of this judgment are significant. For public administration officials, it imposes greater rigor in the preparation of tender notices, requiring that every clause be objectively justified. For companies, it offers an additional tool to report illegal activities that manifest in preliminary phases. This decision aligns with European principles of transparency and competition, strengthening legality in the single market.
Conclusions: Greater Rigor in Public Procurement
The Judgment of the Court of Cassation No. 24341 of 2025 is a landmark decision. It clarifies the scope of art. 353-bis of the Italian Criminal Code, extending the protection of legality to the initial phases of tender notice preparation. The emphasis on the configurability of the crime "regardless of its actual impact" strengthens the preventive nature of the provision. For operators and Public Administrations, understanding these distinctions is vital. Qualified legal assistance is indispensable to ensure the correctness of procedures and prevent illegal activities, for the benefit of the public interest and fair competition.
