In judgment no. 10 of 2011 the Adunanza Plenaria of the Council of State dealt with some relevant topics concerning the relationship between public administration and public-controlled companies (rectius: whose shareholdings are partially in possession of public administration). In that judgment the Council of State distinguished the sequence of acts, issued by the public administration and the publiccontrolled companies, into two phases, which affect the structure or the functioning of the mentioned company. In particular, the Council of State tackled two issues of great relevance. The first one regarded the judicial jurisdiction over disputes concerning the unilateral acts issued by public administrations-partners of those companies; in particular, those acts were qualified as “prodromal” acts, as regards to the decision approved by those companies. The Adunanza plenaria stated that: those disputes were under the jurisdiction of the administrative judges, the sequence of “prodromal” acts, issued by public administrations, formed an administrative proceeding and those acts had to be qualified as organizational acts of public administration. The second issue, tackled by Adunanza plenaria, concerned the identification of the limits, provided by law, of the public administration capacity to act (i.e.: not for profit public bodies, ex article 3, par. 27, law no. 244/2007). According to this, the judges of the Council of State asserted that public administration may run a company only when the law confers them the power to do that; in fact, they held that in the legal system there is a general principle which prohibits non profit public administration to run a company.However, the public administration may always set up a in house-public-controlled company, which takes a ‘neutral’ organizational shape. With the aim of verifying whether that jurisprudence is well-grounded, we reviewed the special legal provisions which may be applied to the public-controlled companies in French and Spanish legal systems.
Gli atti delle amministrazioni pubbliche che incidono sul piano strutturale o sul funzionamento delle società partecipate qualificabili come atti “a regime di diritto amministrativo” in Italia, Francia e Spagna
MALTONI, Andrea
2014
Abstract
In judgment no. 10 of 2011 the Adunanza Plenaria of the Council of State dealt with some relevant topics concerning the relationship between public administration and public-controlled companies (rectius: whose shareholdings are partially in possession of public administration). In that judgment the Council of State distinguished the sequence of acts, issued by the public administration and the publiccontrolled companies, into two phases, which affect the structure or the functioning of the mentioned company. In particular, the Council of State tackled two issues of great relevance. The first one regarded the judicial jurisdiction over disputes concerning the unilateral acts issued by public administrations-partners of those companies; in particular, those acts were qualified as “prodromal” acts, as regards to the decision approved by those companies. The Adunanza plenaria stated that: those disputes were under the jurisdiction of the administrative judges, the sequence of “prodromal” acts, issued by public administrations, formed an administrative proceeding and those acts had to be qualified as organizational acts of public administration. The second issue, tackled by Adunanza plenaria, concerned the identification of the limits, provided by law, of the public administration capacity to act (i.e.: not for profit public bodies, ex article 3, par. 27, law no. 244/2007). According to this, the judges of the Council of State asserted that public administration may run a company only when the law confers them the power to do that; in fact, they held that in the legal system there is a general principle which prohibits non profit public administration to run a company.However, the public administration may always set up a in house-public-controlled company, which takes a ‘neutral’ organizational shape. With the aim of verifying whether that jurisprudence is well-grounded, we reviewed the special legal provisions which may be applied to the public-controlled companies in French and Spanish legal systems.I documenti in SFERA sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
