June 30, 2020
- The REGIONAL ADMINISTRATIVE COURT gives back to Zeno D' Augustin the presidency of the Authority of Harbour System of Mare Adriatico Orientale
- The sentence - the harbour authority comments - returns justice in little days, of the created very delicate situation as a result of the decision of the ANAC
- The Administrative court for the Latium, with sentence that we publish below, has received the resource proposed from the Authority of Harbour System of Mare Adriatico Orientale, cancelling the provision assumed from the National Authority Anticorruzione (ANAC) that Augustin in 2016 had recently decreed to the inconferibilità of the assignment of president of the port of Trieste assigned to Zeno D'(on 5 June 2020). The sentence has received above all the first reason of resource proposed from the AdSP, analogous to that introduced from the same Zeno D' Augustin, that is in which was asserted the applicabilità of the prohibition not to confer assignments when the agency that nomination - in the species the Ministry of Infrastructures and the Transports - is different from that - the AdSP - that which president without powers of Trieste Terminal Passeggeri (TTP had named Zeno D' Augustin), society participated from the Authority of Harbour System. The REGIONAL ADMINISTRATIVE COURT, refuting the ANAC, has excluded that the norm on the inconferibilità can be applied extensively, so confirming the theses supported from the lawyers of the AdSP.
- The REGIONAL ADMINISTRATIVE COURT has found moreover that, in any case, Of Augustin it had not exercised powers managers in TTP, this finding also to the aims to exclude the other "extensive" reading of the norm on the inconferibilità expected from the ANAC and rejected from the administrative judge.
- Commenting the content of the sentence the Authority of Harbour System of Mare Adriatico Orientale has evidenced that "the sentence returns justice in little days, of the created very delicate situation as a result of the decision of the ANAC, and puts again therefore Zeno newly D' Augustin in the fullness of the charge and the powers, in the interest of the portualità not only giuliana. As the REGIONAL ADMINISTRATIVE COURT has written - it has emphasized the harbour agency - "the provision with which the assignment of president of the AdSP to the Dr. Of Augustin is conferred was certainly legitimizes", with this rejecting also to possible interpretations of the norm times to increase to any various hypothesis from the nomination the rules on the CD. inconferibilità of the assignments". "Also this aspect, in perspective - it has found the AdSP - constitutes suitable element and to eliminate uncertainties and to guarantee continuity to the administrative action. The Authority can from quickly therefore reconstituting to the organizational order precedence to the decision of the ANAC, with Zeno D' Augustin which president and Mario Sommariva general secretary, which, so, will stop from the charge of extraordinary commissioner of the agency, which era named from minister De Micheli little hours after the decision today cancelled".
Published the 30/06/2020
- N. 07292/2020 REG.PROV.COLL.
- N. 04210/2020 REG.RIC.
- ITALIAN REPUBLIC
- IN THE NAME OF ITALIAN PEOPLE
- The Regional administrative court for Lazio
- (Section Before)
- it has pronounced anticipates
- former art. 60 cod. proc. amm.;
- on the resource number of general registry 4210 of 2020, proposed they give
- Autorita? di Harbour Sistema of Mare Adriatico Orientale, in person of the legal representative pro tempore, represented and defended from avv.ti Piero Guido Alpa, Francesco Munari, Federico Tedeschini, Luca Di Donna, with digital address as from PEC of the Registries of Justice and address which elected near the study of the avv. Tedeschini in Rome, wide Mexico 7;
- National authority Anticorruzione, in person of the President in charge, represented and defended from the avv. Aristide Police, with digital address as from PEC of the Registries of Justice and address which elected near its study in Rome, via of Villa Sacchetti, 11;
- in it confronts
- Ministry of Infrastructures and the Transports, in person of the Minister in charge, represented and defended from the General Legal profession of the State, near which it is domiciled ex lege in Rome, via of Portugueses, 12;
- Zeno D' Augustin, represented and defended from avv.ti Piero Guido Alpa, Francesco Munari, Federico Tedeschini and Luca Di Donna, with digital address as from PEC of the Registries of Justice and address which elected near the study of the avv. Tedeschini in Rome, wide Mexico 7;
- Region Friuli Venice Julia, not constituted in judgment;
- and with the participation of
- to adiuvandum:
- Assoporti - Association of the Italian Ports, represented and defended from avv.ti Stefano Zunarelli and Vincenzo Cellamare, with digital address as from PEC of the Registries of Justice and address which elected near their study in Rome, square SS. Apostles, 66;
- for the cancellation
- of the deliberation to signature of the President of the ANAC in date 4 March 2020, n. 233 "relative to the assessment of a situation of inconferibilita? of which to art. the 4 of the D.Lgs n. 39/2013, with reference to the assignment of President of the AdSP of Mare Adriatico Orientale";
- of every action presupposed, consequent and/or connected.
- Seen the resource and relative the attached ones;
- Seen the certificates of incorporation in judgment of the ANAC, the Ministry of Infrastructures and the Transports and Zeno D' Augustin;
- Seen the action of participation of Assoporti;
- Visas all the actions of the cause;
- Relatrice dott.ssa Laura Marzano;
- Hearings, in the Council Chamber of day 24 june 2020, the defenders of the parts in connection from remote in television conference, according to art. the 4 D.L. 28/2020, let alone of I Prime Minister's decree of State n. 134/2020 and of the Lines Guide on the application of foretold art. the 4 D.L. 28/2020, as specified in the minutes;
- Felt the same parts according to art. the 60 cod. proc. amm.;
- 1. With the resource in epigraph the Authority of Harbour System of Mare Adriatico Orientale has appealled, united to the presupposed actions, the deliberation to signature of the President of the ANAC in date 4 March 2020, n. 233 "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 of Mare Adriatico Orientale" conferred to Dr. Zeno d' Augustin.
- Premised the reconstruction as regards the proposed event carried out in the coevo resorted from the Dr. Of Augustin, to which express it sends back, the AdSP considers the appealled deliberation not only illegitimate partially, but also strongly lesiva here of the interests and the prerogatives of the Agency, attended that the lacking one in own organ of summit and interrupts, also, the continuity of the administrative action in a moment of great international development of the port and the logistic net to relative it and, meanwhile, of extreme delicacy being emergency COVID- the 19 and absolute necessities of a strong ripartenza of the main Italian port of call for tons of traffic let alone for international connections.
- 1.2. The resource is entrusted to the following reasons.
- I) Violation of art. the 4 D.Lgs. 39/2013; excess to be able for travesty of the facts and deficiency of the foundations for the application of such norm; manifest illogicità; manifest injustice; deficiency of preliminary investigation.
- With such reason, in via preliminary matter, the recurrent part supports that art. the 4 D.Lgs. 39/2013 would not be applicable to the species case, as the norm it makes reference subjects that, at the moment of the nomination for a assignment "of administration of public bodies", they have carried out and covered loaded in agencies regulated or financed own from the public body "who it confers the assignment" in question.
- Vice versa, if of species, he is the Minister of Infrastructures and the Transports to have conferred the Dr. Of Augustin the assignment of President and, before still, extraordinary Commissioner of the AdSP, as express previewed to art. the 8, codicil 1, L. 84/1994, that it attributes the aforesaid one to be able of nomination to the Minister of Infrastructures and the Transports, of understanding with the President of the interested region.
- It observes the recurrent one that, from a part, regarding TTP, the MIT does not exercise no activity of regulation, neither of financing, from the other the AdSP, agency "backer/TTP regolator", for expressed law forecast is stranger to the nomination procedure; such circumstances, evidenced in procedimentale center and obliterated by the ANAC, would denote also a evident defect of preliminary investigation.
- II) Violation of art. the 4 D.Lgs. 39/2013 under an ulterior one and distinguished profile; excess to be able for travesty of the facts and deficiency of the foundations for the application of such norm; illogicità and contraddittorietà of motivation; manifest injustice; deficiency of preliminary investigation; violation or which roved application of art. the 2381 c.c.
- With such reason the recurrent part supports that it would lack, if of species, also another of the foundations for the application of art. the 4, D.Lgs. 29/2013, mainly having assumed the loaded Dr. Of by right private Augustin “in agencies”, that is TTP, suitable to determine the inconferibilità of the assignment of President of the AdSP.
- Art. the 1, codicil 2, lett. e), D.Lgs. 39/2013 identify such “charges” in those of: President with directed managerial delegations; managing director; managing, advisory stable of the agency. However, as obtainable from the Charter and the historical visura of TTP, in the important period to the aims of the application of the norm (the “two years precedence” to the bestowal of the assignment of President of the AdSP, going back) the Dr. Of Augustin has on November 9, 2016 not covered nobody of the charges over mentioned in TTP, but only that of President of the Board of Directors without managerial delegations.
- The recurrent part refutes the ANAC thesis whereby, also recognizing such circumstance to all purposes and effects, has considered of being able to under investigation extend such forecast also to the fattispecie, on the base of three pronunce jurisprudential (Cons. sentences Is been, Sez. V, 10 January 2018, n. 126 and id. 9 April 2019, n. 2325; REGIONAL ADMINISTRATIVE COURT Latium, sez. I, 11 April 2019, n. 4780) and two its precedence deliberations (n. 373 of 8 May 2019 and n. 450 on June 12, 2019); it observes that such precedence would refer to various fattispecie. Instead it considers more relevant to the species case, which precedence, deliberation ANAC on December 14, 2016, n. 1294, relative own to a procedure face to estimate the hypothesis of inconferibilità of the assignment of President of AdSP to a subject that had covered the charge of private President of agencies by right regulated or financed from public bodies, fattispecie in which the ANAC had excluded the inconferibilità.
- It adds the recurrent part that, increasing excessive the shirts of the applied norm, the discrezionalità of the ANAC trasmoderebbe in will.
- At last it mentions that, during collection of interest manifestations, the MIT has estimated the curriculum of the Dr. Of Augustin, in which era very evidenced also the charge of President of the Board of Directors of TTP then already covered from the same one, evidently considering it not ostativa circumstance to the nomination which President of the AdSP.
- III) Violation of art. the 4 D.Lgs. 39/2013 in relation to the powers previewed from the l. 84/1994 in extraordinary head al Commissario of the harbour Authorities; excess to be able for travesty of the facts and deficiency of the foundations for the art. the 4 application of D.Lgs. 39/2013.
- The recurrent part evidences that, before being named President of the AdSP, the Dr. Of Augustin was already extraordinary Commissioner of the Harbour Authority, with “the powers and the attributions of the President indicated from the 28 law January 1994, and next modifications”, therefore its nomination which President is taken part without interruption regarding the charge of Commissioner, moreover covered from antecedent age to the attribution of the assignment to President of the Board of Directors of TTP: such relief would place, second the recurrent part, for the absence of an ulterior foundation for the applicabilità of art. the 4 D.Lgs. 39/2013.
- In truth, if the ratio of the disposition on the inconferibilità is that to prevent that a kind of “capture of the regolator” by the regulated subject comes true, much to impose a period of “cooling” between covered gestoria charge in a private agency by right regulated or financed from the public administration and nomination to the summit of this last one, if of species such mechanism would turn out to be upstream asked for from the fact that the Dr. Of Augustin was already to the summit of the AdSP at the moment of its nomination to TTP president.
- O'clock in fact the recurrent part remembers that the nomination of the Dr. Of Augustin to President of the Board of Directors of TTP is carried out own to protection of the interests of the harbour Administration, waves to be able to supervise on the development of the service of entrusted general interest to TTP, and not certainly in the interest of this last one.
- IV) Violation of art. the 1, codicil 1, L. 241/1990 and of the recalled eurounitari principles that bind the administrative action, between which the principle of proportionality; excess to be able.
- The appealled deliberation neither involves an effect that would be however disproportionate, not having the ANAC contemperato the various involved interests, not only interests it of the natural person addressee of the provision, but also of the Agency and the Country, “sight the enormity of the news that the more important port of Italy for traffic volumes is beheaded by a provision of the Authority “” Italian” anticorruption.
- Aloof the censured deficiencies preliminarys investigation, the AdSP observes that the ANAC could not comprise that, being the rigidity of the contained sanzionatorio mechanism in cited art. the 4 (former forfeiture tunc), the proportionality principle would have tax to value all the represented circumstances innanzi, in the optical to exclude the application of the norm.
- Subordinately the recurrent part observes that, when also the ANAC had considered the two charges of president of the AdSP and TTP absolutely not cumulabili, it could, applying the proportionality principle, to characterize the fattispecie not already as allegated inconferibilità, but as art. the 9 incompatibility according to D.Lgs n. 39/2013, consequently placing to the Dr. Of Augustin (and the agency) the alternative if to discharge itself from the charge of President of the AdSP that is TTP, where of the case sending a caveat or a warning of closing of the procedure.
- According to the recurrent agency this would make to emerge an ulterior defect of the appealled deliberation, “in so far as, entering indeed “to stiff leg” on the organization and the summits of one of the main ports of the State, and in full conflict it is with the Minister supervising that with the same AdSP…, the appealled provision damages the principle of loyal cooperation between Administrations and determines radical conflicts between the same ones, in damage of the entire system, very beyond therefore the grievous bodily harm vital functions for the national economy and if of international species” (so to p. 19 of the resource).
- It adds the AdSP that the lesion of the principle of loyal cooperation would emerge viepiù considered that the appealled deliberation: (i) would be contrary to specific precedence adopted on the point from the same ANAC, let alone to relative sentences of the administrative Judge in the specific one to the AdSP, (ii) at a distance takes part almost four years from the nomination of the Dr. Of Augustin to President of the recurrent Administration, (iii) would determine unacceptable aporie and uncertainties for the entire field to the whose operation the AdSP are for law prelocated, (iv) would throw one discredits total on the AdSP, than to the eyes of the most numerous interlocutors and foreign investor “anticorruption” ends in order to turn out a port endorsed from the Authority, with a systemic damage for Italy that the provision would have totally omitted to consider.
- At last it observes the recurrent part that the appealled provision would have determined “a lesion of very advanced interests to those apparently “protect” from the ANAC, which, among other things, in ossequio to the criteria of proportionality and loyal cooperation, very could and had to exercise own functions in dialogic way with the AdSP, and not hurling a “productive bomb” of heaviest economic damages and image” (so to p. 20 id.).
- In support of the goodness and fondatezza of own considerations the recurrent agency evidences the circumstance to all purposes and effects that, after the publication of the provision in question and because of the media resonance that has had the news, the same ANAC has published a press release on own institutional site with which it has considered of having to specify to have applied a norm on which they give 2015 has many times over marked for official ways the criticalities to Government and Parliament, which however has not considered to take part, and of having to confirm that the deliberation does not produce the invalidity of the actions adopted from the President whose assignment is declared inconferibile and that, in any case, deliberation is impugnabile in front of the administrative judge.
- 1.3. The Ministry of Infrastructures and the Transports, evoked in judgment, has been formed with the Legal profession of the State, having deposited memory with which, for how much of own competence, it has observed that the provision with which the Dr. Of Augustin is named president of the AdSP (that is Decreto of the Minister of Infrastructures and the Transports n. 361 of 8 November 2016) is legitimizes and it does not seem to evidence profiles of sussumibili criticalities in the normative picture of which to the cited D.Lgs. 39/2013.
- The revenue defense evidences that the prohibition of bestowal previewed from art. the 4, recalled from the appealled deliberation ANAC, regards, among other things, the hypothesis that the interested one in the antecedent biennium has carried out assignments or covering loaded in financed agencies “from the administration or from the public body that confers the assignment or agency who confers the assignment” and observes that, vice versa, if of species, is Pacific that the nomination graves of competence of the MIT, understanding with the Region Friuli Venice Julia, second the enforced to age and modified law 84/1994 from I decree legislative 169/2016; and pacific and equally undisputed it is that the MIT does not entertain relationships of financing with society TTP, neither carries out function of same regulation of, sicchè the not parrebbero subsistent foundations for the application of the disposition.
- It emphasizes the MIT that the dottor of Augustin inside does not carry out some managerial assignment of society TPP, as instead exactly demanded from article 1, codicil 2, D.Lgs. 39/2013, covering he rather, as pacific in actions and found from the same ANAC, the charge of President without managerial delegations. In purpose, as for the jurisprudence on which the ANAC insists, the revenue defense observes that, aloof the verification about the riconducibilità of the fattispecie for which is cause to those decided in such jurisdictional centers, such jurisprudence, of clear extensive capacity of the literal normative data, did not only exist at the moment of the adoption of the ministerial provision of nomination, but was not neither easy expectable that it was created, where is considered that the disposition demands exactly that the interested one covers the charge of “president with directed managerial delegations”.
- Therefore it concludes for absolute legitimacy of the provision of nomination of 2016 and asks a decision, substantially favorable to the recurrent one, that it holds account of the advanced reliefs.
- 1.4. Augustin Dr. Zeno has been formed in judgment and has asked that the resource of the AdSP is received.
- 1.5. The Assoporti, in its action of participation to adiuvandum, after to have premised signals on its legitimacy to the participation, has travelled over again partitamente all the reasons of the resource of AdSP supporting some the fondatezza with dovizia of reasonings and, mainly, finding that “the ANAC would in any case have had to proceed to the cancellation of the nomination ““secondary” derivative” and (of President of TTP), making instead original one”) to the summit of the AdSP” (to p saves so that “main” (and however “. 19 of the participation action).
- 1.6. The ANAC has been formed in judgment in order to resist to the encumbrance, for which it has asked the reiezione.
- In the first instance the ANAC has evidenced that the power of the Authority to assume provisions that assess the inconferibilità of the assignments derive from art. the 16, codicil 1, D.Lgs. 39/2013, to tenor of which “the national Authority anticorruption supervises on the respect, by the public administrations, of the public bodies and the by right private agencies in public control, of the dispositions of which to it anticipates I decree, also with the exercise of the inspecting powers and assessment of the single fattispecie of bestowal of the assignments” and of it recall the sanctioned capacity of constituent assessment from the Council of State in the judgment of the Sez. V, 11 January 2018, n. 126.
- Then D.Lgs has been stopped on the foundations indicated from cited art. the 4. 39/2013 supporting that the same ones would resort if of species, attended the legal nature: a) of the agency in origin, TTP, to the aims of its ricomprensione in the definition of “private agency by right regulated or financed” of which to art. the 1, codicil 2, lett. d), D.Lgs. 39/2013, remembering of its current composition in great private part; b) 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, codicil 2, lett. e) id., asserting that the Dr. Of Augustin, in such quality, would be equipped of powers managers second the hermeneutical coordinates declined by the jurisprudence already recalled in the provision; c) of the agency of destination, that is the AdSP Mare Adriatico Orientale, to the aims of its ricomprensione in the definition of “former public body” art. 1, codicil 2, lett. b) id.; d) 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, codicil 2, lett. l), D.Lgs. 39/2013.
- To follow, the ANAC has refuted the single reasons of resource.
- As for the first reason of it contests the fondatezza remembering that the Authority has already clarified that the inconferibilità can achieve from the existence of situations of conflict of interest that is come to place for the development, in the biennium precedence, of charges or assignments near agencies by right private regulated and financed as well as from the administration that confers the charge, how much from the administration in which the charge work. It supports that such interpretation is in compliance with the ratio of the preclusione, that resides in the will to prevent that the exercise of the entrusted public functions can be polluted from personal interests of which administrators they can be bearers (recalls, in purpose, Deliberation ANAC n. 613/2016).
- Therefore it asserts that the inconferibilità of the assignments to coming subjects from agencies by right private regulated or financed from Public Administration, “must be interpreted to light of the purposes that the disposition intends to pursue, than cannot be (single) that to preserve the procedure of nomination from situations of that but conflict of interest, to safeguard from conflicts of interest (also) the exercise of the function”.
- To seeming of the defense of the ANAC, the inconferibilità of which to art. the 4 of the D.Lgs. 39/2013 would not regard only the received professional assignments from the agency to which the charge to confer afferisce, but also the assignments received from the Administration that confers the assignment (in this case the Ministry).
- It adds the ANAC that the application of the dispositions in matter of incandidabilità to the assignments carried out near the Authorities of Harbour System would not be revocable in doubt, attended that the D.Lgs. 169/2016 have opted for a clear separation between the tasks of regulation and coordination in head to the Authorities of Harbour System, and the various economic activities, also of general interest, than they are carried out inside of the ports.
- Therefore, second ANAC, if it is true that the Authority of System can stop quotas minority in the share capital of some economic operators in the within of the harbour activities, however the assumption of importance roles and powers managers of the same operators it must be considered incompatible with the previewed purposes of separation from the legislator to protection of the impartiality of the authority, determining itself, if of species, a conflict in interests current and concrete, and not only potential, being the commistione of roles of controlled controller and of.
- To new evidence of the present time and concreteness of the conflict of interest the ANAC adduces the event of the resource introduced from the TTP against the AdSP - concluded with sentence of the REGIONAL ADMINISTRATIVE COURT Friuli Venice Julia n. 154/2019 - in which the Dr. Of Augustin has respective churns as President of the resistito TTP and as President of the Harbour Authority of Trieste, even if without to be formed in judgment. This would be emblematic of the conflict of interest, attended that the same person has found herself to cover the representation assignment at the same time is of the recurrent part is of that resistant one.
- As for according to reason, the ANAC it evidences that, with the exception of supported how much from the recurrent part, Dr. D' Augustin, in quality of member of the board of directors and Presidente of the Board of Directors of TTP, carries out representation functions and of administration, being the title of the organ to which such functions they are attributed by the charter and, therefore, she would be holder of powers managers.
- In order to the third reason of it deduces the infondatezza, from the moment that the antecedent development of the assignment of Commissioner Straordinario of the AdSP could not be considered a unicum with the assignment of President of the same Authority, attended that I renew of a charge (or in an assimilable one to the first) would not constitute an exception to the application of the discipline in inconferibilità matter.
- As for the censorship of violation of the principle of proportionality, formulated with the fourth reason the ANAC has observed that the normative dispositions put again to the discrezionalità of the Administration the appraisal of the fraud and of the guilt for how much concerns the irrogazione of the interdittive-inhibiting endorsements of which to the articles. 18 and 20 D.Lgs. 39/2013, specifying that, in putting again to the RPCT the appraisal about the application of the endorsement, the ANAC however has evidenced the opportunity to consider “of the taken part modification of the guidelines of the Authority in matter of directed managerial delegations”.
- At last it has evidenced that the ANAC could not have opted for the acknowledgment of the subsistence, if under investigation, of the most tenuous fattispecie of incompatibility of which to art. the 9, codicil 1, D.Lgs. 39/2013, attended that this last disposition introduces a prohibition not applicable to the assignments of “public body administrator” (as that de quo) but exclusively to carried out managing the administrative assignments of summit and in the within of Public Administration.
- 1.7. To the Council Chamber on June 24, 2020 the parts are felt the defenders of all, in connection from remote in television conference, according to art. the 4 D.L. 28/2020, let alone of I Prime Minister's decree of State n. 134/2020 and of the Lines Guide on the application of foretold art. the 4 D.L. 28/2020, also relatively to the merit of the resource, being given the warning of the possibility to define the judgment with sentence in simplified form.
- In such occasion, in the course of wide argument, the parts, after each to have recalled own defensive theses, they have been stopped on the profiles below synthetized.
- The defender of recurrent part, coinciding with the defender of the Dr. Of Augustin, has restated the inapplicabilità, to the case of species, of art. the 4 D.Lgs. 39/2013, insisting on the objection that, to more, the ANAC could have referred to art. the 9 of the same one I decree legislative.
- It has recalled the precedence newly, to its to say analogous, relative to the nomination of the President of another AdSP, in which the ANAC it would have reached different conclusions; it has insistito on the violation of I legitimize confidence and of the proportionality principle.
- The defender of the Assoporti has restated the serious prejudice that the appealled deliberation would bring to the Italian portualità, not having been able itself to diminish the damage objecting, as ago the ANAC, than the named extraordinary Commissioner however she has ratified all the actions of the President of Augustin.
- , Moreover, it has evidenced that the ANAC would have contraddetto its same opinamenti, being very aware not to be able to extend the inconferibilità also to the President of Board of Directors without delegations, as obtainable from the signalling actions n. 1/2017 and n. 4/2015, with which it asked the legislator a corrective participation.
- It has restated that, to the stregua of the Guideline n. 14/2015, the ANAC would be due to take part on the charge of President of TTP rather than on that of AdSP.
- The Lawyer of the State, for the MIT, has restated, in right, the evidence that the jurisprudence recalled from the ANAC did not exist to the age of the nomination, neither was expectable formed himself, taken into consideration clearly had the normative one; o'clock in fact he has newly emphasized that the ANAC refers to powers managers exercised from the Dr. Of Augustin in TTP in force of delegations that, however, costui it has received for a short time only in 2019 but that, sure, it had not never received before the action of nomination to President of the AdSP.
- The defender of the ANAC has stopped himself, in particular, on the censured defect of proportionality, observing that, found the violation of a norm, the ANAC would not have of discrezionalità, having exercised, if of species, a bound power, being themselves limited to make mere law enforcement. Vice versa, the circumstance has subordinate to the attention that the ANAC yes has exercised the discrezionalità, but in favor of the public part addressee of the provision, whereby, in estimating the guilt, of it has not ravvisato the profiles, indicating to the RPCT the opportunity not to arrange detrimental consequences for the parts.
- At last it has remembered that an initiative would be on parliamentarian in order to modify the D.Lgs. 39/2013.
- To the outcome of the argument the cause is withheld in decision.
- 2. It must preliminarily be brought back the description of the facts of contained cause in the resource of the Dr. Of Augustin, which the recurrent part makes expressed dismissal.
- The Dr. Of Augustin is named President of the AdSP of Trieste with provision of the Minister of Infrastructures and the Transports on November 9, 2016, adopted to the outcome of a procedure of collection of manifestations of interest and next appraisal of the curricula by an internal commission to the MIT.
- To the action of the nomination the recurrent era already at the head of the agency in quality of extraordinary Commissioner of then the Harbour Authority of Trieste, in force of you decree ministerial in date 17 February 2015, 20 August 2015, 25 29 February 2016 and August 2016 which express attributed to the Dr. Of Augustin “the powers and the attributions of the President indicated from the 28 law January 1994, and next modifications”, that is the “legal representation of the Authority of harbour system”, the “powers of ordinary and extraordinary administration” and a series of ulterior prerogatives indicated to art. the 8, codicil 3, L. 84/1994.
- To the Harbour Authority of Trieste it is, then, subentrata the AdSP according to the reform of operated L. 84/1994 from the D.Lgs. 169/2016.
- Moreover, from on April 29, 2015 the Dr. Of Augustin he is also Chief executive officer of Trieste Passenger terminal S.p.A. (TTP), which charged society of the management of the fleeting marine stations in the port of Trieste, that is of a service of general interest aimed to satisfy requirements of all the harbour and necessary collectivity for the exercise of one of the functions conferred to the ports from L. 84/1994, so much so that, in the preenforced regolatorio order of the port of Trieste, until 2007, the service of which was carried out first hand by the Harbour Authority of Trieste.
- In 2007 TTP was constituted, initially which society totally participated from the harbour Administration; successively, the quota such Authority has been reduced to 40% as a result of procedure to public evidence time to the cession to private of the majority of the share capital, in application than previewed to art. the 23, codicil 5, L. 84/1994, second which it is allowed with the AdSP “to continue to partially carry out in all the or” services of general interest “promuovendo also the constitution of or a more society between the operating enterprises in the port, reserving itself a not majority participation however”.
- According to the parasociali pacts stipulated between the public associate and that private one, the TTP governance a Board of directors previewed (i) composed from five members, two of which they would be indicated by the Authority; (ii) that the President of the Board of Directors was one of the subjects “indicated from the associate Authority”, to guarantee of the interests publics to which the same TTP he was and it is still premail.
- The Dr. Of Augustin is named President of the Board of Directors of TTP with commissariale deliberation on April 29, 2015, n. 61, in which he is clarified that its nomination to President of TTP answered to requirements of strengthening and the “strategic and operating addresses of the Trieste S.p.A Passenger terminal in coherence with the contained objectives of development of the crocieristico traffic in programmatici documents of the Harbour Authority of Trieste, also in harmony with the lines expressed from the territorial and local Agencies”.
- According to the Charter, the President of the Board of Directors of TTP does not have powers managers which are up, instead, statutorily to the Board of Directors, with faculty of delegation to or more of its members, in the limits of which to art. the 2381 c.c.: in fact to the Augustin Dr. never they are not delegated such powers, unless in the spring/summer 2019, a emergenziale situation due to the interdittiva precautionary measure that had hit one of the two managing directors of TTP, with consequent necessary cession of the relative functions.
- Such was the context in which, with note in date 21 November 2019, the ANAC has communicated the Dr. Of Augustin to have received “a signalling having to object a presumed hypothesis of inconferibilità of the assignment of President of the Authority of Harbour System of so under way Mare Adriatico Orientale” and of having a istruttorio procedure of vigilance having to object the assessment of a inconferibilità hypothesis of which to art. the 4, codicil 1, lett. b), D.Lgs n. 39/2013.
- In the within of the consequent procedure the Dr. Of Augustin and the AdSP has introduced controdeduzioni, having enclosed a legal opinion, with which they have supported not to be to you some cause of inconferibilità of the assignment of President of the AdSP.
- Also in charge of the prevention of the corruption and transparency (RPCT) of the AdSP it has transmitted to controdeduzioni of analogous tenor, considering “insussistente any cause of inconferibilità in head to the Dr. Of Augustin” and “absolutely I legitimize to allow with the President of the Authority of Harbour System the contextual maintenance of the charge of S.p.A President of Trieste Passenger terminal. ”.
- With the provision conclusive, adopted in date 4 March 2020 but only communicated in date 4 june 2020, reason of the suspension of the consequent procedimentali terms to art. the 103, codicil 1 D.L n. 18 on March 17, 2020, the ANAC has declared the inconferibilità, according to art. the 4, codicil 1, lett. b), D.Lgs. 39/2013, of the assignment of President of the AdSP of Mare Adriatico Orientale and the consequent invalidity of the action of bestowal of the assignment and the relative contract, according to art. the 17 D.Lgs. 39/2013, putting again to the RPCT of AdSP “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 n. 39/2013, taken into consideration the taken part modification of the guidelines of the Authority in matter of directed managerial delegations”.
- According to the ANAC they would rerun the foundations for the application of art. the 4, comma1, lett. b), D.Lgs. 39/2013, to tenor of which, for how much here of interest, to those who, in the two years precedence, they have carried out assignments and covered loaded in agencies by right private regulated or financed from the administration or the public body that confers the assignment, cannot be conferred assignments of public body administrator, of national level, regional and local. This as, second the ANAC: (a) TTP would be a private agency by right regulated or financed from the administration that has conferred the assignment of President of the AdSP to the Dr. Of Augustin; (b) this last one would cover a assignment or a charge in riconducibile TTP to art. the 1, codicil 2, lett. e), D.Lgs. 39/2013, and that is that of President with directed managerial delegations; (c) the AdSP is public body according to the D.Lgs. 39/2013; (d) the assignment of President of the AdSP would be riconducibile to the definition of “supplied administrator of public body” from art. the 1, codicil 2, lett. l), D.Lgs. 39/2013, in compliance with which the assignments of President with direct managerial delegations re-enter in such definition “, managing director and 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”.
- 3. The resource is founded and goes received.
- It is dirimente, to the aims of the acceptation, the fondatezza of the first reason.
- The ANAC has founded the deliberation appealled on the allegated violation of art. the 4 of the D.Lgs. 39/2013.
- The aforesaid norm arranges exactly:
- “1. 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 that has carried out free lance professional activities, if these are regulated, financed or however paid salary to from the administration or agency that confers the assignment, cannot be conferred:
- a) the administrative assignments of summit in the civil services, regional and local;
- b) the assignments of public body administrator, of national level, regional and local;
- c) the external, however called managing assignments, in Public Administration, the public bodies who are relative to the specific field or office of the administration that exercises the powers of regulation and financing”.
- The disposition in word characterizes three foundations for its applicabilità: - than the potential addressee of the assignment it has carried out, in the two years precedence, charge and covered loaded in agencies by right private financed or regulated from an administration or a public body; - than the not conferibili assignments they are those indicated to letters a), b) and c); - than to confer the assignment it is the administration or the public body that by right finances or regulated the private agency in which the addressee of the assignment it has carried out loaded assignments or covered in the two years precedence.
- Aforesaid the three foundations must unfailingly sussistere jointly and not already alternatively, with the consequence that the lack of a solo they precludes the operativity of the sanctioned prohibition from the disposition (simul stabunt, simul cadent).
- If of species it is sure that the Competent authority to the nomination of the Presidents of the AdSP is the Ministry of Infrastructures and the Transports, in force of expressed attributive norm of the power (cfr. art. 8, codicil 1, L. 84/1994, that it attributes the aforesaid one to be able of nomination to the Minister of Infrastructures and the Transports, of understanding with the President of the interested region).
- Analogous it is not contested, neither would be arguable, than the MIT it does not carry out some form of financing, of it has powers regolators on TTP.
- It comes down some that the norm in review is not applicable to the species case, being the absence of an indefectible foundation for the operativity of the inconferibilità in word.
- 3.1. Neither it can be shared the thesis of the ANAC second which, since the ratio of the preclusione previewed from cited art. the 4 would reside in the will to prevent that the exercise of the entrusted public functions can be polluted from personal interests of which administrators they can be bearers, the inconferibilità of the assignments to coming subjects from agencies by right private regulated or financed from Public Administration, “must be interpreted to light of the purposes that the disposition intends to pursue, than cannot be (single) that to preserve the procedure of nomination from situations of that but conflict of interest, to safeguard from conflicts of interest (also) the exercise of the function”.
- According to the ANAC, to approach the proposed hermeneutical option from the recurrent one, that is that the disposition on the inconferibilità would not be applicable when the assignment is conferred by a various administration from that in which the charge it is destined to being carried out, “would be not coherent with the purposes of the discipline, since would limit the effects of prevention of the conflict of interest to the single procedure of nomination”.
- 3.2. To seeming of the College, osta to a similar hermeneutical option the condivisibile consideration “that the preclusione of which a to recalled article 4, involving important limitation to the conferibilità of a public assignment it must be interpreted in rigorous way, remaining precluded hermeneutical options of ampliativo, analogic character or single extensive” (Cons. It are, Sez. V, 28 september 2016, n. 4009).
- Being, therefore, of norm of tightened interpretation, of it is not allowed the operated extensive application from the ANAC.
- It observes the College that, for how much he is abstractly condivisibile the thesis of the ANAC second which the legislator, introducing a series of norms that regulate the access to the function, would have intended to discipline to the bestowal of the assignments administrative side sensu so as to assure the respect of the impartiality principle of which to art. the 97 Cost., avoiding, that is, than they are second attributed logical strangers to that merit one, however the application in practice of the aforesaid discipline, mainly of the sanctioned principle of inconferibilità from art. the 4 D.Lgs. 39/2013, cannot that to move within the borders delineated from the same norm, which postulates that the assignment is conferred by the agency or administration that it finances or regulated the agency in which the addressee has carried out a assignment in the biennium precedence.
- For analogous reasons the ulterior reasoning of the defense of the ANAC, second is not condivisibile which, since the dispositions that discipline the inconferibilità aim to preserve, precluding the passage without interruption from a assignment to the other, the public interest from the political pressures and risks of c.d. “capture of the public interest” coming from the world of the private companies in a qualified relationship with the public administration, the inconferibilità of which to art. the 4 of the D.Lgs. 39/2013 would not regard only the received professional assignments from the agency to which the charge to confer afferisce, but also the assignments received from other administration (in this case the Ministry of Infrastructures and the Transports).
- 3.3. At last it cannot be shared neither the thesis of the ANAC second which the purpose of prevention of the conflict of interest, subtended to the norm of which to art. the 4 D.Lgs. 39/2013, could not agree limited “to the single procedure of nomination”.
- It observes the College that the norm in review express is dedicated to the topic of the “inconferibilità” that, for semantic reasons, it cannot that to be reported to the provision of “nomination exclusively” and, for systematic reasons (also taken into consideration the total system of the D.Lgs. 39/2013), go reported to the phase of the “bestowal” of the assignment exclusively, which genetic moment of the relationship elapsing between agency conferring and subject addressee of the assignment; given that such relationship assumes importance, to the aims of the operativity of the prohibition previewed there, if the origin assignment previously is only carried out in favour of agency financed from the administration or the public body that confers the assignment.
- It comes down some that the inconferibilità disciplined from art. the 4 D.Lgs. 39/2013 go exclusively estimated having care to the existing situation to the action of the bestowal of the assignment (analogous to the incompatibility previewed from art. the 9 of the same one decree legislative, that, therefore, she is also inapplicable).
- If of species the provision with which is conferred the assignment of President of the AdSP to the Dr. Of Augustin were certainly legitimizes, coming the nomination they do not give such agency but from MIT, together with the Independent Region Friuli Venice Julia, sicchè difettava in root the foundation for according to opinare a inconferibilità of art. the 4 D.Lgs. 39/2013.
- 3.4. After all the applied norm, contrarily to how much supports the ANAC, cannot be interpreted as general norm to garrison of the conflict of interest, limiting itself the same one to disciplining the case, there typed, of the bestowal of assignment by an administration or agency that regulated or finances the agency in which the addressee it has carried out a assignment in the biennium precedence.
- To this it must join that, be a matter itself of conflict of interest that must sussistere and noticeable being at the moment of the bestowal, it is precluded to the ANAC to take part in fattispecie in which the hypothetical not sussista conflict of interest in the genetic moment of the relationship but it supervene, in hypothesis, in the functional phase, moreover in reason of a jurisprudence change that, as such, in a matter which that under investigation, cannot that to be matured with specific reference to the single fattispecie from time to time examined there: that, incidentally, it returns also the ulterior reasoning relevant and important for which, if of species, the Dr. Of Augustin did not have managerial delegations in TTP at the moment of the nomination to President of AdSP, and he had not been formed, neither was expectable was formed, the restrictive jurisprudence on the topic, cited from the ANAC.
- Meaningful, in purpose, it is the circumstance that the ANAC, still with signalling n. 1/2017 (therefore next to the nomination of the Dr. Of Augustin to President of the AdSP), it insisted already on found how much with the signalling action n. 4/2015 (antecedent to the nomination of the Dr. Of Augustin), asking the legislator a corrective participation face, among other things, “to eliminate, for the figure of the President, the reference to the managerial delegations directed, source of misunderstandings and interpretations up to here contrasting”.
- The relief that precedes corroborates the conclusion that the bestowal action, when it is adopted, was totally legitimizes also under such profile, to the stregua of the literal meaning of the disposition dictated from art. the 1, codicil 2, lett. l), D.Lgs. 39/2013, (very famous to the ANAC much to have perceived repeatedly the requirement to speed up to the legislator a corrective participation), disposition on which still the preached extensive interpretation from the jurisprudence successively formed had not been delineated.
- 3.5. That place, the College cannot not find as the event of the litigation elapsed between AdSP of Trieste and TTP, not mentioned in the provision but cited from the defense of the ANAC which paradigmatic example of the objective situation of conflict of interest in which the Dr. Of Augustin has found itself, in quality of President of the part actress and, at the same time, of the part summoned person, is such to advise the search of a possible remedy that, to the state, it cannot that to be meditated in terms of “opportunity”.
- To seeming of the College it cannot, to the scope, to use the institute of the inconferibilità, set in action from the ANAC, not being able itself to at pleasure expand the shirts of the normative disposition of which to art. the 4 D.Lgs. 39/2013, ending with folding a typical instrument for the attainment of an atypical aim.
- In purpose the College considers condivisibile second the observation of the Legal profession of the State which the requirement of a formulation in some extensive or “evolutionary” way of the disposition, than of it harmonizes the reading with previewed how much from D.Lgs article 9. 39/2013 and with art. the 11, codicil 8, T.U. 175/2016, can be considered single de iure flavoring; a lot achieves that, de iure flavored, the which supported extensive interpretation from the ANAC is not allowed, being the rigid small poles sets up from the norm in review.
- Conclusive, for how much it precedes, absorbed the ulterior reasons, the resource must be received and, for the effect, the appealled provision must be cancelled.
- 4. The expenses of the judgment, which took into consideration the innovation of the dealt issues and the jurisprudential evolution that has regarded the thematic one in review, can be exceptionally compensated between all the parts.
- The Regional administrative court for the Latium, Rome, Section Before, definitively pronouncing on the resource, as in proposed epigraph, receives it and, for the effect, he cancels the appealled action.
- It compensates the expenses of the judgment between all the parts.
- It orders that sentence anticipates is executed by the administrative authority.
- So decided in Rome in the Council Chamber of day 24 june 2020, in connection from remote in television conference, second how much having from art. the 84, codicil 6, D.L. 17 March 2020, n. 18, converted in L. 27/2020, as modified from art. the 4, D.L. 30 April 2020, n. 28, with the participation of the magistrates:
- Antonino Savo Amodio, President
- Laura Marzano, Councilman, Drafter
- Francesca Petrucciani, Councilman
Antonino Savo Amodio
- THE SECRETARY