Merlo case: MSC won against the Italian Anti-Corruption Authority (investing Port Authorities with new responsibilities)
With its judgement, the Regional Administrative Court established that, as concerns pantouflage, the Anti-Corruption Authority cannot intervene against private bodies, but only against public administrations. The resolution that established the unlawful hiring of former Genoa Port Authority President was annulled
“ANAC has no power for direct intervention” on the matter of pantouflage.
This is the decisive passage of the judgement of the Regional Administrative Court of Lazio, that accepted the main reason for the appeal lodged by MSC and Luigi Merlo, thus annulling the resolution with which, last March, the Italian Anti-Corruption Authority had ascertained the infringement of the Italian law governing pantouflage (the transfer of government officials to private companies), with reference to the former Genoa Port Authority President’s appointment as institutional relations manager for Italy at MSC Crociere.
Without entering into the substance of the aforesaid ascertainment of the infringement of the regulation (providing that “employees who, during the past three years of service exercised authoritative or negotiation powers on behalf of the public administrations referred to in Article 1, paragraph 2, in the three years following the cessation of their public employment cannot work for the private subjects for which the public administration’s activity was carried out through the same powers”), administrative judges accepted MSC’s and Merlo’s arguments with regard to the limitation of the Italian Anti-Corruption Authority’s prerogatives.
According to the Regional Administrative Court, although the pantouflage involves private subjects, the Authority’s supervisory powers do not apply to the hiring, on the part of a private company, of a government official with whom it had relations. In fact, “pantouflage is subject to a direct application that does not involve the Anti-Corruption Authority, rather it concerns the execution of general instruments such as the Italian Anti-Corruption plan and the European Single Procurement Document (ESPD)”.
As concerns the aforesaid paragraph 16-ter of Article 53 of the Decree-Law n. 165/2001, the only scope of intervention allowed for the Anti-Corruption Authority “regarding 'subjects that are not referable to the public authority' is limited to the adoption of 'optional' opinions on the matter of authorizations to perform external assignments”.
The judges concluded that “the implementation of Article 53, paragraph 16-ter, is – as MSC defined it – a 'diffuse' mechanism in which the Anti-Corruption Authority is involved, ex ante, with optional opinions to support the activity of the public administration and, ex post, with inspection and supervisory activities exclusively related to public administrations with regard to compliance with the regulation to the extent referred to in the Italian Anti-Corruption Plan or in the ESPD. Therefore, ANAC has no powers to intervene directly against one or more private bodies”.
In short, the Authority can object only in the event that a public administration does or did not include the clauses related to full compliance with the Italian Anti-Corruption Plan (adopted by the Anti-Corruption Authority itself) in its employment contracts, therefore only with effects on the public administration. It cannot ascertain the infringement of Article 53 charged to private bodies, nor to intervene in relation to the sanctions provided for (invalidity of the employment contract, ban from entering into contracts for the hiring party).
The Regional Administrative Court can “assert it in the appropriate places, without needing to identify a competent subject to execute the acts arising from the assessment”.
Only a third party, not the Anti-Corruption Authority, might object the infringement of Article 53, with the consequent nullity of any possible contracts between the Port Authority of Genoa and MSC, before a court.
Therefore, while waiting for possible appeals, the judgement established that single public administrations have full responsibility to avoid and prevent cases of pantouflage, as the Anti-Corruption Authority can object only to their possible faults in this respect.