LEGALITY PROTOCOL
between
Alma Mater Studiorum – University of Bologna
and
Fondazione Bologna Business School
On December 24th 2015 at Alma Mater Studiorum – University of Bologna, between Alma Mater Studiorum – University of Bologna (hereinafter “University”) having its registered office in Bologna Via Zamboni, 33, in the person of its pro tempore legal representative Rector, Prof. Francesco Ubertini;
and
Fondazione Bologna Business School – BBS (hereinafter “Fondazione”) having its registered office in Bologna, Villa Guastavillani, Via degli Scalini 18, in the person of its pro tempore legal representative delegated for this purpose, Prof. Massimo Bergami;
considering
– law no. 190/2012 on “Provisions for the prevention and the sanctioning of corruption and unlawfulness in the public administration”.
considering
– decree law no. 90/2014 converted into law no. 114/2014, and art. 19 paragraph 9 entrusting A.N.AC. [Autorità Nazionale Anticorruzione– the Italian National Anti-corruption Authority] with the functions concerning corruption prevention;
– art. 24-bis of the decree law no. 90/2014, converted with amendments from Law no. 114/2014, amending art. 11 of the legislative decree no. 33/2013 expanding the subjective scope of application of the regulations on transparency;
considering
– the need, after the entry into force of the legislative decree no. 90/2014, of providing information on the implementation of the regulations on transparency and prevention of corruption also concerning private law bodies in which a stake is held [by another entity, public or private], even though those same bodies are not the direct recipients of the provisions contained in art. 11 paragraph 3 of the legislative decree no. 33/2013;
– the decision of A.N.AC. no. 8 dated June 17th 2015 on “Guidelines for the implementation of regulations on the prevention of corruption and transparency on the part of companies and private law bodies controlled by and in which public administrations and public economic bodies have stakes”.
Whereas
– the Fondazione was established in the year 2014 by transforming Consorzio Alma Graduate School, that counted among its members, besides the University, the Fondazione Cassa di Risparmio in Bologna (CARISBO), the Consorzio Profingest and the Fondazione “G. Marconi” and that, since 2000, had dealt with the organization of the University’s business administration master courses;
– the purpose of the Fondazione “is designing, organising and concretely putting in place, directly or by way of third parties, all the initiatives functional to the pursuit of its mission, with particular reference to the development of managerial skills, by way of establishing higher education and continuous and lifelong learning courses” (Art. 2 Statute);
– the Fondazione is a participatory foundation, it is non-profit and it cannot distribute profits to its members;
– the object of the Fondazione is an international business school, its mission being to contribute to the development of people, organizations and society and it is the reference institution of the University and of the other Members to organize post-graduate and post-experience managerial educational initiatives;
– following the decision taken by the Board of Directors of the University (February 26th 2013 and April 30th 2013) and by the Assembly of the Consorzio Alma Graduate School (February 28th 2014) and the enrolment in the register of legal persons (note of July 10th 2014 of the Prefecture of Bologna- UTG or Government Territorial Offices), the Fondazione took on a management model based on the controllo analogo (analogous control) on the part of the University;
– following what was analysed by the Board of Directors of the University concerning the outcomes of the Fondazione’s strategic plan and the decisions taken by the Collegio di indirizzo and the Board of Directors of the fondazione itself, the management model based on the controllo analogo (analogous control) was found unsuitable for the pursuit of the objectives laid out in the strategic plan;
– the Board of Directors of the University, with its decision of July 28th 2015, exercising its policy-making authority and controllo analogo (analogous control), approved the new Strategic Plan and the Business Plan of the Fondazione for the period 2015-2020;
– the Board of Directors of the University, with the same decision, approved a proposal to amend the Statute of the Fondazione with the aim of ending the exercise of the controllo analogo (analogous control) on the Fondazione itself and fostering the access of new Founding Members, notwithstanding for the University the role of founding member;
– on August 18th 2015 the Prefecture of Bologna- UTG registered the amendments to the statute as per the decision of the Board of Directors of the University;
having evaluated that
– following the amendments to the statute, the Fondazione is no longer subject to the control on the part of the University, that has nonetheless maintained its status as reference Founding Member;
– the new management model will grant the Fondazione a more flexible and market-oriented organizational structure, in order to seize the opportunities of the executive market, provided for by the above-mentioned Strategic Plan for the next three years;
– for the University Master courses currently established or about to be launched or about to be put in place, a transitional regime was deemed necessary in order to ensure the management and support continuity offered until now by the Fondazione, also to protect the legitimate expectations of the students and the Business Sciences Department, pending the new planning, on the part of the Department, of its own new University-level BA Master courses;
– the University has highlighted the need for the Fondazione to keep on ensuring, for the 2015/16 and 2016/17 academic years, the management of integration services to support its own University-level Master courses, to guarantee the continuity of its own activity in the area of advanced training and education with the same manners of the former regime, with the aim of ensuring the continuity of the service on the market, in terms of attracting new enrolments;
– the University governed the transitional regime by way of a treaty-law deed signed on October 30th 2015 aimed at regulating the mutual commitments to requalify the overall didactic programmes and the organizational support of University-level Master courses for the next two academic years;
having established that
– one part of the scope of the activity of the Fondazione, that is the organization of University-level master courses, governed by the specific treaty-law deed signed on October 30th 2015, is an activity of public interest and limited to the transitional period as per the above-mentioned treaty-law deed, the Fondazione itself keeps on being the subject delivering such Master courses supporting the institutional activity of the University;
– the Fondazione is a private law body with public authorities holding stakes in it but not exercising control over it and therefore it falls under the enforcement of the regulations on corruption prevention and transparency, limited to what is provided for the other private law bodies with public authorities holding stakes in them but not exercising control over them;
– the Fondazione is not required to appoint a person in charge of corruption prevention, or to adopt the three-year Programme for transparency and integrity;
having acknowledged that
– in view of the current legal framework, the University and the Fondazione have jointly decided, as set forth by the Guidelines as per the decision of A.N.AC. no. 8 of June 17th 2015, to promote in a timely fashion, the drafting of this legality protocol, aimed at the of regulation specific obligations and precise transparency and corruption prevention measures, also stating the adoption and implementation time frame on the part of the Fondazione;
the University and the Fondazione
agree the following
the statement of facts as above forms an integral part of this protocol,
Art. 1
Principles and purposes
With this protocol, the University and the Fondazione intend to promote and govern specific obligations of the latter with the aim of ensuring the compliance with measures suitable to prevent and contrast corruption instances according to the applicable legislation;
The institutional mission of the Fondazione is in line with the principles and values set forth in the General Statute of the University and the Code of Ethics adopted by the University;
With this protocol, the parties intend to pursue, in compliance with the principle of transparency, the objectives of prevention and contrast of corruption, with specific reference to the public interest activity carried out by the Fondazione, in its capacity as the University’s reference organization concerning managerial training activities;
Here follow the Risk areas concerning the activities of the Fondazione and further down also follow the actions to prevent and contrast corruption;
Art. 2
Risk areas
The parties, in compliance with what is set forth in art. 1 paragraph 16 of law no. 190/212 identify as risk areas, within the scope of the Fondazione’s activities, the procedures concerning:
– the selection of contractors to entrust them with works to be carried out, supplies and services to be provided, also concerning the rules for entrusting said works, supplies and services;
– selection to hire employees, with open-ended and fixed-term contracts, and to entrust study, research and consulting collaboration contracts to external subjects;
– granting reduced fees or exemption from fees and other economic advantages (such as contributions, subsidies, awards, scholarships) with the exception of all promotional and discount initiatives concerning activities that do not have a public interest and non-University level Master courses;
Art. 3
Corruption prevention actions – Risk areas
With reference to the identified risk areas, the Fondazione in agreement with the University formally undertakes to adopt specific actions aimed on one hand to prevent corruption instances and on the other hand to introduce best practices with the aim of making the carrying out of its own institutional activity more functional, efficient and effective, especially being the University’s reference organization for the above-mentioned related public interest activities;
“Transversal activities” means those activities that include both public interest and non-public interest activities;
“Institutional activities” means those activities that are necessary and functional to the carrying out and continuation of the Fondazione’s own activities;
In case of transversal and/or institutional activities, characterized by the simultaneous presence of activities that are of public interest and activities devoid of such interest, the prevalence criterion shall apply, in the absence of the possibility to operate a separation between said activities, verifying the prevalence or lack of the public interest feature in the activity taken into consideration, and applying or not the related and specific regulations on the matter;
As for what concerns the typically market activities, characterized by the complete absence of public interest activities, the Fondazione uses policies or practices decided by the appointed bodies.
Selection of contractors to entrust them with works, provision of supplies and services.
Public interest activities
– concerning the selection of contractors to entrust them with works, the provision of supplies and services, the Fondazione utilizes, just for public interest activities, procedures stated in its own “Regulation for the procedures to purchase goods and services with a simplified negotiated procedure concerning public interest activities” regulating the conditions and modes to purchase goods and services with a simplified negotiated procedure, notwithstanding the enforcement of the provisions of the Code of public contracts, as per the legislative decree no. 163/2006, for purchases whose value exceeds the EU threshold value. The Fondazione also prepares a three-year plan for expenses to be borne, with the aim of ensuring its own contractual prerogatives and avoid the fractioning of purchases, just for the expenses exceeding the annual value of 40,000 €
Non-public interest activities
Transversal and/or institutional activities
– for the selection of contractors to entrust them with works, supplies and services, the Fondazione utilizes, in relation to non-public interest activities or transversal and/or institutional activities for which it is not possible to identify the share of the service involved in the public interest activity, simplified procedures that shall be governed by the Fondazione itself by way of specific guidelines, adopted within 6 months, in compliance with the transparency, publicity and equal treatment that shall have to contain provisions ensuring the actual competition among the subjects. Pending the adoption of said guidelines, just for contracts exceeding a value amounting to 40,000 €, procedures based on the broadest possible competing involvement and comparison of the economic players and the selection in a collegiate way of the contractor shall be complied with;
The Fondazione in agreement with the University, undertakes to include in the applications of the selections of the contractors for the assignment of contracts, the provision of supplies and services, the safeguard clause based on which failure to comply with the applications that govern such procedures implies the exclusion from the procedures themselves and the termination of the contract.
Selection to hire employees, with open-ended and fixed-term contracts.
Public interest activities
– For the purposes of hiring employees, with open-ended and fixed-term contracts, who shall deal with public interest activities, the Fondazione utilizes procedures of its own “Regulations for the Selection of staff”, as it is not bound to implement the rules concerning open competition. Such Regulations, adopted in compliance with the principles of transparency, publicity and equal treatment shall include provisions ensuring the qualitative comparison of applications received and the optimal assessment of the related profiles. Such regulations shall provide for a suitable publicity of the selection notices, the precise identification of object, requirements and contract terms of the position required, the weighed pre-determination of the selection criteria adopted, an adequate and comprehensive motivation of the choices the recruitment is based on, a timely verification of the absence of causes concerning the conflict of interests and incompatibility, the professionalism of the subjects involved in the recruitment activity, the transparency concerning the procedures of internal career advancements and in the granting of possible payment rewards and economic incentives linked to results;
Non-public interest activities
Transversal and/or institutional activities
– For the purposes of hiring employees, with open-ended and fixed-term contracts, who shall deal with non-public interest activities or transversal and/or institutional activities for which it is not possible to identify the share of the service involved in the public interest activity, the Fondazione utilizes simplified procedures that shall be governed by the Fondazione itself by way of specific guidelines, adopted within 6 months, in compliance with the transparency, publicity and equal treatment principles that shall contain provisions ensuring the actual competition among the subjects.
Selection to entrust study, research and consulting collaboration contracts.
Public interest activities
– For the purposes of entrusting study, research and consulting collaboration contracts to external subjects, just for public interest activities, the Fondazione utilizes procedures set forth in its own “Regulations of the procedures for consulting and collaboration contracts” that govern the procedures to entrust contracts concerning intellectual activities or works under art. 2222 of the civil code, with self-employment contracts in the form of provision of services on an occasional basis, of project contract employment or a professional contract subject to VAT. With the aim of streamlining and facilitating the search for professionals and experts with suitable skills and qualified for performing the needed professional consulting activity and service, the Fondazione has created a “Register of service and work providers” regulated by a manual that governs its creation, how to use it, its management and updating procedures;
Non-public interest activities
Transversal and/or institutional activities
– For the purposes of entrusting study, research and consulting collaboration contracts to external subjects, in relation to non-public interest activities or transversal and/or institutional activities for which it is not possible to identify the share of the service involved in the public interest activity, he Fondazione utilizes simplified procedures that shall be governed by the Fondazione itself by way of specific guidelines, adopted within 6 months, in compliance with the transparency, publicity and equal treatment principles that shall contain provisions ensuring the actual competition among the subjects;
Granting reduced fees or exemption from fees and other economic advantages
Public interest activities.
– For the purposes of granting contributions, subsidies, awards, scholarships, just for public interest activities, the Fondazione utilizes selection procedures that the Fondazione itself shall govern by way of the adoption of specific guidelines, adopted within 6 months, in compliance with the principles of transparency, publicity and equal treatment. Such guidelines shall include provisions that ensure a suitable publicity of the selection of beneficiaries, the pre-determination of the selection criteria, a timely verification of the absence of causes concerning the conflict of interests and incompatibility, and finally the professionalism of the subjects involved with the assessment activity. As for promotional and discount initiatives concerning activities that do not have a public interest and non-University level Master courses, the Fondazione will draft, within six months, suitable commercial guidelines in order to regulate the performance and governing of such activities;
Art. 4
Control and monitoring system
For the purpose of putting in place an efficient contrast and prevention action against corruption and illegal instances, guaranteeing the efficient monitoring over the identified risk areas together with the compliance with the rules concerning transparency, primarily but not exclusively with reference to the public interest activity carried out by the Fondazione, the parties identify the body provided for by the Statute dealing with auditing, i.e. specifically the Board of Auditors, as the one to carry out the function as per art. 18 of the Statute of the Fondazione. Such board shall as well act as independent body to asses the legitimacy of procedures, also in relation to the anti-corruption regulations and more in general to the fairness of the activity carried out within the scope of its institutional mission. Said activity shall be aimed at ensuring as well the use of the financial resources deriving from the collection of the contribution fees paid by the students to enrol at the University master courses;
For he purpose of optimizing performances and guaranteeing the appropriateness of the interventions promoted by the Fondazione concerning the pursuit of the above-mentioned purposes, the Board of Auditors sets forth and ensures a periodical monitoring activity, annually, of the institutional activity of the Fondazione, also specifically in relation to the state of implementation and compliance with regulations concerning anti-corruption and transparency, according to criteria and manners that shall be defined in a timely manner by the Fondazione;
The monitoring activity shall involve the following Organizational areas featured in the Fondazione: University Master courses area; Executive Education area; Operation area (administration, IT, processes, general services); Communication area. The results of the monitoring activities and of the control of the compliance with publication obligations, provided for by this protocol and by the national regulations, shall be presented at the end of the year to the Board of Directors for possible actions to improve the organizational measures that have been adopted, or presented during the year-end report.
Art. 5
Code of Ethics
The Fondazione in agreement with the University undertakes, within 12 months, to provide itself with a Code of Ethics, with the aim of clearly defining the values and principles leading the action of the Fondazione itself, internally and externally, in order to guarantee that all actions promoted are carried out in compliance with the reference legislations, in a framework of fair competition, honesty, integrity, fairness and good faith, in compliance with the legitimate interests of all stakeholders with which the fondazione established relationships, meaning the founding, contributing and participating members, employees, suppliers, faculty, students, possible commercial and financial partners, local communities, municipal, metropolitan and regional public and private institutions, economic and production associations and trade union representatives;
The Code of Ethics of the Fondazione shall be adopted fully complying with the general principles set forth in the Code of Ethics adopted by the University;
Art. 6
Transparency obligations
In view of the fact that private law bodies in which a stake is held [by another entity, public or private], not in control regime, are not directly and fully subject to the provisions on transparency governed by art. 11, paragraph 3 of the legislative decree no. 33/2013, the obligations such bodies must comply with concerning transparency are the obligations that apply for companies in which a stake is held but are not controlled by the company holding the stake;
In view of what is provided for in the Guidelines above, the Fondazione in agreement with the University undertakes to comply with the transparency obligations contained in art. 1 paragraphs from 15 to 33 of Law no. 190/2012 exclusively for the “public interest activity governed by the national or European Community law”, that is the activities concerning the putting in place of managerial training initiatives at a post-degree and post-experience level, for which the Fondazione is the reference organization for the University;
In case of mixed activities, characterized by the simultaneous presence of data concerning both public interest activities and activities devoid of such feature, for the purposes of the implementation of the following rules concerning transparency, the prevalence criterion shall apply, because of the impossibility to separate said activities, verifying the prevalence of the public interest feature in the activity taken in consideration or lack thereof, and applying or not the related specific regulations on the matter;
For the purposes of fulfilling the obligations concerning transparency, the Fondazione undertakes to publish the relevant documents, information and data on the homepage of its own institutional website, in the existing section entitled “Transparent administration”, guaranteeing accessibility and the possibility to become privy of such data and also the exercise of the civic right of access, pursuant to art. 5 of the legislative decree no. 33/2013, using the criteria of easy accessibility, completeness and easy consultation;
In view of what is provided for in the Guidelines above, the Fondazione in agreement with the University undertakes to comply with the obligations to publish data concerning the administrative organization, under articles 14 and 15 of the legislative decree no. 33/2013;
Under art. 1 paragraph 15 of Law no. 190/2012 the Fondazione, undertakes, within 6 months, to publish on its own institutional website, only for public interest activities, the information concerning the administrative procedures exclusively concerning the procedures to purchase goods and services, according to the criteria of easy accessibility, completeness and easy consultation, in compliance with the provisions on data protection and professional secrecy. Such administrative procedures are the only ones implemented by the Fondazione and just for them what is provided for in art. 1 paragraph 30 of Law no. 190/2012 shall apply.
Under art. 1 paragraph 16 of Law no. 190/2012 the Fondazione, undertakes, within 6 months, to publish on its own institutional website, only for public interest activities, the information concerning: a) choice of contractors for the assignment of works, supplies and services, also in reference to the chosen manner of selection under the legislative decree no.163/2006; b) awarding and granting of contributions, subsidies, financial aids, as well as granting of economic advantages of any type to individuals and public and private bodies;
Under art. 1 paragraph 28 of Law no. 190/2012 the Fondazione, undertakes, within 6 months, to publish on its own institutional website, only for public interest activities, the information concerning the periodical monitoring of the compliance with the time frame provided for for the execution of the procedures to purchase works, goods and services, also eliminating any anomaly that should be found;
Under article 1 paragraphs 29 and 30 of law no. 190/2012 the fondazione, undertakes, within 3 months, to publish on its institutional website, a certified e-mail address (pec) using which citizens can ask questions under art. 38 of the decree of the President of the Republic no. 445/2000 and receive information on the administrative procedures concerning them. Within the same deadline, and in compliance with the regulations on the right of access to administrative documents as per Law no. 241/1990, the Fondazione undertakes as well to make accessible to those involved, by way of the IT identification tools under art. 65, paragraph 1, of the legislative decree no.82/2005, the information about the administrative decisions and procedures concerning them, including information on the status of the procedure, related time frame and specific office competent for each individual stage of the procedure;
The Fondazione identified the Board of Directors as the body in charge of identifying political-administrative policies, under art. 16 of its own Statute.
Under art. 14 of the legislative decree no. 33/2013, the Fondazione undertakes, within 6 months, to publish on its own institutional website the data concerning income and equity only of the members of the bodies in charge of identifying political-administrative policies, as identified by the Fondazione, appointed or designated by the University and specifically: a) appointment or designation act, with the mention of the duration of the appointment or of the elective office; b) CV; c) remuneration of any nature related to the appointment and the amounts paid for professional travels and missions paid with public funds; d) data concerning other appointments, for different public or private bodies, and their related remunerations paid for all possible reasons; e) other possible offices paid by public finance and the mention of the amounts paid; f) declarations under article 2, of law 5 no. 441/1982, as well as statements and declarations under articles 3 and 4 of the same law, as amended by the legislative decree no. 33/2013, only applying to the subject himself/herself, their non-separated spouse and relatives within the second degree, upon permission of said relatives, or in lack thereof, highlighting the failure to authorise the publication of said data;
Under art.
