The Supreme Court with Order 13088/2023, in an unprecedented case involving a company initially open to private capital and subsequently merged by incorporation into a public entity, has established the following important principles:

• – For the purposes of transferring the liability action to the jurisdiction of the Court of Auditors, the assumption of the status of shareholder by the State or a public entity does not constitute a sufficient reason. In fact, outside the cases of in-house companies and so-called legal companies, the damage suffered by the company cannot be considered as budgetary damage, since the different legal personality recognized to capital companies and the asset autonomy with which they are endowed with respect to their shareholders exclude, on the one hand, the possibility of attributing to the assets of the latter the damage that the unlawful conduct of the corporate bodies may have caused to the company’s assets, and on the other hand, the configurability of a service relationship between the agent and the entity holding the stake.
• – The error of law committed by the Court of Appeal was to have derived the legal nature of the damage from the situation that arose as a result of the merger, completely disregarding the verification of the factual and legal situation existing at the date to which the unlawful conduct is attributable.
• – In the present case, for the purposes of establishing jurisdiction, one must look at the situation existing at the time to which the conduct attributed to the defendants dates back, without the merger by incorporation of the company being able to assume decisive importance.
• – Even if the jurisdiction of the Court of Auditors were hypothetically applicable, being in the presence of companies that can be qualified as in-house, mutual autonomy must be recognized and therefore the admissibility of the concurrent exercise of ordinary and administrative liability actions, even when they arise from the same material facts, and even if the former is directly brought by the individual administrations involved (Cass. S.U. no. 26738/2021). Any potential interference between the two proceedings constitutes a matter not of jurisdiction but of admissibility of the liability action before the administrative judge (Cass. S.U. no. 36205/2021).

On behalf of GPD, Prof. Avv. Andrea Gemma and Avv. Massimo Vetere acted.