Clementi: “The Court of Auditors? The executive method is pathological. It’s just causing confusion.”

ROME. “The government’s method vis-à-vis the Court of Auditors is pathological, so much so that it obscures the reasons for controlling the Pnrr, and the extension of the tax shield poses problems of constitutionality”, says Francesco Clementi, professor of comparative public law at the Wisdom.

What do you think of the controversy over the Court of Auditors?

«The political debate does not interest me. As for the role and responsibilities of a body of constitutional importance, first of all there is a question of method that still doesn’t convince me: the use of amendments of this importance in decree laws».

Are you talking about the recent recall of the President of the Republic on the decrees?

«Yes indeed. This approach continues to be a very questionable choice on the part of the government”.

For what reason?
“Because by halving the functions of Parliament, it also demeans the reasons – not always unjustified, as in this case – of the government. These methods help neither to clarify the problems nor to find sharing on the solutions. They only produce controversy and useless confusion».

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Does the intervention with this method on a constitutional organ, therefore, pose a pathology within the pathology?
“Of course he does. And continuing with the wrong method only weakens even the right reasons, when they exist. So we need to improve the method if we really want to bring out the merits».

But is the government right on the merits?
«The point is not to question the role and constitutional control function of the Court of Auditors – and God forbid! – how much to avoid that its preventive and concomitant controls affect, albeit involuntarily, the rhythmic lockout of the Pnrr, making it effectively impossible to implement».

But is it acceptable for the controlled to gag the controller because he is late and doesn’t like the control?
« Far from it. On the contrary, if you want, this increases the government’s responsibilities, because it reduces the excuses to potentially hide behind, making it more difficult to shift the blame for the non-implementation of the Pnrr onto the shoulders of others. On the other hand, the great difficulties and government efforts to implement the Plan are before everyone’s eyes”.

So in the end, you save the government?
«On the one hand, the entire country benefits from the implementation of the Pnrr projects quickly and successfully; on the other hand, the controls of the Court of Auditors remain untouched – even if only in the final balance».

And not concomitant.
«It is always possible, indeed dutiful, that once the projects have been completed, all the foreseen control actions by the Court of Auditors are carried out to ascertain forms of irresponsibility such as to configure what is called tax damage. Without indulgence, not even plenary».

However, at the same time, the tax shield extends which limits liability, even for gross negligence.
“This choice, on the other hand, raises serious doubts in me, above all due to the differences between the exclusion of the tax liability action for seriously culpable conduct following the pandemic emergency and those potentially relating to the Pnrr”.

What is the difference?
«The Constitutional Court reconstructed, in sentence 8 of 2022, that derogation under Covid. If I imagine a speech by him tomorrow on the subject of Pnrr, I believe that, unlike then, an identical treatment would be ill-justified ».

Prodi sees signs of authoritarian drift, agree?
«I always read with great attention and interest what President Prodi says. But, if I look at how the EU is defending the rule of law internally and supporting Ukraine against Putin’s criminal aggression, I personally use less strong terms to describe our political-institutional system. Although it leaves much to be desired in ways, forms and behaviors, it is far from experiencing threats to democracy or to the protection of the role and independence of the judiciary”.

Is there an institutional clash between the government and independent supervisory powers?
“I hope not. It serves no one, especially the government. But not even those who, and I’m thinking of the Association of Magistrates of the Court of Auditors, even ask for a “discussion table”. This yes, on the other hand, reminds me of a certain corporatism of times that must not return».

Is the convocation of the heads of the Court of Auditors at Palazzo Chigi unusual?
“It certainly doesn’t happen often. However, if it serves to lighten the climate in mutual respect and in the constitutional balance of powers, I don’t make it a question of etiquette”. —