Analysis of Judgment No. 38127 of 2023: The Notion of Tender and Bid Rigging

Judgment No. 38127 of 2023, issued by the Court of Cassation, offers an important reflection on the distinction between competitive procedures for personnel recruitment and public tenders in the context of public administration. This ruling is crucial for understanding how criminal provisions apply to cases of bid rigging and what the legal implications are for public officials.

The Notion of Tender and Legal Reference

The Court clarified that competitive procedures for personnel recruitment cannot be equated with public tenders, as defined by Article 353 of the criminal code. The latter, in fact, refers exclusively to "public auctions and private tenders on behalf of public administrations." The judgment therefore emphasizes the prohibition of applying the notion of tender by analogy in a context to which it does not belong, thus avoiding an inappropriate extension of the scope of criminal provisions.

Tender - Notion - Competitive procedures for personnel recruitment - Exclusion - Reasons - Factual circumstances. In the context of bid rigging, competitive procedures for the recruitment of personnel by the State and its branches cannot be subsumed under the notion of "tender" used by public administration for the sale of assets or for the external award of works or the management of services, due to the textual evidence of Article 353 of the criminal code – which strictly refers to tenders in "public auctions and private tenders on behalf of public administrations" – and, therefore, the prohibition of analogy "in malam partem".

Implications of the Judgment

This judgment has significant repercussions not only for legal practitioners but also for public officials involved in the recruitment process. Indeed, the distinction drawn by the Court implies that any irregularities in competitive procedures cannot be automatically sanctioned under the provisions for bid rigging. This leads to a necessary reflection on the methods of managing public sector recruitment, highlighting the need for transparency and correctness.

• Clarification of the notion of tender in relation to recruitment procedures.
• Implications for the repression of irregularities in competitive procedures.
• Reinforcement of the need for transparency in public personnel recruitment.

Conclusions

Judgment No. 38127 of 2023 represents a significant benchmark in Italian jurisprudence concerning public administration and criminal law. It clarifies the necessary distinctions between different types of procedures and offers important guidance to avoid misinterpretations of the law. This ruling not only helps to better understand the legal responsibilities of public officials but also encourages a more rigorous and transparent approach to personnel recruitment, promoting the integrity of public institutions.