Locating The Administrative Authority Competenteall's Imposition Of Sanctions For Breach Of Specificiobblighi Of Transparency (Article 47 Of Decree 33/2013). (Resolution # 10).

Original Language Title: Individuazione dell'autorita' amministrativa competenteall'irrogazione delle sanzioni relative alla violazione di specificiobblighi di trasparenza (art. 47 del decreto legislativo 33/2013).(Delibera n. 10).

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The NATIONAL ANTI-CORRUPTION authority in the January 21, 2015 meeting of the regulatory framework 1. The disclosure obligations for which it is provided for a specific system of penalties in the Legislative Decree 33/2013 art. 47 of Legislative Decree 33/2013 stipulates a specific penalties for the violation of reporting requirements of some data under art. 14 of the same Decree and publication and communication of the data referred to in articles 22, paragraph 2, and 47, paragraph 2, last sentence, of the Decree. In particular, article. 47, paragraph 1, in the return to art. 14, penalising failure or incomplete disclosure of information and data on the overall financial position of the holder of the Office at the time of appointment in charge, the ownership of companies, equity interests, the spouse and the relatives within the second degree (article 14, paragraph 1, lett. f)), as well as all fees which gives right taking the charge (article 14 , comma 1, lett. c)). It follows that holders of political office, elective or otherwise character of political powers, as identified in accordance with resolution ANAC # 144/2014, are required to report this data, with a view to publication, to the person responsible for transparency, or other person identified in the three-year program for transparency and integrity or other internal regulations in each administration. With resolution No 144/2014 the ANAC has provided authorities information on publication of data under art. 14, on the effective date of publication requirements and, in particular, on the application of art. 14, paragraph 1, lett. f), to the municipalities. In this resolution, therefore, the reader is referred to the appropriate depth. In accordance with art. 47, paragraph 2, it is sanctioned, instead, the violation of the obligation of publication under art. 22, paragraph 2, of Legislative Decree 33/2013 that administrations are obliged to publish and update annually, with regard to the categories of entities mentioned in art. 22, paragraph 1, letter a) to c)-public entities supervised, private-law entities in oversight by the company's subsidiaries, with the exception of the companies mentioned in paragraph 6 of the same article-the following data: name, size of the possible participation of administration, duration of the commitment, total tax charge for whatever reason Gardner for the year on budget administration, number of representatives of the administration organs of Government overall economic treatment, each of them expected to be financial results of the past three financial years, directorships of the institution and its overall economic treatment. In order to put the Government in a position to publish some of the data listed above, art. 47, paragraph 2, of Legislative Decree 33/2013 poses in Chief Corporate administrators obliged to communicate to the public the Office and the relevant remuneration within thirty days from the transfer or, for those benefits to result, within 30 days of receipt. They are obliged, therefore, to communicate the data above the transparency of each shareholder, or to another person identified in the three-year program for transparency and integrity or other internal regulations for publication on the website of each Member audience. The failure gives rise to pecuniary administrative sanction ordered by the same art. 47, paragraph 2. 2. The penalties provided for in art. 33/2013 47 of the Legislative Decree provides for the imposition of fines for violations of reporting requirements and publication set out above in respect of the entities required to report data under art. 14 and art. 47, paragraph 2, second sentence, both in respect of the entities required to publish data under art. 22, paragraph 2. Specifically, the information and data concerning the overall financial position of the holder of the Office at the time of appointment in charge, the ownership of companies, equity interests, the spouse and the relatives within the second degree (article 14, paragraph 1, lett. f)), as well as all fees which gives right taking the charge (article 14, paragraph 1, letter c)), first period, the legislator has, in case of missing or incomplete communication, impose the charge of failure to communicate, a pecuniary administrative sanction of 500 to 10,000 euros and the publication of disciplinary measure on the website of or body concerned. The above penalty applies only in respect of holders of political office, elective or otherwise fonts for exercising political powers as identified pursuant to resolution # 144/2014. Any sanction is applicable to the other spouse not separated and relatives within the second degree of the subordination prescribed by the legislature for the dissemination of its data to an express consent thereto. Similarly, no financial penalty is envisaged for the subject to the publication of such data which, although having received, has failed to publish them. In this sense, the provision lays that simply sanctioning a monetary penalty the only non-disclosure of data. They are, however, applicable to the subject to publication of data the penalties for violation of transparency requirements laid down in articles 45 and 46 of Legislative Decree 33/2013. A pecuniary administrative sanction of 500 to 10,000 euros and is also willing to load of the person responsible for the violation of the obligation of publication under art. 22, paragraph 2, of Legislative Decree 33/2013 (subject required to publish), and towards the corporate administrators that do not communicate to public office and the relevant remuneration within thirty days from the transfer or, for those benefits, within thirty days after receipt by virtue of art. 47, paragraph 2, second sentence. 3. The competent administrative authority "to the imposition of sanctions and resolution No 66/2013 with regard to the procedure for the imposition of financial penalties and the identification competent authority, article. 47, paragraph 3, of Legislative Decree 33/2013 only establishes that the sanctions "are imposed by the competent administrative authority as required by law November 24, 1981, no. 689». The norm, with merely a generic reference to l. 689/1981, it's immediately appeared not perspicuous and lacking in terms of correct formulation, given the principle of strict legality stating the disciplinary system. That provision, therefore, gave rise to many uncertainties of interpretation. Aware of the difficulties and the need for legislative action hermeneutics clarifier (1) and even in the presence of alternative hypotheses, the ANAC with resolution # 66/2013 has made an attempt to read the legislation, focusing on processing by each administering a regulation in which to locate, based on the principles contained in articles 17 and 18 of law no 689/1981 competent persons to the investigation of sanctioning and competent individuals to the imposition of sanctions. According to the resolution # 66/2013, taking into account the provisions of the mentioned articles 17 and 18, each administration shall provide, under conditions of autonomy, to govern with its rules on disciplinary proceedings, sharing between its offices the competences, in accordance with certain basic principles set by the legislator of 1981. Among the most important, those on the criteria for the application of sanctions (art. 11); the discussion with the person concerned (article 14); the functional separation between the Office performing the investigation and that to which competes the decision on sanction (articles 17-18). Each regulation must identify the person responsible for bringing the procedure for application of the penalty and the person imposing the sanction, as a general rule, and consistent with the autonomy awarded to local authorities, identified among executives or officials of the Office of discipline. Pending the adoption of the regulation, in the exercise of their autonomy, institutions are required to designate a person responsible for the investigation and one responsible for the imposition of sanctions. If the institutions fail in this regard, these functions are assigned, respectively, to the person in charge of the prevention of corruption and the head of discipline. The latter will act on the basis of the principles outlined above and reflected in law no 689/1981. The procedure for the imposition of the sanction is booted after the reporting of non-publication by the OIV or ANAC and/or responsible for transparency, the subject responsible for bringing disciplinary proceedings, as identified by the rules adopted by each administration. In the proceedings to impose penalties for non-compliance with the obligations laid down in art. 14 regarding the policy organs of the ministries and of the Presidency of the Council of Ministers, in resolution No 66/2013 he deemed it necessary to refer to the decrees of the President of the Council of Ministers set out in art. 49, paragraph 2, of Legislative Decree 33/2013 the definition of applicable rules. He considered that a solution like this, on the one hand, can promote the uniformity of the disciplining of members of the national Government and the simplicity of its decision-making; on the other hand, finds its legal basis in the same art. 95 of the Constitution and in the attribution that it does to the President of the Council has the power to keep the policy and administrative units of the Government. Pending the adoption of the aforementioned decrees of the President of the Council of Ministers responsible for transparency shall oversee the fulfillment of the obligations under art. 14 and report cases of non-payment or delayed failure to ANAC. 4. The recent legislative news during the 2014 intervened some significant changes in the primary law on anticorruption and transparency, understood as total accessibility of information, made by Decree-Law No 90/2014 passed into law August 11, 2014, # 114. The legislature strengthened anti-corruption role and powers of national authorities, by providing, first, that the concentration of supervisory skills, both that of ANAC regulation, with regard to the prevention of corruption and transparency previously attributed to the Department of civil service by law no 190/2012 and by Legislative Decree 33/2013 (art. 15 Decree-Law n. 90/2014). The President of ANAC were placed under high surveillance tasks and guarantee the fairness and transparency of procedures related to EXPO 2015 and proposed powers to prefects to adopt extraordinary measures of management, support and monitoring of enterprises under the prevention of corruption (articles 30 and 32, Decree-Law No. 90/2014). The legislation is framed, including in relation to suppression of AVCP and transfer to the ANAC all of its competences, in choosing to locate a strong garrison at central level for the prevention of corruption, as also evidenced in the Act of organizing the ANAC of October 29, 2014 adopted in implementation of resolution No 143 of September 30, 2014. The institutional mission of the authority is, among other things, identified "in the prevention of corruption within the Government, in society participate and also check through the implementation of transparency in all aspects of management». As regards transparency in Decree Law No 90/2014 ANAC's powers have been increased, also in view of enhancing the transparency as a tool for the prevention of corruption in line with the guidelines of the major international organizations. (2) in fact, in addition to the powers of supervision and control over the exact fulfilment of obligations, under penalty of removal and order measures already specifically provided for in art. 1, paragraph 2 and 3, of the law # 190/2012 and in art. 45 of the Legislative Decree 33/2013, the ANAC can directly impose penalties in case of non-adoption of three-year programmes for transparency and integrity, as well as the three-year plans to prevent corruption and codes of conduct (article. 19, paragraph 5, Decree-Law n. 90/2014). With specific reference to sanctions under art 47 of Legislative Decree 33/2013, is attributed to the President of ANAC administrative authority the power to report "under art. 47, paragraph 3 of the Legislative Decree n. 33/2013 violations relating to disclosure of information and data and publication requirements laid down in art. 47, for the purpose of exercising the power of sanction referred to in that article ' (article 19, paragraph 7, Decree Law n. 90/2014). In addition to the renewed institutional framework on the prevention of corruption and transparency, the Decree-Law n. 90/2014 has introduced significant changes in relation to the subjective scope of application of the guidelines of transparency laid down by Legislative Decree 33/2013. The art. 24-bis of Decree-Law, in fact, broadens considerably the number of subjects required to comply with the rules on transparency. Independent administrative authorities have been included, all local authorities also cheap as well as the companies and private bodies in public oversight (art. 11 Decree 33/2013 as amended by art. 24-bis of Decree-Law No 90/2014). The reasons for a new resolution the scope of recent legislation shows synthetically is believed to engrave on the correct interpretation of the system of penalties provided for by art. 47, paragraph 3, of Legislative Decree 33/2013 and it's underlying motivations that urge the authority to adopt a resolution, some of which differs from that of 2013. The interpretation which provides suffers of course limits, as already outlined above, result from unclear wording of art. 47, paragraph 3. For this reason the ANAC reiterates the need for urgent and appropriate legislation that defines with precision the disciplinary system and the responsible parties. However, pending, it is considered advisable to change the old orientation contained in resolution No. 66/2013 to ensure greater consistency in the application of sanctions to the principles of the sort as they appear from recent regulatory changes. The entire regulatory framework emerging from the law. 190/2012, by Legislative Decree 33/2013 and by Decree-Law No 90/2014, in fact, it is an expression of a clear legislative choice to believe transparency, understood as total accessibility of information to be published on websites, closely linked to the prevention of corruption and State jurisdiction, which supervises the national anti-corruption authorities. (3) The State competence can be seen, first, by art. 1, paragraph 15, of law no 190/2012 that ' for the purposes of this Act "the transparency of administrative activities is essential social and civil rights performance under art. 117, paragraph 2, lett. m), of the Constitution. The legislature has confirmed the qualification of transparency as essential benefits in other two provisions: art. 1, paragraph 36, of the same law # 190/2012 and in art. 1, paragraph 3, of Legislative Decree 33/2013 stating that the contents of the Decree Deputy integrate finding "essential level of benefits provided by Government for the purposes of transparency, prevention, fight against corruption and mismanagement, according to art. 117, paragraph 2, lett. m) of the Constitution. " Secondly, article. 1, paragraph 3, provides also that the same discipline constitutes State information coordination function, statistics and computer science State administration, regional and local data under art. 117, paragraph 2, lett. r), of the Constitution. As regards transparency as essential performance, it should be noted that already in art. 11 of the d.gs. 150/2009, repealed then by Legislative Decree 33/2013, was contained a similar prediction. However, unlike the Legislative Decree 150/2009, law no 190/2012, with more in depth proxy policies and Legislative Decree 33/2013 exceed the provisions of art. 11 cited clarifying directly the implications of the discipline of transparency and specifying the obligations, which constitute the minimum content, which must be observed by all public administrations and other subjects required for their implementation. Because the transparency under law No. 190/2012 and regulatory content of Decree 33/2013 are essential performance, it must be guaranteed throughout the national territory, without limitations or conditions on the part of regional legislation (4). For this, however, it must be held that the Decree-Law No 90/2014 intended to strengthen the supervisory system on transparency incardinated in the legislature has conferred ANAC, its powers without making distinctions with respect to recipients of the control whether central Governments and territorial level or private-law entities. By Decree-Law No. 90/2014 is strengthened, ultimately, the discipline of transparency in accordance with law 190/2012 and Legislative Decree 33/2013 as basic standard of performance, subtracted to the regional and local autonomous initiative. (5) stays put, of course, legislative and regulatory powers of the regions and local authorities, within their respective powers, that may be exercised to ensure higher protection levels further. The possibility to establish higher levels of transparency and, moreover, provided for in art. 1, paragraph 9, of the law # 190/2012 that among the contents of the three-year plans to prevent corruption «specific administrations transparency requirements additional to those provided for by law ", where by law cannot but be considered, first, the government pension. Since then, the system of transparency that it follows from law No. 190/2012, by Legislative Decree 33/2013 and by Decree-Law No. 90/2014 the scope of State responsibility, including rules on penalties as outlined in art. 47, paragraph 3, you expect to be taken to other sources of law and interpreted and applied consistently. (6) resolution No. 66/2013 is focused on the plurality of sources of discipline penalty proceedings, through the reference to regulations to be adopted by each subject included in the subjective scope of application of Legislative Decree n. 33/2013. Resolution involves a heterogeneous implementation of the sanctions regime in the territory because of choices made by each individual institution or administration, with possible consequences of non-effectiveness of the application of sanctions, that of infringement of the principle of equality with respect to the protection of the essential level of performance. Taking into account the recent changes in the law, in the opinion of the authority, for the interpretation of the rules on penalties provided for by art. 47, paragraph 3, it is, however, necessary to move from recognition of State responsibility with regard to transparency as essential performance and an integrated reading of art. 19, paragraph 7 of the Decree-Law n. 90/2014, and art. 17, paragraph 1, of the 689/1981. Given that transparency is a matter of State competence, and in the light of the provisions of art. 19, paragraph 7, of Decree-Law No 90/2014, it must be held that it is only to the authority, in the exercise of the functions of control and supervision on transparency to it attributed the power to initiate proceedings to impose penalties under the Act 689/1981, within which it can activate the signaling of the President of ANAC referred to in that article. 19, paragraph 7. As already indicated above, the latter provision gives the President of ANAC empowered to report violations of art. 47, paragraph 1 and 2 of the Legislative Decree 33/2013, "a competent administrative authorities application of the sanctions under the law # 689/1981". The art. 19 quoted introduces a dialectic between the President of ANAC and another administrative authority not directly identified in art. 47, paragraph 3, of Legislative Decree 33/2013. On the basis of a systematic reading of the rules on transparency and the law 689/1981-and always bearing in mind that this is State jurisdiction-this administrative authority can only be identified in legislation, the prefect of the place in which the violations referred to in art. 47, paragraph 1 and 2, of Legislative Decree 33/2013. In fact, for matters falling under State jurisdiction, article. 17 of law No. 689/1981 provides that for the imposition of the definitive sanction in case of non-payment to a lesser extent, the prefect in the absence of other offices on the territory and therefore closing the disciplinary system. This interpretation is also borne out by the consideration that the prefects held generally on the sponsorship and promotion functions territory civil and social rights of citizens, whose full implementation and transparency (articles 1 and 2, Legislative Decree 33/2013). It follows that there is a connection between the ANAC, sorting attribute the supervisory functions on transparency, and the prefects. It is aware that in the Decree of the President of the Republic July 29, 1982, # 571, adopted in implementation of art. 17, paragraph 7, of law No. 689/1981, and indicating the competent offices to receive the report, there are correspondences between ANAC and the prefects. But this is partly explained by the lack of recent updates to the Decree of the President of the Republic mentioned. It is, instead, the fact that in art. 32 of Decree Law No 90/2014 the legislature has not provided a model of relationship between President of ANAC and prefects to broader measures sanzionatone for the extraordinary administration, for the support and monitoring of enterprises under the prevention of corruption. For compliance with the principle of legality that footprint, disciplinary matters generally and also for the purpose of a systematic interpretation, it is noted that contributes to hermeneutic orientation also welcomed the specific provision of article. 1, paragraph 735, December 27, 2006, law No. 296, where gives the Mayor the power to impose a financial penalty in respect of entities in charge of failure to publish data relating to the duties of Directors of listed companies of local authorities conferred by public shareholders and their remuneration, as well as against the administrator who does not communicate to public shareholders Office and the relevant remuneration. The offence punishable under this rule is similar to the one defined in art. 47, paragraph 2, of Legislative Decree 33/2013. Finally, it must be held at least partly overtaken by implied repeal art. 2, paragraph 1, lett. f) of Decree-Law No 174/2012, enacted December 7, 2012, n. 213. This provision provides that, for the purposes of coordination of public finances and for the containment of public expenditure, as from 2013 a share equal to 80 percent of some revenue transfers to the regions is dispensed on condition of adoption by regions of a number of measures. Among these included the adoption of legislation on method of publicity and transparency of the balance sheet of elective public office holders and Government, with its system of sanctions. As seen, the commercial balance sheet data of holders of political offices and policy is governed by articles 14 and 47, paragraph 1, of Legislative Decree 33/2013. Insofar as the publication requirements set out in art. 2, co. 1, lett. f) of Decree-Law No 174/2012 coincide with those indicated by articles 14 and 47, paragraph 1, of Legislative Decree 33/2013, it must be held that, since the discipline contained in Legislative Decree 33/2013 integrates a basic standard of performance and is later than that of the Decree-Law n. 174/2012, 33/2013, discipline Legislative Decree prevail with its sanctions, against any administration, including the regions. Remains, instead save the rules governing other transparency requirements on the balance sheet of elective public office holders and Government contained in the regional laws eventually adopted in implementation of Decree-Law n. 174/2012. You must always case deal of obligations other than those related to the balance sheet already provided for in Legislative Decree No 33/2013. Proceedings in the light of the said regulatory framework, the procedure for the application of sanctions under art. 47, paragraph 3, of Legislative Decree 33/2013, considered the State's competence and in view of art. 19 c. Decree Law No. 90/2104 as well as referral to law no 689/1981, is outlined as follows. The ANAC, within their functions of supervision and control, ex officio or upon reporting, respect of transparency requirements, it is the person responsible for bringing disciplinary proceedings for breaches under art. 47, paragraph 1 and 2, of Legislative Decree 33/2013, providing for the investigation, the disputes and the notifications under articles 13 and 14 of law no 689/1981 for the purposes of payment to a lesser extent (article 16, law no 689/1981). With this in mind, the OIV, namely structures or individuals with similar functions, implementing the power to claim the fulfilment of disclosure obligations provided for by art. 14, paragraph 4, letter. g), legislative decree 150/2009, and also in relation to the reports received by those responsible for transparency, in accordance with art. 43, paragraph 1 and 5 of Legislative Decree 33/2013, communicate to ANAC irregularities encountered in connection with the formalities referred to in art. 47 paragraph 1 and 2. If no payment has been made to a lesser extent, ANAC President of the authority, in accordance with art. 19, paragraph 7, of Decree-Law No 90/2014, gives a special relationship with communication according to art. 17, paragraph 1, of the law 689/1981, the prefect of the place where the institution where violations have been found for the imposition of the penalty (art. 18, law n. 689/1981). The prefect informs the President of ANAC the outcome of disciplinary proceedings and the Administration, the institution or agency concerned whether disciplinary measures adopted with a view to publication on the website pursuant to art. 47, paragraph 1, of Legislative Decree 33/2013 in the section of the policy organs. As provided for by art. 49, sanctions in topic applies "starting from the date of adoption of the first update of the three-year program of transparency and no later than 180 days after the date of entry into force of Legislative Decree 33/2013. With effect from such date, the failure to publish and/or failure to communicate that configure the failure are prerequisite for the initiation of the procedure of sanctions. With reference to the disciplinary proceedings and the identification of the competent authority to the imposition of penalties for non-compliance with the obligations laid down in art. 47, paragraph 1, with respect to the bodies that make up the Government believes, because of the special constitutional position of the Government, to have to defer to the provisions of art. 49, paragraph 2, of Legislative Decree 33/2013 that ' with one or more decrees of the President of the Council of Ministers shall determine the modalities for implementing the provisions of this Decree to the Presidency of the Council of Ministers, taking into account the peculiarities of their order within the meaning of articles 92 and 95 of the Constitution», as already foreseen in resolution # 66/2013. However, also in this respect, it is considered appropriate to an intervention of the legislator which clarifies the type of discipline applicable to the political leadership of the ministries. Transient discipline Considered that this resolution establishes a different regulation of the procedure of sanctions already foreseen in resolution # 66/2013, the Authority considers it necessary to indicate a transitory discipline that takes account of the general principle of tempus regit actum. It follows, then, that the sanctioning procedures for which, at the date of publication in the Official Gazette of this resolution, has been already concluded the investigation by the competent Office and have already been sent to the Office which is in charge of the acts the imposition of the penalty, the provisions laid down by the regulations of each administration or institution adopted pursuant to resolution ANAC # 66/2013 or failing that, the provisions in addition from the same resolution. The administrations shall communicate such sanctioning procedure outcomes. ANAC If, instead, the date of publication in the official journal of the present resolution, the procedure is started but the investigation phase has not yet been concluded with the transmission of documents to the Office which is in charge of the imposition of the sanction, the same acts shall be transferred by the person in charge of information in the administration or institution to ANAC that will proceed to investigations and to claims as provided in paragraph relative to the proceedings of this resolution. In a subsequent press release the ANAC indicates the Office to which transmit the acts of procedural investigations in progress and its modalities.
Rome, January 21, 2015 President: Canton Deposited at the Secretariat of the Council on January 29, 2015. Secretary: Esposito (1) report on the first year of implementation of law No. 190/2012, pp. 10 and 49, released on I'm www.anticorruzione.it (2) the close relationship between the discipline of transparency and the fight against corruption is found for example in the UN Convention against corruption of the October 31, 2003, ratified by Italy with law August 3, 2009, n. 116, and in numerous international documents adopted in both OECD is Greek (Group of States against corruption "within the Council of Europe). (3) see art. 1, paragraph 2, lett. f), law no 190/2012, art.
45, Legislative Decree 33/2013 and art. 19 of Decree Law No 90/2014. (4) on the issue of the essential level of performance relating to civil and social rights, the Constitutional Court has had occasion to reiterate in various circumstances that under State jurisdiction on the determination of the essential level it can also impact on parental and local laws and regulations. The Court has in fact pointed out that this is not a "matter" in the strict sense, but rather the responsibility of the legislature to invest all substances, for which the legislator must be able to lay the necessary rules to ensure, throughout the national territory, the enjoyment of guaranteed benefits, as essential content of such rights, "without which regional legislation may restrict or insist." See, C. Constitution, June 26, 2002, # 282; C. cost., December 4, 2009, # 322. (5) Reference in footnote # 4. (6) ' in the case of issues referred to the competence of the State and not already transferred or delegated to regions (or autonomous provinces) must be regarded as attributable to also state the application of administrative penalties ' Constitutional Court No. 60/1993. The Constitutional Court has repeatedly stated, among other things, that the regulation of sanctions rests with the entity in whose jurisdiction covers the discipline of matter! that non-compliance is the act punishable Constitutional Court No. 28/1996, n, 341/2003, # 12/2004, # 384/2005.