Does the purchase of a house in common with the RUP's son constitute a conflict of interest situation?

Does the purchase of a house in common with the RUP's son constitute a conflict of interest situation?

In this article, the Lecce Regional Administrative Court (TAR) examines cases of conflict of interest that may affect the legitimacy of administrative action.

The case.
The Apulia Lecce Regional Administrative Court, in judgment No. 1250 of November 9, 2023, dealt with the appeal of an exclusion order from a tender procedure, whose sole ground of appeal related to the conflict of interest allegedly faced by the RUP.
In this regard, the alleged conflict of interest was allegedly manifested by the circumstance that the sole director of the appellant company, together with his wife, had purchased a property in common with the RUP's son, who moreover had paid his share with money received as a donation from his father.

 

The decision.
The Lecce judges found that the indicated circumstances were not suitable to prove habitual frequentation.
However, the ruling nevertheless considered the merits of the dispute, with regard to the hypothetical vitiating effect that the existence of the feared conflict of interest situation would have had, had it been proven.
In the opinion of the judges, the conflict of interest could not have vitiated the tender notice in any case, as “at the time of the adoption of the lex specialis the public official cannot be in any condition of conflict of interest with reference to the hypothesis of habitual frequentation, for the obvious reason that the target audience of the act is still undetermined.”
Although the decision under consideration was decided in the regulatory regime prior to the effectiveness of the new Public Contracts Code, this guideline should be considered valid under the current regime as well.
First, because relationships of habitual frequentation certainly well can be considered a cause of conflict of interest, by virtue of the provision of Article 7, Presidential Decree 62/2013, which, although not covered by Article 16, still constitutes a parameter for determining cases.

Second, as for the evidentiary profile, the express provision contained in Article 16 of the new code (which places the burden of proof of the conflict of interest on the person who raised it) would confirm even under the new code regime the reasons expressed by the judgment under review, referring to the lack of sufficient evidence of the existence of the conflict of interest situation.

 

For further discussion:
- TAR Puglia Lecce, judgment Nov. 9, 2023, 1250;
- Art. 7, Presidential Decree 62/2013.

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EEPP2 - Diritto di rivalsa: presupposto e onere della prova

Right of recourse: prerequisite and burden of proof

Right of recourse: prerequisite and burden of proof

EEPP2 - Diritto di rivalsa: presupposto e onere della prova

A recent ruling by the Supreme Court of Cassation reminds us of some unfailing concepts governing the RCA

The case.
On 9.09.2007, two motorcyclists collided head-on and both lost their lives.
In 2010, the relatives of one of the two drivers sued, as co-obligor, the co-owner of the motorcycle driven by the other driver, as well as the insurance company.
Appearing in court in a timely manner, the insurance company argued that at the time of the accident the driver was not qualified to drive the vehicle, as he held only a “B” license, but not also an “A” license, which is required to drive motorcycles. For these reasons, he concluded for the rejection of the plaintiff's claim, by virtue of the clause in the liability insurance contract, insofar as it excluded coverage in the event of an accident caused by a driver who was not qualified to drive.
The Supreme Court of Cassation, in ruling No. 4756 of Feb. 22, 2024, addressed the issue, identifying the scope, content and prerequisite of the right of recourse.

 

Decision.
Article 144, second paragraph, of the Insurance Code grants the insurance company the right of recourse against the person who has the capacity of “insured” (i.e., pursuant to Article 2054 of the Civil Code, the owner, or co-owner, driver, usufructuary, purchaser under a reservation of dominion agreement, or user).
All of the above persons fall into the category of “insured,” on the sole condition that they have driven the vehicle with the consent of the owner. As a result, all of them will be eligible for insurance coverage in the event of a claim, and all of them will be exposed to recourse action if the conditions are met.
However, the courts of legitimacy clarify that the prerequisite for this right can be found in the contract: that is, the holder of the right of recourse can act only if there is a risk delimitation clause. And if a risk delimitation clause were missing in the insurance contract, recourse cannot be exercised, because the prerequisite would be lacking.
Therefore, the basis of this right is a contractual covenant, the action of which is contractual in nature, and, like all judgments arising from the contract, the liability insurer has the burden of proving that the contract contains a risk delimitation clause, such that in the specific case it can refuse or reduce payment.

 

For further study:
- Civil Cassation, Judgment No. 4756/2024;
- Article 144, second paragraph, Insurance Code.

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EEPP1 - La nuova definizione di “colpa grave”: un caveat al principio della fiducia.

The new definition of “gross negligence”: a caveat to the principle of trust

The new definition of “gross negligence”: a caveat to the principle of trust

EEPP1 - La nuova definizione di “colpa grave”: un caveat al principio della fiducia.

Inserted as a caveat to the general principle of Trust, it becomes the basis for the imputation of fiscal responsibility. So, it is important to know when there is (or is not) gross negligence.

If in order to arrive at a result it is necessary to “trust” the administration and its choices, however, within the scope of the activity (or non-activity) performed, the public official may incur the new administrative liability for gross negligence.

 

According to Article 2, Paragraph 3, there is gross negligence, in cases of violation of rules of law and administrative self constraints, as well as in the circumstances of blatant violation of the rules of prudence, expertise and diligence.

 

Thus, the new Procurement Code introduces two hypotheses of gross negligence: the specific one, which requires the violation of (i) rules of law and self-binding (think, for example, the failure to comply with the clauses of the tender notice); or the generic one, which can be traced back to (ii) blatant violation of the rules of prudence, expertise and diligence.

 

On the other hand, serious misconduct does not occur, even though the employee has engaged in the above-mentioned violations, where the violation or omission was determined by reference to prevailing case law or opinions of competent authorities. And given the literal tenor of the provision, scriminations will certainly operate in cases of pronouncements of the Council of State, or opinions issued, for example, by ANAC, AGCOM, the State Bar and the Council of State itself, in an advisory capacity.

 

However, the new gross negligence regime is temporarily limited: Article 21(2) of Law No. 76/2020 exempted liability for gross negligence for commissive acts only.

 

More precisely, in order to avoid a total paralysis of procurement (given that the past problems related to “defensive bureaucracy” were compounded by the emergency situation of the COVID pandemic), in 2020, the legislature decided to exempt the public employee from only commissive negligent acts. This regime, initially scheduled to last until June 30, 2023, was extended to December 31, 2024.

 

Therefore, as of today, liability for gross negligence covers only omissive conduct. Upon expiration, the legislature may decide to extend, or reinstate the ordinary liability regime.

 

For further discussion:
- Art. 2(3) of Legislative Decree 36/2023;
- Law No. 76/2020, Article 21, Paragraph 2.

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Integrare la sanità pubblica con società di mutuo soccorso e fondi: scopri le soluzioni più efficaci

Integrating public health care with mutual aid societies and funds: discover the most effective solutions

Integrating public health care with mutual aid societies and funds: discover the most effective solutions

Integrare la sanità pubblica con società di mutuo soccorso e fondi: scopri le soluzioni più efficaci

Inser S.p.A. guides you in choosing among health funds, mutual benefit societies and private insurance companies to effectively integrate public health care. Learn more

Attention to health care has grown exponentially, accelerated by the Covid-19 pandemic. According to the February Ivass report, total healthcare spending in Italy amounted to 171.9 billion euros in 2022, equivalent to 9 percent of GDP. Of this, 75.9 percent is covered by the public sector, while the rest includes private and intermediate spending, the latter managed mainly by health funds and insurance companies. It is evident how supplementary health care has become a fundamental pillar for the well-being of Italian citizens, with one in three Italians owning a health insurance policy, and 15 million of these through group policies.

 

Health care integration options
Let's examine alternatives for supplementing public health care, each with its own specificities:
- Health funds represent one of the main forms of negotiated supplemental health care. They operate on a nonprofit basis and are often created through collective agreements between workers and companies. For example, Fondo Tutela offers welfare benefits to employees of member companies, with significant tax benefits.
- Mutual Aid Societies, which arose in the 1800s, offer support in cases of illness, accident or job loss. They operate on a nonprofit basis and are open to voluntary membership, promoting a culture of mutuality and prevention, as exemplified by Fund Mutua MiTutela. Founded on the principles of solidarity and mutual exchange, this Fund is offered by Inser S.p.A. to provide its clients with access to medical and welfare benefits, with the benefit of tax and contribution concessions.
- Insurance companies operate for profit and may impose selection criteria on members, such as age limits and health assessments. These offer customized policies and tailor to the specific needs of clients, unlike funds and mutual benefit societies that take a more general approach.

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Inser Spa rafforza la presenza in Lombardia con l’incorporazione di S.Lorenzo srl

Inser Spa strengthens presence in Lombardy with the incorporation of S.Lorenzo srl

Inser Spa strengthens presence in Lombardy with the incorporation of S.Lorenzo srl

Inser Spa rafforza la presenza in Lombardia con l’incorporazione di S.Lorenzo srl

As of May 1, 2024, S. Lorenzo srl has become part of INSER Spa, find out the details of this transaction and its implications for the Lombardy market

As of May 1, 2024, S. Lorenzo srl is part of Inser Spa. This operation marks an important step in the company's growth strategy in Lombardy. In fact, it not only marks the transfer of financial control-completed after the acquisition of share capital in June 2019-but also reflects our ongoing commitment to expanding and improving the services we offer.

 

This incorporation is the conclusion of a project and strategic vision aimed at integrating professionalism and expertise, and ensuring the continuity and excellence of services that our clients expect from us.

 

This move also significantly increases our competitiveness in the territory and, similar to what has happened with other acquisitions, confirms our desire to maintain and strengthen relationships with our clients and the local market. Through this expansion, INSER Spa once again demonstrates its commitment to providing superior service that is appreciated and recognized throughout the country.

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Inser, a Verlingue Company

The advantages of insurance brokerage (from "Gusto - Cibus Special")

The advantages of insurance brokerage (from "Gusto - Cibus Special")

Inser is one of the leading independent players in the Italian insurance brokerage market. It has consolidated its position by becoming a solid point of reference thanks to its proven ability and expertise in providing suitable solutions for corporate risk management and in-depth knowledge of the markets and sectors in which companies and public administrations move on a daily basis

 

Read here the article published in "Gusto" Cibus special edition. The magazine was distributed during Cibus the international trade fair dedicated to Food.

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Sfide globali del rischio: il team international di Inser alla 70ª Global Conference di WBN

Global risk challenges: Inser's international team at WBN's 70th Global Conference

Global risk challenges: Inser's international team at WBN's 70th Global Conference

Sfide globali del rischio: il team international di Inser alla 70ª Global Conference di WBN

Inser, with its international team represented by David Lee Rodriguez, will attend WBN's 70th Global Conference in San Diego in partnership with Verlingue for the first time since its acquisition last year.

WBN's Global Conference in San Diego is the most significant annual event in the field of risk management, a unique time to reflect on crucial topics such as the reinsurance market, cyber risks, artificial intelligence, stress testing, and workers' compensation. A unique opportunity to:
- interact with risk professionals from various industries for a comprehensive view of risk management;
- collaborate with international leaders and experts to exchange ideas and strategies against emerging risks;
- delve into new methodologies.

 

A promising future for Inser and Verlingue
Pierpaolo Ruggeri, Inser CEO said, "We are excited to announce Inser's participation in WBN's 70th Global Conference to be held in early May in San Diego. This event marks our first appearance in an international context together with Verlingue following last year's acquisition. It is an opportunity to demonstrate how combining our strengths can generate added value and new solutions for our clients and the market, addressing global challenges with a fresh perspective and amplified resources. Participation in RISKWORLD 2024 is just the beginning of a journey that will see us play an active role in setting new industry standards."

 

Keep following us for more information about participating in this event.

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INSER NEWS - Il Gruppo Adelaïde annuncia  una crescita del suo fatturato del 18% entro il 2023

The Adelaïde Group announces 18% growth in turnover in 2023

The Adelaïde Group announces 18% growth in turnover in 2023

INSER NEWS - Il Gruppo Adelaïde annuncia  una crescita del suo fatturato del 18% entro il 2023

This morning, Jacques Verlingue, Chairman, Gilles Bénéplanc, Managing Director, and Benjamin Verlingue, Deputy Managing Director, presented the Group's results and highlights for the year just ended.

In 2023, the Adelaïde Group's growth accelerates and its performance exceeds its objectives

In 2023, the Adelaïde Group will achieve a total turnover of 400 million euros, an increase of 18% compared to 2022.  These results exceed the targets set and the Group's strategic ambition to achieve a turnover of more than 400 million euros by the end of the IMPACT24 plan.

Thanks to new acquisitions in Europe, the Group is continuing its internationalisation policy, with 25% of its business generated outside France. Over the last 4 years, the Group has made 9 acquisitions or participations (*).

At the same time, the Group is stepping up its innovation and digitalisation efforts by launching distinctive new services for its customers, particularly in the property sector with Goodloc, as well as new customer extranets and a new mobile application for Génération.

In 2023, customers once again confirmed their relationship of trust with the Group's teams, both in terms of customer experience and continuous improvement in service quality, expressing full satisfaction in the Net Promoter Score (NPS) survey.

"In a fast-moving industry, our positioning as an independent broker allows us to thrive while ensuring very sustainable growth and reconciling a personalised and profitable approach. We are proud of these results, which testify to the unwavering commitment of our teams and the solidity and efficiency of our Group, which will celebrate its 90th anniversary in 2023," said Jacques Verlingue, Chairman of the Adelaide Group.

Verlingue, the subsidiary specialising in corporate protection, which has been managed by Anne-Jacques de Dinechin since mid-2023, recorded total revenue of €285 million in 2023, an increase of 19%, of which 50% was organic growth. Verlingue's activities outside France account for 35% of this total, thanks to an external growth strategy that has seen the creation of new offices in Europe, notably in Italy with the acquisition of a majority stake in the Italian broker Inser, and in the UK.

Over the last 4 years, Verlingue has made 4 acquisitions outside France - in Portugal (2020 and 2022), Italy (2023) and the UK (2023) - and 2 acquisitions in France - Cabinet Depeyre and Depeyre Solutions (2023).

Génération, which specialises in the management of health and social care contracts, is consolidating its growth with an increase of 18% compared with 2022, reaching a turnover of €102 million in 2023.  This growth will be accompanied by an expansion of the client base, with more than 2.4 million beneficiaries in the health sector and 1.1 million in the pension sector, for a total of €1.6 billion in benefits paid out. In addition, the personal lines business is showing promising growth with more than 150,000 members.  At the same time, Génération is continuing its territorial expansion with the opening of a new office in Saint-Nazaire, consolidating its multi-site strategy.

In 2023, Cocoon, which specialises in the distribution of health and pension insurance to individuals, strengthened its management team with the arrival of Fanny Ridet as General Manager.  With a turnover of 13 million euros, Cocoon aims to become a recognised player in the digital and ethical distribution of integrated healthcare solutions.

"In this 2024, we are pleased to maintain the dynamic development of the Adelaide Group and to exceed the objectives of our ambitious strategic plan. Our results continue to grow steadily, fully demonstrating our commitment to delivering ever greater value to our customers," said Gilles Bénéplanc, Chief Executive Officer of the Adelaïde Group.

Adelaïde confirms its ambition to become a leading broker in Europe thanks to its independent and family-run model

One year after the official conclusion of the Impact 24 strategic plan, the Adelaïde Group's growth is dynamic and in line with its objectives, and its financial performance is also on target.

With an increase in the percentage of Verlingue's turnover generated internationally, the Group is firmly committed to European expansion.

"Our performance demonstrates our commitment to the European strategy. As an independent, family-owned company, we want to preserve this identity while expanding our activities in France and abroad.  These results confirm our ability to offer an alternative to large global or financial brokers," says Benjamin Verlingue, Deputy CEO of the Adelaïde Group.

 

 

A future change of leadership in the name of innovation and growth

In 2024, there will be a major change in the Group's leadership when Benjamin Verlingue takes over from Jacques Verlingue as Chairman.  This transition is part of continuity and reflects a firm commitment to preserving the Group's independence and innovative spirit.  As the baton is passed from one generation to the next, the Adelaïde Group can count on a solid foundation and an established strategic position.

With a team of more than 2,500 employees, Adelaïde aims to recruit more than 250 new talents in 2024, in addition to the 300 new employees who joined the Group in 2023.  The Group will continue to promote a policy of training, integration and development to support the professional development of its employees.

 

 

The Adelaïde Group

The Adelaïde Group specialises in consulting, brokerage, distribution and insurance management. Its raison d'être is to enable its clients to conduct their business through good risk control, helping them to protect their business and their employees.  For more than 90 years, the Group has never stopped taking risks, growing and reinventing itself to become one of the leading insurance brokers in France, with three successful companies: Verlingue, Génération and Cocoon. Organic growth and strategic acquisitions, international expansion and digital transformation are the 4 objectives the Group has set itself to build a large, family-owned and independent insurance brokerage group on a European scale.  2,500 employees | 3,000 million euros in negotiated premiums | 2.4 million insured in the health sector and 1.1 million in the pension sector | present in 5 European countries: France, UK, Switzerland, Portugal, Italy | www.adelaidegroup.fr

 

(*) 5 acquisitions or participations outside France - Portugal (2020 and 2022), Italy (2023) and the United Kingdom (2023) - and 4 in France - Angelus (2022), Zenioo (2022), Cabinet Depeyre (2022) and Depeyre Solutions (2022).

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INSER NEWS - Interruzione della prescrizione: il duplice regime di tipicità, soggettivo e oggettivo

Interruption of the statute of limitations: the dual regime of typicality, subjective and objective

Interruption of the statute of limitations: the dual regime of typicality, subjective and objective

INSER NEWS - Interruzione della prescrizione: il duplice regime di tipicità, soggettivo e oggettivo

If the statute of limitations is the time within which to exercise the right, it is crucial to know who is entitled to interrupt it and what characteristics are required of the documents, in order to "restart the hourglass from scratch." A recent merit judgment exemplifies and helps to understand the common difficulties and mistakes that policyholders make after reporting a claim to their company.

The case.
Following a devastating atmospheric event, the plaintiff company - owner of two buildings (hereinafter, "building 6" and "building 21") - sued its insurance company, seeking an order to pay for the damages sustained to its buildings, which were guaranteed by the policy.
The insurance company promptly appeared in court, objecting to the fact that the right to compensation was time-barred, pursuant to Article 2952, paragraph 2, of the Civil Code, given that two years had elapsed since the day on which the event occurred.
On the other hand, the company pointed out that the other party's objection was completely without foundation, since the payment made by the company, as well as the agreements made between the company and the company's appraiser, were to be considered acts interrupting the statute of limitations.

 

In Judgment No. 206/2023, the Court of Belluno, upholding the plea of prescription, rejected the plaintiff's claim, on the following grounds.
First of all, devoid of interruptive value was considered (i) the surveyor's inspection,given that, pursuant to Article 2943 of the Civil Code, the statute of limitations is interrupted only by those who have the legitimacy to interrupt it, i.e. the holder of the right, which in the present case is only the company.
The assignment and role of the adjuster is simply to perform the verification and estimation of the damage, and not to represent the company.
Secondly, (ii) the payment made by the insurance company was also found to be incapable of producing interruptive effects. Indeed, despite the fact that by constant case law the partial payment made by the debtor is equated with the recognition of debt under Article 2944 of the Civil Code, the same cannot be said in the present case, since the sum was paid by the company with reference only to property 6; while no payment was made for property 21.
The twofold regime of typicality, to which the discipline of Interruption is imprinted, requires, on the one hand, the identification of the subjects holding the power of interruption, and on the other hand, the ways (and therefore the acts and facts) in which the interruptive effect can be produced by the legitimated subjects (Articles 2943 and 2944).

 

Finally, (iii) the correspondence between the company and the insurance company (with which the plaintiff had sent updated damage estimates) were also deemed to lack interruptive effects.
According to the Judge, it is not necessary that the request contain special formulas or diction, but it is sufficient that it expresses the will to obtain payment of the damage: interruptive effects of the statute of limitations are all those behaviors that express the creditor's clear and unequivocal will to exercise his right.

 

For further study:
- Court of Belluno, Judgment 206/2023;
- Cassazione, Judgment No. 33486/2023.

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INSER NEWS - La digitalizzazione dei contratti pubblici: il nuovo sistema di “e-procurament” e la piattaforma alternativa temporanea, per le procedure di gara fino a cinquemila euro

The digitization of public contracts: the new "e-procurament" system and the temporary alternative platform, for tender procedures up to five thousand euros

The digitization of public contracts: the new "e-procurament" system and the temporary alternative platform, for tender procedures up to five thousand euros

INSER NEWS - La digitalizzazione dei contratti pubblici: il nuovo sistema di “e-procurament” e la piattaforma alternativa temporanea, per le procedure di gara fino a cinquemila euro

As of January 1, 2024, the entire cycle of public contracts (from planning to execution) will take place through the use of interchangeable and interconnected databases. However, do the combined provisions of Art. 1(450) of Law 296/2006 and Art. 48(3) of the Code really allow one to speak of a mandatory regulation?

On January 1, 2024, the digitization provisions became definitively effective: the entire cycle of public contracts (from planning to execution) will take place through the new "National Digital Procurement Ecosystem (e-procurament)".
The legislator's rationale is to ensure through digitization compliance with legality, reduce corruptive phenomena, ensure transparency, traceability, participation and control of all procedures, through the use of interchangeable and interconnected databases.
The new e-procurement system, governed by Articles 19-30 of the Code, consists, first of all, of the "National Contracts Database" (Art. 23), established at ANAC, which operates in interconnection with all national databases.
Together with the BDNC, the so-called "Virtual Fascicolo dell'operatore economico" (art.24) was created, containing all data on economic operators, who have participated at least once in a tender. And under the "once only" principle, by entering data once, public authorities will be able to dialogue, exchanging details and official documents.

Finally, Article 25 regulates "Digital Procurement Platforms", which are those platforms to be used by individual contracting stations, to enable digital interconnection with national ones.
It follows that each contracting station will have to have a digital platform as a requirement for participating in the nation's e-procurement ecosystem.

 

However, at the first application stage, some operators have cast doubt on the capacity of the residual provision on the containment of public spending in Article 1, paragraph 450 of Law 296/2006 (the so-called 2007 Finance Act), which, for procurements under five thousand euros, provides an exemption from the use of the electronic market and the use of telematic systems for carrying out procedures. The application uncertainty is also fueled by the new article 48, paragraph 3, of the Code, in the mind of which "The obligations of use of purchasing and negotiation provided by the current provisions on the containment of spending remain in place."

From a reading of the two provisions, it would seem that the obligation for contracting stations to make use of digital platforms does not operate for awards of up to five thousand euros.
The ANAC president's communiqué of January 10, 2024, closes any interpretative uncertainty, recalling in fact that the digitization discipline does not allow for hypotheses of derogation or exemption, given that the entire cycle of public contracts must be managed through certified digital procurement platforms.
More precisely, for administrations that do not yet have a certified digital platform, the ANAC president invites them to make use, subject to agreement, of certified platforms made available by other contracting stations or granting bodies. Instead, for direct awards of less than five thousand euros, contracting stations, until 09/30/2024, will have the option of acquiring the CIG using - in the absence of their own digital platform - the web interface made available by the PCP (Public Contracts Platform).

Thus, the digitization of micro-contracts is also ensured, in harmony with the new system of e-procurement, which represents a real revolution in the world of public contracting, because it claims to bring significant benefits in terms of simplification, rationalization and speeding up of procedures, as well as respect for legality, reduction of corruptive phenomena, through increased transparency, traceability, participation and control of all public evidence procedures.

 

For further study:
- Communication of the President ANAC of January 10, 2024.

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