Mario Sommariva is named extraordinary commissioner of the Authority of Harbour System of Mare Adriatico Orientale



As a result of the deliberation n. 233 4th March, that we publish below, with which the National Authority Anticorruzione (ANAC) have declared Zeno D' Augustin decayed from the charge of president of the Authority of Harbour System of Mare Adriatico Orientale as such charge would have been inconferibile for the precedence assignment of Of Augustin to the summits of the Trieste Passenger terminal, of which the AdSP, it stops 40% of the quotas, the ministra of Infrastructures and of the Transports, Paola De Micheli, confirming own esteem in the acts of Zeno D' Augustin, has named Mario Sommariva extraordinary commissioner of the Authority of Harbour System. The assignment to Sommariva, current general secretary of the AdSP of Mare Adriatico Orientale, is formalized friday with the signature of decrees by the minister.

The AdSP has evidenced that the nomination wants to already guarantee the continuity of the administrative action of the Authority and the conclusion of all the procedures in being and has specified that from the MIT has reached also reassurance on the validity and effectiveness of all the actions until now adopted under the management Of Augustin. To such purpose the harbour agency has announced that Sommariva has already signed today decrees of validation of all the actions deliberated from 2016.

"I thank - Sommariva has declared - minister Paola De Micheli for the confidence come to an agreement to the undersigned. The assignment has the scope to assure stability and continuity for the closely necessary time to the full restoration of the summit organs, that I wish happens in the short possible time. The port is motor economic of the city and it cannot be stopped".


National authority Anticorruzione
President

Deliberation n. 233 on March 4, 2020

relative to the assessment of a situation of inconferibilità of which to art. the 4 of the d.lgs n. 39/2013, with reference to the assignment of President of the AdSP omissis

Issue UVIF n. omissis /2019

The Council of the National Authority Anticorruzione

in the assembly on March 4, 2020;

seen article 1, codicil 3, of the law 6 November 2012, n. 190, second which the National Authority Anticorruzione exercises inspecting powers by means of demand for news, information, actions and documents to Public Administration and orders to the adoption of actions or provisions demanded from the national plan anticorruption and the plans of prevention of the corruption of the single administrations and from the rules on the transparency of the administrative activity previewed from the enforced norm, that is the removal of behaviors or actions contrasting with the plans and the rules on the transparency;

seen art. the 16 of the d.lgs. 8 April 2013 n. 39, second which the National Authority Anticorruzione supervises on the respect, by the public administrations, of the public bodies and the agencies by right private in public control, of the dispositions of which to the cited one I decree, in topic of inconferibilità and incompatibility of the assignments, also with the exercise of inspecting powers and assessment of single fattispecie of bestowal of the assignments;

seen the relation of the Office Vigilance on the impartiality of the civil employees publics (UVIF).

Fact

A presumed hypothesis of inconferibilità of the assignment of President of the Authority of Harbour System omissis to the omissis has reached this Authority a signalling having to object, already President of the omissis.
By the preliminary investigation carried out from the Authority it is emerged that the omissis it has been: - Commissioner Straordinario of the AdSP omissis from the omissis to the omissis; - President of the omissis from the omissis up to the present by virtue of I renew taken part the omissis; - President of the AdSP omissis from the omissis up to the present.

Therefore, it has been considered applicable, to the case under investigation, art. the 4, Co. 1 lett. b), of the d.lgs n. 39/2013 according to which "To those who, in the two years precedence, they have carried out assignments and covered loaded in agencies by right private or financed from the administration or the public body that confers the assignment […] they cannot be conferred: b) the assignments of public body administrator, of national level, regional and local".

This Authority, as a result of the consiliare deliberated one of the omissis has communicated to the interested subjects the start of a procedure of former vigilance art. 16, Co. 1, of the d.lgs n. 39/2013 relative to a possible hypothesis of inconferibilità, according to the above-mentioned article, the assignment of President of the AdSP omissis.

The omissis, after to have travelled over again the history of omissis and the alternation in the assignments, it has considered art. the 4 of the d.lgs not applicable n. 39/2013 to the fattispecie under investigation.
With next note prot. omissis, the omissis it has sent to this Authority a legal opinion - written up from the omissis - in which has excluded the recurrence of the shown fattispecie of inconferibilità.

With note prot. omissis, the RPCT of the AdSP omissis has joined to the considerations suesposte by the omissis and the recording for the procedure is opposite to the considerations formulated from this Authority asking de quo.

Straight

Applicabilità of the hypothesis of inconferibilità of which to art. the 4, Co. 1 lett. b), of the d.lgs n. 39/2013

By the preliminary investigation carried out from the Authority it is emerged that the omissis it has been:
Commissioner Straordinario of the AdSP omissis from the omissis to the omissis;
President of the omissis from the omissis up to the present by virtue of I renew taken part the omissis;
President of the AdSP omissis from the omissis up to the present.
The bestowal of the assignment of President of the AdSP omissis has happened in violation of the discipline of which to art. the 4 Co. 1 lett. b) of the d.lgs n. 39/2013 according to which "To those who, in the two years precedence, they have carried out assignments and covered loaded in agencies by right private or financed from the administration or the public body that confers the assignment […] they cannot be conferred: b) the assignments of public body administrator, of national level, regional and local; ".
They resort, in fact, the constituent elements of the above-mentioned fattispecie, had with regard to:
Legal nature of the agency in origin omissis to the aims of its ricomprensione in the definition of "private agency by right regulated or financed" of which to art. the 1, Co. 2 lett. d), of the d.lgs n. 39/2013;
Legal nature of the charge carried out in origin to the aims of its riconducibilità in the definition of "assignments and charges in agencies by right private regulated or financed" according to art. the 1, Co. 2 lett. e) of the d.lgs n. 39/2013;
Legal nature of the agency of destination that is the AdSP omissis to the aims of its ricomprensione in the definition of "former public body" art. 1, Co. 2 lett. b) of the d.lgs n. 39/2013;
Legal nature of the charge of destination that is President of the aforesaid Authority, to the aims of its riconducibilità in the definition of "public body administrator" of which to art. the 1, Co. 2 lett. l) of the d.lgs n. 39/2013.

Legal nature of the origin agency: omissis "private agency by right regulated or financed"
It is necessary, first of all, to verify the social structure let alone the functions carried out from the omissis to the aim of its riconducibilità in the notion of "agencies by right private regulated or financed" of which to art. the 1, co.2 lett. c), of the d.lgs n. 39/2013. According to the cited disposition the societies and the other agencies are such "by right private, also you deprive of legal personality, in confronts of which the administration that confers the assignment: 1) it carries out functions of regulation of the main activity that involves, also through the release of authorizations or concessions, the ongoing exercise of certification or control, vigilance powers; 2) it has a minority participation in the capital; 3) it finances the activities through conventional relationships, which contracts publics, contracts of public service and concession of assets publics”.

For how much it concerns to the governance social, it is found how much follows.

The society is constituted according to and for the effects omissis, which preview the faculty for the Authorities of harbour system to promote the constitution of privatistiche societies for the development of services of general interest.
Originally the omissis it could be characterized as society in house of the AdSP omissis, considered that this last agency of it stopped the entire share capital.
The situation is changed in the omissis, when then the Harbour Authority has announced publicly a procedure to public evidence for the cession of 60% of the share capital of omissis.
To the outcome of the aforesaid one, the actions of the omissis belong alone in the measure of 40% to the AdSP of the omissis that it is, therefore, minority associate. Remaining omissis of the actions of the omissis belongs to the private associate omissis.
In particular, the omissis it is a limited liability partnership whose capital is stopped omissis.
On the base of the parasociali pacts and the social charter, to the public body (AdSP) the nomination of two members of the five in charge of the Board of directors of the omissis is up currently. Therefore the majority of the nominations is carried out by the private associate of majority.

For how much it concerns the functional profile, it is evidenced how much follows.

The omissis it carries out, equally, all those essential activities, connected, collaterals and of support to the corrected one to unfold itself of the operations of omissis.
One takes care, also, to plan omissis.

Much premising, the omissis. it re-enters in the notion of which to art. the 1, co.2 lett. d) of the d.lgs n. 39/2013 that is that of “agencies by right private regulated or financed” because of the above-mentioned category it anticipate at least two constituent elements.

First of all, the AdSP stops a quota, even though not of majority omissis, the capital of the omissis. It can be said, therefore, integrated the requirement of which to the number 2) of the above-mentioned disposition (“it has a minority participation in the capital”).

In the second place the omissis it is subject to the power of regulation of the AdSP of which to the n. 1) of the same cited article: (“1) it carries out functions of regulation of the main activity that involves, also through the release of authorizations or concessions, the ongoing exercise of certification or control, vigilance powers”).
In fact according to art. the 16, Co. 3, l. n. 84/1994 “the exercise of the activities of which to codicil 1, carried out on behalf own or of third party, is subject to authorization of the harbour authority or, whereby not instituted, of the marine authority. It dictates authorization regards the development of harbour operations of which to the codicil 1 advance verification of the possession by the petitioner of requirement. […] The authorized enterprises I am enrolled in appropriate held distinguished registries from the harbour authority or, whereby not instituted, from the marine authority and are subject to the payment of a annual canon and to the determined performance of a bail from the same authorities”.
To this one joins how much having from art. the 18, co.1, l. n. 84/1994 according to which “the harbour Authority and, where not instituted, that is before its takeover, the harbour organization or the marine authority damage in concession the state property areas and the docks comprised in the harbour within to the enterprises of which to article 16, codicil 3, fortheaccomplishmentoftheharbouroperations, madesavestheuseofthepieces of real estatebypublicadministrationsforthedevelopmentoffunctionsrelatingtomarineandharbouractivities.”
Therefore, from the joint provision of cited articles, it emerges that omissis the work based on emitted concessori and autorizzatori provisions from the AdSP of omissis and is, consequently, subordinate to its vigilance beyond entertaining with the Authority conventional relationships of which to the n. 3 of art. the 1, Co. 2 lett. d), of the d.lgs n. 39/2013.

Doubts in order to the qualification of the omissis are not set therefore as private agency by right regulated or financed from the AdSP of omissis according to and for the effects of which to art. the 1, Co. 2 lett. d), of the d.lgs n. 39/2013.

Legal nature of the assignment in origin: President of omissis “the private assignment in agencies by right regulated or financed”
In order to the subsistence, if of species, of relating requirement the charge in origin is necessary, still, to verify the riconducibilità of aforesaid in the notion of “assignments and the charges in agencies by right private regulated or financed” of which to art. the 1, Co. 2 lett. e), of the d.lgs n. 39/2013. For such the charges of president with directed managerial delegations must agree “, managing director, the leader positions, the stable development of advisory activity in favor of the agency”.
Therefore, this that is dirimente is the issue relating to the eventual subsistence of powers managers in head al Presidente of the society omissis.

Orbene, omissis and the RPCT of the AdSP have deducted that, from the analysis of the chamber certificate, emerges that, to the omissis, the omissis, in quality of President of the omissis., it exclusively assumed the role of legal representative of the society, being the managerial delegations attributed to two managing directors.
One is, therefore, denied the possession by omissis of powers the direct managers at least until the spring of omissis - the moment in which one of the two precedence administrators omissis and it has been, therefore, disabled to exercise the powers managers of which it was attributario.

It is necessary, therefore, contextually to analyze to the powers and the tasks of the President of the omissis holding account than established in the social charter and than eventually turning out from next actions.

First of all, from the joint provision of the articles. omissis of the social charter, the agenda emerges that the President of the Board of Directors of the omissis “convenes the Board of directors, of fixed, it coordinates the work and it supplies some so that adapted to information on the which joined matters the agenda they are supplied to all the councilmen” beyond to having also the representation of the society jointly to eventual managing directors who are, from time to time, named.
From the reading of above-mentioned articles it appears that the aforesaid powers re-enter within those of ordinary representation of the society, normally attributed to the President, also based on the codicistiche dispositions.

It must, but, to have with regard to established how much from a recent administrative jurisprudence (cfr. sentence of the section, Council of State V, n.126 of the 11.01.2018 and more recently n. 2325/2019) which has asserted that, even if the charter express does not preview the bestowal of managerial delegations in head al Presidente, whereby to the Board of directors is conferred powers managers, also first, for the single fact to be member of such assembly, turns out parimenti invested of such powers.
The Council of State supports that “for the single fact (…) that it is member of the managing committee, to the president are assigned management functions”, principle that recently is confirmed also by the Regional Administrative Court Latium, Rome in the judgment n. 4780/2019.

Therefore if of species, in application of the aforesaid guideline, it must, however, to consider the omissis to title of gestorie competences, in via derivative regarding the Board of Directors that of is directly the attributario according to the art. omissis of the charter of the agency based on which “the management of the enterprise is up exclusively to the administration organ, which completes the necessary operations for the performance of the social object, it stops remaining the necessity of specific authorization in the cases demanded from the law”.

Sul point also the recent Anac deliberations nn. 373 and 450 on May 8, 2019 have confirmed the task of the administrative judge in force of which they can be considered attributed to the president, besides the powers to the same one specifically conferred, also all the functions recognized to the college/board of which it takes part (cfr. maximum deliberation n. 373 on May 8, 2019 that report “In the within of the public bodies and private companies in public control, the assignment of President is sussumibile in the definition of “assignments of administrator of public bodies and private companies in public control”, of which to art. the 1, Co. 2 lett. l), of the d.lgs n. 39/2013 when the same one is equipped of directed managerial delegations. In merit, even if the charter express does not preview the bestowal of managerial delegations in head al Presidente, whereby to the board of directors is conferred powers managers, also the President, for the single fact to be member of such assembly, it turns out parimenti invested of such powers”).

Such conclusion is not disavowed not even does not give to the presence of or more managing directors, turning out lacking in virtue the censorship formulated in the controdeduzioni. The omissis it has deducted that, in quality of President of the omissis would not have had directed managerial delegations (omissis) that, vice versa, they were attributed to two managing directors (one of which still in charge); such circumstance, in the optical of the interested subject, would be even suitable to exclude the applicabilità, to the case under investigation, of the principle expressed from the recalled administrative jurisprudence which took into consideration the fact that, in this case examined from the Council of State, was absent the figure of the managing director.
Such reconstruction cannot be received for the reasons expressed in the above-mentioned deliberation (n. 373/2019) where these Authorities have clarified that to the aim to exclude that the President of a Board of directors is holder of directed managerial delegations is not sufficient the mere presence of a managing director or a general manager from which inferring that the management is of exclusive competence of these last ones. It is necessary, that is, that such I leave again of competences already turns out from the charter and this in the terms that follow “in order to exclude that the President is holder of directed managerial delegations is not sufficient that the powers managers are attributed to the general manager or figures assimilated by means of delegation or procura, being such actions, for temporary, revocable and attributed they nature, intuitu personae; only an appropriate statutory forecast on the powers of the general manager or assimilated figures determines an order of stable and ongoing social government”.
If under investigation the social charter is own to express preview a mechanism of revocabilità of the functions and the relative powers attributed to the managing director, which, therefore, is always subordinate to the vigilance and the power of delegating, in such case the Board of Directors and its President. In fact the art. omissis the recalled charter it has that “the Board of directors can delegate own attributions (…) to or more of its members comprised the President there (…). Al Council is up however the control power and to remove to a higher court to himself the operations re-entering in the delegation, as well as the power to revoke the delegations”.
Therefore, if of species, the managing director turns out to title of the aforesaid gestorie functions by virtue of expressed procuras conferred from the Board of Directors and this is not worth to exclude the riconducibilità of the role carried out from the omissis in the category of which to art. the 1, Co. 2 lett. e), of the d.lgs n. 39/2013.

Much premising, the role of President of the omissis re-enters in the definition of “assignments and charges in agencies by right private regulated or financed” of which to art. the 1, Co. 2 lett. e), of the d.lgs n. 39/2013.

However, it is evidenced that the ANAC has better perimetrato, in the course of the time, the riconducibili assignments to the concept of “directed managerial delegations” in head to the figure of the President of an agency, in ossequio to how much statuito from the taken part administrative jurisprudence in merit. In fact the sentence of the Council of State n. 126 of 2018 have suggested to the ANAC a corrected interpretation more of the concept of “directed managerial delegations”.

Therefore, it is necessary to find that the omissis President of the omissis is named, therefore in antecedent date regarding the supplied hermeneutical guideline from the Council of State n. 126/2018 and the made interpretation own from the Authority in order to the attribution to the President of all powers of the organ of which it takes part.

Legal nature of the agency of destination that is the AdSP omissis: “economic public body”
It must, now, pass to the analysis of relating requirement the agency and the charge assumed in destination from the omissis.

From the reading of the reference discipline it emerges that the Authorities of Harbour System are not economic public bodies of national importance.
In such sense it arranges, in fact, art. the 6 of L. n. 84/94 (bringing “I reorder of the legislation in harbour matter”) as modified from the D.L n. 169/2016 (norms on “Reorganization, rationalization and simplification of the concerning discipline the harbour Authorities of which to the 28 law January 1994, n. 84, in performance of article 8, codicil 1, letter f), of the law 7 August 2015, n. 124”) of which “the Authority of harbour system is not economic public body of national importance to special ordering and is equipped of administrative autonomy, organizational, prescribed, according to budgetary and financial institution”.

This Authority, in the deliberations nn. 179 and 180 of 01.03.2017 and 846 of the 02.10.2018, have already clarified that the AdSP re-enter in the definition of “public bodies” of which to art. the 1, Co. 2, lett. b), of the d.lgs n. 39/2013 of which public not territorial the by right national agencies must agree for such “, regional or according to local ones, however called, instituted, supervised, financed from Public Administration that the assignment confers, that is whose administrators are from this named”.

Much premising, is by now pacific circumstance that the Authorities of Harbour System re-enter in the subjective perimeter of mentioned application of the d.lgs and, in particular in the definition of “public body” of which to art. the 1, Co. 2 lett. b), of the d.lgs n. 39/2013.

Legal nature of the charge of destination that is President of the aforesaid Authority: “public body administrator”
The omissis President of the AdSP with the D.M of the Minister of infrastructures and the transports omissis of the omissis is named, after to have covered the assignment of Commissioner Straordinario of the same agency.

To the aims of integration of the fattispecie of shown inconferibilità it is necessary to verify the riconducibilità of the assignment carried out from the omissis in the definition of public body administrator of which to art. the 1, Co. 2 lett. l), of the d.lgs n. 39/2013 of which the assignments of President with direct managerial delegations are such “, managing director and according to assimilable, of other organ of address of the activities of the agency, however called, in the public bodies and the agencies by right private in public control”.

It is necessary, therefore, that the President of the agency is holder of tasks managers such to attribute the demanded competences to it of direct administration from the disposition in question. Sul point is the same norm of field (art. 8, Co. 2, l. n. 84/1994) to decline the attributions of the President, attributing to it managerial competences; in particular, arranging that “Al President is attributed to the powers of ordinary and extraordinary administration. Al President is up the management of the resources financial institutions in performance of the plan of which to article 9, codicil 5, letter b)”.

Moreover, the same article clarifies express that the President is subordinate to the limits and the preclusioni in matter of inconferibilità and incompatibility, arranging exactly that “the President is subject to the application of the discipline dictated in incompatibility matter, cumulus of employs and assignments of which to 30 article 53 of I decree legislative March 2001, n. 165 and of I decree legislative 8 April 2013, n. 39, let alone on the retributive limits of which to the article 23-ter of the decree-law n. 201 of 2011, converted, with modifications, from the law n. 214 of 2011”.

Not there are doubts, therefore, than the charge of President of the AdSP he is riconducibile to the definition of which to art. the 1, Co. 2 lett. l), of the d.lgs n. 39/2013.

Much premising, if of species, requirement demanded from the norm under investigation in order to integrate the fattispecie of shown inconferibilità are subsistent all.

The objection which moved from the RPCT of the AdSP and the omissis cannot, in fact, be received in order to the chronological succession of the aforesaid assignments. The mentioned subjects have, in fact, considered the fattispecie of inconferibilità brought from art. the 4 not applicable, Co. 1 lett. b), of the d.lgs n. 39/2013 denying that the assignment of President of the AdSP is attributed to the omissis in the next biennium to the attribution of the assignment of President of a private agency by right regulated and financed, which the omissis.
In other words, valuing the antecedent development by the subject in question of the assignment of Commissioner Straordinario of the AdSP and considering it a “unicum” without interruption with the assignment of President of the same Authority, has considered that the nomination to president of omissis. it has happened in charge constancy and not, instead, in the two antecedent years the nomination.
This Authority (cfr. former plurimis of the n. 684 of the 17.07.2019) have considered that I renew of a subject in the same charge (or an assimilable one to the first) is not insignificant to the aims of the application of the discipline in inconferibilità matter. In fact, the confirmation of a subject in the development of the assignment already covered, even though without functional differences between the roles, determines the exercise of renewing to be able legal by the conferring administration
This Authority, in the deliberation n. 642 of the 12.06.2017, have applied the principle suesposto even in the hypothesis in which to the subject the same managing assignment already covered is conferred, considering that “the assignments conferred to the Dr. (…), in various moments, although riferibili to the same office, they cannot consider “a unicum” with the precedence; the assignments in argument are from characterizing themselves as of real stipulated contracts ex novo (…). This as, I renew of the managing assignment involves a renewed exercise of the legal autonomy (cfr. REGIONAL ADMINISTRATIVE COURT Puglia C#lecce, sez II, n. 3239/2007 and REGIONAL ADMINISTRATIVE COURT Sardinia, Sez. I, n. 755/2014)”.
To greater reason, the aforesaid conclusion work if, as that under investigation, of bestowal of an institutionally various assignment (President) from that already carried out in the same agency (Commissioner Straordinario).
This, moreover, is in compliance with the inspirational ratio of art. the 4 of the d.lgs n. 39/2013 that consists in the will to avoid that the subject to which it is conferred the assignment can fold the interest persecuted from the administration or the public body who that assignment has conferred to it to interests of the by right private agency from which it comes.
Orbene, the assignment of Commissioner Straordinario of the AdSP is carried out for a reason or purpose exclusive by the omissis with the exception of that of President of the same agency that is assumed successively and in constancy of the role carried out in the within of the omissis.
The legislator, with the disposition under investigation, has intended to tipizzare, ex ante, of the situations of potential conflict of interest to the aim to paralyze of the insorgence. Very to see, in fact, in this case analysis object comes true that typical situation of interference between privatistici and pubblicistici interests that a risk of lesion to the administrative impartiality determines. Own such circumstance that is the necessity to prepare a mainly incisive protection whereby is risk that the satisfaction of the private interest is put in front that public, has induced the legislator to introduce a more onerous regime of preclusioni (articles. 4,5 and 9 of the d.lgs n. 39/2013).

Sul to be able of assessment of the ANAC.

The ANAC have a specific one to be able of control and assessment on the inconferibilità hypotheses and incompatibility disciplined from the d.lgs. 39/2013 and, in general terms, on the corrected application of the aforesaid norm.

In particular, as already evidenced in premise, art. the 16, codicil 1 of the d.lgs. 39/2013 characterize in the ANAC the Competent authority to supervise “on the respect, by the public administrations, of the public bodies and the agencies by right private in public control, of the dispositions of which to it anticipates I decree, also with the exercise of inspecting powers and assessment of single fattispecie of bestowal of the assignments”.
Recently the aforesaid one to be able has been object of a sentence of the Council of State, which of it has excluded the merely ricognitiva nature, asserting of the constituent-provvedimentale character.
More precisely, the power of assessment attributed to the ANAC from art. the 16, Co. 1, d.lgs. 39/2013 sostanzia in a provision of constituent assessment of legal effects and as such impugnabile in front of the administrative judge, to be able in which is comprised the power to declare the eventual invalidity of the assignment. (cfr. Cons. It are n. 126/2018, over already cited).

All that premising and considered,

DELIBERATION
the inconferibilità, according to art. the 4, Co. 1 lett. b), of the d.lgs n. 39/2013, of the assignment of President of the AdSP of omissis and the consequent invalidity of the action of bestowal of the assignment and the relative contract, according to art. the 17 of the d.lgs n. 39/2013;
to put again to the RPCT the appraisal, during sanzionatorio procedure, of the subjective element of the guilt in head to the previewed organ conferring from art. the 18 d.lgs. 39/2013, taken into consideration the taken part modification of the guidelines of the Authority in matter of directed managerial delegations;
to the outcome of the assessment completed from the Authority, the RPCT of the AdSP must communicate to the subject which the inconferibilità cause is conferred the assignment - as assessed from the ANAC - and the consequent invalidity of the action of bestowal of the assignment and the relative contract and to adopt the consequent provisions;
The RPCT of the AdSP of the omissis is held to communicate to ANAC the provisions adopted running than over.

The President f.f.
Francesco Merloni

Deposited near the Secretariat of the Council in date 16 March 2020

The Secretary, Valentina Angelucci
National authority Anticorruzione
President

Deliberation n. 233 on March 4, 2020

relative to the assessment of a situation of inconferibilità of which to art. the 4 of the d.lgs n. 39/2013, with reference to the assignment of President of the AdSP omissis

Issue UVIF n. omissis /2019
The Council of the National Authority Anticorruzione
The Council of the National Authority Anticorruzione

in the assembly on March 4, 2020;

seen article 1, codicil 3, of the law 6 November 2012, n. 190, second which the National Authority Anticorruzione exercises inspecting powers by means of demand for news, information, actions and documents to Public Administration and orders to the adoption of actions or provisions demanded from the national plan anticorruption and the plans of prevention of the corruption of the single administrations and from the rules on the transparency of the administrative activity previewed from the enforced norm, that is the removal of behaviors or actions contrasting with the plans and the rules on the transparency;

seen art. the 16 of the d.lgs. 8 April 2013 n. 39, second which the National Authority Anticorruzione supervises on the respect, by the public administrations, of the public bodies and the agencies by right private in public control, of the dispositions of which to the cited one I decree, in topic of inconferibilità and incompatibility of the assignments, also with the exercise of inspecting powers and assessment of single fattispecie of bestowal of the assignments;

seen the relation of the Office Vigilance on the impartiality of the civil employees publics (UVIF).

Fact

A presumed hypothesis of inconferibilità of the assignment of President of the Authority of Harbour System omissis to the omissis has reached this Authority a signalling having to object, already President of the omissis.
By the preliminary investigation carried out from the Authority it is emerged that the omissis it has been: - Commissioner Straordinario of the AdSP omissis from the omissis to the omissis; - President of the omissis from the omissis up to the present by virtue of I renew taken part the omissis; - President of the AdSP omissis from the omissis up to the present.

Therefore, it has been considered applicable, to the case under investigation, art. the 4, Co. 1 lett. b), of the d.lgs n. 39/2013 according to which "To those who, in the two years precedence, they have carried out assignments and covered loaded in agencies by right private or financed from the administration or the public body that confers the assignment […] they cannot be conferred: b) the assignments of public body administrator, of national level, regional and local".

This Authority, as a result of the consiliare deliberated one of the omissis has communicated to the interested subjects the start of a procedure of former vigilance art. 16, Co. 1, of the d.lgs n. 39/2013 relative to a possible hypothesis of inconferibilità, according to the above-mentioned article, the assignment of President of the AdSP omissis.

The omissis, after to have travelled over again the history of omissis and the alternation in the assignments, it has considered art. the 4 of the d.lgs not applicable n. 39/2013 to the fattispecie under investigation.
With next note prot. omissis, the omissis it has sent to this Authority a legal opinion - written up from the omissis - in which has excluded the recurrence of the shown fattispecie of inconferibilità.

With note prot. omissis, the RPCT of the AdSP omissis has joined to the considerations suesposte by the omissis and the recording for the procedure is opposite to the considerations formulated from this Authority asking de quo.

Straight

Applicabilità of the hypothesis of inconferibilità of which to art. the 4, Co. 1 lett. b), of the d.lgs n. 39/2013

By the preliminary investigation carried out from the Authority it is emerged that the omissis it has been:
Commissioner Straordinario of the AdSP omissis from the omissis to the omissis; President of the omissis from the omissis up to the present by virtue of I renew taken part the omissis; President of the AdSP omissis from the omissis up to the present.
The bestowal of the assignment of President of the AdSP omissis has happened in violation of the discipline of which to art. the 4 Co. 1 lett. b) of the d.lgs n. 39/2013 according to which "To those who, in the two years precedence, they have carried out assignments and covered loaded in agencies by right private or financed from the administration or the public body that confers the assignment […] they cannot be conferred: b) the assignments of public body administrator, of national level, regional and local; ".
They resort, in fact, the constituent elements of the above-mentioned fattispecie, had with regard to:
Legal nature of the agency in origin omissis to the aims of its ricomprensione in the definition of "private agency by right regulated or financed" of which to art. the 1, Co. 2 lett. d), of the d.lgs n. 39/2013; Legal nature of the charge carried out in origin to the aims of its riconducibilità in the definition of "assignments and charges in agencies by right private regulated or financed" according to art. the 1, Co. 2 lett. e) of the d.lgs n. 39/2013; Legal nature of the agency of destination that is the AdSP omissis to the aims of its ricomprensione in the definition of "former public body" art. 1, Co. 2 lett. b) of the d.lgs n. 39/2013; Legal nature of the charge of destination that is President of the aforesaid Authority, to the aims of its riconducibilità in the definition of "public body administrator" of which to art. the 1, Co. 2 lett. l) of the d.lgs n. 39/2013. Legal nature of the origin agency: omissis "private agency by right regulated or financed"
It is necessary, first of all, to verify the social structure let alone the functions carried out from the omissis to the aim of its riconducibilità in the notion of "agencies by right private regulated or financed" of which to art. the 1, co.2 lett. c), of the d.lgs n. 39/2013. According to the cited disposition the societies and the other agencies are such "by right private, also you deprive of legal personality, in confronts of which the administration that confers the assignment: 1) it carries out functions of regulation of the main activity that involves, also through the release of authorizations or concessions, the ongoing exercise of certification or control, vigilance powers; 2) it has a minority participation in the capital; 3) it finances the activities through conventional relationships, which contracts publics, contracts of public service and concession of assets publics”.

For how much it concerns to the governance social, it is found how much follows.

The society is constituted according to and for the effects omissis, which preview the faculty for the Authorities of harbour system to promote the constitution of privatistiche societies for the development of services of general interest.
Originally the omissis it could be characterized as society in house of the AdSP omissis, considered that this last agency of it stopped the entire share capital.
The situation is changed in the omissis, when then the Harbour Authority has announced publicly a procedure to public evidence for the cession of 60% of the share capital of omissis.
To the outcome of the aforesaid one, the actions of the omissis belong alone in the measure of 40% to the AdSP of the omissis that it is, therefore, minority associate. Remaining omissis of the actions of the omissis belongs to the private associate omissis.
In particular, the omissis it is a limited liability partnership whose capital is stopped omissis.
On the base of the parasociali pacts and the social charter, to the public body (AdSP) the nomination of two members of the five in charge of the Board of directors of the omissis is up currently. Therefore the majority of the nominations is carried out by the private associate of majority.

For how much it concerns the functional profile, it is evidenced how much follows.

The omissis it carries out, equally, all those essential activities, connected, collaterals and of support to the corrected one to unfold itself of the operations of omissis.
One takes care, also, to plan omissis.

Much premising, the omissis. it re-enters in the notion of which to art. the 1, co.2 lett. d) of the d.lgs n. 39/2013 that is that of “agencies by right private regulated or financed” because of the above-mentioned category it anticipate at least two constituent elements.

First of all, the AdSP stops a quota, even though not of majority omissis, the capital of the omissis. It can be said, therefore, integrated the requirement of which to the number 2) of the above-mentioned disposition (“it has a minority participation in the capital”).

In the second place the omissis it is subject to the power of regulation of the AdSP of which to the n. 1) of the same cited article: (“1) it carries out functions of regulation of the main activity that involves, also through the release of authorizations or concessions, the ongoing exercise of certification or control, vigilance powers”).
In fact according to art. the 16, Co. 3, l. n. 84/1994 “the exercise of the activities of which to codicil 1, carried out on behalf own or of third party, is subject to authorization of the harbour authority or, whereby not instituted, of the marine authority. It dictates authorization regards the development of harbour operations of which to the codicil 1 advance verification of the possession by the petitioner of requirement. […] The authorized enterprises I am enrolled in appropriate held distinguished registries from the harbour authority or, whereby not instituted, from the marine authority and are subject to the payment of a annual canon and to the determined performance of a bail from the same authorities”.
To this one joins how much having from art. the 18, co.1, l. n. 84/1994 according to which “the harbour Authority and, where not instituted, that is before its takeover, the harbour organization or the marine authority damage in concession the state property areas and the docks comprised in the harbour within to the enterprises of which to article 16, codicil 3, fortheaccomplishmentoftheharbouroperations, madesavestheuseofthepieces of real estatebypublicadministrationsforthedevelopmentoffunctionsrelatingtomarineandharbouractivities.”
Therefore, from the joint provision of cited articles, it emerges that omissis the work based on emitted concessori and autorizzatori provisions from the AdSP of omissis and is, consequently, subordinate to its vigilance beyond entertaining with the Authority conventional relationships of which to the n. 3 of art. the 1, Co. 2 lett. d), of the d.lgs n. 39/2013.

Doubts in order to the qualification of the omissis are not set therefore as private agency by right regulated or financed from the AdSP of omissis according to and for the effects of which to art. the 1, Co. 2 lett. d), of the d.lgs n. 39/2013.
Legal nature of the assignment in origin: President of omissis “the private assignment in agencies by right regulated or financed”
In order to the subsistence, if of species, of relating requirement the charge in origin is necessary, still, to verify the riconducibilità of aforesaid in the notion of “assignments and the charges in agencies by right private regulated or financed” of which to art. the 1, Co. 2 lett. e), of the d.lgs n. 39/2013. For such the charges of president with directed managerial delegations must agree “, managing director, the leader positions, the stable development of advisory activity in favor of the agency”.
Therefore, this that is dirimente is the issue relating to the eventual subsistence of powers managers in head al Presidente of the society omissis.

Orbene, omissis and the RPCT of the AdSP have deducted that, from the analysis of the chamber certificate, emerges that, to the omissis, the omissis, in quality of President of the omissis., it exclusively assumed the role of legal representative of the society, being the managerial delegations attributed to two managing directors.
One is, therefore, denied the possession by omissis of powers the direct managers at least until the spring of omissis - the moment in which one of the two precedence administrators omissis and it has been, therefore, disabled to exercise the powers managers of which it was attributario.

It is necessary, therefore, contextually to analyze to the powers and the tasks of the President of the omissis holding account than established in the social charter and than eventually turning out from next actions.

First of all, from the joint provision of the articles. omissis of the social charter, the agenda emerges that the President of the Board of Directors of the omissis “convenes the Board of directors, of fixed, it coordinates the work and it supplies some so that adapted to information on the which joined matters the agenda they are supplied to all the councilmen” beyond to having also the representation of the society jointly to eventual managing directors who are, from time to time, named.
From the reading of above-mentioned articles it appears that the aforesaid powers re-enter within those of ordinary representation of the society, normally attributed to the President, also based on the codicistiche dispositions.

It must, but, to have with regard to established how much from a recent administrative jurisprudence (cfr. sentence of the section, Council of State V, n.126 of the 11.01.2018 and more recently n. 2325/2019) which has asserted that, even if the charter express does not preview the bestowal of managerial delegations in head al Presidente, whereby to the Board of directors is conferred powers managers, also first, for the single fact to be member of such assembly, turns out parimenti invested of such powers.
The Council of State supports that “for the single fact (…) that it is member of the managing committee, to the president are assigned management functions”, principle that recently is confirmed also by the Regional Administrative Court Latium, Rome in the judgment n. 4780/2019.

Therefore if of species, in application of the aforesaid guideline, it must, however, to consider the omissis to title of gestorie competences, in via derivative regarding the Board of Directors that of is directly the attributario according to the art. omissis of the charter of the agency based on which “the management of the enterprise is up exclusively to the administration organ, which completes the necessary operations for the performance of the social object, it stops remaining the necessity of specific authorization in the cases demanded from the law”.

Sul point also the recent Anac deliberations nn. 373 and 450 on May 8, 2019 have confirmed the task of the administrative judge in force of which they can be considered attributed to the president, besides the powers to the same one specifically conferred, also all the functions recognized to the college/board of which it takes part (cfr. maximum deliberation n. 373 on May 8, 2019 that report “In the within of the public bodies and private companies in public control, the assignment of President is sussumibile in the definition of “assignments of administrator of public bodies and private companies in public control”, of which to art. the 1, Co. 2 lett. l), of the d.lgs n. 39/2013 when the same one is equipped of directed managerial delegations. In merit, even if the charter express does not preview the bestowal of managerial delegations in head al Presidente, whereby to the board of directors is conferred powers managers, also the President, for the single fact to be member of such assembly, it turns out parimenti invested of such powers”).

Such conclusion is not disavowed not even does not give to the presence of or more managing directors, turning out lacking in virtue the censorship formulated in the controdeduzioni. The omissis it has deducted that, in quality of President of the omissis would not have had directed managerial delegations (omissis) that, vice versa, they were attributed to two managing directors (one of which still in charge); such circumstance, in the optical of the interested subject, would be even suitable to exclude the applicabilità, to the case under investigation, of the principle expressed from the recalled administrative jurisprudence which took into consideration the fact that, in this case examined from the Council of State, was absent the figure of the managing director.
Such reconstruction cannot be received for the reasons expressed in the above-mentioned deliberation (n. 373/2019) where these Authorities have clarified that to the aim to exclude that the President of a Board of directors is holder of directed managerial delegations is not sufficient the mere presence of a managing director or a general manager from which inferring that the management is of exclusive competence of these last ones. It is necessary, that is, that such I leave again of competences already turns out from the charter and this in the terms that follow “in order to exclude that the President is holder of directed managerial delegations is not sufficient that the powers managers are attributed to the general manager or figures assimilated by means of delegation or procura, being such actions, for temporary, revocable and attributed they nature, intuitu personae; only an appropriate statutory forecast on the powers of the general manager or assimilated figures determines an order of stable and ongoing social government”.
If under investigation the social charter is own to express preview a mechanism of revocabilità of the functions and the relative powers attributed to the managing director, which, therefore, is always subordinate to the vigilance and the power of delegating, in such case the Board of Directors and its President. In fact the art. omissis the recalled charter it has that “the Board of directors can delegate own attributions (…) to or more of its members comprised the President there (…). Al Council is up however the control power and to remove to a higher court to himself the operations re-entering in the delegation, as well as the power to revoke the delegations”.
Therefore, if of species, the managing director turns out to title of the aforesaid gestorie functions by virtue of expressed procuras conferred from the Board of Directors and this is not worth to exclude the riconducibilità of the role carried out from the omissis in the category of which to art. the 1, Co. 2 lett. e), of the d.lgs n. 39/2013.

Much premising, the role of President of the omissis re-enters in the definition of “assignments and charges in agencies by right private regulated or financed” of which to art. the 1, Co. 2 lett. e), of the d.lgs n. 39/2013.

However, it is evidenced that the ANAC has better perimetrato, in the course of the time, the riconducibili assignments to the concept of “directed managerial delegations” in head to the figure of the President of an agency, in ossequio to how much statuito from the taken part administrative jurisprudence in merit. In fact the sentence of the Council of State n. 126 of 2018 have suggested to the ANAC a corrected interpretation more of the concept of “directed managerial delegations”.

Therefore, it is necessary to find that the omissis President of the omissis is named, therefore in antecedent date regarding the supplied hermeneutical guideline from the Council of State n. 126/2018 and the made interpretation own from the Authority in order to the attribution to the President of all powers of the organ of which it takes part.
Legal nature of the agency of destination that is the AdSP omissis: “economic public body”
It must, now, pass to the analysis of relating requirement the agency and the charge assumed in destination from the omissis.

From the reading of the reference discipline it emerges that the Authorities of Harbour System are not economic public bodies of national importance.
In such sense it arranges, in fact, art. the 6 of L. n. 84/94 (bringing “I reorder of the legislation in harbour matter”) as modified from the D.L n. 169/2016 (norms on “Reorganization, rationalization and simplification of the concerning discipline the harbour Authorities of which to the 28 law January 1994, n. 84, in performance of article 8, codicil 1, letter f), of the law 7 August 2015, n. 124”) of which “the Authority of harbour system is not economic public body of national importance to special ordering and is equipped of administrative autonomy, organizational, prescribed, according to budgetary and financial institution”.

This Authority, in the deliberations nn. 179 and 180 of 01.03.2017 and 846 of the 02.10.2018, have already clarified that the AdSP re-enter in the definition of “public bodies” of which to art. the 1, Co. 2, lett. b), of the d.lgs n. 39/2013 of which public not territorial the by right national agencies must agree for such “, regional or according to local ones, however called, instituted, supervised, financed from Public Administration that the assignment confers, that is whose administrators are from this named”.

Much premising, is by now pacific circumstance that the Authorities of Harbour System re-enter in the subjective perimeter of mentioned application of the d.lgs and, in particular in the definition of “public body” of which to art. the 1, Co. 2 lett. b), of the d.lgs n. 39/2013.
Legal nature of the charge of destination that is President of the aforesaid Authority: “public body administrator”
The omissis President of the AdSP with the D.M of the Minister of infrastructures and the transports omissis of the omissis is named, after to have covered the assignment of Commissioner Straordinario of the same agency.

To the aims of integration of the fattispecie of shown inconferibilità it is necessary to verify the riconducibilità of the assignment carried out from the omissis in the definition of public body administrator of which to art. the 1, Co. 2 lett. l), of the d.lgs n. 39/2013 of which the assignments of President with direct managerial delegations are such “, managing director and according to assimilable, of other organ of address of the activities of the agency, however called, in the public bodies and the agencies by right private in public control”.

It is necessary, therefore, that the President of the agency is holder of tasks managers such to attribute the demanded competences to it of direct administration from the disposition in question. Sul point is the same norm of field (art. 8, Co. 2, l. n. 84/1994) to decline the attributions of the President, attributing to it managerial competences; in particular, arranging that “Al President is attributed to the powers of ordinary and extraordinary administration. Al President is up the management of the resources financial institutions in performance of the plan of which to article 9, codicil 5, letter b)”.

Moreover, the same article clarifies express that the President is subordinate to the limits and the preclusioni in matter of inconferibilità and incompatibility, arranging exactly that “the President is subject to the application of the discipline dictated in incompatibility matter, cumulus of employs and assignments of which to 30 article 53 of I decree legislative March 2001, n. 165 and of I decree legislative 8 April 2013, n. 39, let alone on the retributive limits of which to the article 23-ter of the decree-law n. 201 of 2011, converted, with modifications, from the law n. 214 of 2011”.

Not there are doubts, therefore, than the charge of President of the AdSP he is riconducibile to the definition of which to art. the 1, Co. 2 lett. l), of the d.lgs n. 39/2013.

Much premising, if of species, requirement demanded from the norm under investigation in order to integrate the fattispecie of shown inconferibilità are subsistent all.

The objection which moved from the RPCT of the AdSP and the omissis cannot, in fact, be received in order to the chronological succession of the aforesaid assignments. The mentioned subjects have, in fact, considered the fattispecie of inconferibilità brought from art. the 4 not applicable, Co. 1 lett. b), of the d.lgs n. 39/2013 denying that the assignment of President of the AdSP is attributed to the omissis in the next biennium to the attribution of the assignment of President of a private agency by right regulated and financed, which the omissis.
In other words, valuing the antecedent development by the subject in question of the assignment of Commissioner Straordinario of the AdSP and considering it a “unicum” without interruption with the assignment of President of the same Authority, has considered that the nomination to president of omissis. it has happened in charge constancy and not, instead, in the two antecedent years the nomination.
This Authority (cfr. former plurimis of the n. 684 of the 17.07.2019) have considered that I renew of a subject in the same charge (or an assimilable one to the first) is not insignificant to the aims of the application of the discipline in inconferibilità matter. In fact, the confirmation of a subject in the development of the assignment already covered, even though without functional differences between the roles, determines the exercise of renewing to be able legal by the conferring administration
This Authority, in the deliberation n. 642 of the 12.06.2017, have applied the principle suesposto even in the hypothesis in which to the subject the same managing assignment already covered is conferred, considering that “the assignments conferred to the Dr. (…), in various moments, although riferibili to the same office, they cannot consider “a unicum” with the precedence; the assignments in argument are from characterizing themselves as of real stipulated contracts ex novo (…). This as, I renew of the managing assignment involves a renewed exercise of the legal autonomy (cfr. REGIONAL ADMINISTRATIVE COURT Puglia C#lecce, sez II, n. 3239/2007 and REGIONAL ADMINISTRATIVE COURT Sardinia, Sez. I, n. 755/2014)”.
To greater reason, the aforesaid conclusion work if, as that under investigation, of bestowal of an institutionally various assignment (President) from that already carried out in the same agency (Commissioner Straordinario).
This, moreover, is in compliance with the inspirational ratio of art. the 4 of the d.lgs n. 39/2013 that consists in the will to avoid that the subject to which it is conferred the assignment can fold the interest persecuted from the administration or the public body who that assignment has conferred to it to interests of the by right private agency from which it comes.
Orbene, the assignment of Commissioner Straordinario of the AdSP is carried out for a reason or purpose exclusive by the omissis with the exception of that of President of the same agency that is assumed successively and in constancy of the role carried out in the within of the omissis.
The legislator, with the disposition under investigation, has intended to tipizzare, ex ante, of the situations of potential conflict of interest to the aim to paralyze of the insorgence. Very to see, in fact, in this case analysis object comes true that typical situation of interference between privatistici and pubblicistici interests that a risk of lesion to the administrative impartiality determines. Own such circumstance that is the necessity to prepare a mainly incisive protection whereby is risk that the satisfaction of the private interest is put in front that public, has induced the legislator to introduce a more onerous regime of preclusioni (articles. 4,5 and 9 of the d.lgs n. 39/2013).

Sul to be able of assessment of the ANAC.

The ANAC have a specific one to be able of control and assessment on the inconferibilità hypotheses and incompatibility disciplined from the d.lgs. 39/2013 and, in general terms, on the corrected application of the aforesaid norm.

In particular, as already evidenced in premise, art. the 16, codicil 1 of the d.lgs. 39/2013 characterize in the ANAC the Competent authority to supervise “on the respect, by the public administrations, of the public bodies and the agencies by right private in public control, of the dispositions of which to it anticipates I decree, also with the exercise of inspecting powers and assessment of single fattispecie of bestowal of the assignments”.
Recently the aforesaid one to be able has been object of a sentence of the Council of State, which of it has excluded the merely ricognitiva nature, asserting of the constituent-provvedimentale character.
More precisely, the power of assessment attributed to the ANAC from art. the 16, Co. 1, d.lgs. 39/2013 sostanzia in a provision of constituent assessment of legal effects and as such impugnabile in front of the administrative judge, to be able in which is comprised the power to declare the eventual invalidity of the assignment. (cfr. Cons. It are n. 126/2018, over already cited).

All that premising and considered,
DELIBERATION
the inconferibilità, according to art. the 4, Co. 1 lett. b), of the d.lgs n. 39/2013, of the assignment of President of the AdSP of omissis and the consequent invalidity of the action of bestowal of the assignment and the relative contract, according to art. the 17 of the d.lgs n. 39/2013;
to put again to the RPCT the appraisal, during sanzionatorio procedure, of the subjective element of the guilt in head to the previewed organ conferring from art. the 18 d.lgs. 39/2013, taken into consideration the taken part modification of the guidelines of the Authority in matter of directed managerial delegations;
to the outcome of the assessment completed from the Authority, the RPCT of the AdSP must communicate to the subject which the inconferibilità cause is conferred the assignment - as assessed from the ANAC - and the consequent invalidity of the action of bestowal of the assignment and the relative contract and to adopt the consequent provisions;
DELIBERATION

The RPCT of the AdSP of the omissis is held to communicate to ANAC the provisions adopted running than over.
The President f.f. Francesco Merloni

Deposited near the Secretariat of the Council in date 16 March 2020

The Secretary, Valentina Angelucci