The institutionalisation of strategies to prevent corruption: the international and European model A institucionalização de estratégias para prevenção à corrupção: o modelo internacional e o europeu

The contribution deals with the emerging strategies to fight corruption through prevention at the international level, in the respect of national sovereignity. It describes the request for a holistic strategy, combining prevention and prosecution, mobilizing all the components of the domestic community and establishing dedicated and independent competent bodies. It questions whether it is possible to strengthen the system of corruption prevention by linking independent institutions to the National Constitution, European Union law, and customary law. 1 Professore ordinario di Diritto internazionale e dell’Unione europea. Università degli Studi di Catania. Componente del Consiglio dell’Autorità nazionale anticorruzione (A.N.A.C.). Consulente dell’Unione europea; componente di organi di valutazione di organi italiani per la ricerca. THE INSTITUTIONALISATION OF STRATEGIES TO PREVENT CORRUPTION Revista Brasileira de Estudos Políticos | Belo Horizonte | n. 119 | pp. 397-447 | jul./dez. 2019 398


The establishment of a detailed international anti-corruption strategy
Observing the layers of the many international anticorruption norms based on hard and soft law, it seems possible to outline an emerging model for preventing corruption, which from a structural, institutional, organisational and functional perspective is presented to domestic legal systems both at the international level and at the regional and continental level as not only useful, but also in some cases an essential source of inspiration for national policies in this area. In fact, more and more, the international legal context is presented as a "place" no longer and not so much for comparing sovereign national systems, but for preparing guidelines to enable individual national policies to converge towards models that can at least reciprocally interact even if they are not shared. Now, it is without doubt that corruption offences are increasingly characterised by their transnational nature 3 even if that feature is due only (though it is hardly trivial) to "the nature or impact of such offences or from a special need to combat them on a common basis" 4 : this latter eventuality is truly symptomatic in the case of fighting corruption. Anti-corruption activity, therefore, involves a framework of close consultation between different State authorities, at the many levels involved, in the context of intergovernmental cooperation in order to contain its diffusion and combat the damage it causes 5 . The same international conventions on the subject, which the States stipulated, are the ones that 6 show how corruption is perceived by those States as a practice capable of jeopardising some of the basic principles of the stability of the inter-State system (of the international community as a whole) and of the individual national communities, compromising their values and basic legal interests: if the State apparatus is complicit (passively or actively) in these practices (this also being a violation of human rights, starting with the principle of non-discrimination), the result will be fragile democratic institutions caused by citizens losing faith in the ability of the latter to govern the territorial community impartially and efficiently. The reference international conventions make to the risk to which the rule of law is exposed is highly relevant 7 . Again, these conventions have been stipulated in order to fight actions capable of distorting competition and impeding economic development 8 . In this context, current international law asks States to guarantee commercial freedom 9 ; this freedom is accompanied by the responsibility of each State to ensure that said freedom is enjoyed in the context of competition, "on a footing of absolute or relative equality" 10 , in particular by fighting the pathological distribution of wealth, which always results wherever corruption is present 11 .

The need for a holistic strategy: prevention and prosecution as reciprocally integrated approaches for effective action against corruption
In the context of the framework outlined above, in the first part of this century, States acknowledged the inadequacy and insufficiency of a strategy based only on substantive and procedural criminal law intended to harmonise the prosecuting instruments and coordinate the different phases essential to carrying out criminal prosecutions: in fact, this was the strategy (of the repressive sort) implemented almost exclusively in the treaties (which were very important) signed during the last century on fighting corruption, both domestic and international. These treaties (still in force and very useful) are traditionally based on two pillars: they are mainly intended to place the contracting parties under an obligation to criminalise corruption, identifying criminally significant circumstances to be covered by domestic legal systems; consequently, and in an ancillary capacity, they establish methods of cooperation between the respective national authorities tasked with applying criminal law. There were two factors behind the abandonment of this strategy.
Firstly, in countries with a constitutional structure, repressive measures represent the extrema ratio, the response of last resort that the legal system gives to an event that requires, due to its severe deviation from norms that protect interests that are considered fundamental, a response that other instruments are unable to offer 12 . Therefore, before resorting to this, other methods must be tried: in this context criminal law demonstrates its subsidiarity.
Furthermore, the purely repressive approach was clearly shown to be inadequate for preventing corruption from becoming embedded, that is, from becoming widespread and pervasive: when this situation arises, criminal law is not the appropriate instrument, since the 12 N. Jareborg, Criminalization as Last Resort (Ultima Ratio) role of criminal law is to establish individual liability (of the natural person or collective entity) in relation to an offence against a legal interest whose protection requires extreme measures of defence; and not to implement measures that are intended to combat a deviant social phenomenon. In this latter case, action to fight against corruption can only be exercised ex ante in the first instance, through prevention, therefore including through instruments made available by administrative law, without excluding the subsequent support of important repressive measures when exercised effectively. In this context it has justifiably been noted that "the synergy between administrative and criminal" is "unavoidable", emphasising the need to make use of preventive measures, through the "strengthening (…) of administrative instruments" that "avoid radicalisation towards (…) extreme uses of criminal law" 13 . In fighting corruption, therefore, prosecution and prevention turn out to be inseparable and complementary options and measures.
To combat the pervasive penetration of corruption, the various areas of inter-governmental cooperation have therefore also developed a different type of defence from the prosecution traditionally employed, organically implementing suggestions, instruments, procedures and institutions variously proposed in the past, even in a disorganised manner, in the many international institutional contexts. Two approaches were used to deal with this issue: on the one hand, it was proposed that awareness should be raised in relation to the severity of the damage caused by corrupt practices, primarily in order to heighten collective understanding and social concern in relation to certain practices, eliciting that (reputation based) sanction that other serious deviant behaviours provoke, or rather, the social isolation of the perpetrator; on the other hand, educating those involved in public and private work to adopt a different "lifestyle". There is no doubt, in fact, that the pervasiveness and diffusion of corruption demonstrate the existence of a cultural aspect: corruption originates and becomes embedded in a particular cultural context, with its own laws and structural mechanisms 14 ; it does not come from outside the legal system concerned and it must be fought primarily in its own territory.
It was thanks to the Convention opened for signature in Merida in 2003 (which by being agreed at a global level, in the context of the United Nations marked the awareness of the community of States in relation to fighting corruption 15 ) that there was a significant change in strategy: in fact, the Convention offers a wide, well-organised set of legislative provisions that include preventive measures 16 .
Furthermore, even "first generation" international agreements (those, to be clear, with criminal law content) were already focused on a method of application aimed at protecting the integrity of legal systems and civil and business circles through instruments to prevent corruption. This is an approach that can be seen clearly, for example, in the activities performed by the Working Group on Bribery (WGB) created following the entry into force of the OECD Convention of 1997 17 : even though it has primary responsibility for verifying the State of compliance with the 14 I. Sales, Dove nasce la corruzione, in Il Mattino, 12 October 2017, pp. 1 and 47. 15 The UN Convention against Corruption (cited in note 5) was ratified (on 26 June 2018) by one hundred and eighty-six parties and an international organisation for regional integration, the European Union (see https:// www.unodc.org//en/ corruption/ratification-status.html).
Convention of 1997, it also works to prevent corruption, as we see from many clarifications given on the governance of public authorities, the private sector and entrepreneurial activity in light of principles of integrity, transparency, competence and accountability 18 . Furthermore, it should be noted that the Convention, despite being based on criminal law, was able to guide the Italian legal system (and those of other Member States) towards prevention strategies developed around adopting risk-based techniques and organised around compliance models, which will be discussed briefly in what follows 19 . This means, by referring to hard law obligations related specifically to criminal law, that this organisation also managed to protect, through soft law instruments, the prevention aspect by establishing a culture of integrity. The same approach is used in so-called peer review procedures, which consist of an evaluation of each Member State's fulfilment of its obligations under the Convention. This type of obligation has been integrated into common practice by the demand to comply with soft laws, so much so that, for example, with regard to the Council of Europe, GRECO (and similarly the OECD's previously mentioned WGB 20 ) evaluates national compliance in light of soft laws also, which focus attention on prevention and no longer just prosecution 21 .
We must also consider that in international praxis, a strictly criminal categorisation of the concept of corruption (on which the relevant conventions tend to give a similar, almost overlapping definition 22 ) was joined by a sociological notion 23 : this envelopes those behaviours that are considered to be "bad administration", which are not considered in terms of suppressive measures, sometimes being entirely without the significance of illegality, being based on mere irregularities, but which still translate into turning public interest into a private interest 24 and which, therefore, stand 21 In fact, the peer review is implemented starting with the two European Conventions of 1999 as supplemented by: Resolution (97)  24 A. Vannucci, L'evoluzione della corruzione in Italia: evidenza empirica, fattori facilitanti, politiche di contrasto, www.astrid-online.it/static/upload/ out for their illegality or even just their irregularity: in international law, the expression wrongdoing is used, which is a very non-technical and broad term 25 . In this context, it is appropriate to examine the concept of corruption and the recent tendency to include within it not only criminally relevant actions, but also those attributable to so-called "administrative corruption" 26 : this refers to "actions and behaviours that, even if they do not amount to specific crimes, are contrary to the required care for public interest and prejudice the trust of citizens in the impartiality of public authorities and the individuals who perform roles of public interest" 27 . Therefore, any "situation in which, regardless of the criminal relevance, there is a malfunction of a public authority due to the distorted use of the powers granted" will be detected 28 .
In reality it does not seem necessary to coin a definition of administrative corruption 29 in order to connect it with protected/Vann/Vannucci.pdf. 25 The Italian system of prevention is also informed by this approach: Department of Public Administration memo no. 1/2013 (specifically p. 4. Similarly, the National Anti-corruption Plan, 2015, paragraph 2.1), in commenting on certain questions of interpretation raised by the "Severino Law" (Law no. 190/2012), it underlines the polysemic nature of the word corruption used therein: this word, when used in law in relation to preventive activities, refers to corruption in the broadest sense, as covering the various situations in which, during the course of public duties, an individual abuses the power granted to him in order to obtain private advantages"; when used in relation to criminally significant offences, it refers to the technical and legal clarifications set out in the Criminal Code, from Art. 314 onwards. 29 On the difficulty of attributing legal value to the "broad" notion of the need for action to prevent corruption offences. Instead, bearing in mind that the agreed definition of a corruption offence in the sociological sense of the term is based on turning the powers granted by a mandate towards a private, individual interest (therefore essentially in giving priority, in a situation where there is a conflict of interest 30 , to the private interest at the expense of the public one), prevention consists of preparing instruments that allow the behaviour of the person or the entity to which he/she/it belongs to be guided towards always prioritising the public interest. Prevention, therefore, intervenes prior to an offence (by omission or deliberate) involving illegality (including criminal acts) or irregularity, when there are "situations in which the risk is merely potential", situations therefore "where it is necessary to use measures to "remove" the risk, using options that sometimes completely disregard individual actions 31 .

The clause on respect for national sovereignty
First of all, it is worth noting the explicit limit that convention norms encounter, independently of the fact that they emanate from a classical type of international organisation, rather than from one focused on integration, which, for the regional context in which the Italian system is located, is the European Union 32 .
corruption, see R. Cantone, E. Carloni, La prevenzione della corruzione e la sua Autorità, in Diritto pubblico, 2017, p. 911. In the United Nations Convention, as in the Treaty on the European Union, there is a general clause according to which "States Parties shall carry out their obligations under this Convention in a manner consistent with the principle of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States" 33 . This norm is perfectly established in the structural principles of the international community's legal system as explained above: respect for the national integrity and domestic competence of each State, in the context of cooperation based on equal status among all States 34 . The perception of the potential pervasiveness of the obligations involved in ratifying the Convention, however, led the States to add specific clauses, concerning the same purpose, as individual norms of the Convention. In the Chapter dedicated to "Preventive Measures", we see repeatedly that the State assumes the obligation concerned "in accordance with the fundamental principles of its legal system": this is applicable to the norms that pertain to the type of strategy and State policy 35 , which require the establishment of a "body or bodies, as appropriate, that prevent corruption" 36 ; which make provisions with regard to the organisation of national public authorities 37 , as well as integrity, honesty and the responsibility of public sector workers 38 ; which establish on the resulting legal differences they create for the Member States) see for all, U. Draetta, Principi di diritto delle organizzazioni internazionali, Padua, 2010 3 , p. 79 et seq. 33 Arts. 2, paragraph 1, UNCAC. 34 An "interpretative note" was adopted in the preparatory work and affirms that this consistency and the interpretation of the notion of reserved dominion as accepted by the criteria for the management of public contracts and public finances 39 ; which require transparency 40 including in the financing of political parties and candidatures 41 and, by promoting information sharing methods 42 , to take measures to ensure the integrity of the judicial function 43 , to organise and strengthen the national regulations on accounting, including through measures to promote transparency 44 and to promote the participation of civil society in State action against corruption 45 . Only the provision on the measures to assume to combat the laundering of "dirty money" establish a formula that is less protective of national sovereignty, establishing an obligation for all the different authorities of each State affected by this activity to collaborate at the national and international level "within the conditions prescribed by its domestic law" 46 . As mentioned previously, in the Treaty on European Union also there is a general clause according to which the "Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional" 47 . This formula is accompanied by clarifications that monitor, from other specific contexts, the actions of the organisation with regard to other Member States, requiring that in exercising its duties (even very invasive ones) it must operate in accordance with the principle of conferral 48 , intervening in the sectors that are not under its exclusive jurisdiction "only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States" 49 , limiting the content and the form of action to what does "not exceed what is necessary to achieve the objectives of the Treaties" 50 . Therefore, the duty of the Union is to "carry out actions to support, coordinate or supplement the actions of the Member States" in terms of "administrative cooperation" 51 (considered a "matter of common concern" for Member States and the Union 52 ) it must respect national sovereignty within the rigorous limits described. The difference with the set of measures established in the Merida Convention is that the defence against external "interference" is offered, in the latter, against the other contracting States, in the Union against the latter.
The OECD Convention on combating bribery establishes that the State must comply «as may be necessary, in accordance with its legal principles» 53 , or «within the framework of its law» 54 .
The protection of national sovereignty offered by the Council of Europe's Criminal Law Convention on Corruption is very vague, in the sense that in almost every provision it uses the phrase "Each Party shall adopt such legislative and other measures as may be necessary (…)" 55 . In the Civil Law Convention on Corruption, developed in the same institutional context, there is no trace of a similar filter to protect sovereignty. Therefore, there is a different level of "defence" for national legal systems in terms of the impact of convention provisions. This seems to depend on two different factors. Firstly, where the group of States that participates in the convention is homogeneous (so limited in number), the agreement of the States on the legal content is more easily obtained and there are fewer reciprocal suspicions. This is why the regional European conventions contain fewer "defences" (or sometimes none) compared to international conventions. Secondly, when an agreement is not limited exclusively to establishing reciprocal rights and obligations between States, but also aims to create an international body to govern material activities (even in competition with Member States), its greater potential influence and invasiveness is recognised in terms of national sovereignty and, therefore, the agreement itself is equipped with provisions that very accurately demarcate how the body itself must exercise its duties.

The mobilisation of different components of the State community, at both the domestic level and the international level
Moving on now to discuss whether there is an international model for preventing corruption and how it works, let us examine the strategies, methods, measures and instruments that are identified by the community (international and regional) of States to achieve effective State action to prevent corruption.
The first important point concerns the overall strategy that States are asked to implement. To combat a phenomenon considered serious, not only for the quantity of financial resources drained 56 , but primarily for the pervasive, systematic and widespread nature of these unlawful practices 57 , we clearly need a strategy, which of course uses laws, procedures and institutions, but most of all one that can influence the cultural fabric of the community in which the phenomenon has become embedded. This involves the mobilisation of all the forces present in society, to direct them towards a different lifestyle, or rather (to use an expression used in an international recommendation) the construction of "a coherent and comprehensive public-integrity system" 58 .
Evidence of this necessary general mobilisation of positive energy from a whole society and legal community comes in the form of the requests that emerge, for example, from the intergovernmental collaboration that occurs at the technical level within the OECD 59 ; from the context of the Council of Europe 60 ; from the European Union where there is disapproval towards fragmented anti-corruption measures that are inadequate for producing visible results 56 The severity of the phenomenon from a financial perspective was, for example, emphasised by Christine Lagarde, Director of the International Monetary Fund, who spoke (in the Report presented at the annual World Bank conference on 12 October 2017) of a "cost" resulting from corruption of 1. unless they are used as part of a global approach 61 ; and from the previously mentioned United Nations Convention against Corruption.
In particular, the latter is intended to promote and strengthen measures to prevent corruption effectively and efficiently; to encourage, facilitate and maintain international cooperation, including through training activities; to promote integrity (including by making public administration accountable) as well as through the correct management of public affairs 62 . As a consequence, the norms contained in the Convention chapter entitled "Preventive Measures" establish that the contracting States must take action firstly by investing energy in all the components of each national community: the public apparatus, the financial-productive component and civil society.
With regard to the national public administration, each State must intervene with measures capable of affecting the organisational structures, in order to promote integrity, transparency, the competency of the public apparatus and the individual responsibility of each of its components 63 . Attention should also be paid to the judiciary and the investigative services, whose independence and integrity must be protected including through the adoption of codes of conduct 64 . The Convention then deals with the private sector in its duplicate version. In relation to the productive component of the country, it obliges contracting States to prevent corruption by strengthening regulations in relation to accounting and auditing; by promoting and preparing norms and procedures intended to both preserve the integrity of private entities (with codes of conduct and measures to prevent conflicts of interest, also providing if necessary, and for a reasonable period of time, a suspension of professional activities) 65 , both in order to establish good practices in commercial relations with each other and with the State; through transparency, which for example requires the effective property of private entities to be transparent 66 . The State must ban company expenses that amount to bribes from being deducted from taxes 67 . To protect the integrity of the private sector, the State must also equip itself with a system of sanctions (criminal, civil, administrative) that are effective, proportionate and dissuasive, a formula which has become standard in international conventions. The Convention promotes the adoption of regulations that protect public contracts, which will be discussed in more detail later on, with anti-corruption measures that reward transparency and competition 68 and 65 Infra, paragraph 6. discourage the laundering of money generated from illegal activities 69 . In relation to the second formulation for the private sector, the Convention requires that the contracting State should employ initiatives to involve civil society, stimulating citizens, communities of people and non-governmental organisations to participate in anti-corruption activities by making them more aware of the overall problem of corruption, transparency of decision-making processes, their participation in the latter, promotion of freedom of expression, research, information and access to the public bodies in charge of preventing corruption 70 .
Furthermore, in an area of regional international cooperation marked by a unique process of economic, social and legal integration of national systems (so in a very different legal context to the one presented by the United Nations Convention against Corruption), the approach is entirely similar: reference need only be made to the contents of the European Commission Communication in relation to a European Union comprehensive policy against corruption 71 .
The different international legal contexts involved in the fight against corruption to which reference has been made (UN, EU, OECD, Council of Europe) use, in short, a similar strategy that tends to combine norms with a general scope capable of achieving a dissuasive system effect and sector focused norms intended to raise the cost of corrupt actions 72 . 69 Art. 14. There is also a demand from the international arena in relation to the need to ensure coordination of strategy and coordination of action within the State with action outside the State. This request is expressed, for example, by the Merida Convention provision that requires collaboration between States (both bilateral and multilateral, including in the context of international and regional organisations) in order to promote and implement measures devised within the anti-corruption strategy prepared at the national level 73 . In the European Union there is an express clause (which also exclusively declares an implicit obligation in any international agreement 74 ), which establishes the obligation for each Member State and the Union to respect and assist each other in fulfilling the tasks that result from the Treaties 75 .

The need for institutions (independent and competent) dedicated to preventing corruption
It is usual for international treaties concerning activities for combating crime to include an obligation for contracting States to establish dedicated institutions. With regard to anticorruption, the "criminal law" Convention prepared in the context of the Council of Europe 76 requires compliance with this obligation in order to coordinate suppressive action 77 ; for 73 Art. 5,paragraph 4. 74 The Vienna Convention on the law of the treaties establishes the obligation for international agreements to be performed in good faith (Art. 26), creating a genuine principle of international law. The second suggestion contained in the Convention concerns the quality of these bodies: these must have the "necessary independence (…) to enable the body or bodies to carry out its or their functions effectively and free from any undue influence" 83 . More than a few words are required to discuss 78 Art. 36 requires contracting States to ensure the existence of national law enforcement authorities; Art. 46 establishes the obligation on the same to identify a central authority in charge of criminal judicial cooperation. 79 Art. 6, paragraph 1. In this context, the existence of a precise "legal necessity" has been discussed: see S. Valaguzza, La regolazione strategica dell'Autorità Nazionale Anticorruzione, in Riv. Reg. Mer., 2016, especially par. 2. 80 In this context see supra, para. 3. 81 Art. 5, in relation to preventive anti-corruption policies and practices, affirms that each State party must develop, implement or maintain effective, coordinated anti-corruption policies; endeavour to establish and promote effective practices for preventing corruption and periodically assess the legal instruments and administrative measures used to determine their adequacy for the task. Furthermore, State Parties must collaborate to promote and implement these measures. 82 Art. 6, paragraph 1, lett. a-b), UNCAC.
83 Art. 6, paragraph 2. Also confirming the character of independence is the the non-technical use of the concept of independence, but that is not the aim of this paper: suffice to say that this characteristic, in my opinion, should more properly be understood as neutrality, or rather impartiality, in relation to the areas of interest involved in the activity assigned to these bodies 84 . A third suggestion (written for educational purposes, in order to teach how to ensure, at least in terms of legislation, that the entity or entities in charge of prevention have a statute of independence) can be found in the provision according to which "The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided" 85 . It can be deduced that independence can be ensured only where there are adequate financial resources and numerically sufficient human capital, as well as persons with appropriate training in order to ensure, through their duties, the effectiveness of national preventive activity.
The practices of the States that are party to the Merida Convention in relation to compliance with the norm that requires the establishment of bodies dedicated to preventing corruption are very varied. Broadly speaking, three different models of compliance with the convention norm can be identified, through the establishment of: entities that merely coordinate other bodies and national authorities; public institutions that contribute towards preventing corruption even if they are not specifically intended for this purpose; and bodies created specifically for this purpose, which contribute towards preventing corruption as a specific part of their duties 86 .
GRECO has considered the levels of independence of national anti-corruption authorities on many occasions 87 , at times focusing on the need for adequate "financial and personnel resources" 88 ; on the effectiveness of the powers granted to them 89 , on their collaboration with other State institutions in order to optimise the performance of their duties 90 . In relation to the Italian National Anti-corruption Authority, it commented that it "is playing a most valuable role with its proactive and determined leadership" 91 . The OECD considers it to be "independent from the Government (…) gained a prominent role (…) on adopting and strengthening corruption-prevention measures (…)" 92 and capable of implementing international best practice in terms of supervision 93 .

Independent authorities and European Union Law
The European Union's legal system, due to the primacy of its laws within national legal systems 94 , could represent Round), 19 January 2017, par. 2, according to which "The National Anticorruption Authority (so-called ANAC), the key coordinating body in Italy for corruption prevention and transparency of public administration purposes, is playing a most valuable role with its proactive and determined leadership. in which it is noted that "The experience (…) represents a model of integrated controls and institutional synergies that enable an organised response from the institutions to organised crime and corruption" (p. 4) and "the OECD believes that certain elements of best practice that emerged from the agreement with ANAC could be a source of inspiration for promoting the integrity of other large infrastructure projects (…)" (p. 10). a way to strengthen the independent nature of the national anti-corruption authorities. However, this offers only indirect ideas 95 . Firstly, with regard to the public tenders sector, there is a clear similarity in objectives between European law on public tenders, which protects the par condicio and competition, and anti-corruption law, for example, the Italian law inserted into the Public Tenders Code 96 partially for the purpose of avoiding the risk of corruption 97 . However, there are no provisions in the Community directives that require the establishment of ad hoc national authorities. The connection and interaction between fighting corruption through prevention, public contracts and, more generally, the integrity of the national public administration (which even though found in the European Union directives on public contracts 98 or rather in other anti-corruption measures adopted by the European Union 99 ) does not, in short, translate into the construction of a form of administration that sees institutional dialogue between several authorities each belonging to its own legal system in accordance with the "European regulatory partnership" 100 or the "network" 101 , as 101 This situation was explained very clearly in legal terms: "Integration between significant markets depends (…) essentially on integration has already happened or has simply been proposed for issues that fall within other sectors not covered by the exclusive competence of the Union.
In this context, we should note the complex institutional systems created to ensure the confidentiality of personal data 102 , to protect internal market competition 103 and to manage electronic communications 104 . Relevant in this context is the proposal (in the literature) to establish a network system of administration (that includes both the Union and its Member States in fighting the laundering of illegal revenue) 105 ; as well as the proposal (made by the European Parliament, but not accepted by the Commission) to establish a European Authority for the protection of whistleblowers, evidently in partnership with the national authorities already between businesses (supply) but even more on integration between public authorities, including those belonging to different Member States (demand) located in national contexts, and among these and those that are institutions of the European Union (…) according to a system of competences organised as a network, where it is the relationship of integration between national and European administrations that promotes the development of systems capable of achieving a shall we say balanced dismantling of the pre-existing administrative nationalisms": R. Cavallo Perin, L'organizzazione delle pubbliche amministrazioni e l'integrazione europea, in R. Cavallo Perin, A. Police and F. Saitta (editors), L'organizzazione della pubblica amministrazione tra Stato nazionale e integrazione europea, Florence (Florence Univ. Press), 2016, p. 7; see also pp. 20-23. in charge of this task 106 . In this latter context, the directive that requires the harmonised protection of workers who report offences starting from within their place of work (regardless of whether it is private or public sector) is undoubtedly positive. However, the parliamentary provision of a specific body capable of working in synergy with the national institutions would have given added value to the attempt to harmonise the national systems for protecting whistleblowers. The proposal of the European Parliament had and has, furthermore, the merit of having been the first inspiration for a European policy on harmonising national anti-corruption action through an institution that without a doubt belongs to this sector. However, the provision of an institutional system of networked administration (even in the limited context of a single anti-corruption institution) would also have had the effect of strengthening the role of the national authorities involved, whose existence and competence would have found European legitimacy. Finally, the Italian Anti-Corruption Authority could be anchored to community law in relation both to public tenders and to whistleblower protection, to the extent that it was assigned a role of governance over an integrated market of European dimensions 107 , of which the national market is only a small part. In particular, the specific role granted to this institution by the Public Contracts Code in terms of dispute resolution seems relevant. If in fact we consider the "remedies directives" 108 we can appreciate 106  how it allows Members States some discretion in relation to identifying types of remedy, not even excluding that nonjudicial methods may be established 109 . This directive was implemented in Italy primarily through the Administrative Process Code. But even the last Contracts Code makes a contribution to the extent that, for example, it includes dispute resolution methods alternative to those that are specifically judicial. The binding opinion under Art. 211, para. 1, of the Code can be read in this context, to the extent that the parties are both entitled to ask the National Anti-Corruption Authority not only for an interpretation, but also for a pre-litigation solution to a legal issue concerning an administrative measure issued 110 . In this context, one could also read Art. 211, para. 1bis, of the same Code, which empowers ANAC to legitimately challenge administrative measures that it deems unlawful: the role covered by this procedure consists of resolving the root cause of a problem before the parties take legal action. In relation to whistleblower protection, it is beyond doubt that, when the Law 179/2017 will be amended to adapt the Italian legal system to the EU directive, the Anticorruption Authority will be the governance body in the matter also for the European "internal market" 111 . 109 Art. 2 dir. cit.
111 On the role of Italian whistleblowing legislation to improve an effective preventive action see supra, footnote 19.

Independent authorities and national Constitutions
A different important means of building a solid guarantee of independence to the advantage of national anti-corruption authorities could be offered by national constitutions, if the principle of the existence and/or legitimacy to exercise duties could be found within them.
In this sense, once again, we can think in terms of ANAC, which was established with a law expressly passed to fulfil international obligations. Law 190/2012 starts, in fact, by stating that "[i]n fulfilment of Article 6 of the United Nations Convention against Corruption (…) and Articles 20 and 21 of the Criminal Law Convention against Corruption (…), this law identifies, in the national context, the National Anti-Corruption Authority and the other bodies assigned to perform, with methods suitable for ensuring coordinated action, activities to control, prevent and fight corruption and illegality in public administration" 112 .
It follows that the evoked conventional rule (rectius: the Italian law that contains the order to implement the same) is categorised as "interposed provision" (between the Constitution and the ordinary law of the Parliament) pursuant to Art. 117, para. 1, of the Constitutional Charter 113 . In legal terms the consequence is that subsequent laws can easily intervene to amend the laws on the existence, role, 112 Art. 1, para. 1, Law no. 190/2012. 113 Art. 117, para competences and functions of the Authority, but without these legislative interventions removing the obligation assumed with the order to implement the Merida Convention within the Italian legal system: the existence of one or more anti-corruption bodies equipped with the guarantees of independence required by international law must always be ensured.
The guarantee of such compliance lies within the assessment of constitutionality exercisable by the Constitutional Court, which can be asked to evaluate the conformity of new laws with the provisions of the Constitution, according to which "legislative authority is exercised (...) in accordance with the Constitution, as well as with the commitments arising from the European Union's legal system and from international obligations" 114 .

The benefit derived from the existence of national entities for preventing corruption
There are many advantages to be derived from compliance with the convention norms that ask States to establish dedicated anti-corruption authorities. I will discuss them based on the few years' experience gained since ANAC has been in operation. The Authority obtained accreditation in the Registry, held by the United Nations under the United Nations Office for Drugs and Crime 115 .
The activity that the Authority performs to fulfil the normative provision cited is not so much intended to 114 Art. ult. cit. 115 Pursuant to Art. 6, para. 3, UNCAC, the existence of national entities created for the purpose of prevention pursuant to the Convention must be communicated to the United Nations Office for Drugs and Crime, UNODC, the UN office responsible for the Registry of accreditations. represent Italy at the international level; the traditional government diplomatic delegations would suffice for that purpose. The Authority is rather associated with these delegations (in the contexts, for example, of the United Nations, the OECD, the Council of Europe, the European Union, the Open Government Partnership, the G20 and the G7, limiting the list to the most important for the issue under discussion here), enjoying within them guarantees of independence, since there its presence is exclusively to cover a technical role: its participation is essential for enhancing the national contribution to the international debate with its specific competences, especially when it involves identifying the best contents to include in the international norms in the process of adoption. Again, the Authority uses these occasions to share and exchange information, data and knowledge on anticorruption methodologies and practices in the broadest sense, as understood in our legal system also, with other similar national counterparts 116 .
Thanks to this structure, the national authority is also able to represent and maintain, at the international level, the specific details of the domestic system within the numerous working groups, including those that draft the contents of binding laws, contributing also to disseminating any best practices that the "domestic system" is able to prepare within the legal system: this is what happened, for example in Italy, by express recognition by the OECD, with the procedures 116 Following on from the normative idea contained Art. 5, paragraph 4, UNCAC, in parallel with the work of GRECO, for example, a network of national anti-corruption authorities was created (Šibenik Declaration 16 October 2018), with the task of identifying the best national practices on preventing corruption, organising consistently and codifying them into "manuals" for national administrations to use, to better fulfil the recommendations issued by GRECO to each contracting party. In the domestic context, it is clear enough what advantages can be derived for the "domestic system" from the role performed by such an authority in terms of international relations and what implications arise from the resulting responsibilities. Firstly, in fulfilling its duties, the Authority is better able to transfer into its deliberations a correct understanding of both the literal provision of the norm that it contributed to setting at the inter-governmental level, and the purpose that it intends to pursue, thus ensuring a more complete adherence to the international obligations should it adopt measures with either a general or an individual aim 118 .
In the meantime, the fact of participating in the process that led to the adoption of international norms allows the national authority to usefully assist the domestic legislator in their transposition; to better evaluate (and consequently to solicit) said national legislator towards a better legal structure in relation to antinomies, difficulties in interpretation and weaknesses in the national normative fabric 119 .
A few more words are needed, precisely in relation to the last item identified (that is, the problems that the national legal system can present in relation to the actions required 117 See the two Reports adopted by the OECD in December 2014 and March 2015, published on www.anticorruzione.it.
118 If we consider the many and significant duties that the Italian National Anti-Corruption Authority has assumed including in the fields of regulation, supervision, consultancy, we can better understand the usefulness of such a technical role.
119 In this area it is in Italy the contribution that ANAC provided, for example, with the adoption of Guidelines no. 6/2015 that made the application of Art. 1, paragraph 51, of the "Severino Law" on protecting whistleblowers less complex, and this facilitation is still happening today in relation to the new provisions on the issue adopted under Law no. 179/2017. by its participation in international relations), to underline the virtuous effect that derives from inter-governmental collaboration and more specifically, from the national anti-corruption authorities' participation in the same. The majority of the obligations assumed within the international governmental organisations (mentioned earlier), which pertain to fighting corruption, implement the verification mechanisms of the convention requirements, which in part have already been discussed in relation to another context 120 . The peculiarity of these mechanisms consists in very constructive methods of control that aim, not so much to ascertain the precise responsibility for the violation of an obligation, but to guide the non-compliant State in subsequent steps towards a satisfactory level of compliance with the obligation itself. This system (called peer review since it is performed in the context of a reciprocal relationship between equals, the State parties to the individual convention system) allows "defects" to be highlighted in the national legal system without creating consequences for itself in terms of penalties: the recommendations that end each phase of the different evaluation rounds aim, reciprocally, to make suggestions to States regarding methods for fulfilling their convention obligations. The participation of the prevention authorities in the evaluation "rounds" allows them to continuously introduce requirements arising from the international context into the national system (even in dialogue with the other institutions), thus contributing to the progressive process of adapting the latter to the former.

The contribution of customary international law
Finally, we can examine the question of whether this abundance of norms and practices for fighting corruption (and provide for domestic independent authorities) even in terms of prevention strategy constitutes the manifestation of the existence or the emergence of an international principle of customary nature (therefore of general scope, able to oblige all States to comply with it), and perhaps of a mandatory international norm intended to prohibit this sort of conduct as a crime against humanity, as some American 121 and Indian 122 literature is beginning to discuss. If so, the independence of national authorities would be strengthened, since jus cogens is mandatory for all States of the international Society, and -as we suggested -the fight against corruption greatly benefit from the presence of this kind of bodies, giving the fight itself greater effectiveness. According to the Italian Constitution 123 , the domestic legal system adapts automatically to customary law, that "enter" in it with the rank of constitutional rules.
In the current state of international law, this latest suggestion does not seem tenable: not so much because there is no a legal qualification of corruption shared by States 124 , 124 In the relevant Conventions there are important differences with regard to their subjective application,;but with regard to the material object of the offence they tend to give a similar, almost overlapping definition; there but because the existence of an international ius cogens norm requires common consent on the severe deviance of the action contemplated by the same. Currently this consent does not seem likely, given the lack of widespread acceptance of this common consent. However, it is worth noting that there is a strong discussion about the creation of an international criminal court to fight grand corruption: such an institution presupposes the belief that corruption is a crime under international law. The debate was initially raised by Mark L. Wolf (US judge), during the 2012 St Petersburg International Legal Forum 125 . The proposal is in particular sustained by the Harvard Kennedy School of Government 126 , the American Academy of Arts and Science e the III (Integrity Initiatives International), a nongovernmental organization founded (on 2016) with the aim to combat "grand corruption". GOPAC (Global Organization is broad agreement, being the definition of corruption generally based on improper advantage, expressed very vaguely as "any undue advantage" (Arts. 2-3 Criminal Law Convention on Corruption; Art. 2 Civil Law Convention on Corruption; Art. 15 UNCAC). The 1997 OECD Convention stands out because it identifies the crime of transnational corruption (or international) in relation to economic transactions, which is a crime that must be included within the legal system of each contracting party (on this see S. Manacorda, La corruzione internazionale del pubblico agente, Naples, 1999 of Parliamentarians Against Corruption) adopted the Yogyakarta Declation (8 October 2015) that recommends that the United Nations (at point 6) consider the adoption of a supplementary protocol aimed at establishing an international criminal court for combating this type of conducts. This project is adversed by the Heritage Foundation 127 . Instead, it is certainly a norm of general international law that obliges States to fight corruption offences, since the structure of the current international community attaches to them individually and collectively the responsibility of ensuring the orderly and legal pursuit of international relations including with and between private parties 128 .
The existence of this norm on the structure of the international legal system is manifested by the willingness of States to fight offences that are contrary to this orderly and legal structure: this willingness is make evident, in fact, by the signing of so many treaties and the adoption of unilateral international norms of hard and soft law.

The necessary balance between the exercise of normative and regulatory activities in the context of preventing corruption
Everything said up to this point means that norms to comply with international and European law are adopted between States, along with procedures to ensure their effectiveness and efficiency. In this context, we must not ignore that increasingly often, in the most diverse areas, academics, many figures from the economic sphere and observatories (national and otherwise) of the methods that underlie the strategy of fighting corruption through prevention claim that the procedures implemented in this respect represent an element that contributes towards (if not causes) the inefficiency of the public sector system and business activity due to the costs, delays and restrictions they involve. The common factor in their reasoning is their affirmation of the pointlessness, or rather the unsuitability of the rules for changing the attitudes and the culture of a State and a nation. On the contrary, I am deeply convinced that the law and, therefore, the procedures it implements, can be a powerful means for launching a different cultural approach from the present one with regard to corruption and the actions that sustain and feed it 129 : a cultural approach at the centre of which is an awareness of the severity of the damage caused by a degree of corruption as high and pervasive as the level many areas of the world have long experienced, causing not only economic damage, but also social and political, since it is likely to destroy the relationship of trust between government officials and institutions placed at the base of a constitutional legal system. A cultural approach, therefore, through which the "costs" of corruption are visible and there is an awareness of the reprehensible extent of the offences involved 130 . However, the laws must be applied, in particular and firstly by a prepared and competent public administration, supported in being those things by investment in its formation, generational turnover and the acquisition of information technology. In relation to these requirements, the so-called invariance clause applied as standard, not only doesn't help, but is dystonic.
There is no doubt that the law, and with it procedures, represent a victory and a bastion for those who do not hold power (public, since they do not share positions in the government of the public sector, or private sector, since they are not financially strong). Bureaucracy, in the modern sense of the word, was created to achieve collective aims according to criteria of impartiality, impersonal use of power and rationality: it is an instrument for sharing authority as opposed to the arbitrary exercise of the same 131 . In principle, therefore, the condition of corruption within a society cannot be removed by the existence of laws and procedures: good rules lower the risk of corruption as a way of affirming the principle of the supremacy of law over discretion 132 .
It is said (also referring to important historical references 133 ) that the problem is caused by too many rules: 132 On the principle of legality and the characteristics of the norm (so it can be categorised as "law"), see the detailed case law of the European Court of Human Rights in relation to the interpretation and application of Art. 7 of the European Convention for the Protection of Human Rights, as explained by D. Rinoldi, L'ordine pubblico europeo, Naples, 2008, para. 41. 133 Notable is the comment made by Tacitus invoked by those who claim the inherent corruptive force of having many laws («Corruptissima re publica of course, over-abundant laws often lead to difficulties with interpretation and application, aporias, contradictions; sobriety is a feature of good legislation. However, sobriety does not respond to objective, universal indicators, each situation deserving a greater or lesser degree of legislation. It is better, therefore, to turn our attention away from the quantity of rules and focus on their quality 134 . Now, when a situation of diffuse and pervasive illegality needs to be fought, the quality of the rule is measured in terms of its effectiveness and, therefore, on its ability to combat the situation. For this purpose, I believe some conditions must be taken into account in exercising normative activity of great importance: firstly, the incentive scope for those who are tasked with applying the rules of conduct and the procedures that result from the norm; then, the exercise of public power by a competent and ethical administration; and lastly, the presence of the same qualities in the public administration's interlocutor. Lastly, there is the question concerning the interpretation and application of the norm: conceptual operations that must be informed by a substantialist criterion. The law, in fact, is an instrument that is not an end in itself, but is needed to achieve justice. These are the conditions that cannot be improvised. Placing oneself in this context, perhaps we can better understand why it can be argued that (sober) laws and (good) procedures can contribute towards establishing a culture of individual responsibility, the anti-chamber of an undamaged social and legal context, where a few, linear rules are upheld plurimae leges»: Annales, Libro III, 27): the intended meaning of the author here is not that many laws produce corruption, but that a corrupt State multiplies the adoption of laws producing corruption, since adopted ad personam.
134 For a detailed legal discussion on this topic, see B.G. Mattarella, La trappola delle leggi. Molte, oscure, complicate, Bologna, 2011. by the best antidote to corruption, that is, transparency. But this condition (transparency in the public sector and in the management of private affairs) represents a victory that is obtained at the end of a long journey supported and guided by norms that indicate clear models of conduct and which contain incentives for virtuosity 135 , in order to accelerate the process of incorporating models of integrity into daily tasks, as much in the private sector as in the professional sector. Fighting corruption is a process; it cannot be eliminated instantaneously; in fact it takes a long time. It is certainly not a linear process and many of the instruments it uses could themselves be corrupted 136 . We need, therefore, to start to launch a cultural process to change the approach, the cultural approach of individuals starting with simple, clear norms of conduct.
Central in this context, is the question of equipping a legal system with a set of rules and procedures, which, of course, force each entity to accept an initial burden of work dictated by, for example, the risk based strategy. However, these are the rules and procedures, which if followed in a substantialist manner and not as merely formal compliance, in the long term lead to the construction of virtuous models of conduct. Furthermore, the acknowledgement of the severity of the damage produced by conduct that is now so pervasive should lead each public and private institution to respond to corruption offences using alternative models, capable of reversing the direction, and which are effective and not governed randomly.
The lessons learned from the international context of action to combat a phenomenon that already stands out for its notable transnationality are very useful. They are offered as a support to each of the participating States (mediated because they are filtered by the extensive experience subsumed by national contexts at the level of inter-governmental cooperation) in order to reform national institutions and their procedures, recommending a reduction of State intervention in the market, the promotion of competitiveness including by merit (thus cutting back "privileged positions"), the reduction of barriers to entry for private companies, and an intact bureaucratic structure accompanied by better (because they are effective) control systems 137 . International law evaluates State compliance not on the basis of a formal adjustment to the obligations it establishes, but rather on the basis of the effectiveness and efficiency of the latter.