Decree 231, extended appeal on the prohibitory sanction
The Supreme Court recognises the interest in the appeal even if the measure is over
Key points
Even if the interdictory sanction applied as a precautionary measure has now expired, the company may be entitled to challenge it. This was affirmed by the Court of Cassation in Judgment 11236 of the Sixth Criminal Section. The Court thus upheld the appeal filed by the defence of a limited company affected by a one-year ban on contracting with the public administration, decided by the Gip, for two hypotheses offraud in public supplies.
The peculiarities
The Court of Cassation observes first of all that the concepts of concreteness and actuality of the interest in challenging a measure, which provides for interdiction measures directly affecting the economic life of the entity, "must be understood cum grano salis, in a non-formalistic sense".
For the Court, the precautionary interdictory measures by Decree 231 cannot be tout court assimilated to the detention measures of the criminal law of natural persons, "since the latter, although they affect the very primary good of the individual's personal freedom, do not touch his life itself: whereas the former, by interdicting often nevralgic sectors of their economic activity, may well induce irreversible and exasperating effects'.
The collective dimension of the enterprise, the ruling goes on to emphasise, 'causes such measures to have inevitable negative repercussions on 'third' parties (stakeholders, including internal and primary stakeholders, such as employees, and shareholders), who are completely unrelated to the realisation of the reasonable-prejudice: to use a metaphor, that is, it causes throwing a stone in the water to produce a larger number of circles'.
Therefore, if the company demonstrates, with specific documentation, the prejudice to which it has been and will be exposed as a result of the appealed measure, also in terms of loss of chance, beyond the termination of the prohibitory measure, the court cannot avoid, in the context of the judgment on the admissibility of the appeal, a careful assessment of such prejudice.
