Between Illegality and Crime: The Criminal Risk of Administrative Decision-Making in Public Procurement

The recent “Operation Lúmen”, launched last Tuesday by the Judicial Police, which led to searches at municipalities, companies and associations, arrests and the designation of several suspects within the framework of public procurement procedures, once again brings to the forefront of the debate the boundary – not always clear – between administrative illegality and criminal offence.

Indeed, situations that for many years were addressed within the sphere of administrative illegality or, in certain cases, financial liability, are now being framed in light of criminal offences such as active and passive corruption, economic participation in business, abuse of power and criminal association, in a movement that reflects a progressive convergence between Administrative Law and Criminal Law.

The convergence between Administrative Law and Criminal Law

This convergence, however, cannot be undertaken without reservations.

Criminal Law – as the ultima ratio of the legal system – is not satisfied with mere procedural non-compliance or the perception of favouritism; rather, it requires the strict verification of all the constituent elements of the offence, namely:

• The demonstration of concrete conduct;
• The existence of an undue advantage and, in a particularly demanding manner,
• Proof of intent (dolo).

The criminal risk in public procurement decisions

It is precisely at this point that the analysis becomes more sensitive.

In matters of public procurement, decisions are often taken under pressure, with necessarily incomplete information and within margins of discretion that cannot be disregarded. Their subsequent reassessment – often distant in time and influenced by knowledge of the outcome – entails an evident risk of simplification, tending to bring administrative illegality closer to criminal offence in a manner that is not always rigorous.

Such convergence is not neutral. On the contrary, it entails the risk of transforming debatable decisions into criminal suspicions and of recharacterising management errors as criminal imputations, disregarding the concrete context in which such decisions were actually taken.

The importance of analysing the moment of administrative decision-making

It is therefore essential to refocus the analysis on the moment the decision is taken, taking into account:

• The information available;
• The possible alternatives; and
• The actual degree of freedom of action of the decision-maker.

Failing to consider these factors risks replacing the evidentiary requirements of Criminal Law with a retrospective reading of the facts.

The distinction between error, irregularity and crime is not merely conceptual. Rather, it is a structural requirement of the system and assumes particular relevance in a context where administrative decisions may trigger individual criminal liability, with consequences that extend far beyond the legal sphere.

Administrative illegality vs. crime: where is the limit?

The question that inevitably arises is: to what extent is it legitimate to subsume imperfections in administrative decision-making under criminal law?

The answer must affirm an essential principle: not every illegality is a crime, and not every suspicion dispenses with proof.

Moreover, it is important to reaffirm that Criminal Law must remain the ultima ratio, reserved for situations where there is a clear and unequivocal violation of the legal interests it is intended to protect, and not as a mechanism of automatic reaction to any administrative non-compliance.

The blurring of this boundary entails significant risks: on the one hand, it weakens the fundamental guarantees associated with criminal proceedings; on the other, it may generate a deterrent effect on administrative action, leading to a culture of inertia or defensive decision-making, which is hardly compatible with the requirements of efficiency and the pursuit of the public interest.

A rigorous delimitation between administrative and criminal wrongdoing is therefore required, one that does not dispense with a concrete analysis of the facts, the decision-making context and the subjective element of the conduct. Otherwise, the risk will no longer lie in error, but simply in the act of deciding.

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