LOBBYING IN ITALY

Authors: Alberto Pera and Francesco Salerno (Gianno, Origoni, Grippo, Capelli & Partners)

Constitution:  The basic source of law in Italy is the 1947 Constitution. The section on rights and duties of citizens contains provisions equivalent to a bill of rights in common law jurisdictions, setting out basic principles on citizens’ rights to freely assemble, freedom of association and free speech. The right to petition Parliament is enshrined in the section on political rights and duties (article 50), according to which any private citizen can petition Parliament to ask for legislation or for common necessities; this right of popular legislative proposal is subject to conditions as set out in enacting laws. By contrast, the Constitution does not provide for a right to petition the government.

Legislative system: Italy is a parliamentary republic whose legislative branch is composed of two chambers, the Chamber of Deputies and the Senate of the Republic. Both branches are elected by direct and universal suffrage every five years. A legislative proposal needs the approval of both chambers to become law. While the 630 seats in the Chamber of Deputies are distributed in proportion to the population of electoral districts, the 315 Senate seats are allocated based on the population of the country’s 20 regions. Importantly, the Senate also comprises a few unelected seats (senators for life) for former Presidents and outstanding individuals. Legislative proposals can be introduced by a Member of Parliament (MP), by the government, by citizens (50,000 voters’ signatures are required) or by other entities as established by constitutional laws. Bills may also be presented by regional councils (article 121 of the Constitution), or by municipalities on some administrative aspects. The executive branch may also have delegated authority to approve legislation (legislative decrees) upon explicit and formal delegation by Parliament through a specific enabling act. Delegation of legislative power to the government is only possible in some fields not covered by formal ‘reserve of law’ for Parliament and within boundaries and deadlines identified by the enabling act. Delegation is often used to meet the needs of technical expertise and this procedure is well suited for particularly extensive pieces of legislation. A second type of delegated legislation is represented by legislative acts of a temporary nature that can only be enacted by the government in cases of urgency and necessity as laid down by the Constitution (articles 71-72). These decrees must be converted into law by Parliament within 60 days of publication in the Official Journal. Implementing decrees are another form of binding provisions adopted by the executive branch, within the limits set in legislation. In addition, independent regulators can issue regulations of a general nature and engage in stakeholder consultation, however, in practice, only regulated entities routinely participate in this rule-making process.

National subdivisions: The Constitution provides that the regions have legislative powers in matters of concurring competence, including:

• international and EU relations of the regions;
• foreign trade;
• job protection;
• education;
• research and innovation;
• health protection;
• nutrition and sports;
• land-use planning;
• civil ports and airports;
• large transport and navigation networks;
• energy transport and distribution; and
• savings banks, rural banks and regional credit institutions (article 117 of the Constitution).

The Constitution also provides that the coordination of public finance and of the taxation system is a shared competence between the state and the regions. Finally, for all subject matters not expressly covered by state legislation, legislative powers are vested in the regions. As far as implementing rules are concerned, regions have the power to adopt such provisions for matters for which they enjoy shared legislative competence, within the boundaries of the fundamental principles laid down in state legislation.

As regards matters of exclusive competence at the state level, the Constitution lists the following:

• foreign policy and international relations; relations with the European Union; and right of asylum and legal status of nationals of non-member states of the European Union;
• immigration;
• relations between the state and religious groups;
• currency;
• competition;
• taxation; and
• budget (article 170).

Provinces, metropolitan cities and municipalities can only adopt measures whose scope is limited to their territorial borders and that are bound in their content by national and regional legislation. Consequently, these rules usually have very limited significance for lobbying activities.

Consultation process: There are no binding provisions that impose a duty on Parliament to hold a formal consultation process prior to enacting legislation. In practice, though, the analysis of proposed legislation is conducted through small committees of MPs. These committees are open to contact with interest groups. In particular, they often organise informal hearings. In addition, individual MPs within a committee can meet with interest representatives, for matters related to the work of the committee. The larger committees similarly arrange hearings with stakeholders and civil society interests to gather information on proposed legislative acts. As regards the government, in 2011 Italy signed up to the Open Government Partnership (OGP), a multilateral initiative that aims to promote transparency, accountability and participation in public administration practices. Within the third national OGP Action Plan, Italy committed to adopting a series of guidelines on public consultations that were drafted with an inclusive process (in consultation with civil society) and adopted in March 2017. These guidelines, prepared by the Department of Public Administration, contain general principles aimed at helping the administration inform its consultation procedures and apply open government best practices. The government also launched an online platform (www.partecipa.gov.it), which collects both open and closed public consultations on national policies. Moreover, some government departments such as the Ministry of Economy and Finance host dedicated sections on their websites. Finally, there are also regional initiatives like Lazio’s 2015 consultation on its digital agenda.

Judiciary: The judiciary branch is independent from the executive branch and coequal in Italy. Judges are public officials and are selected through a national examination comprising written and oral tests, after which they are appointed for life. The exception is the fixed-term appointment (nine years) of Constitutional Court justices, who are nominated by different bodies pursuant to article 135 of the Constitution: one-third is appointed by Parliament; one-third is chosen by the President; and one-third is elected by selected higher courts. This mixed appointment procedure makes the composition of Italy’s highest court impossible to control politically for any single body, and thus serves as the strongest guarantee for its independence.

General: Italy does not have any lobbying legislation at the national level. However, numerous proposals have been presented over the years by lawmakers. In 2007, the government sponsored one legislative proposal under Prime Minister Romano Prodi. In 2016, the Chamber of Deputies adopted an addendum to its Rules of Procedure, by virtue of which it introduced a Regulation on interest representation (the Regulation). The Regulation disciplines lobbying conducted by interest representatives within the premises of this chamber only. The Regulation expired in late 2017, when the term of the then sitting Parliament expired. Following elections in March 2018, a new parliamentary term started. Even though the Regulation has not been readopted, the provisions therein are being complied with, in particular as regards registration and disclosure. At the subnational level, the following six regions have adopted legislation on lobbying: Tuscany (2002); Molise (2004); Abruzzo (2010); Calabria (2016); Lombardia (2016); and Puglia (2017). Legislative proposals for Lazio and Sicily are under discussion. These regional laws have a broadly similar structure, with varying degrees of comprehensiveness and slightly different scope. All but one comprise a definition of lobbying activities, establish a public register of interest representatives maintained by regional authorities, and set out requirements for registration and sanctions for violations. However, in practice, only Tuscany has implemented this legislation and created the above-mentioned public register, while none of the others have yet taken any significant steps towards implementation.

Definition: The Regulation defines interest representation as ‘every professional activity conducted on the premises of the Chamber of Deputies through proposals, requests, suggestions, studies, research, analysis or any other initiative or communication in oral and written form, aiming at pursuing a person’s own legitimate interests or of third persons in relation to members of the Chamber of Deputies’ (article 2). This definition explicitly excludes ‘interventions made and material provided during hearings of parliamentary committees’.

As regards the regional laws, interest representation is generally defined as any activity aimed at pursuing legitimate interests (of an economic or non-economic nature) with decision makers in order to influence ongoing policymaking or to advocate for new policies.

Registration and other disclosure: As regards the Chamber of Deputies, registration is mandatory in order to engage in lobbying activities on the Chamber’s premises. Lobbyists must supply their personal data as well as their organisation’s data, a description of the nature of the lobbying activity they foresee to engage in and details of the persons they intend to contact. Registered individuals obtain access to the Chamber through a special ‘lobbyist badge’. In practice, however, it is still possible to have access to lawmakers in the Chamber of Deputies through a visitor’s badge provided by MPs themselves. Some government departments maintain meeting registers. In 2016, the Department of Economic Development had adopted an internal plan to regulate interest representation in the framework of the third OGP Action Plan. The department policy included a register of lobbyists, which explicitly mentions lobbyists’ rights, a code of conduct and the possibility for citizens to signal incongruences and errors through a dedicated section of the web portal. In September 2018, the policy became law when Minister Di Maio signed a Directive providing for a register of lobbyists (http://registrotrasparenza.mise.gov.it/). As regards the regional level, the applicable legislation foresees registration of lobbyists on a public register, with accompanying rights and duties. In practice, however, the only register that exists to date is the register maintained by the regional council of Tuscany.

Activities subject to disclosure or registration: Under the reporting requirements of the lobbying register of the Chamber of Deputies, registered entities must include information on the contact between registered lobbyists and MPs; further details on the nature of the contact or exceptions are not included. Communications with officials of both the legislative and executive branch are not covered by any rule at the national level, whereas the most recent regional law from Puglia is advanced in this regard as it foresees a public agenda of meetings between registered lobbyists and decision makers, including heads of strategic regional (public) firms and of regional health service bodies.

Entities and persons subject to lobbying rules: The lobbying register of the Chamber of Deputies distinguishes between entities and persons lobbying on behalf of themselves, and those lobbying for third parties (article 3 of the Regulation). In the latter case, the entity or subject intending to register must indicate on whose behalf he or she is exercising the lobbying activity and on what legal grounds, with a specification of the expiration of the mandate if relevant. However, a lobbyist may legitimately be bound by a non-disclosure agreement, in which case he or she will be exempted from disclosing the identity of the client at the stage of registration. There are no specific provisions for non-profit entities in the register, but interest representatives of the ‘most representative economic and social organisations at regional level’ are automatically accredited according to some of the existing regional laws (eg, Lombardy). Neither the Regulation nor any of the regional laws foresee thresholds for lobbyists’ registration, including the amount of time or budget spent, number of contacts or fees earned; similarly, there are no specific provisions for lawyers when representing a client.

Lobbyist details:  The Regulation governing the register of the Chamber of Deputies mandates registration for entities and persons lobbying on their own behalf, and those lobbying on behalf of third parties. Interest representatives must provide the following information prior to signing up:

1. in the case of a natural person, his or her personal data;
2. in the case of a legal person, details of lobbying firms and entities (name and registered office) and personal data of lobbyists employed, including information on their contract;
3. a description of lobbying activities they intend to perform; and
4. an indication of the decision makers they plan to contact within the framework of such activities.

These registration requirements apply to both in-house lobbyists (category (i) above) and interest representatives lobbying on behalf of third parties such as lobbying firms and law firms (category (ii) above). In the case of representatives lobbying on behalf of third parties, registrants must additionally specify the name of their clients and the legal title on which basis the lobbying activity is performed (ie, the lobbying contract), unless bound by a non-disclosure agreement.

The registration can be carried out by a legal person or by a physical person. In the latter case, the individual lobbyist takes responsibility for the declarations submitted; in the former case, the responsibility falls on the authorised representative.

Content of reports: Lobbyists registered in the Chamber’s registry must submit a yearly report providing information on: the nature of the communications held with lawmakers; pursued objectives; the members of the chamber with whom they met; and details on the collaborators and employees performing such activity. If the lobbying activities carried out at the end of the period differ from the planned activities (as stated at the time of registration), these differences must also be described (e.g., by specifying the names of the MPs that were contacted, in addition to those with whom contact was planned at registration). The Office of the President of the Chamber of Deputies can contact registered entities and individuals and ask them to provide further details (e.g., on the amount of budget spent (currently not subject to disclosure rules in the Regulation). Three of the six regional laws (Calabria, Lombardia and Puglia) include a general reporting obligation on lobbying activities conducted by registered entities. The Calabrian law provides more specific obligations on the content of the yearly report (e.g., information on decision makers contacted, staff employed and budget spent).

Financing of the registration regime: The registration system for the Chamber of Deputies is funded from the budget of the presidency of the Chamber. The registration system of Tuscany is also funded through a public budget.

Public access to lobbying registers and report: The registry of the Chamber of Deputies is freely available on the institution’s website and is maintained by the office of the Presidency. Citizens can easily consult the list of registered entities, including full information on interest representatives’ personal data and lobbying activities (www.camera.it/leg18/1306). The register currently includes around 200 interest representatives. The same goes for the Tuscan register of accredited interest groups, which contains 130 entities with contact details and indications of the committees within the regional council (the lawmaking regional body) relevant for their lobbying activities (Tuscany’s register can be found at http://econsiglio.consiglio.regione.toscana.it/webapp/commissioni_150529...).

Code of conduct: The only instance of lobbying legislation with dedicated provisions on a code of conduct is the Puglia law approved in July 2017. Under its terms the regional government is mandated to draft a code of conduct for lobbyists, which should become a mandatory requirement for registration. The Ministry for Economic Development, which has a fairly advanced lobbying regulation system , has its own code of conduct for entities and persons registered in its Transparency Register. The code is informed by the principles of loyalty, transparency and fairness and is accompanied by a similar code of conduct for the department’s own employees. Moreover, there are two professional associations for interest representatives and public affairs professionals that have adopted their own, non-binding code of conducts. The first of such professional associations is the Italian Federation of Public Relations, which broadly covers public relations professionals, while the association Il Chiostro is the specific organisation of Italian lobbyists. The ethics code of the latter includes rules of general behaviour as well as specific provisions on funding of politics, gifts and donations, and incompatibility.

Media: Codes of conduct of print and broadcast journalists prescribe a number of rules that may limit commercial interests’ ability to use the media to influence public policy outcomes. For instance, these codes prescribe compliance with the principle of transparency, whereby there must be a clear distinction between ‘information’ and use of the media for persuasion. Based on this principle, there must be a clear distinction between information and advertising, including not just commercial advertising, but also use of the media with a view to influence the audience on public policy matters.

General: Italy held referendums in 1993 and 1997 on financing of political parties. In 2014 legislation was passed to phase out the state financing of political parties (Decree Law No. 149/2013, as converted into Law No. 13/2014), with changes that happened gradually over the period from 2014 to 2017. This has represented a significant change in a political system that had relied on public financing since the first specific law was enacted in 1974. The reform makes Italy the second EU member state without a system of public party financing in place (the only other exception, Malta, is considering moving to state funding). Phasing out of state financing has gone hand in hand with encouragement of both direct and indirect contributions by citizens and legal persons in favour of political parties, which are the cornerstone of current regulation (articles 10-12, Law No. 13/2014). For direct donations, the cap on voluntary contributions for both natural and legal persons is set at €100,000 annually. For indirect contributions, Law No. 13/2014 maintained the option for natural persons to devolve a compulsory 0.2 per cent of their annual income tax to political parties, after taxpayer contributions had first been introduced as a source of financing for political parties in 1997 (Law No. 2/1997).

Registration of interests: According to Law No. 441/1982, elected MPs and government members must declare their financial interests within three months of their appointment. Attached to the declaration on personal income, lawmakers must disclose details on the financing of their campaign expenditure including information on individual donations received above €5,000 per calendar year. Together with the previously discussed lobbying register and dedicated Regulation, in April 2016 the Chamber of Deputies adopted a code of conduct for its elected members. This code of conduct reinforces the interest registration requirements already mandated by previous legislation and lays down detailed rules on legislators’ declarations, which must include information on positions held, and on any professional or entrepreneurial activity performed.

Contributions to political parties and officials: In order to receive direct contributions and voluntary tax-exempt indirect contributions, political parties must comply with the requirements of transparency and internal democracy as established by legislation, and be listed in a dedicated public register. The annual upper limit for direct contributions is set at €100,000 for both individual citizens and companies or other entities. There is, however, a distinction between the two categories of donors. If the donor is a natural person, he or she can devolve up to €100,000 to a single party, but there is no cap on the total amount given. If, on the other hand, the donor is a legal person, the sum of €100,000 is an overall cap on the entity’s contribution. Donations to parties made by both natural and legal persons benefit from tax relief: taxpayers and legal persons can deduct as a tax credit (respectively for income taxation and corporate taxation) 26 per cent of their annual contributions between €30 and €30,000 (article 11, Law No. 13/2014). Financial bookkeeping is mandatory for political parties and transparency is high, as parties must disclose donors’ names whether they are natural or legal persons if the threshold of €5,000 per calendar year is exceeded (article 5, Law No. 13/2014). An exception to this disclosure requirement is foreseen for donors who have not given their explicit authorisation to treatment of personal data in compliance with data protection regulations.

Sources of funding for political campaigns: After public funding for campaign-related expenditure was phased out between 2014 and 2017, political parties now rely on direct and indirect voluntary financing. First, direct private contributions are capped at €100,000 per year for both natural and legal persons and benefit from partial tax relief . Secondly, parties benefit from the indirect two-per-thousand contribution, which allows a taxpayer to earmark 0.2 per cent of his or her taxable income as a contribution to one eligible political party. Thirdly, parties can resort to fundraising via campaigns coordinated by telecommunications providers (article 13, Law No. 13/2014). Fundraising campaigns conducted by telephone, text message, or other related telecommunications methods are self-regulated by authorised telephone operators, in accordance with the guidelines established by the telecommunications authority. Reporting of direct contributions made by natural and legal persons is mandatory, as recipient parties must record the donation sums received. Once elected, MPs must declare their financial interests and income situation and this information is published on the institution’s website. Elected legislators must, at the same time, communicate the details of every direct contribution received if the total amounts to over €5,000 per year and this information must be published on the party’s and Parliament’s internet portals. Contributors who donate to registered parties through non-cash payments equivalent in value to less than €100,000 per year, who consent to guarantee the traceability of the operations and reveal their identity, are exempt from the requirement (faced by other contributors) to submit a joint declaration with the recipient party to the President of the Chamber of Deputies.

Lobbyist participation in fundraising and electioneering: The 2014 legislation on abolition of public financing for parties and on voluntary and indirect contributions in their favour does not contain any specific requirements on disclosure of lobbyists’ donations, given the absence of any national legislation at the time of its approval. Equally, the Regulation does not include any specific provisions on interest representatives’ donations to political parties and candidates. The general restrictions on physical and legal persons remain applicable.

Independent expenditure and coordination: Political campaigning independent of a candidate or party is not regulated in Italy, as there are no specific rules on individuals or groups not directly related to political parties wishing to operate a parallel media advertising or grass-roots campaign. Independent political campaigning is historically limited in Italy, both for cultural reasons and because the system of public financing for electoral campaigns was only recently abolished.

Gifts, travel and hospitality: According to the Chamber of Deputies’ code of conduct, MPs shall refrain from accepting gifts or similar benefits other than those with an approximate value of less than €250. This provision does not apply to reimbursements of travel, accommodation and subsistence expenses when legislators attend any third-party events pursuant to an invitation and in the performance of their duties. The Office of the President of the Chamber of Deputies should adopt the necessary provisions to ensure transparency of such interests. There are no specific rules if the gift giver is a registered lobbyist or lobbyist’s client. One of the implementing decrees under the Anti-Corruption Law  enacted in 2013, contains a Code of Conduct for Public Officials (Presidential Decree No. 62/2013) with detailed provisions on gifts (article 4). The Code, in compliance with overarching legislation, prohibits officials to ask for, accept or encourage gifts or similar benefits for themselves or others. The only permitted exception is represented by gifts of a modest value (less than €150) given in accordance with rules of courtesy and international habits. The Code foresees the possibility for individual government departments enacting their own codes of conduct to lower this monetary value or even forbid any acceptance altogether. Legislation foresees no specific rule if the giver is a registered lobbyist or commercial enterprise. At the subnational level, none of the six regional laws on lobbying contain specific provisions on gifts, travels and hospitality.

Anti-bribery Laws: As part of the efforts to implement the framework of the United Nations Convention against Corruption, the government adopted a wide-ranging legislative proposal to prevent and fight corruption within the public administration, known as the Severino Law (Law No. 190/2012). The Law established the National Anti-Corruption Authority, which called upon government departments to adopt corruption prevention plans and enabled the government to enact detailed implementing legislation. The Law contains, inter alia, measures to increase transparency of public administration practices, including public procurement procedures, and strict bans on ineligibility and incompatibility of functions. Moreover, the Severino Law introduced a new criminal offence, the ‘traffic of influences’ (article 346-bis of the Criminal Code), to punish both public officials and lobbyists for bribery and illegitimate intermediation for economic gain. Article 14 of the Code of Conduct for Public Officials disciplines government contracts. While acting on behalf of the administration to stipulate and conclude deals, agreements and other transactions with private parties, officials must refrain from acting as intermediaries, unless the administration has decided to do so. Public servants cannot conclude any contracts (for financing or procurement of goods or services) with enterprises with whom they have stipulated contracts or from which they have received benefits in the previous two years. Conversely, if officials conclude personal deals with private parties with whom they had previously agreed on government contracts, they must inform their superiors. Moreover, public servants cannot accept any gifts or other benefits as compensation for advantages that givers may draw from decisions or activities linked or inherent to the public function (article 4).

Revolving door: At the national level, the Regulation establishes a 12-month cooling-off period for past holders of government positions or parliamentary mandate before they can sign up to the register of interest representatives and thus engage in lobbying activities on the institution’s premises. At the subnational level, three of the regional laws foresee cooling-off periods (12 months in the case of Lombardia and two years for Puglia and Calabria) for past holders of regional government positions. The scope of decision makers to whom this provision applies is particularly wide in the case of the Puglia law, which also established this prohibition for journalists, employees of the regional administration and external consultants who hold positions in collaboration with the public administration.

Prohibitions on lobbying: At the national level, the Regulation prohibits registration on the lobbying register to whoever in the previous decade has been convicted by a final judgment of offences against the public administration, offences against public trust or crimes against property. The same prohibition applies for persons who have had a conviction entailing a ban from holding public office. At the regional level, four of the lobbying laws contain similar prohibitions preventing inclusion in the (foreseen) lobbying registers. Abruzzo and Puglia have bans for persons convicted of the same crimes as those listed above, for persons banned from holding public office (even if temporarily) and for whoever has been declared bankrupt, unless rehabilitated. Calabria’s law enlarges the scope of the lobbying ban to whoever benefits from privileged access to institutional bodies and the public administration (for professional or other reasons) and to persons having received interdictory sanctions under anti-mafia regulations. Lombardia’s law, which includes the anti-mafia provision, lists the same criminal offences that constitute a ban on lobbying but only if such offences incur a custodial sentence above 12 months.

Recent cases: Given the lack of binding legislation on lobbying at the national level, with the exception of the Regulation, there is no case law that directly focuses on lobbying and government relations. The most relevant case law is linked to the Severino Law (see question 24). A brief judgment issued in September 2017 by the Supreme Court (No. 41,202) clarified the distinction between ‘traffic of influences’ and corruption.

Remedies and sanctions: To date, no sanctions or remedies have been imposed for non-compliance. The register maintained by the Chamber of Deputies, which was set up in March 2017, foresees sanctions (suspension or cancellation from the register, with ensuing withdrawal of the dedicated access badge) but they have not been inflicted against any non-compliant lobbyist so far. All of the regional laws provide for sanctions for failure to comply with the provisions or for exerting undue pressure that may affect decision makers’ freedom of judgment and to vote. Sanctions vary from a formal reprimand to suspension and cancellation from the register; in case of cancellation, interest representatives cannot apply for a new registration for two years following the event.

Updates and trends: Following elections in March 2018, Italy elected a new Parliament. In the first few months of its term, the new Parliament has kept the preexisting rules on lobbying, which essentially provided for registration and disclosure. It is unclear if the new Parliament will step up transparency obligations or simply continue to observe the rules already in place.