Port Network Authorities and reporting obligations for suspicious transactions pursuant to anti-money laundering legislation

By ASLA - Associazione degli Studi Legali Associati

di Valentina Saviotti*

Bologna - The Public Administration has been one of the subjects subject to the discipline to prevent the use of the financial system for the purpose of money laundering and the financing of terrorism since 1991, when the first Italian legislation was issued. Currently, the tasks of the Public Administration with reference to the prevention of money laundering are defined by the legislative decree n. 231 of 11 November 2007, as recently reformed by legislative decree no. 90 of 25 May 2017.
Although, in fact, today the Administration no longer falls under the categories of formally obliged subjects, the examination of the post-novella reference legislation suggests that there is a strong desire to maintain an active and collaborative role of the Public Administration in the context of the action prevention, on the basis of which it is itself required to comply with anti-money laundering compliance obligations.
These obligations are set out in art. 10 of the aforementioned legislative decree no. 231/2007 which provides for various fulfilments for the Administrations that perform active administration or control tasks in the context of:

a) procedures aimed at adopting authorization or concession measures;
b) procedures for choosing the contractor for the assignment of works, supplies and services pursuant to the code of public contracts (i.e. legislative decree no. 50/2016);
c) procedures for granting and disbursing grants, grants, subsidies, financial aids, as well as attributions of economic advantages of any kind to individuals and public and private entities.
The Italian Port Network Authorities, as non-economic national public bodies, fully fall within the definition of Public Administration pursuant to Legislative Decree no. 231/2007 and, consequently, are included among the subjects required to ensure compliance with the obligations therein. In fact, in addition to evidently making use of the contractor's choice procedures for the assignment of works, supplies and services, they are certainly competent, according to the provisions of article 6 of law no. 84 of 28 January 1994, for the authorization and concession of areas and docks for the exercise of port operations, for the supply of temporary port work, as well as for other commercial and industrial activities carried out in ports and territorial districts, of referred to in Articles 16, 17 and 18 of the aforementioned law.

More specifically, therefore, the Port Network Authorities are required - like the other subjects that fall under the definition of Public Administration - to carry out real risk assessment and risk management activities that require a mapping of the money laundering risk pertaining to the institutional activity carried out and the consequent identification of security measures aimed at mitigating the risk itself.
First, in fact, art. 10 of reference prescribes the administrations concerned to carry out an internal risk assessment activity, through the identification of procedures aimed at mapping the activities sensitive to money laundering and terrorist financing which, in the exercise of their institutional activity, they could actually be exposed. Secondly, it is envisaged that internal risk management procedures are adopted, to identify adequate security measures to mitigate the risks previously identified, where the adequacy of these measures must be parameterised from time to time based on the concrete organizational dimensions and operating of the Administration concerned.
The systems, provided for in paragraph 4 of art.10, integrate the framework of obligations to be completed, which must be implemented for the detection of suspicious transactions of which the Administration becomes aware in the daily exercise of its institutional activity. The Port Network Authorities must therefore organize suitable training for their employees to allow them to recognize the cases worthy of being classified as suspect and, at the same time, to report them to the Financial Intelligence Unit for Italy (so-called UIF), according to the methods, terms and instructions established by the latter with a provision dated 23 April 2018.

A role that is anything but passive, therefore, that of public subjects in the framework of the 2017 regulatory reform on anti-money laundering. Nonetheless, the UIF, in its annual report for the year 2018, published in May 2019, indicated that the Public Administration had little flow of signals compared to the expectations determined by the regulatory requirements set out above, which are also accompanied by high sanctioning measures, i.e. up to to 80% of the executive result remuneration.

The UIF has identified several potential reasons for this significant need for reporting. The most noteworthy among them is the suspicion that the Administration may perceive an incorrect overlap between the anti-money laundering and the anti-corruption safeguards due to the fact that, in both cases, attention is paid to perception. of symptoms of illegal operations that could invalidate the exercise of the administrative activity.
The analysis of the UIF would seem, in fact, to be reflected in the context of the Italian Port Network Authorities. Although, in fact, certainly the Authorities in question carry out administration and control activities in the context of sensitive procedures for money laundering (ie attribution of authorizations and concessions, as well as selection of contractors for the assignment of works, supplies and services), it is not known with certainty whether, to date, concrete measures have been taken to assess and manage risk during these activities.
In fact, only some of the portals of the 16 Italian Authorities present references - in the "Transparent Administration" section - of anti-money laundering compliance and, in almost all cases, these references are integrated within the framework of the Three-year Corruption Prevention Plans. Not only that, the meager references to the risk of money laundering that can be found therein mainly constitute the planning of personnel training interventions for the three-year period 2020-2022 which, obviously, have not yet been implemented to date.

Apparently, therefore, as already authoritatively stated by others, the compliance activity of the Port System Authorities, as for the rest of the Administration, seems to be concentrated on the issue of corruption, in relation to which the mapping of risk processes is effectively implemented, the evaluation of this risk and, finally, measures to mitigate it.
In conclusion, in the opinion of the writer and waiting to examine the results of the next UIF report for the year 2019, the fundamental theme to give impetus to a full collaboration of the public sector in the anti-money laundering system, is certainly training specialist staff employed in risk areas. This training must obviously aim to overcome the belief that the anti-money laundering risk management systems may constitute a further slowdown in the performance of the administrative procedures, focusing on the elements that can be assessed to protect this risk, also in order to avoid the penalties provided for by the applicable legislation for violation of applicable legislation.

*Associate, Zunarelli Studio Legale Associato