Silvio Berlusconi is a major shareholder in a company that is granted a significant State concession, setting up a specific conflict of interest with his political role.
In an article in Sole-24 Ore of Sunday 26 May 2013 (Ineleggibilità e Democrazia dei Partiti: Le ragioni legali che i saggi non svelano) Giuliano Amato, former Prime Minister; adds his voice to those such as Valerio Onida, a former President of the Constitutional Court, Luciano Violante, a former President of the Chamber of Deputies, and now no less than the new leader of the PD, Gugliemo Epifani, who oppose the notion of Silvio Berlusconi's non-elegibility to Parliament, alleged by many on the ground of his conflict of interest as beneficiary of economically significant TV concessions by the State.
The eminent jurist and statesman rejects the argument used by others that, since the relevant legislation has not been invoked for twenty years, it cannot begin to be applied now. It would be like arguing, he writes, that, if a serial killer has not been condemned for his first six murders, he should be acquitted once he is caught for his seventh murder. The trouble, Amato argues, is that the Electoral law of 1957, which is still in force, is not as clear-cut as the law on murder. That law declares ineligible, among others, "those who on their own account [in proprio] or as legal representatives of companies or enterprises are involved with the State by concessions or administrative authorisations of considerable economic significance [in qualità di rappresentanti legali di società o di imprese risultino vincolati con lo Stato per concessioni o autorizzazioni amministrative di notevole entità economica]...". Berlusconi, argues Amato - as has Valerio Onida, and one of Napolitano's "wise Men" - is neither the legal representative of such a company, nor a direct concessionary, even though he is the uncontested main shareholder, the "boss, l`ideatore e il regista".
According to the Italian Constitution, norms that limit any rights cannot be interpreted extensively, for in that case the hostility towards laws ad personam would be replaced by a peculiar predilection for interpretations ad personam. Therefore, Amato concludes, Parliament was right in applying , on purely legal and not on political grounds, a literal interpretation of the law. If main shareholders of concessionary companies were intended to be ineligible an amendment to that effect should have been approved beforehand; many such amendments were presented over the years but, for better or worse, were never approved.
Amato explains that in his approach he is giving voice to his own "jurist's soul". By the same token, let me voice my own "economist's soul" on this matter.
A shareholder holding a 100% share in a company that is granted an economically significant State concession is literally undistinguishable to all intents and purposes from a person holding such a concession on his own account. The application of inelegibility to a 100% shareholder in such a company would not violate either the spirit or the letter of the law.
At the other end of the range of conflicts of interest specified by the law, a legal representative of a company that enjoys the same state concession will have a significantly reduced interest in that concession, with respect to a 100% shareholder, and therefore a reduced conflict of interest. In fact such a legal representative would benefit from the concession only if, and to the extent that, his compensation is enhanced by the company profitability contributed by the concession. This could happen, for instance, through bonuses related to company performance, or through the allocation of company shares and/or options on favourable terms. Let us say that the legal representative has a conflict of interest with the State equivalent to that of a shareholder holding x% of company shares, where that x% can and normally does represent a minor shareholding fraction in the company in question.
The position of a major shareholder in a company that is granted a significant State concession is clearly intermediate between that of a concessionary on his own account (or of a 100% shareholder in a concessionary company) and that of a legal representative whose benefit is a small fraction of the concession profitability. Therefore the ineligibility of a major shareholder in a concessionary company is not in any sense an "extensive interpretation" of a rule to a different category of subjects for which that rule was originally intended, violating the Constitution, but simply an "inclusive interpretation" that applies the same rule not only to the extreme cases contemplated by the law but also to cases intermediate between the extremes. As if the law punishing serial murder and maiming by shooting was also applied to serial murder by strangulation.
Some might regard my argument as casuistic, indeed jesuitical. Anybody who might think so should consider that the same contention could be raised against a literal interpretation of the rule that glosses over the macroscopic conflict of interest that Silvio Berlusconi has enjoyed for the last twenty years.