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Finance Act 2008-Article 3, Paragraphs 43 To 53-Ulterioriindicazioni.

Original Language Title: Legge finanziaria 2008 - articolo 3, commi da 43 a 53 - ulterioriindicazioni.

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In all public administrations under art. 1, paragraph 2 of Legislative Decree No.
165/2001 independent administrative authorities as A result of the problems arising in the application of the rules on fees paid by public administrations, public company subsidiaries and their related companies contained in paragraphs 43 and following of article. 3 of law No. 244 of 2007 (Finance Act 2008), it is useful to provide additional explanatory signs. Reference is made, however not exposed, the circular # 1 of January 24, 2008. 1. The expectation of rights provided for by art. 3, paragraph 44, of law No 244 of 2007 and principles regarding incompatibilities. As noted, art. 3, paragraph 44 et seq, of law No 244 of 2007 has dictated the provisions aimed at curbing public spending on salaries and wages charged to public finances, paying compensation and roofs with a particular regime of advertising and communication. For the same purpose, the same law also governs the legal position of those who hold the Office of Member of a governing body or control in economic public bodies and in partnership with public participation, their subsidiaries, associated companies and subsidiaries. In particular, article. 3, paragraph 44, eighth period, of the Act states: "those who are bound by an employment relationship with economic or public bodies with company-owned or their subsidiaries, associated companies and subsidiaries and which are at the same time members of the Board of control of the organism or society or Government with which it established a working relationship, are placed in law on unpaid leave and suspended their membership to the relevant pension funds and support». In agreement with I.N.P.S. and INPDAP for aspects of competence means draw attention of administrations and public bodies about the scope and the application of this rule. The provision provides directly (no I mean leave margin for discretion to the body or to the company concerned) the placement on unpaid leave and suspension of registration to social security and assistance. The ratio of the standard it is deducible from the context in which it is situated, the roof on the salaries of public managers and the Government's intentions to reduce overall government spending also intervening on situations that can lead to diseases. It wants firstly prevent payroll positions, as well as unwarranted burdens heaps for the Treasury in relation to charges relating to the social security treatment of the persons concerned. Also, with the rule you want to avoid that individuals who hold a position of power within public bodies to enable them to assume influential determinations concerning the management of the body itself can take from the exercise of the function of personal advantages related to their relationship in legal terms and economic burden on public finances. In essence, through the provision of an expectation under law, it establishes in legislation a switch for the activity of carrying out of the mandate; the automatic suspension of the employment relationship for the duration of the first allows the maintenance of the relationship. The standard applies to those who have a working relationship with public bodies or companies ' economic with public participation or their subsidiaries, associated companies and subsidiaries». It covers public and private, including the companies if you participate directly or indirectly from public administrations, regardless of type of activities-economic or non-economic turning point. According to the broad wording used to locate the topics employers category, which is that of ' public services», and the ratio of the regulations, must be included in the scope of all those persons other than natural persons whose funding contributes public administrations or other public bodies. Also, given his general character and its ratio, the standard applies to all public bodies and companies take part, irrespective of whether they are related to the apparatus of the State, regions or local authorities or functional autonomy. Its content in this case directly concerns the discipline of employment and falls within the scope of civil order (article 117, paragraph 1, subparagraph 1, const.). The broad wording used, are included in the scope of the legislation public administrations in the traditional sense, and then pure economic and non-economic public bodies. The provision in question does not seem, however, to be applied with reference to banks under public law referred to in art. 151 of Legislative Decree 385 of 1993, because its assets not imposed directly on the State budget. For the specific finding of the governing bodies and takes control of course refer to the ordering of individual subjects, defined by law, the statutes and regulations. For public bodies, bearing in mind the criteria that were set out in art. 13 of Legislative Decree No. 419 of 1999 for the revision of the statutes, the scope of the governing bodies on the institution's President and Board of Directors. The cited art. 13, paragraph 1, point b), however, as a general rule provides that the members of the Board of Directors of the institution shall be appointed by Decree of the Minister vigilante, among experts of directors or areas of activity of the institution, "to the exclusion of representatives of the Ministry or other public administrations, vigilante business organizations and trade unions and other bodies exponential». The rule, therefore, exclude in principle the possibility that an employee of the institution concerned is at the same time a member of the Board of Directors. Depending on the configuration and then concrete powers reserved, fall within the concept of governing body organs of the Assembly referred to in article 1, subparagraph (e)). According to the same paragraph, letter s), generally speaking it is excluded from the ranks of the organs of the institution, the Director-General, to whom are attributed the managerial functions and tasks in line with the principle of distinction between activities and management activities. Between the control authorities should include the Board of Auditors, set up in paragraph 1 letter h) of legislative decree concerned, whose members are Auditors or persons holding specific professionalism. For the social security institutions, rearranged by Legislative Decree No. 479 of 1994, are among the governing bodies of the President, the General Assembly and supervision, the Board of Directors. The art. 3, paragraph 5, of the aforementioned Decree stipulates the placement out role for executives of the public administration appointed to the Board of Directors; This standard should be superseded by new rules if the employee belongs to the transferring administration itself. Between the control authorities shall fall to the Member of the audit and supervisory board. The expectation of law does not happen in the case that the rules provide that the prerequisite for participation in the organ is represented by the title of a working relationship with the institution concerned, as in the case of members of the Management Committee of the agencies governed by Legislative Decree No. 300 of 1999. In this case, art. 8, paragraph 4, point c) of Decree cited indicates, among the guiding criteria which the statutes of agencies must adapt, the prediction of a Steering Committee, composed of Directors of the main sectors of activity of the Agency with the task of assisting the Director General in the exercise of the powers conferred upon it. The quality of Member of the Steering Committee then assumes the figure of the preposition to a directorship in the Administration and is peculiar method of carrying out the latter. For the same reasons don't fall also within the scope of the standard between cases in which the functions are carried out by entities other than agencies by the employee in charge of an Office or service of the Organization as a result of the transfer of a directorship. In this case, the competence of the head coincides with the area of responsibility of the Office of the task object and the carrying out of the directorship is complying with performance obligations arising from the contract of employment (or by appointment). In addition to placement in expectation under law the arrangement provides for the suspension of registration to social security and assistance. Therefore, with the expectation WORKERS ' COMPENSATION insurance coverage ceases in place than the employment relationship ends. Will be activated if necessary a new report in relation to the activities resulting from the completion of the mandate of the organ on the basis of current legislation component. Under the law, the suspension of employment and hence the suspension of registration to pension insurance and pension purposes, results in unveiling in insurance business of belonging. Therefore, for the period of carrying out of the mandate, takes check the existence of the conditions for the application of a different scheme. It takes this opportunity to draw the attention of the administrations on the regulation of incompatibility regarding civil servants, because the Civil Service Department receives numerous queries relating to permissions to carry out assignments. The authorisations referred to in art. 53, paragraphs 6 to 10 of Legislative Decree No. 165 of 2001 for conducting paid assignments, including occasional, are made by each administration in relation to the factual context, by checking the type of the task to be carried out from the point of view of compatibility of effort required compared to the carrying out of employment performance both in terms of the absence of causes of incompatibility and conflict of interest. In particular, it is recalled that paragraph 5 of art. 53 of Legislative Decree No. 165 of 2001 provides that for the purposes of the assignment and licensing offices, administrations pre-determine objective criteria that take account of the specific expertise, such as to exclude cases of incompatibilities, both of law which, in the interest of the good performance of the public administration. In setting these criteria each administration will then reference the specific institutional tasks, which are going to make the system of incompatibility for their employees. 2. the management of contributions of collaborations. It is recalled that according to the combined provisions of articles 2, paragraph 26, of law No 335 of 1995, 34, paragraph 3, of Act No 342 of 2000 and 50, paragraph 1, letter c-bis of Decree of the President of the Republic No. 917 of 1986 (T.U.I.R.) are required to register with the appropriate separate management of the I.N.P.S. coordinated and continuative collaboration holders for «amounts and values generally perceived during the tax period, for any reason, even in the form of donations, in relation to the offices of Chief, Mayor or auditor of companies, associations and other organizations with or without legal personality, (...) participation in colleges and committees, as well as those perceived in relation to other relationships having as their object the provision of activities performed without bond of subordination to a certain topic within the framework of a unitary and continuative report without use of resources organized and with periodic remuneration, authorizing the offices or collaborations do not fall within the institutional tasks included in the activity of employees under art. 49, paragraph 1, concerning employment income, or in the subject-matter of the art or profession of art. 53, paragraph 1, relating to income from self-employment, carried on by the taxpayer.». With effect from 1 January 2008 and 2008, by virtue of art. 1, paragraph 79, of law No. 247 of 2007, the rates are established in 24.72%, accounting for 24% of rate for the Board, plus the additional duty rates resulting from 0.72% art. 84 of Legislative Decree # 151 of 2001 and by art. 7 July 12, 2007 Ministerial Decree (Official Journal October 23, 2007, # 247), for all those uninsured at other pension schemes compulsory and in 17% to the owners ' retirement protection mandatory retirement or other, with allocation of the burden of contribution between employee and client by a third and two thirds respectively. In the case of the absence of law according to art. 44, paragraph 3, of the law on comment if stakeholders, as a result of suspension of employment, are not insured with other mandatory pension schemes, the rate to be applied is of 24.72%. If stakeholders were holders of pension rate to be applied would be 17%. To achieve a single pension civil servants enrolled with INPDAP and with separate management position at I.N.P.S. may exercise the right of the aggregation of periods of insurance in presence of the assumptions referred to in Legislative Decree No. 42 of 2006, as amended by law No. 247 of 2007. Alternatively the application period to entitle to the recognition of a separate management board which shall be added to the main pension. 3. the ' company ' unlisted ' referred to in art. 3, paragraph 44, of law No 244 of 2007 and the regime of exceptions. As mentioned, the rules in question are aimed at limiting and rationalizing costs and affect not only public authorities but also the companies with public participation, as part of a complex series of measures concerning the corporate organizational structure. You mention, in this regard, article. 3, paragraphs 12, 13 and 14, of the Finance Act 2008, which included a number of rationalization measures for companies ' holdings, including a reduction in the number of members of the Board than intended in the existing statutes. The discipline in question refers to ' unlisted companies» in total or prevalent public participation as well as their subsidiaries. The sixth period of paragraph 44 of the art. 3 under consideration provides that "the provisions of the first and second period of this subparagraph may not be departed from except for motivated requirements of an exceptional nature and for a period of time not exceeding three years, without prejudice to the preceding paragraph. ' It reiterates, as already established in the circular # 1 of January 24, 2008, the existence of circumstances which might justify the transitional derogations should be evaluated by each body or public authority and the measures taken by derogation must be specially motivated. These principles are especially application in respect of the company; What in deference to the autonomy of evaluation of governance bodies required by law and the statutes. 4. The subsequent legislation transient for service contracts in accordance with art. 24, paragraph 4-bis of Decree-Law No 248 of 2007, placed by the conversion law No 31 of 2008. It should be noted that by law No 31 of 2008, signed into law with amendments Decree Law no 248 of 2007, it was added to paragraph 4-bis under art. 24 of the Decree, which States that: "The paragraph 44 art. 3 December 24, 2007, law # 244, notwithstanding the inapplicability of restrictions on activities subject to professional fees, apply to the service contracts following the enactment of a decree of the President of the Council of Ministers, which defines the types of artistic or professional service contracts excluded, to be issued by 1 July 2008.». Paragraph 4-bis is entered into force on 1 March 2008, th day after the date of publication of law No 31 of 2008 in the official journal, in accordance with art. 1, paragraph 2, of the law. The arrangement, after the art. 3, paragraph 44, of law No 244 of 2007, modifies the content temporarily. In essence, based on art. 3, paragraph 44, the contracts concluded with public authorities and with the companies listed in the first sentence of the same paragraph are subject to prescribed financial limit, unless they are contracts for professional activities (i.e. activities subject to professional fees) and artistic or professional services that allow you to compete in conditions of effective competition. The effect of art. 24 paragraph 4-bis of Decree-Law No. 248 application scope has been modified of the whole art. 3, paragraph 44, meaning that the application of the rule in respect of service contracts was deferred at the time of the adoption of a decree of the President of the Council of Ministers, to be issued by 1 July 2008, which will serve to identify contracts or artistic performance excluded from discipline. Then, starting from 1° March 2008 and until the adoption of the Decree of the President of the Council of Ministers, but discipline does not apply to service contracts. This applies both to the regime of compensation for both advertising and communication obligations. 5. advertising and communication obligations. As stated in circular No. 1 advertising scheme refers to acts involving expenditure relating to fees, relationships and recipients earners for situations that involve passing the roofs fixed legislatively. Please note that advertising obligations arising directly from the legislation in issue must be supplemented with additional requirements and in particular with the provisions for collaborations. See on this point the content of paragraph 3 of the circular No 2 March 11, 2008. Publicity and notices referred to in paragraphs 44 FF art. 3 under consideration have a preventive character, as can be seen from paragraph 44 4 same period forecast which says: "no act entailing expense under previous periods can receive implementation, if it was not previously announced, with an indication of the amount of the compensation recipients registered share and by posting on the website of the administration or of the person concerned and communicated to the Government and Parliament." In addition, the period 6 of that paragraph States: "Governments, institutions and societies referred to in the first the second sentence of this paragraph and for which the limit is applied are subject to prior notice of its acts to the Court of Auditors. ' It is recalled that, according to paragraphs 47, 49, in conjunction with article 48 and 44 art. 3 advertising and communication regime is effective immediately both with reference to the ongoing reports with reference to the new contracts, jobs or positions. Fulfilling the obligations of statutory and commercial communication does not imply the need for private entities obliged to acquire the consent of the data subject. In fact, art. 24 of Legislative Decree 196 of 2003 provides that "the consent is not required, in addition to the cases provided for in part II, when treatment: a) it is necessary to comply with an obligation imposed by a law, regulations or Community legislation; ..». Therefore, in case of refusal expressed by the party concerned, by virtue of the provisions of the fourth period of the mentioned art. 3, paragraph 44, it cannot give rise to any payment. With regard to the communication and dissemination of data carried out by public entities, article. 19, paragraph 2, of Legislative Decree 196 of 2003 provides that «the communication by a public subject to any other public is allowed when it is provided for by law or regulation. " Moreover, paragraph 3 of the same article provides that "the communication by a public subject to private or public organizations and spread by a public subject are permitted only when they are required by a law or regulation." It is recommended to government compliance with the law and within the limits of competence, care of compliance by companies and organizations participated.
Roma, April 30, 2008 The Minister for reform and innovation in public administration Nicolais Recorded the Court of Auditors on July 9, 2008 institutional Ministries-President of the Council of Ministers, registry # 8, sheet # 222