The Council of State rejected - through a ruling - the appeal presented by a company against the Customs and Monopolies Agency and the Ministry of Economy and Finance, which requested the annulment of a previous ruling by the Lazio TAR which had rejected the appeal brought by the same company against a provision of the Adm declaring the forfeiture of the concession for the management of a cinema "Bingo” located in Rome, first for the failure to present the surety policy and then for the presentation of a false surety policy.
Below is the text of the ruling:
"Considered:
– which with the appeal in the epigraph (…) challenged the T.A.R. ruling. Lazio, Rome, Sec. II, n. 7788/2022 of 13 June 2022, requesting its annulment;
that the appealed sentence rejected the appeal with additional reasons proposed by the Company against the provision of the Customs and Monopolies Agency of 28 December 2020 declaring the forfeiture of the concession for the management of the hall "Bingo” located in Rome, on the street (…), for not having (…) presented the required surety policy, as well as against the provision of the same Agency known on 23 July 2021, which motivated the declaration of forfeiture of the concession as a consequence of the falsity of the policy transmitted by (...) on 16 October 2020;
– that in fact the appellant Company, holder of a concession for the collection of the game of “Bingo” under extension regime ex L. n. 147/2013, the Customs and Monopolies Agency communicated the request to provide for the deposit of an appropriate security by means of a bank guarantee on first demand or equivalent insurance policy, as a fulfillment to be carried out from year to year for the purposes of the aforementioned extension pursuant to art. 9, paragraph 1, of the ministerial decree n. 29/2000;
– that the policy in question should have been received in original or with digital signature by the deadline of 31 December 2019, as a guarantee for the year 2020: the Company, however, did not do so, so the Agency requested several times the request to you;
– that since these reminders also remained without outcome, the Agency suspended the concession and started the procedure for declaring its revocation: at this point the (...) presented the policy, which, however, was without a digital signature as well as affected from further deficiencies and for this reason it was considered invalid by the Agency;
– that, since the Company did not send a duly signed policy, with the provision of 28 December 2020 the forfeiture of the concession was declared;
– that the Company challenged the now seen declaration of forfeiture before the T.A.R. Lazio, Rome, who, with ordinance no. 3610/2021 of 25 October 2021, accepted the precautionary request formulated by the appellant;
– that in order to execute the aforementioned precautionary order, the Agency at that point verified with the insurance company the effectiveness of the surety policy presented for the year 2020 by the Company, but from this verification the falsity of the same emerged;
– that the appellant, claiming that she was not involved in the falsification of the policy and claiming to have been the victim of a scam, proposed additional reasons, with which she criticized the provision, of unknown details and date, on which the Agency had based the declaration of forfeiture of the concession on the circumstance of the falsity of the policy transmitted;
– that the T.A.R. appealed, after having rejected the precautionary application presented with the additional reasons, in the merits phase with the sentence which was the subject of the appeal he rejected both the original appeal and the aforementioned additional reasons;
– that the first instance ruling valorised the factual data, which arose with respect to the resolution of the original precautionary request, of the found falsity of the surety policy presented by the appellant to the Agency, since it was an element which demonstrated how the finding of the lack on the company's policy digital signature by the insurance company, far from being merely formal, represented a serious indication of its non-authenticity, which should have first of all led the appellant herself to investigate the matter with the aforementioned company;
– that the sentence also highlighted how in this case the failure to present a valid guarantee by the (...) should be considered provenrelating to the year 2019"(rectius: 2020), recalling the teaching of jurisprudence, for which the failure to pay the requested surety policy constitutes a valid prerequisite for the adoption of a determination of forfeiture of the concession pursuant to art. 3, paragraph 1, of the ministerial decree n. 29/2000 (“Regulation containing rules for the establishment of the game "Bingo" pursuant to article 16 of Law 13 May 1999, n. 133”); the sentence also recalled the directorial decree of 4 March 2014, implementing the art. 1, paragraph 636, of the law. n. 147/2013, which provided for the obligation of the guarantee with the requirements set out in the art. 9, paragraph 1, of the aforementioned ministerial decree. n. 29/2000. From this legislation the T.A.R. deduced that the deposit of the guarantee is an essential element for the general performance of the gaming management activity of "Bingo”, as well as an essential condition for the continuation of the aforementioned activity under the extension regime;
– that, again, the affected sentence deemed the forfeiture of the concession justified due to the failure to present the guarantee, given the absolute peculiarity and particular delicacy of the gaming sector and considered prevalent, despite the serious consequences of the forfeiture for the assets of the concessionaire, the need to avoid the risk of much more serious damage to the public interest and to the tax authorities due to the maintenance of public gaming concessions entrusted to non-compliant entities;
- which in the present case - finally observes T.A.R. – the policy presented must be considered “tamquam non esset” and therefore not suitable to paralyze the Agency's power to order the forfeiture of the concession for failure to present the guarantee. The circumstance deduced by the appellant, of having been the victim of a scam, is not relevant for the purposes of the legitimacy of the Agency's action, as it immediately detected the absence of the digital signature on the part of the insurance company and as, despite this, it was not the appellant Company used due diligence to resolve the problem and verify the authenticity of the policy: therefore, the ruling concludes, the Company itself can take action for compensation for the damages suffered due to the fraud, but must bear the administrative consequences of one's default and negligent conduct;
Also considered:
– that in the appeal (…) contested theprocess argumentative and the conclusions of the contested sentence, deducing the following reasons:
I) nullity of the sentence due to misrepresentation of the facts, since the sentence speaks of failure to present the surety policy "for the year 2019”, while in reality the policy for the year 2019 would be regularly deposited with the State Monopolies;
II) violation of the law due to the failure of the contested sentence to point out the nullity of the contested forfeiture provision, as well as of all the acts and measures preceding and preceding it - and in particular the deadlines for filing the policy - as adopted by the Public Administration. in violation of the mechanism introduced by the so-called legislation anti COVID-19, of "sterilization" of the terms pending as of February 23, 2020;
III) violation of the law, excess of power due to violation of articles. 97 and 113 of the Constitution and the articles. 3, 7, 21-octies and 21-nonies of the law n. 241/1990, absolute lack of motivation, violation of the principle of good performance and impartiality of administrative action, as the sentence would not have grasped the further illegitimacy consisting in the posthumous integration, by the Public Administration, of the motivation of the burdened measure, to have the Agency, through the pleadings and documents filed in the first instance proceedings, radically modify the nature of the objections contained in the motivation of the forfeiture provision of 28 December 2020, ending up basing said forfeiture on the falsity of the policy (circumstance of which , in the "original version" of the provision, there would have been no mention);
IV) excess of power due to violation of the art. 97 of the Constitution and the articles. 3, 7 and following. of the law n. 241/1990, violation of the principle of legitimate expectations and fair procedure, violation of the principle of participation in the administrative procedure, omitted and/or insufficient investigation and motivation, omitted activation of the so-called preliminary investigation, because the contested sentence would not have examined the reason relating to the negligence of the Public Administration. which, despite being in possession of the policy since 16 October 2020, allegedly omitted any investigation into it for ten months, limiting itself to formulating formal findings and thus generating a legitimate expectation in the Company on its authenticity, with the result of preventing the Company itself to remedy what would later turn out to be a real scam against him. Furthermore, the Agency's failure to carry out this investigation (with consequent failure to timely contest the falsity of the policy) would have prevented (...) from exercising its rights of participation and procedural cross-examination, as well as from accessing the so-called preliminary assistance: this, taking into account that the presentation of a policy found to be false would not be equivalent to failure to present the policy, since in the first case, once the good faith of the unaware policyholder has been ascertained (which would be (...)), the favor participationis, with consequent activation of the preliminary investigation to allow the replacement of the policy;
– that the Customs and Monopolies Agency (“Agency”) and the Ministry of Economy and Finance appeared before the court, subsequently filing a brief and documents on the facts of the case and concluding for the rejection of the appeal;
– that the tax defense has also filed a request for the case to be decided on the basis of the defense writings;
– that at the public hearing on 21 November 2023 the Board held the case for decision;
Considered that the appeal is clearly unfounded;
Indeed, considering:
– that first of all the first ground of appeal is manifestly unfounded, since the reference, in the contested sentence, to the failure to submit the policy for the year 2019 is the result of a mere typo which, as rightly objected by the tax defense, does not highlight any anomaly in the'process logical-juridical followed by the first judge. From the overall tenor of the sentence, in fact, it can be deduced that the T.A.R. undoubtedly intended to refer to the failure to submit the policy by the (...) for the year 2020, so the indication of "2019", instead of "2020”, is just a material error without concrete consequences (C.d.S., Section V, 31 March 2014, n. 1536);
– that the second reason is equally unfounded, since the question of whether or not the deadlines for the presentation of the guarantee are respected is totally extraneous to the motivation of the declaration of forfeiture, which is based, instead, on the failure to present the policy by the Company for the the year 2020. The (...), in fact, limited itself to presenting a draft policy, in relation to which the Agency exposed certain findings (need to insert a safeguard clause in the title page; need to eliminate some paragraphs from the page 2 of the draft and to indicate an address PEC to use; need for the policyholder and the insurance company to affix the digital signature to the deed: see all. 14 to the memory of the State Attorney). Upon subsequent verification carried out by the Agency, the policy presented was found to be even false: this circumstance was peaceful and undisputed between the parties;
– that the complaint of posthumous integration of the reason for the forfeiture is also unfounded, which is indeed non-existent, since, as seen in the previous point, the reason for the forfeiture is and remains that of the failure to present a valid guarantee by the Company, despite this being held pursuant to art. 9, paragraph 1, of the ministerial decree 31 January 2000, n. 29 and of the d.d. 4 March 2014, prot. n. 2014/18603 (referred to by the appealed sentence). The falsity of the policy presented is nothing more than confirmation of the fact that the Company has never presented a guarantee valid for the year 2020 (id est: the motivation from the origin of the declaration of forfeiture): this falsehood is significant from a subjective point of view, because it offers an eloquent demonstration of the lack of diligence and reliability of the Company itself (see infra);
– that the fourth and final reason for complaint is also unfounded, given that having the P.A. having established the falsity of the policy after some time certainly did not lead to a reliance by (...) on its veracity, nor does it have the significance of having prevented the Company from remedying it in time. As observed by jurisprudence, legitimate expectations, to be considered such, must not be affected by fault (see, ex multis, C.d.S., A.P., 29 November 2021, n. 19; Section V, 12 September 2023, n. 8294; id., 20 March 2023, n. 2802; id., 19 December 2022, n. 11066; id., 29 October 2014, n. 5346; Section VII, 29 December 2022, n. 11541; 21 October 2022, n. 8981; Section II, 14 June 2022, n. 4857), while in the case now under examination the lack of diligence of the (...) is evident, which did not bother to carry out any preliminary checks on the truthfulness of the policy presented, so that the attempt to overturn the liability for delays in carrying out such verification;
– that the appellant's statement, according to which having presented (but without being aware of it) a false policy is not equivalent to failure to present the policy, does not lead to the outcome it was aiming for and proves too much: the first, in fact , is a conduct no less serious than the second and indeed more serious, as can be seen in the matter of procurement from the art. 98 of Legislative Decree no. 36/2023, which constitutes a serious professional offence, which may lead to the exclusion of the competitor from the tender, to have provided, even through negligence, false or misleading information capable of affecting the tender;
– that what has been said about the negligence shown in the present case by (...) is also valid to refute the complaints, also deduced with the fourth reason, centered on the violation of the regulations regarding procedural participation and the failure to exercise the so-called preliminary relief, as the Company's negligence in checking the documents presented confirms the overall lack of reliability of the same, demonstrated by the failure to produce the guarantee, such as to justify the declaration of forfeiture;
In conclusion, it is deemed necessary to reject the appeal, given the total unfoundedness of the reasons put forward with it and the affected sentence must be confirmed;
Finally, it is deemed necessary to pay the costs of the second appeal proceedings to be paid by the appellant and in favor of the appealed Administrations, to the extent set out in the provisions;
PQM
The Council of State in jurisdiction - Section Seven (VII), definitively ruling on the appeal, as proposed in the epigraph, rejects it.
It condemns the appellant to reimburse the appealed Administrations (jointly and severally) the costs of the appeal proceedings, which he settles as a lump sum of €4.000,00 (four thousand/00), in addition to general and accessory expenses required by law".
