The Terrepadane agricultural consortium of Piacenza, Milan, Lodi and Pavia, which for three years has resisted takeover attempts by FederConsorzi 2, alias CAI SpA and CAI Real Estate Srl (1,2), wins another battle – on the 19th December 2023 at the Emilia-Romagna TAR – against the Ministry of Business and ‘Made in Italy’. (3) An epochal victory against Coldiretti’s magic circle. #CleanSpades.
1) Terrepadane – Ministry of Business, the appeal to the Emilia-Romagna TAR
Terrepadane agricultural consortium S.c.r.l., in the person of the combative president Marco Crotti, presented in 2022 and integrated in 2023 an appeal to the Emilia-Romagna TAR against the Ministry of Enterprise and Made in Italy (MIMT), its general directorate for the supervision of entities, the cooperative system and commissioner management, the extraordinary commissioner appointed by it, the State Attorney’s Office, the Ministry of Agriculture, Food Sovereignty and Forestry (MASAF). For the annulment of a series of deeds, which include:
– extraordinary inspection report and contextual warning from Mimit to the Terrepadane Agricultural Consortium, 29 September 2022,
– subsequent report of assessment of non-compliance with the above warning with proposal for the administration of the Terrepadane Agricultural Consortium, 3 May 2023,
– the minutes of the meeting of 24 July 2023 of the Central Committee for Cooperatives, containing the opinion on the proposal for the administration of the Terrepadane S.c.r.l. agricultural consortium,
– opinion given by MASAF on the said commissionership, 2 August 2023,
– MIMT directorial decree which ordered the commissioner management of the Terrepadane S.c.r.l. agricultural consortium. and the appointment of the Commissioner to act, August 2, 2023.
2) The facts. Terrepadane vs Coldiretti
The Board of Directors of the Consortium Agrario Terrepadane, on 30 April 2021, convened the assembly for the approval of the 2020 budget and the renewal of the positions. The notice of meeting was challenged by a member of the Board of Directors, with an appeal to the Special Company Section of the Court of Bologna.
The assembly consortium, on 19 May 2021, approved the budget and confirmed the council led by Marco Crotti who had already rejected the possibility of drowning Terrepadane in the ‘FederConsorzi 17’ operation on 2020 April 2. (1) However, some members of the defeated faction (Coldiretti) asserted the irregularity of the votes and presented:
– on 26 May 2021, a complaint to the European Union of Cooperatives (UECOOP, then chaired by Gherardo Colombo. See notes 4,5) and to the MIMT,
– on 2 September 2021, a request to the president of the Court of Piacenza for the appointment of an arbitration panel.
2.1) Extraordinary inspections by the Ministry of Enterprise
Ministry inspectors of the companies, following the first extraordinary inspection, on 29 September 2021, found some ‘irregularities, not inherent to the subject matter of the complaint‘ and they distrusted ‘the partnership‘ to the reapproval of three regulations, as well as the recalculation of refunds.
A second inspection extraordinary, on 28 December 2021, had a regular outcome. The inspectors, however, issued other warnings to the quorum statutes of the assemblies. Except to backtrack, following Terrepadane’s counterarguments supported by a notary’s opinion.
A third inspection extraordinary, on 29 September 2022, was ordered by Mimit following a request for self-defense cancellation of the report of the previous inspection, by the Coldiretti faction which was still complaining about the electoral defeat of the previous year. And so:
– after Mimit, with unprecedented ‘scruple’, had obtained an opinion from the State Attorney’s Office which (‘combination’) alleged the illegitimacy of the voting procedures adopted by Terrepadane on 18-19 May 2021,
– the inspectors warned the Terrepadane Agricultural Consortium to reconvene the aforementioned meeting with the same agenda.
2.2) Arbitration award, warnings from Mimit
The arbitral award ritual, to define the arbitration which had meanwhile started in Piacenza (see paragraph 2, last point), was meanwhile filed on 1 October 2022. The Arbitration Board, following a detailed analysis of the relevant legislation, concluded by deeming ‘completely correct and legitimate‘ the electoral procedure followed by the Terrepadane Agrarian Consortium.
The manager of division V of Mimit, however, ignored the arbitration award produced by Terrepadane and renewed a peremptory warning to president Marco Crotti ‘to wish to comply with the requirements already notified for the purposes of restoring legality‘, on 3 November 2022, warning otherwise of ‘adopt the measures within its competence, without exception, as per law‘.
Yet another inspection extraordinary meeting, on 3 May 2023, ended with the proposal to place the Terrepadane Agricultural Consortium under commissionership because its Board of Directors had not reconvened the meeting with the agenda of two years earlier. Mimit thus communicated the start of the commissioner management procedure.
2.3) New elections, commissionership and its suspension
The Board of Directors of the Terrepadane Agrarian Consortium therefore resigned and the assembly re-elected Marco Crotti’s board with a large majority, as we have seen, on 4 July 2023. (2) The new Board of Directors, duly elected, invited Mimit not to proceed to the commissioner proposal.
The Ministry of Business however, he persisted in believing that the situation was not remedied, in defiance, among other things, of the arbitration award which had recognized the legitimacy of the votes expressed by the Terrepadane assembly on 18-19 May 2021 and submitted the commissionership proposal to the Central Committee for Cooperatives .
The Central Committee for Cooperatives, meeting on 24 July 2023, expressed an opinion against the commissioner proposal. But the minutes of this meeting, ‘combination’, were published only on 26 August 2023. And the general director ‘for the supervision of entities’ has meanwhile started the operations, with the appointment of the commissioner, on 2 August 2023.
TAR Emilia-Romagna however, it suspended the effectiveness of the directorial decree for the administration of the Terrepadane agricultural consortium on 30 August 2023, taking into account the ‘absolute particularity of the story‘ and the absence of ‘compelling public needs that make its execution unpostponable‘.
3) Law. Principle of legality, excess of power
The administrative judge was called to evaluate the legitimacy and correctness of the exercise of supervisory power by the Ministry of Business, following which the Terrepadane Agricultural Consortium was placed under special administration. The Parma branch of the Emilia-Romagna TAR, in the valuable ruling under examination, highlights that ‘the ministry’s supervision of cooperative bodies is aimed solely at respecting mutualistic principles‘. And so:
– ‘in the case in question, the exercise of the supervisory power (…) was actually exercised illegitimately, to the extent that it was oriented towards censoring procedural elements (…) and substantial determinations (…) which in no way involve cooperative mutuality’.
– ‘without prejudice to the ab initio illegitimacy of the supervisory power‘, the functions performed by Mimit inspectors are ‘ultraneous and go beyond the scope of the powers conferred on the inspection and supervisory bodies‘, at the point of the warning to reconvene the elections of the Terrepadane Board of Directors,
– ‘all of this, in conclusion, reveals what happened contra legem exercise of supervisory power, being able at this point to ignore the further question deduced from the point of view of a possible invasion – by operation of the Administration – of the sphere of review reserved to the civil judge‘.
3.1) ‘Manifest misuse of power and contradictions’
Extraordinary inspections on cooperatives’are arranged by the Ministry on the basis of scheduled sample checks, in-depth needs deriving from cooperative audits and whenever the opportunity arises‘, pursuant to Legislative Decree 220/2002 (article 8.1).
‘Well, if it is true that the activation of inspection powers is characterized by a discretionary assessment by the Administration regarding the existence of the conditions under which compliance with the mutual principle must be verified,
– this discretion cannot be exceeded manifest misuse of power and contradictions, imposing, in such eventualities, judicial review with a destructive outcome.
Observe the College that
– the exercise of the inspection activity (…) highlights a deviant and contradictory drift of the Ministry’s discretion‘. (3)
3.2) Abuse of office
‘The inspection visit report [December 28, 2021, ed. See above, paragraph 2.1] had registered the absolute regularity of the activity carried out by the consortium Assembly. The fact that some members [Coldiretti, ed.] complained about the prejudice, mostly attributable to the circumstance that the outcome of the aforementioned inspection proved not to be in keeping with their aspirations
demolishing the assembly resolutions, it is not a reason that, alone, justifies the need to arrange a new inspection. (…)
Add to this the further circumstance that the inspection was ordered pending an arbitration procedure having the same object as the complaint received from the Ministry.
In renewing theinspection supervisory activities, in the absence of obvious reasons of public interest, connected to contingencies understood in a broad sense, on the basis of the mere biased assertion of illegitimacy of the report of the first inspection proposed by a company structure, the The Ministry has evidently used its supervisory power for purposes other than those for which said power is attributed by law, arriving at unmotivatedly contradictory results, these are revealing circumstances further profiles of illegitimacy of the burdened measures and confirm the validity of the appeal’.
3.3) TAR Emilia-Romagna, further complaints to the Ministry of Business
The TAR for Emilia Romagna then accepts the further criticisms proposed by Terrepadane against the ministry’s actions. Where:
– the arbitration award which certifies the legitimacy of the assembly resolutions of 18-19 May 2021 of the Terrepadane and ‘c Agricultural Consortiumrefutes the opinion of the State Attorney General, it would not have been taken into consideration by the Ministry, not in terms of its effects, but as a ‘historical fact’ thereby looming illegitimacy of the assessment report of 3 May 2023 and of the contested preliminary documents’,
– ‘the contested report would have been issued in reason for the opinion given by the district attorney’s office of the State of Bologna, which was never brought to the attention of the Consortium by the Ministry, thus creating a flaw in the motivation of the provision’,
– the ministry should have justified the reasons why it deviated from the opinion of the Central Committee for Cooperatives, as it was mandatory although not binding.
4) Provisional conclusions
The ‘further profiles of illegitimacy‘ underlined by the Emilia-Romagna TAR deserve attention from the competent Public Prosecutor’s Offices,
without neglecting other episodes that date back to May 2021 and could be placed in an identical criminal plan. (1) In the meantime, long live Terrepadane and its proud, inviolable independence!
#Clean shovels
Dario Dongo
Footnotes
(1) See paragraph ‘Terrepadane, resistant farmers’, in the previous article ‘Federconsorzi 2, AgriRevi, AIPO (Unaprol). Golden business for Coldiretti’s magic circle. GIFT (Great Italian Food Trade).
(2) Dario Dongo. Terrepadane repels the assault of Coldiretti’s magic circle. #CleanSpades. GIFT (Great Italian Food Trade).
(3) Regional Administrative Court (TAR) for Emilia Romagna, separate section of Parma (First Section). Sentence 19.12.23 in proceeding no. 00367/2023 Provisional Reg. Coll.
(4) See note 5 in the previous article ‘Coldiretti, AIA and the golden calf. #CleanSpades are urgently needed. GIFT (Great Italian Food Trade).
(5) Gherardo Colombo is still the scientific director of the Agromafie Observatory. So see the previous article ‘Coldiretti, the Agromafie Observatory and the Porsche of the Customs Agency. The document’. GIFT (Great Italian Food Trade).
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
