Interpretation Of Article 13, Paragraph 1, Letter H) Of Legge146 Of 1990, As Amended. (Resolution 15/12).

Original Language Title: Interpretazione dell'articolo 13, comma 1, lettera h), della legge146 del 1990, e successive modificazioni. (Delibera n. 15/12).

Read the untranslated law here: http://www.gazzettaufficiale.it/atto/serie_generale/caricaArticoloDefault/originario?atto.dataPubblicazioneGazzetta=2015-02-04&atto.codiceRedazionale=15A00620&elenco30giorni=false&atto.tipoProvvedimento=DECRETO

The COMMISSION at its meeting of January 19, 2015;
Circumstances 1. that, in order to carry out its institutional activities, the authority has powers of ex ante regulation of collective conflict, as well as sanctioning powers in respect of entities in charge of protest actions that do not conform to the law and the agreements and/or interim regulations; 2. the experience of the law and guardianship function carried out by the authorities have allowed to achieve over time a significant collective conflict, civilization through the channelling of its forms of expression in predetermined procedural models; 3. that the measures taken by Act 146 of 1990, as amended, and the functions assigned to the Commission were mostly outlined by the legislator in an age when essential public services sectors were characterized by monopolistic structures and production service authorities to play in favour of the collective; 4. that, with starting the process of privatization of public companies, and most importantly, with the intensification of the liberalisation of economic activities systems, he witnessed a gradual reorganization of production processes of services and increasing outsourcing of activities of public interest to other economic agents; 5. that, in fact, at present, except in cases in which the Administration provides directly to provide the service of public interest, possibly through a separate undertaking only formally and on which exercises control similar to that exercised over its own offices (called "in house providing"), the management of local public services is accomplished through the taunts of the concession contract or service contract , under which the choice of contractor takes place with respect for public tendering proceedings; 6. therefore, often, the provision of services is ensured by the competition of a variety of subjects, some of whom dedicated, however, exclusively, for instrumental activities, either under the contract (which, however, fall within the scope of Act 146 of 1990, as amended), whose economic survival is contingent upon timely fulfilment of contractual obligations on the part of contractors, or in the cases of in house providing, to the timely transfer of financial resources; 7. that, in the exercise of their institutional activities, the Commission found (especially in certain sectors, such as urban hygiene and public transport) that the causes of occurrence of conflicts be attributed, primarily, to the liability of public administrations, which, not transferring to the agreed financial resources service industries (in case of the contract or concession), which is due (in the case of direct Award) , determine, not infrequently, insolvency and thus an inability to satisfy even payroll obligations. 8. that in order to facilitate the reporting of suspected of mismanagement of public money, the Commission has entered into on May 29, 2012, an interinstitutional cooperation protocol with the authority for the supervision of public contracts for works, services and supplies (now ANAC);
Noted that, according to an effective preventive action of the collective conflict, the Commission has, in accordance with art. 13, codicil 1, letter h) of law 146 of 1990, as amended, of the power to invite administrations and service companies to desist from behaviour in blatant violation of the law or of the procedures laid down by agreements or collective agreements and, in any case, from "unlawful behaviors that may cause the onset or aggravation of ongoing conflicts," and to recall them to comply with the obligations laid down by law or by collective agreements or contracts; the legislature, with the news of 2000, has limited the subjective scope of application of the standard cited and, consequently, the ability of the Commission's investigation, only companies and granting administrations of service, consistent with the organizational structure of essential public services prevailing at that time town, characterized, as highlighted in the introduction, almost exclusively of public subjects; that the subsequent transformation of the economic and social context in which the rule is meant to operate and, in particular, the new morphology assumed by collective conflict would require a legislative amendment of the provision at issue (in order to retrieve the preventive effectiveness, depending on the purpose for which it was placed), meaning to allow the Commission the acquisition of information from contractors — licensing authorities of the service, in order to ascertain their possible responsibility in the causation of the dispute and, consequently, to extend to them the deliberation of invitation under art. 13, paragraph 1, point h);
Felt however, that, pending the hoped-for legislative action, the rule laid down in art. 13, codicil 1, letter h) of law 146 of 1990, as amended, can still be interpreted extensively (without violating the literal boundaries), meaning to be applied in respect of third parties with respect to the parties to the employment relationship, where it is not possible to discern any difference of substance between the Administration and custodial service and therefore subject When the latter constitutes a kind of Organic derivation of the first. All that being said and considered:

Thinks that art. 13, codicil 1, letter h) of law 146 of 1990, as amended, must be understood as meaning that the Commission, subject to verification of its responsibility regarding the onset or aggravation of the conflict, can make the decision to invite public authorities have entrusted the provision of the service to companies only formally distinct from them and over which they exercise direct control and penetrating; that, in the case that, when investigating activities extended to the Government within the limits specified, emerge facts or conduct criminal or view relevant fiscal damages abstractly, you will provide the transmission of appropriate information the courts having jurisdiction for the matter and territory, for the purposes of appropriate investigations.
Does the publication of this resolution in the official journal of the Italian Republic and the Commission's website.
Rome, January 19, 2015 President: Alesse