Acqua Beni Comuni Napoli

= also called "ABC Napels" and sometimes spelled Acqua Bene Comune. The attemps to 'commonify' the water service in the Italian city of Napels.

Discussion

Ugo Matei:

"The other front on which the struggle in defense of the commons, especially of the historical victory of the water referendum, is hot and fierce is in the more technical but not less political domain of public service management models. Despite the fact that referendum no. 3 was not admitted by the Constitutional Court (see above), it was crucial in the struggle for the commons to develop an institutional setting somewhere that is coherent with their nature. Such a setting must be capable of demonstrating the possibility of a viable alternative to disprove the mainstream claim that in running important industrial infrastructures, such as an aqueduct, there is no alternative to the stock corporation (SPA). Those who do not understand (or do not want to understand) the epistemological revolution of the commons often maintain that keeping a majority of its capital in public ownership is more than sufficient to respect the referendum results. This vision, however, does not go beyond the binary opposition private vs. public, and de facto reduces the issue of the commons to the need to protect the public sector from privatization of its ownership. Such a vision fails to distinguish the commons from public ownership.

The unexpected victory of an outsider, former prosecutor Luigi De Magistris, in the election for Mayor of Naples just a few weeks before the referendum of June 2011 provided an extraordinary political opportunity for the commons movement to experiment with a genuinely alternative model of governance of the commons. The mastermind of this political opportunity was Alberto Lucarelli, a member of the Rodotà Commission and one of the main architects of the water referendum, whom de Magistris appointed to the City administration in the new post of Assessor to the commons. De Magistris also appointed myself, a former vice president of the Rodotà Commission and drafter of the referendum, to serve on the board of directors of the municipal water company, ARIN S.p.A., a stock corporation group with around 500 employees and about 200 million Euros of business activity. The mission was to steer the first transformation of a major stock corporation into a new public legal entity capable of shielding the water system from the risks of privatization, and at the same time to guarantee the degree of direct civic participation that the common’s nature requires.

It is crucial from the theoretical point of view when engineering new institutions of the commons to consider direct civic participation as an alternative to traditional hierarchical public control, which happens when the public authority simply owns the corporation. This philosophy of equidistance (the same radical distance) of the commons from the private and from the public is a concept that is very difficult to grasp, especially by the left, who still tend to believe the myth of the “good government.” In Naples we started the experiment of a legal form of genuine respect of the referendum outcome grounded in such a philosophy. After Lucarelli left the local government to seek a parliamentary seat – unsuccessfully – it was very unclear to me whether the Naples administration had really understood what we were trying to do. In fact, constructing a genuine commons institution takes power away from the public. Any administration seriously committed to the commons has necessarily to engage in a destituent act, that is, a choice of returning direct power to the people.

Thus, a great deal of patience and research is required, both legally and politically. With regard to the first point, in order to do the formal transformation, it was necessary to interpret Italian law in a manner coherent with the referendum results. This required “forcing” a formal legal structure that includes recently introduced Civil Code provisions (Art. 2500 cc.) which are privatization-friendly and do not contemplate the possibility of changing the bylaws of a stock corporation to transform it into a public entity. It took almost a year of legal discussion, with the acquisition of many expert declarations on all relevant legal aspects (tax, labor law issues, welfare issues, issues of EU law, etc.), to persuade a notary to sign the proposed Board deliberation to transfer ARIN S.p.A. into ABC Naples Azienda Speciale based upon this interpretation. The turning point was the rendering of decision 199\2012 of the Constitutional Court, which offered the basis for a constitutionally oriented interpretation of the Civil Code. The Court, after hearings in which Lucarelli and myself argued against the Italian government and on behalf of the Puglia region, [30] declared the Berlusconi/Monti attempts to cancel the referendum results (see above) unconstitutional. That landmark decision declared that the referendum has a surplus of legitimacy compared to ordinary statute making, so that all relevant Italian law must be interpreted coherently to it.

On the political ground, resistance had to be overcome within the three member-Board of Directors where the sitting President, representing a variety of strong vested interests both at the city and at the national level, opposed the transformation. Eventually, after his quite dramatic resignation in July 2012, I took over the Presidency, a new Vice President was nominated, and the formal act of transformation could finally be entered upon on November 30, 2012. Following this act, duly recorded by the President of the National Notarial Council, the whole process was completed with the registration of the new entity at the Naples Chamber of Commerce on April 22, 2013.

From the formal point of view, this transformation into a public entity is a major victory. Stocks are easy to sell and especially to mortgage to a bank. Because of their legal nature they actually transform the water system into a tradable commodity which is de facto owned by the private sector (banks) also when it is formally in public hands. No such possibility to sell or to mortgage the capital is open to the public entity Azienda Speciale so that strictly speaking one can claim that the water in Naples is now shielded from privatization. Nevertheless, as is becoming clear during these two plus years since the transformation, this is not enough to claim “mission accomplished!” in the making of a new institution of the commons.

A commons institution requires a DNA (corporate bylaws) coherent with the mission of governing the commons in an ecologically sustainable, socially responsible, long-term philosophy. Of course, this mission can only be accomplished if the entity is economically and financially well run, which depends not only on the quality of its management and of its workers, but also on the flexibility, adaptability, and efficacy granted by its bylaws. Some agency of control deploying some kind of standard must control the degree of accomplishment of the mission enshrined in the DNA of any organization. In the case of the stock corporation, whose DNA requires its officers to pursue profit and shareholder value, the market is such an agency of control. In the case of an organization belonging to a municipality, whose vocation is to serve the interest of the administration in office “as if” the administration was carrying on the activity directly (this is the so called in house providing method), the agency of control is the political process represented by the elected or appointed officials of the municipality. The standard which they apply, rather than long-term ecological interest of future generations, is their possibility of being re-elected, thus the running of the business very much depends on which political party is in office and what the politicians are trying to signal to their constituency.

In the case of a commons organization that serves the interests of ecology and of future generations, neither of these traditional agencies of control is appropriate. In Naples we have opted for a “Comitato di sorveglianza” [supervisory board], a sort of multi-stakeholder panel composed of five employees (elected by their peers), five customers (decided by random selection from those that signal their interest), five members of the City Council (politicians), and five activists from environmental movements. Oddly, this latter is the only component that has not yet selected its representation because of the usual infighting of the left which I do not wish to discuss here. The idea is that such a multi-stakeholder board can check the way in which the administrators (appointed by the Mayor) carry out their duty to be faithful to the generative DNA of ABC.

This institutional solution in Naples is still in a phase of experimentation and many adjustments are possible. However, direct participation in the running of the commons can actually happen according to this model if we succeed in making the supervisory board strong, ecologically literate, and independent. In the future, maybe many “commons institutions” will take a similar organization form that experiments with governance which is neither the private corporate structure nor the obsolete direct political-administrative running of public services. Currently, there is a quite serious controversy because of an attempt by the municipality to change the bylaws of ABC incrementing rather than reducing hierarchical bureaucratic controls, and an attempt by the Campania region (run by the right) in the opposite direction to re-open an opportunity for privatization.

A lot of experimentation must happen and it is not easy to carry it on in a very stormy political climate. For example, we can move some interesting steps in the right direction if the supervisory board at some point runs a “matrix of the commons,” a sort of balance-sheet of the commons capable to monitor the environmental and social impact, as suggested by the Gemeinwohl-Ökonomie, in its evaluation of the management’s performance. On this specific issue, a working group is in place, at the International University College in Turin.

Also crucial is to work on the correct division of power between the administrators and the supervisors. All of this can be experimented on in the future, when and if we are able to make ABC an institution that is actually emancipated by the intervention of a contingent political majority. This is not yet the case in practice in Naples, where recently I am experiencing quite some reluctance on the part of the municipality to actually hand over real power to the new commons institution. At any rate, ABC is the most advanced publicly owned commons institution that was possible." (https://commonsblog.files.wordpress.com/2007/10/mattei-italian-commons-chapter-short.pdf)