With the Sentence of 20 December 2023, the Court of Appeal of Milan reformed the first instance Sentence of the Court of Sondrio and annulled the administrative sanction imposed on a producer – distributor of AWP, who had been accused of non-compliance with the technical rules of paragraph 6 device found in operation, despite the lack of connection to the network. In ADM's opinion, the fact that the device had not blocked, even with a connection defect and despite the disconnection having continued for some time, would have been an indication of non-compliance of the card in terms of the ineffectiveness of anti-tampering systems.
The sanctioned company, assisted by the law firm of lawyers Marco and Riccardo Ripamonti, maintained its non-involvement in the event, as it could not be ruled out that the operation had been induced by fraudulent technical expedients, installed after the installation, susceptible to evade the inhibition devices.
The defense thus contested the "logical leap" of the Agency, according to which the functioning of the connection defect can be attributed automatically to a non-conformity attributable to the manufacturer of the card.
At first instance, the Court of Sondrio shared ADM's opinion but the Milan Court of Appeal did not share the same opinion and accepted the arguments of the manufacturer's defence.
The sentence of the Court of Appeal is thus verbatim: “It is undisputed that the appellant, in his capacity as a manufacturer, cannot be held accountable for this conduct, since he does not have control over the methods of installation and management of the devices (see the verbatim considerations of the appellant Agency, according to which : "he correctly maintains that those responsible for the connection are the concessionaire who manages the network, the manager who is the long manus and the operator who, by installing the equipment in his premises, assumes precise contractual obligations regarding the connection itself ”). For the purposes of the appellant's liability, proof should be provided, in the lacking case - as criticized by the same - that the operation of the device without connection to the network was attributable to the appellant and not rather to the illegal installation of devices suitable to alter its functioning. The appellant produced on appeal a new document aimed at demonstrating the possible functioning of the entertainment machines, even without connection to the electronic network, as a result of conduct not attributable to the manufacturer, who created them in accordance with the legal requirements. As is known, in the labor ritual, in derogation of the general prohibition of novas on appeal, the admission of new documents is possible, upon request of a party or even ex officio, only in the case in which they have a special demonstrative efficacy and are considered by the judge indispensable for the purposes of deciding the case, referring to the "indispensability" of the new evidence to its "more incisive causal influence" compared to evidence that is generally admissible because it is "relevant", or to evidence that is suitable for providing a contribution decisive to the ascertainment of the material truth to be endowed with a degree of decisiveness and certainty, such that, considered alone, and therefore regardless of their connection with other elements and other investigations, they lead to a "necessary" outcome of the dispute ( see Cass. 26257 of 2021, Cass. no. 1333 of 2012). In the case in question, since the appellant is burdened with the burden of providing proof of the attributability to the manufacturer of the lack of functioning of the entertainment machine without connection to the telematic network, the said document is not essential for the purposes of this decision. In the absence of proof of the attribution to the manufacturer of the conduct, consisting in the operation of the devices in the absence of connection to the telematic network, the injunction order must therefore be annulled".
The lawyer Marco Ripamonti commented as follows: “Fair and correct sentence. The topic relating to the effectiveness, or otherwise, of anti-tamper systems is characterized by different facets and must be addressed with reference to both the product approval phase and the installation phase. It is not certain that if an AWP collects automatically without a network connection, this is attributable to the production phase of the board or assembly of the device. There are very complex technical profiles regarding which I consulted with someone I consider to be one of the greatest experts in the subject, Eng. Eugenio Bernardi, whom I thank for the precious suggestions that he has, as always, provided me".
