Italy: Italian Anti-Corruption Authority ("ANAC") Rules On Possible Conflict Of Interest Involving Members Of The Management Committee Of Port System Authorities

Last Updated: 12 January 2018
Article by Laura Lombardini
Most Read Contributor in Italy, December 2017

The Management Committee is the collective body of Port System Authorities (hereinafter, "PSAs"), which includes: (i) the President of the PSA, (ii) a member appointed by the Region or by each Region whose territory is (totally or partially) included in the port system, (iii) a member appointed by the mayor of each of the metropolitan cities, if any, whose territory is (totally or partially) included in the port system, (iv) a member appointed by the mayor of each of the municipalities in which port authorities were previously based, under the jurisdiction of PSAs, except for capital municipalities of metropolitan cities, and (v) a representative of the maritime authority appointed by the territorially-competent maritime directorates, having voting rights in matters of competence.

In the framework of the Italian port law reform, the Management Committee basically appears as a sort of board of directors of the port authority, entrusted with numerous and important tasks, specified in Article 9 of Law 84/94.

The Committee's tasks cover, inter alia, adopting the port system master plan, approving the three-year operational plan on the strategies for development of port and logistic activities and approving the budget.

Furthermore, particularly noteworthy is the Management Committee's power to rule, subject to proposal by the President, upon "the authorisations and concessions under Articles 6, paragraph 11, 16 and 18, with a term of more than four years, determining the accompanying fees, in accordance with the provisions of the decrees of the Italian Minister of Transport under, respectively, Article 16, paragraph 4, and Article 18, paragraphs 1 and 3"1.

In light of such provision, numerous legal commentators have complained that, in some ports, the members of the Management Committee are somehow linked to the port economical fabric which they – as committees – are supposed to regulate and manage.

Given the increasing attention paid in recent years to the impartiality of officials and the transparency of administrative action2, in this scenario two significant contributions call for reflection on the possibility that – in cases of potential conflict of interest – the Committee's resolutions may even be cancelled.

The first contribution comes from ANAC resolution No. 179 of 1 March 2017, concerning a case in which the Authority was asked to adjudicate upon a potential conflict of interest between the position, respectively, as a member of the Port Committee and as President of the port company authorised under Article 17 of Law No. 84/94 to operate in the port governed by the same Port Authority.

In particular, ANAC previously stated that a conflict of interest can arise between the position as President of a PSA and the position as a member of a company whose activity is regulated by the same Authority3. According to ANAC, a conflict of interest may arise whenever "the controller and the controlled are the same person, as this can be detrimental to the public manager's impartiality".

ANAC then wondered whether such interference, capable of affecting the independent, impartial and objective exercise of the public function vested in an official and not remediable by abstention only, may arise also when the official concerned is a member of the Management Committee.

As mentioned above, the case at issue concerned the appointment of the President of a local company providing temporary port labour under Article 17 of Law No. 84/94 as a member of the Committee.

Since Port Authorities are statutorily responsible for authorising companies providing temporary port labour, subject to prior resolution by the Committee, ANAC recognised a clear conflict of interest between the controller and the controlled in the combination of the two said positions in the same person.

It is worth recalling that, according to ANAC, such an (even potential) conflict is not remediable and the abstention of the person concerned is not sufficient, as "any order from him/her, as a member of the Management Committee, would significantly hinder the private-law activity of the company in which he/she holds specific interests, thus resulting in a general and permanent conflict".

This view was recently confirmed by an opinion of the Special Committee dated 4 October 2017, on the draft decree of rectification for reorganisation, rationalisation and simplification of the rules on PSAs, whereby the Italian Higher Administrative Court (Consiglio di Stato) considered "the extension of the provisions on ineligibility for public office and incompatibility of public offices under Legislative Decree No. 39 to the members of the body (i.e. the Management Committee)". Likewise, "those appointed by local and regional authorities cannot be appointed as members of a political and administrative supervisory body, with the consequence that forfeiture shall apply to those in such a condition at the time of the entry into force of the provision"s.

Furthermore, it was recently announced that the final version of the draft decree transmitted by the Italian Ministry of Transport to the Presidency of the Council of Ministers confirmed the above preclusion and the consequent penalty of forfeiture.

This, for example, means that mayors or governors of the cities and regions concerned shall be prevented from being members of the Management Committee.

Therefore, the members of a Management Committee are permanently or temporarily prevented from taking certain positions or, alternatively, they are required to choose, within a mandatory period of 15 days, whether (i) keeping their office or being appointed and performing tasks as officials of private-law bodies governed or financed by the appointing public authorities, and whether (ii) carrying out professional activities or (iii) taking office as a member of a political supervisory body.

The two contributions mentioned above therefore appear to reveal a trend towards ensuring the subjective impartiality of officials in the exercise of administrative functions, including in the context of PSAs.

Footnotes

[1] See Article 9, paragraph 5, g) of Law No. 84/94.

[2] As can be noticed from the wording of new Article 6 bis of Law No. 241 of 1990 as introduced by Law No. 190 of 2012, which comes to the extent of setting up a general duty of abstention for public officials in the event of an even potential conflict of interest.

[3] Resolution No. 378/2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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