Edited by Fabio Carnevali

The Second Section of the Regional Administrative Court of Lazio, with a very recent ruling issued in simplified form pursuant to Article 60 of the Administrative Procedure Code (ruling number 8669/2022, published on June 27, 2022), confirmed the legitimacy of the freezing measure imposed by the Financial Security Committee (operating within the Ministry of the Economy and Finance) against economic resources attributable to a person responsible for actions that compromise or threaten the territorial integrity, sovereignty, and independence of Ukraine.

With a provision dated March 4, 2021, the Italian Revenue Agency froze a motor yacht, essentially attributable to a party listed in Annex I of EU Regulation No. 269/2014, subsequently integrated by Implementing Regulation No. 2022/336 of February 28, 2022, but formally registered to a company based in a non-EU country.

The company that owns the vessel challenged the measure before the Administrative Court on two counts.

The first ground of appeal alleges a violation of the procedural and participatory guarantees set forth in Article 7 of Law No. 241/1990, which establishes the obligation to notify the parties upon whom the final decision is intended to take effect of the initiation of administrative proceedings, as well as in EU Regulation No. 269/2014 (recital 6) and Article 41, paragraph 2, letter a) of the Charter of Fundamental Rights of the European Union.

With the second, detailed reason, the appellant company contested the suitability of the so-called "open sources" to form the basis of an act that infringes fundamental rights, with particular reference to proof of the connection between the listed subject and the asset being frozen.

From the first point of view, the Administrative Court considered the contested provision legitimate, since it is not "ontologically subject to the provisions on the communication of notice of the proceeding dictated by article 7 of law no. 241/1990”. On the other hand, in this case, the right of defense in the proceedings (Article 97 of the Constitution) is simply postponed with respect to the adoption of the prejudicial provision, while the right of defense in the trial (Article 24 of the Constitution) remains intact.

The purposes of the measure freezing economic resources, aimed at preventing "the transfer","the disposition" or "use” of the good, would evidently be frustrated and completely nullified if the recipient of the measure were warned beforehand and put in a position to evade its effects.

Furthermore, given the binding nature of the provision, any participatory contribution from the appellant in a defensive and collaborative manner could not have modified the dispositive content of the provision (see art. 21-octies, paragraph 2, first sentence, of Law no. 241/1990).

The second ground of appeal was also deemed unfounded by the TAR: "The connection criterion between the person benefiting from the measure and the resource affected by it is open, as it is represented both by the concept of formal membership..." both from the concept of substantial belonging, "where the resource is traced, even indirectly through situations of possession, detention, control, to one of the persons listed... "

In order to assess, in this specific case, the legitimacy of the use of open sources, the TAR clarified that "Administrative activity is not based on the principle of due process…including the rules on adversarial proceedings…” which include the provisions on the formation of evidence: in the absence of specific rules, the general provision of art. 6, letter B) of law no. 241/1990 applies, according to which the administration “ex officio ascertains the facts, ordering the completion of the necessary actions for this purpose".

In the absence of a definition of open source in the legal system, the Panel attempted to identify its characteristics: "From a descriptive perspective, sources (mostly of an IT nature such as the Internet) can be defined as 'open' if they are freely accessible to any interested party, regardless of active legitimacy or possession of particular subjective requirements, and contain data and elements that are easily consultable at the same time as one is interested in their acquisition or collection.

In relation to 'open sources' the computer network operates as a research tool through which the existence or non-existence of a historical fact can be immediately verified.".

Given that there is no general prohibition on the use of open sources as a basis for administrative decisions, the Administrative Court, in a particularly relevant and innovative passage, has indicated limits on the use of such sources, in order to ensure compliance with the principles of reasonableness and proportionality of administrative action, when it is impossible to use ordinary investigative methods.

“In order to ensure that the power of investigation does not stray into arbitrariness, the following general limits to the use of 'open sources' in investigations can be identified, in light of the principle of substantive legality:

a) the data and elements acquired must come from sources managed by qualified bodies or individuals who hold them and make them freely available to the public in the exercise of a professional activity;
b) they must be truly open sources, that is, public, differentiated, accessible and verifiable without objective or subjective impediments, so as to allow for critical and widespread control by all interested parties;
c) the sources must report objectively relevant data or elements;
d) the data and elements collected must not be contradicted by other similar open sources or by qualified sources of evidence from other bodies or subjects or from the interested person himself…

The data and elements from 'open sources' can therefore constitute a set of clues from which to infer, following a reasoned and reasonable summary of the same during the preliminary investigation phase and in the absence of suitable evidence to the contrary that can be subsequently provided by the interested party in the trial, the existence of prerequisites for the provision that are impossible or highly difficult to ascertain, through ordinary investigative tools, in relation to the nature of the proceedings and the peculiarities of the specific case.

Compliance with the limits and conditions identified by the Administrative Judge for the legitimate use of open sources led, in the case at issue, to the rejection of the appeal and the confirmation of the legitimacy of the contested administrative provision.