Giuseppe Busia, when dealing with public contracts, does not speak, he dictates. He writes with a scalpel, engraves the law with a steady hand, expresses opinions only if requested. He knows the boundaries of powers, circumscribes them and loves to enforce them. Sardinian from Sassari, genetically rigorous, not inclined towards the Roman establishment, even if he is respected like few others in the palaces of power. When in the first year of the pandemic, it was 2020, the Constitutional Affairs Commission of the Chamber voted for his appointment as President of the National Anti-Corruption Authority, it went far beyond the plebiscite: 46 votes in favor and only one against. Usually, with the scientific rigor that distinguishes him, despite the unanimity of the nomination, he doesn't say anything.
In the face, without fear
And it does so without looking at anyone, powerful or aspiring. The latest important opinion, the one on the Procurement Code, made ministers jump and not only, all intent on overturning the fundamental rules of transparency in public works. On that occasion they did not ask him explicitly, but someone hoped for his resignation. According to some pro-government officials, this is too delicate a role to be left in the hands of a jurist free from conditioning, one who simply replied in the face of controversy: my mandate expires in 2026 and until then I will carry out my role as President of the Anti-Corruption Authority . He stood by his word.
The “Sardinia Case”
The last "surgical" intervention is dedicated to his land, Sardinia. The "clinical" case is as delicate as few others. At stake is an unprecedented power operation with an explicit objective: to put the Sardinian airports in the hands of a group of would-be monopolists, wresting the entrance gates to the island from public governance. For the president of Anti-corruption there is no risk of conflict of interest. Opinion number 24 of 2023, the one concerning Sardinia, falls within the scope of the opinions requested, circumscribed within the institutional boundaries of the advisory function of the National Authority. In practice, if someone asks him what the "legal" position is on a specific issue, he assumes the risk of an opinion without a net, that is, one that cannot be influenced. The gamble was unsuccessful, for example in the Chamber of Commerce of Cagliari and Oristano. The Anti-Corruption response to a precise question arrived in the chambers of commerce in Largo Carlo Felice at the beginning of June, but Cagliari's top management was careful not to divulge its content. At that point it was the Authority's official website that published it in full, with many omissions referring to the subject who had "risk" asking the question on the hottest topic: the integration of Sardinian airports, or rather a sort of "expropriation" private of the island's airports.
Opinion-address
An opinion that the Authority, precisely because of the value of the "res judicata", deemed it necessary to transform into a real "guideline" on the subject of airport "privatisation", to be clear of those planned at home and among a few friends. To understand that the opinion of the Anti-corruption is directly addressed to the "Case of Sardinia" and to the Cagliari Chamber of Commerce does not require a soothsayer. If the institution headed by Giuseppe Busia has locked up all the names and surnames of the applicant anonymously, it could not help but indicate some elements that are more than a fingerprint.
Omitted & fingerprints
The Authority writes: "The proposed question pertains to an industrial integration project between the management companies of the various airports of the ... .. Omitted ... .., as described in the request for an opinion and to the possibility, for the requesting administration ( owner of 94.25% of the share capital of ….. Omissis ….., to subscribe in this context, a capital increase of ….. Omissis ….. (…. Omissis …..), by contribution of the shares held by the Chamber of Commerce in the company ... Omitted" . There are many " omitted " reported in the official text disclosed by the Anti-corruption, but three elements above all are an evident facial recognition of the applicant: 94% of the shares, exactly how many held by the Chamber of Commerce of Cagliari, the explicit reference addressed to a "chamber body" and, finally, the osmosis and share exchange plan planned to "donate" to the private individuals of F2i also the Cagliari airport, after those of Alghero and Olbia.
Verdict: It can't be done
The request for an opinion from the Authority, of which no one knew anything, is circumscribed in the answer: «The requesting administration (the Chamber of Commerce ed) intends to acquire the Authority's notice regarding the conformity of the described transaction in terms of sale/purchase of corporate shareholdings by public administrations and the establishment of mixed companies, as well as with regard to the uniqueness and non-fungibility of the economic operator with whom it intends to conclude the aforementioned transaction, which would justify the derogation from the principle of public evidence, envisaged in the regulations cited".
Goal: privatize
The objective is clear: to negotiate, sell or sell off, exchange or exchange, depending on who judges, the shares of Cagliari airport. An operation that the Chamber of Commerce, as is well known, would like to do without any public evidence, dealing exclusively with F2i, the financial fund that would end up getting its hands on all three main gateways to the island. Busia, Giuseppe, the President of Anti-corruption, has everything and more in his curriculum, but, above all, he was, from 2008 to 2012, Secretary General of the Supervisory Authority on public contracts, services and supplies. For him, the question of "privatization" of airports has always been more than daily bread.
Without appeal
And, in fact, it doesn't go around it. The first passage on the point of law leaves no margins: «It should be noted in this regard, as far as the competence of this Authority and as a general indication, that pursuant to art. 5, paragraph 9, of Legislative Decree 50/2016 , "In cases where the regulations in force allow the establishment of mixed companies for the construction and management of a public work or for the organization and management of a general interest, the choice of the private shareholder takes place with procedures of public evidence" ». In short, in the unfortunate hypothesis that Sardinian airports should become very private money machines rather than services, the private shareholder must be "mandatory" chosen through a "tender" or in any case with public evidence.
“Judgment” Busia
The opinion becomes stringent when it circumscribes the rules: «The provision of art. 5, paragraph 9, of the aforementioned Code, in continuity with the previous art. 1, paragraph 2, of Legislative Decree 163/2006, therefore establishes the obligation to launch a tender procedure in the event that a publicly-owned company opens its capital to the contribution of a private shareholder through an operation sale of shares or capital increase. This obligation is all the more stringent in the event that the subjective structure of the management of a public service is modified as a result of this operation". Every glimmer is precluded: if it is a public service, the obligation of public evidence is even more binding. The conclusions are a sentence without appeal: "according to the Authority, in the case of a company established for the management of a public service, it must in any case be excluded that a private individual, through the subsequent purchase of shares, can obtain the assignment of the service itself , without the prior experimentation of a competitive confrontation, in compliance with the principles of Community law referred to above". Signed, Giuseppe Busia, the Sardinian jurist at the head of Anti-corruption.
