Liability for negligently issued anti-mafia certificates
| Date | 02 January 2018 |
| Pages | 210-217 |
| DOI | https://doi.org/10.1108/JFC-10-2016-0066 |
| Published date | 02 January 2018 |
| Author | Paola Monaco |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial crime |
Liability for negligently issued
anti-mafia certificates
Paola Monaco
Department of Legal, Language, Interpreting and Translation Studies,
Universita degli Studi di Trieste, Trieste, Italy
Abstract
Purpose –This paper aims to analysethe different forms of liability thatmight apply under Italian private
law to anti-mafiaadvisors who negligentlyperform their duties, withparticular regards to auditorsconcerning
the draftingof mandatory anti-mafiacertificatesas bidding documentsfor public procurementcontracts.
Design/methodology/approach –The analysis is based on the comparative law methodology of
dissociation of “legal formants”,that is, on the study of separate contributions by each element of the legal
system –from black-letterprovisions to judicial dicta, from scholars’arguments to administrativepractices –
to the makingof legal rules in a given setting.
Findings –Neither case law nor academic writingis abundant on this topic. Yet, it can be fairly assumed
that an advisor who negligently drafts anti-mafia certificates might incur both contractual and tortious
liability.
Originality/value –The paper investigates an area,which has so far been largely unexplored, and, thus,
contributesto paving the way for a better understandingof the legal framework applicable to the cases under
examination.
Keywords Anti-mafia certificates, Liability of external consulting services, Negligent misstatement,
Public procurement contracts, Pure economic loss
Paper type Research paper
1. Introduction
The aim of this paper is to analyse the different forms of liability that might apply under
Italian private law to advisors who performtheir anti-mafia duties negligently, in particular
those related to the drafting of mandatory anti-mafia certificates as bidding documents for
public procurementcontracts.
Before examining the liability regimes for anti-mafia advisors, it is necessary to briefly
sketch the basic contents of Italian legislationon anti-mafia declarations in awarding public
contracts (Section 2). The paper will then focus on advisors’liability for negligent
information (Section 3), explore whether advisors could be held liable to their clients for
breach of contract (Section 4) and vis-à-vis third parties for negligence (Section 5), including
for pure economic lossescaused by their negligent misstatements (Section 6).The paper will
end with some final observationsabout the current regime (Section 7).
2. The legislative framework on public procurement contracts
Over the past years, the European Union(EU) has devoted substantial efforts to reduce legal
uncertainty and obstacles in the functioning of the European internal market. One of the
most crucial actions undertaken by the EU in this field was the establishment of a special
legal framework for public procurement, whichis considered by European institutions as a
privileged instrument for encouraging “smart, sustainable and inclusive growth while
ensuring the most efficient use of public funds”[1]. On this assumption, the EU enacted in
JFC
25,1
210
Journalof Financial Crime
Vol.25 No. 1, 2018
pp. 210-217
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-10-2016-0066
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