In the new procurement code, there is finally a change of course: Legislative Decree 36/2023 repealed the general ban on cascade subcontracting, i.e. the veto on the subcontracting of services already subcontracted.

It therefore stands as a pro-competitive institution, in accordance with the principles in force in the field of European Union-style tendering procedures, responding to the principle of maximum participation in tenders by companies.

On the other hand, subcontracting fulfils (or, perhaps, has always fulfilled) a function that in some respects is similar to that of outsourcing and the R.T.I., allowing, like the latter, the participation in the execution of the contract of entities that would not in themselves have the requisites or the means for the execution of the contract (and even beforehand for participation in the tender), in a competitive perspective and with the ultimate objective of expanding the number of companies potentially participating in public tenders.

For further elaboration:
Art. 105, paragraph 19, Legislative Decree 50/2016;
Art.119, Legislative Decree 36/2023.

In particular, Article 104 of Legislative Decree No. 36/2023 now allows for the use of outsourcing aimed not at participation, but at the exclusive attainment of the resources necessary for the attribution of incremental scores. In fact, paragraph 4, in confirming that the economic operator must enclose with the application to participate the availment contract, provides that it must specify whether it intends to avail itself of the resources of others to acquire the missing participation requirement or to improve its own offer.

The rationale is thus broader than the previous one, which was strictly linked to the possibility of participation, and also includes the exclusive purpose of having the tender acquire a better evaluation.

Thus, the factor of indispensability for the purposes of participation in the tender has disappeared, and outsourcing has become an institution that more generally concerns the loan of means (technical equipment and human and instrumental resources), also for the sole purpose of qualifying the tender in improved terms, expanding the technical, professional and financial capacity of the economic operator.

For further details:
Art. 104, paragraphs 4 and 12, legislative decree no. 36/2023;
Cons. Stato, sec. V, sent. of 9.01.2023, no. 281.

This follows from Article 2, paragraph 1, of the new Highway Code, which defines 'road' as 'an area for public use' and therefore does not depend on whether the property is publicly or privately owned; as well as from paragraph 6, which assimilates vicinal roads to municipal roads, despite the fact that the former are by definition privately owned.

Therefore - in the opinion of the Supreme Court - on the subject of liability for negligent maintenance of roads, the Public Administration is at fault if it fails to maintain or make safe the areas, including private property, bordering the public roads, when they may cause danger to road users.

It follows that in the case of damage caused by defective maintenance of a road 'the private nature of the road is not, in itself, sufficient to exclude the liability of the municipal administration where, by reason of the destination of the area and its objective conditions, it was required to maintain it'.

For further details:
Court of Cassation, judgment no. 8879 of 2023;
Highway Code, art. 2, paragraphs 1 and 6.

Better Future 28: the goals
If in 2024, Verlingue recorded a turnover of 285 million euros at the European level, the goal for 2028 is to reach a total turnover of 450 million euros, with a particular focus on Italy, where a turnover of 42 million euros is expected. Growth will be sustained through three factors:
- expansion into new states and territories;
- increase in customers and activities;
- investment in IT and digital platforms.

The pillars of the Better Future 28 programme in Italy
The company intends to put the customer at the centre of every activity, offering a unique experience and a fair price. Planned actions include:
- development of new insurance products;
- advanced use of digital platforms;
- annual follow-up of risks through detailed reports;
- opening of new offices to ensure proximity and personalised assistance.

In addition, it will work with new companies and reinsurers to optimally place risks. To realise this ambitious programme, Verlingue relies on the commitment of every employee.
In particular, the company will offer:
- professional growth through the Inser Academy and the Train the Trainers programme;
- work/life balance and fair remuneration;
- a quality working environment and continuous social dialogue.

Verlingue's strategy in Italy also includes a strong focus on innovation and operational efficiency to maintain financial strength and independence. The objectives include:
- to rank among the top 10 Italian brokers by 2028;
- increase margins and effectively manage liquidity and dividends;
- promote an innovation-oriented entrepreneurial culture.
Verlingue is committed to developing the ESG (Environmental, Social, and Governance) path, obtaining specific certifications and promoting solidarity projects in support of local communities.

With clear objectives and concrete actions, the company is preparing to consolidate its position in the market, achieving ambitious goals by 2028.

New governance and a new strategic plan for 2028

This latest step in an entrepreneurial saga marked by nine decades of growth comes at a time of rapid expansion, with the Group tripling its sales over the last ten years. “I am extremely proud to hand over the helm to Benjamin, accompanied by his sister Audrey, whose experience and vision are major assets for the future of the Group. In his previous roles, Benjamin proved his leadership and strategic vision. I am confident in his knowledge of the business, in his ambition and his determination to uphold our business model to ensure our continued development in a constantly changing environment,” says Jacques Verlingue, former Chairman of the Adelaïde Group.

“I am very proud and enthusiastic to be taking on this new role. Under Jacques Verlingue's leadership, Adelaïde has become a major European brokerage player and has seen its turnover grow substantially. At a time when risk management is a growing challenge, I am going to devote my energy to continuing to grow the Group by contributing to a better future for all our stakeholders, while preserving the Group's independence over the long term,” adds Benjamin Verlingue, the new Chairman and CEO of the Adelaïde Group

The Better Future 28 plan is part of this drive and reveals a clear ambition: to double the Group's turnover by 2028 to €800m. Adelaïde intends to establish itself as the leading family brokerage company on the European market, where it is already active in France, the United Kingdom, Switzerland, Italy and Portugal, to advise and support its clients as a trusted partner over the long term.

The Better Future 28 strategic plan is structured around four main areas:

• Organic and external growth: the Group's growth is based on the long-term trust placed in us by our clients. This sustained organic growth will be accompanied by continued acquisitions, with development in new countries, new areas of expertise and new market segments. The Group has developed an ability to unite talented entrepreneurs around an industrial vision, keen to further accelerate their growth and innovation trajectories.

• Developing human capital: the forthcoming Adelaïde University aims to further enhance the Group's ability to develop its employees through a multi-year training plan, the digitalisation of programmes and the development of skills certification. Modernising the way we work and improving the quality of life at work are also priorities.

• Technological innovation: as the base of the Group's independence and its ability to provide clients with high added value, the Better Future 28 plan aims to ensure the continued upgrading of the main information system, to accelerate the use of data and artificial intelligence, to develop workstations through the creation of a digital workplace and to continue to improve cyber security.

• A positive impact: we will be stepping up our actions in local areas with the aim of leaving a positive footprint. We want to help our clients to grow and prosper, by supporting them through the expected social, societal and environmental transitions. Our ESG approach, integrated into our business model, reflects this enthusiastic desire to “do our bit”. As part of this, we aim to develop balanced, long-term relationships with insurers and other risk carriers in order to offer our clients the best possible cover solutions.

Leading companies in their core markets

With a team of more than 2,500 employees, the Adelaïde Group has set itself the target of recruiting more than 250 new talents in 2024. The Group will continue to promote training, integration and development policies to foster the career development of its employees.

The plan also unveils a firm commitment to operational excellence for each subsidiary:

• Verlingue, which specialises in corporate insurance brokerage, is aiming for a new stage in its growth, with an aggregate turnover target of €450 million in 2028 and the employment of 400 new employees in France and Europe.

• Génération aims to reinforce its status as the benchmark Third-Party Administrator

• (TPA) in social protection, with a target of 3.5 million policyholders with health insurance cover and 1.5 million with personal protection cover by 2028.

• Cocoon, which specialises in individual insurance, aims to double in size by 2028 by offering tailored insurance solutions for families and their households based on ethical and responsible practices.

A commitment to financial and non-financial performance

The Better Future 28 plan also focuses on non-financial performance, integrating environmental, social and governance (ESG) issues at all levels of the company. A growing company since its foundation, the Adelaïde Group has set itself 9 clear performance indicators for 2028 that illustrate its commitmentto pursuing sustainable and balanced growth while strengthening its role as a trusted partner for all stakeholders in facing the transitions ahead:

• Turnover of €800m

• 6 million policyholders

• Volume of premiums brokered: €6bn

• 100% of employees trained in major transitions and ESG issues

• 15% of employees certified at Adelaïde University

• 2-fold increase in the number of mobility schemes

• 98% client retention rate

• 95% customer satisfaction

• 50/50: Gender balance among managers

About the Adelaïde Group

The Adelaïde Group specialises in insurance consultancy, intermediation, distribution and management. It is geared towards enabling its customers to run their businesses through effective risk management, by helping them protect their operations and their employees. For over 90 years, the Group has been tirelessly innovating, growing and reinventing itself to become one of the main players in insurance brokerage in France, with three thriving companies: Verlingue, Génération and Cocoon. Organic and external growth, the development of human capital, technological innovation and positive impact are the four priorities the Group has set itself to achieve its goal of becoming Europe's leading family-owned insurance broker.

2,500 employees | €3,000bn in premiums brokered |2.4 million policyholders with health insurance cover and 1.1 million with life insurance cover | 5 locations in Europe: France, Great Britain, Switzerland, Portugal, Italy | www.adelaidegroup.fr

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.