That the conflict of interest it is not only a suggestive theme of an academic or bookish nature, the concrete cases occasionally brought to the headlines testify to it. Last, in chronological order, that relating to the President of the Port System Authority of the Eastern Adriatic Sea of Trieste, declared forfeited and removed from his functions following the intervention of the National Anti-Corruption Authority for alleged incompatibility with the office of President of the subsidiary Trieste Passenger Terminal. The affair - which aroused considerable uproar, not only at the local level, but also not secondary concerns for the impact of an economic-social nature, since all the deliberated acts and contracts stipulated by the President of the Authority had to be considered null and void - was then concluded before the Regional Administrative Court of Lazio with a ruling that annulled the provision of the Anac and reinstated the President of the Port Authority in his functions.
It is therefore legitimate to wonder, also in the light of these episodes, whether the conflict of interest, understood as a legal condition that occurs when a high decision-making responsibility is entrusted to a subject who has personal and professional interests that conflict with the impartiality required by such responsibility, has in Italy adequate regulatory regulation and if they are expected suitable tools to prevent and contrast it.
The answer to the double question is currently negative. In fact, the only source of law governing the conflict of interest in our legal system is Law 215 of 2004 "Regulations on the resolution of conflicts of interest", the so-called Frattini law, which only predicts hypotheses of specific incompatibility for the holders of some public offices.
The economic reality of our society has shown throughout these years the inadequacy of this rule with respect to concrete cases, stimulating, on several occasions, a reconsideration of the subject in a broader perspective consistent with the economic and social development of the country.
In this context, the opinions on the subject of conflict of interest that emerged in a recent debate, organized at the Tor Vergata University of Rome on the occasion of the presentation of the book “Conflict of interest in companies” by Emiliano DiCarlo, professor of Business Economics at that University. A volume that certainly goes beyond the simple academic manuals for the completeness and depth with which the various legal, economic, psychological, behavioural, moral and ethical aspects aroused by this theme are touched upon. Therefore, it is no coincidence that for Di Carlo the central question to ask when addressing this issue is: conflict of interest with whom?
A question which, in order to be satisfied, sheds light on the new dynamics which mark the difference between the current conflict of interest and the dichotomy between management and shareholders of a company, outlined by Berle and Means in the XNUMXs, projecting the debate in an area in which business continuity and business sustainability are increasingly important as benchmarks.
For Augustus Aponte, who was Auditor General of the Bank of Italy, the conflict of interest must be reported in the dimension of the role and duties of the Head of the Prevention of Corruption in a Public Institution. In an analysis that identifies the trade-off between legal instruments and ethical instruments for the management of the phenomenon, the reference to the figure of the paterfamilias bonus, as a possible point of convergence of the two aspects.
Another element which emerges from Aponte's analysis and which makes it particularly complex is the elusive nature of the phenomenon of the conflict of interest, both towards oneself, as one does not perceive it, or does not admit it; both towards others, understood as a community, lacking a specific sensitivity and registering a worrying dispersion of values; and, finally, with respect to the legal system.
A line of thought implicitly also followed by Fabio DiVizio, Deputy Prosecutor of Florence, when he states that “the conflict of interest it is not counterable, not at least promptly and effectively when it happens; but only afterwards, when the signs of compromised behavioral integrity emerge”. In this context "criminal protection reveals chronic defects of ineffectiveness, limiting itself to interventions carried out in an episodic, occasional and fragmentary way".
Standing the paucity of tools provided by company law (art.2631 cc) and banking criminal law (art.136 of the TUB) and while acknowledging some improvements made, such as in the area of administrative liability of entities or reforms on private corruption, the safeguards provided for in our legal system, with a view to contrasting the conflict of interest, are judged by Di Vizio "substantially complementary and functionally subsidiary". Therefore, a change of pace is needed, also in the light of the social cost of the corruption of private powers, the costs of bank instability and the weight on general taxation, in order to achieve more effective regulation. In a scenario, therefore, characterized by a new corporate culture, re-evaluated in its social function and supported by a new statute of internal and administrative controls.
The reference previously made to corruption opens the way to why the issue of conflict of interest is intercepted and widely treated in the context of that academic experience, now in its fifth edition, which is the Tor Vergata Anti-Corruption Masters. He underlines it Daniela Condò, who is its Program Assistant, welcoming a vision of the conflict of interest "certainly broader and more multidisciplinary in the rethinking of modern capitalism". Agreeing with the thought of the British development economist, Paul Collier, for Condò "only ethics can save capitalism, of course an ethics without camouflage and hypocrisy combined with a renewed public morality". The declared objective must, therefore, be that of "building a new finance, establishing a new social pact for the common good and consequently privileging the aspects of impact on society and the environment".
The Gaetano Scazzeri, head of the Anti-Corruption Unit of the Guardia di Finanza, reaffirms the closeness of the two phenomena, conflict of interest and corruption: “They are certainly different manifestations of the same phenomenon; with a suggestive comparison, linked to the events of Covid '19, corruption is the disease, the conflict of interest its virus". A vision that leads Scazzeri to frame the conflict of interests with its pernicious effects on the equilibrium of the labor market, on the overall effectiveness and efficiency of the economic system, above all from the point of view of the impartiality of the administrative action. And it is precisely in this specific context that we must remember what has been implemented by this specialized body of police with the tools available to prevent in advance that the conflict of interest leads to behaviors of maladministration or in criminally relevant actions. A complex and varied activity, carried out on its own initiative or even at the request of the Anac, the Inspectorate of Public Function and the Court of Auditors for the related aspects of tax damage.
As for the economic aspects, albeit taken from a particular perspective, Maurice Bufi, outgoing President of Anasf, the National Association of Financial Promoters, believes that the issue of conflict of interest is part of the provision of the financial advisory service provided on an independent and non-independent basis. “The customer pays a price for the provision of a personalized service, an assessment of the suitability of the financial instruments placed, access to a wide range of products including those of third parties, after-sales assistance, the Continuous monitoring of your portfolio. Hence the belief supported by Bufi that “the presence of these requisites, attributable to the principles of service quality Mifid Compliance, makes it practicable to properly manage the conflict of interest in the best interests of the client”.
Ultimately, from the rapid review of these qualified opinions emerges the firm point of the the urgent need for Italy for a more adequate regulatory framework for the conflict of interest and which refers directly, as confirmed by Di Carlo, to a concept of primary interest of the public or private company. An interest, understood as superior to that of all the others, including the shareholders, with a definition that is instrumental in spreading a new company ethic. Finally, an interest which, by placing and isolating the conflict of interest in a clearly antagonistic position, contributes effectively to the affirmation of the common good, an indispensable driving force for the economic and social revival of our country.
