BENI SEQUESTRATI E COMPATIBILITÀ ECONOMICA

UNIVERSITY OF MESSINA
Department of Political and Legal Sciences (SCIPOG)

PROF. ILENIA RAPISARDA

ANTI -CORRUPTION PRIVATE LAW

(ilenia.rapisarda@unime.it)
 The regulatory function of the Independent
administrative authorities and the integration of the
contract.

The case of the Anac

.
ANAC: an independent administrative authority.

 The independent administrative authorities are public entities or bodies set up to protect specific

sensitive sectors in which the presence constitutionally guaranteed rights requires the

intervention of administrations independent of politics and endowed with particular technical

qualifications.

 Some examples: Competition and market authority (supervision of cartels and agreements

restricting free competition, control of abuses of dominant position); personal data protection

authority (Protection of sensitive data of citizens processed by public and private subjects).

 They aII are equipped with particular technical knowledge and substantial independence from

executive power in order to ensure neutrality towards the public and private interests involved.
 The independent administrative Authorities
- In Italy they have developed mainly since the 1990s, when we moved from the dirigiste model and the welfare state to
the neo-liberal economic trend and the phenomenon of privatization.

- When the State transforms itself into a simple regulatory subject and abandons its intervention in strategic sectors of
social economic life, then a network of independent administrative authorities has been developed, the key feature of
which is their close link with the principle of free competition.
- These authorities are autonomous because they have organisational, accounting, financial and regulatory autonomy.
They are not financed by the state, which instead is the body delegated to control them and they finance themselves
through obligatory contributions from the operators of the market they control.
 The Independent Administrative Authorities
 The IAA are administrative subjects and their acts are subjectively and objectively
administrative and can be challenged before the administrative judge.
 There is a problem of democratic deficit for these authorities.

 In the system of sources of law all the subjects who dictate binding rules have the coverage
of democratic legitimacy, while the members of the IAA are not elected by the citizens.

 The deficit of democracy comes into conflict with the regulatory function of the IAA.

 The State attributes various functions to the IAA: supervision and control of the reference
market, ex post sanctioning powers and ex ante regulatory powers.
 The regulatory function of the IAA
 The regulatory function consists in the power to dictate binding rules for those who
belong to that particular part of the market they deal with.
 The sources and regulations issued by the IAA formally have a secondary nature (they are
regulations) and they intervene in a sector in which there is no specific and punctual
legislative discipline.
 Regulations: - cannot derogate from or conflict with constitutional provisions; — they
cannot derogate from or conflict with all ordinary legislative acts (primary sources):
therefore it is said that they have no legal force or value, but only normative force: that is,
they cannot be equated with laws, but within their limits, they have a their legal force as
sources of law; they can modify ordinary laws only if one of these has delegified a matter,
authorizing acts of the executive power (usually regulations) to establish rules (in that
matter) that have the same force as those issued by law.
 The characteristic of regulatory function is that of moving within large spaces left empty
by the legislator. Given that the legislator cannot legislate in matters characterized by rapid
technological obsolescence and the existence of specialized knowledge, it leaves room for
the legality of regulation.

 Can the regulatory function of the IAA affect the contractual autonomy and integrate
the contract pursuant to articles 1339 and 1374 of the Italian Civil Code?
 The integration of contract by the law
 The principle of contractual autonomy, ex art. 1322 c.c., is not absolute and free
from any constraints.

 Private economic initiative cannot take place in conflict with social utility, ex art.
41 of Constitution and private property must always have a social function, ex art.
42 Cost.

 An important case of the legal system's control over the negotiating sources can
be seen in relation to the phenomenon of the integration of the contract.
 Integration of the content of the contract is the process which, on the basis of the
agreement reached by the parties, completes its contents and determines its
effects.
 The integration of contract by the law

 Art. 1374 c. c.: «The contract binds the parties

not only to what is in it expressed, but also to
all the resulting consequences according to the
law, or, failing that, according to customs and
equity».
 Art. 1339 c.c.:imposed
«The terms, the prices of goods
or services,
included in the contract,bytoolaw
in are by
substitutionright
of
the different clauses affixed by the parties».
 For instance, in a lease on a house located in an
urban
fix the area,
rent, the
the parties
court to the have
would contract
to failedthe
apply to
criteria provided
determinaton of the by the law for the
rent.
 So the content of the contract, however freely
determinable
considered by self-imposed,
totally the parties, as cannot
the be
parties
are
have bound not only
established, but by
also what
by theyisthemselves
what prescribed
by law.
 The meaning of the term «law» in artt. 1374 e 1339

 Of course we refer to a punctual and specific law and not also that deriving from an
analogical procedure.
 The most important interpretative problem is whether the term law is to be understood in a
formal or even a substantial sense.
 According to a minority thesis, only the one issued by the Parliament should be considered
as law
 According to the majority thesis the contract can also be integrated through provisions
other than the law, or acts having the force of law and regulations.
 Consequently a contract that does not respect the content required by law must be
considered void for violation of mandatory rules pursuant to art. 1418 of the civil code
 The relationship between the law and the IAA
regulations
 If we assume that the regulating power of the IAA is affirmed and conferred directly by the
institutive law then we can say that these regulations assume the same degree of
authoritativeness as the law.
 However what is doubted is precisely the conformity of the regulations of the IAA with the
principle of legality. Why?
 Because according to the prevailing opinion, the law which attributes the regulating power
to the IAA must also establish the conditions, the content and the limits or this regulatory
power.

 Are the IAA regulations respectful of the principle of legality?

 So can they integrate the content of contract ex artt. 1374 e 1339 c.c.?
 Anac’s tasks on public contracts
 The National Anti-Corruption Authority
performs
sanctioning its
– infunctions
order to –
ensure regulatory
more and
efficient
control
assignmentover the
and subjects
management involved of in the
public
procurement
the the and
so-called concessions,
code of regulated
public contractsby
(Legislative Decree n. 50/2016).
 We refer to the «passive» public contracts:
contracts
procures with
goods which
and a public
services administration
necessary for its
functioning
money and upon
pursues the payment
ends of of
general a sum of
interest,
spending public money, i.e. of the community.
 The very large amounts of money that come
into play
public when a
administrationcontract is
explain stipulated
the with
particular a
attention
discipline of
and thethe legislator
need fortowards
a this
specific
regulation.
 Indeed, pursuant to art. 97, par. 2, of
Constitution,
respect the the
principle administrative
of good action
performance must
and
impartiality.
 Public contracts
 Pursuant to art. 3 of l. d. 50/2016, public procurement concern
works, services or supplies, while public concessions may
concern works or services.
 The public procurement is a contract for consideration,
stipulated in writing between a contracting authority (a p.a.)
and an economic operator, concerning the execution of works,
the supply of products and the provision of services.
 The concession contract relates only to works or services and
it differs from the public procurement for the consideration
element and for the management of operational risk. If in the
public procurement the consideration coincides with a specific
monetary compensation, in public concessions the
onerousness corresponds to the provision of the
concessionaire's right to manage the work or service object of
the contract, to which the operational management risk is
linked.
 Anac’s tasks on public contracts
 Supervision of public contracts for works, services and supplies, including those of regional interest, in
ordinary and special sectors
 Supervision of the qualification system for economic operators, including sanctioning powers
 Collaborative supervision through the signing of memorandum of understanding with contracting
authorities, to give support in the preparation and management of tenders, in order to prevent criminal
activities
 Advisory function through the issuing of consultative or binding opinions on legislation and
prelitigation cases
 Regulatory function through the adoption of guidelines, standard documents on tenders, and other
soft regulatory tools, aimed at facilitating the exchange of information, and the development of best
practices.
 Management of the qualification system for contracting authorities, and the register of in-house
companies in the case of serious violations of the Code of Contracts, ANAC can contest the
contracting authorities’ measures before the Administrative Judge
 ANAC has also inspection powers and the power to request the exhibition of documents. In addition,
ANAC may impose pecuniary sanctions on the economic operators who refuse to provide such
information
 The regulatory function
 In the past ANAC had often fulfilled its regulatory mandate using instruments of general
scope, such as determinations, guidelines, standard tender-notices and advisory opinions.
 All these instances of soft law proved to be essential not only in the sector of public
contracts, but also to provide interpretative guidelines on corruption prevention and the
strengthening of integrity in the public sector. Many of these guidelines served the
immediate purpose of interpreting the Italian legislation on different topics.
 In addition, and perhaps most importantly, such regulation laid down the foundation for
future legislation on important anticorruption matters.
 In the area of public procurement, this regulatory function has grown in importance and
effectiveness due to requests coming from the awarding administration and from the
economic operators in need of a consistent interpretation of the complex legislation.
 ANAC’s guidelines on standard tenders provided an essential support to the tendering
organizations, at the same time reducing disputes among the parties. This important
practice has been incorporated in the Public Contract Code
 The regulatory function

 Paragraph 2 of the art. 213, legislative decree n. 50/2016, expressly attributes this function:
«the ANAC, through guidelines, standard tenders, standard specifications, model contracts
and other flexible regulation instruments, however denominated, guarantee the promotion
of efficiency and the quality of the activity of the contracting stations».

 Therefore the Authority, in order to complete the regulatory framework outlined by the
Code, functional to combat corruption in the public procurement market, has the power to
adopt various types of regulatory instruments, all attributable to the category of "flexible
regulatory instruments".
 The question is: these regulatory tools can be considered, to all effects, as secondary
normative sources and so can they integrate the content of the public conctracts, affecting
its validity?

 We need to consider that the legislator (the primary source) does not always clearly delimit
the content and limits of these tools.

 This choice conforms to the intention to have an essential primary legislation, which does
not dwell on the detailed aspects, but which does not degenerate into a blank delegation in
favor of the contracting authorities must necessarily be accompanied by administrative
measures of soft law, which guarantee operators the correct e uniform interpretation of the
law.

 So, can they be considered compatible with the principle of legality considering the
breadth of the delegation conferred by the legislator to Anac?
 The Anac’s guidelines

 Guidelines adopted by the ANAC, generally take the form of guidance documents with
diversified content, which most of the time explicit in recommendations and advice,
more or less stringent, but which can also assume the form of mandatory provisions.

 No question about the configuration of those of a non-binding nature as administrative

acts with general content; while major problems have arisen for the systematic
classification of Binding guidelines, also due to the lack of a clear foundation for a
direct one innovation of our source system.

 The legal qualification of the guidelines in our sources of law is uncertain and debated
in doctrine and jurisprudence
 The Anac’s guidelines
 According to jurisprudence they have no normative value but they are general administrative acts
belonging to the genus of regulatory acts of the Authorities independent administrative but for these
regulatory acts the principle of legality takes on a different value than normal ones administrative
measures, given that the law, due to the technical nature of the matter, is limited to define the purpose
to be pursued, leaving the Authority with the power to develop the methods of exercise.

 In this sense, the contract must be considered integrated by the guidelines, expression of the regulatory
power attributed by law.

 According to a part of the doctrine, however, a contractual integration is not permitted since the
guidelines are not respectful of the principle of legality. In this sense, integration can be considered
permitted only where the rule of law also establishes directive criteria and limits
 Standard tender notice
 The standard call for tenders concerns the open procedure, carried out entirely with
telematic systems, for the award of public service and supply contracts in ordinary sectors.
 It is adopted by the Authority in implementation of the procurement code with the aim of
providing contracting stations with a tool that guarantees efficiency, quality standards of
administrative action and homogeneity

 Some clauses of this standard tender are suitable for integrating the contract as they
are limited to implementing the law.
 Standard tender notice
 For example, The Anti-Corruption Authority has updated the standard call for tenders for
public contracts by introducing measures on gender and generational equal opportunities,
on the employment inclusion of people with disabilities and price review clauses. The
resolution, n. 154 of 16 March 2022, implemented the rules established by the Dpcm of 7
December 2021 on equality and the more recent ones to deal with the increase in prices.

 Among the fundamental elements that the contracting authorities are required to include in
the tender documentation, there is also the price clause: in fact, Anac has included in the
tender the innovations of a recent decree which introduced the obligation, until 31/12
/2023, to include in the tender documents the price review clauses with the aim of
encouraging public investment and coping with the negative economic fallout from the
pandemic and the war in Ukraine.