Order No. 22790 of 2024: Elections in Professional Bodies' Councils and Invalidity Ab Origine

Order No. 22790 of August 13, 2024, issued by the Court of Cassation, addressed a crucial issue concerning elections to the councils of professional bodies. The central question pertains to the ineligibility or disqualification of an elected professional, and the resulting legal consequences. Specifically, the Court ruled that if an elected professional is found to be ineligible, their election is considered invalid from the outset, paving the way for a strict interpretation of the rules governing such elections.

Context of the Judgment

The decision of the Court of Cassation originated from an appeal against the judgment of the Court of Appeal of Rome, which had already dealt with the issue of passive electorate in relation to ineligible professionals. The Court emphasized that, within the councils of professional bodies, if an ineligible professional is among the elected candidates, their election is considered "tamquam non esset," meaning as if it never occurred. This implies that the number of elected members must be supplemented by the professional who received the highest number of subsequent votes after the last elected member.

Legal Consequences

The judgment clarifies the importance of correctly applying regulatory provisions. Here are some key points:

• The rule for supplementary elections, provided for situations of subsequent incapacity, does not apply in cases of original ineligibility.
• The validity of the election is essential to ensure the legitimacy of the elected council and the representativeness of the members.
• The Court confirmed that special regulations cannot be applied analogously to similar situations, due to the prohibition set forth in Article 14 of the preliminary provisions to the Civil Code.

Election of a professional body's council - Elected professional ineligible or disqualified - Consequences - Invalidity ab origine - Election of the first runner-up - Basis - Factual circumstances. In elections for the councils of professional bodies, if among the most voted members elected because they fall within the number required for plural voting, corresponding to the number of council members, there is a professional who is ineligible or disqualified, since the election of such a professional is to be considered invalid from the outset and, therefore, tamquam non esset, the professional who received the highest number of votes after the last elected member must be called upon to complete the number of elected members. The rule for supplementary elections, provided for the different hypothesis of subsequent incapacity to hold office, due to death, resignation, or forfeiture of office, as per Article 15, paragraph 3, of Legislative Decree-Law No. 382 of 1944, cannot be applied, given the prohibition of analogical application of special regulations to similar cases, pursuant to Article 14 of the preliminary provisions to the Civil Code. (In this case, relating to the elections of the CNF, the Supreme Court confirmed the appealed decision which excluded that the original ineligibility of a winning candidate, as being elected for the third consecutive term by the same district order, necessitated supplementary elections, and instead required the application of the mechanism of substitution or succession).

Conclusions

Order No. 22790 of 2024 represents a significant step forward in clarifying the rules governing elections to the councils of professional bodies. The judgment not only reiterates the importance of electoral legitimacy but also establishes a significant precedent for future situations involving cases of ineligibility. It is crucial for professionals and professional bodies to be consistently informed and aware of the legal implications of their electoral choices.