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.

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.

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.

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.

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.

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.