Non-binding advisory ruling by the Italian Anti Bribery Authority: How to contest it?

Non-binding advisory ruling by the Italian Anti Bribery Authority: How to contest it?

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With decision n. 1622 of March 11th, 2019, the Italian State Council (which is the most important administrative court in the Italian legal system) stated that even a non-binding opinion by the Italian Anti-bribery Authority (hereinafter “ABA”), may entitle the interested person to judicial action, at certain conditions. In fact, regardless of art. 211 of Italian Law n. 50/2016, providing that ABA’s pre-litigation advice may independently be contested when they are binding, the Law does not explicitly provide any regulation regarding judicial actions against a non-binding opinion. The Council stated that a non-binding opinion shall meet the following requirements, to be protested before the court:

  1. The advice shall have a practical approach with specific references to the facts, in order not to be deemed as informal advice which by contrast is usually aimed at “stating principles and carrying out an overall assessment of the legal issue” (see State Council no. 5424/2018)
  2. The main reason/motivation for the decision adopted by the administrative body (whose behaviour is being reviewed by the ABA) consists in ABA’s argumentation which is taken from the resolution providing the opinion (i.e. counseling activity), according to previous decisions of the administrative justice (Regional Administrative Court Decisions nos. 1087/2006 and 2394/2018). Such a requirement would be met where the decision of the administrative body specifically reproduces (or otherwise makes references to) the text of the opinion (see State Council decision n. 5424/2018).
  3. Joined Actions: the State Council states that a non-binding opinion “may not be independently protested”. Instead, it shall be protested “together with the final decision of the administrative body”, which means that such opinion may be nullified only when the material interest of a third party is harmed by the final decision of the administrative body abiding by such opinion (see State Council Decision n. 2503/2010).
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