Nuove forme di ingerenza nella gestione di imprese private da parte di autorità pubbliche: presupposti e limiti

Differently from the trends of the last decades to strengthen the freedom of private individuals in self-determining the structure and the governing bodies of companies, a few recent legislative measures conferred to public authorities some incisive powers of intervention over private enterprises. In the Italian legal system, for several years, the most important public intervention over the running of private enterprises was identifiable in the extraordinary management of big insolvent companies through external commissioners. The most recent legislative measures – recte: the one that allows the Government to administer enterprises managing “plants of national strategic interest” and the other one that confers to the Prefects the power of administering private enterprises through external commissioners involved in cases of corruption in the awarding of public contracts – extended the powers of external commissioners in all (or partly) the private enterprises management. Those legislative measures confer to public authorities “special powers”, which however might not comply with some provisions of the Italian Constitution and European law. The administration of enterprises through external commissioners discourages economic operators of the other EU Member States to invest in them, since the external commissioners have restricted accountability for negative performance during the management of the enterprises, and the stoppage in distribution of profits to shareholders could lead to losses and depreciation of the majority and minority stakes. The provisions of the law that allow public authorities to administer enterprises through external commissioners are closely connected to the fact that the legislator doesn’t consider the administrative regulations means to fulfil relevant general public interest. Those laws, approved by the Parliament to face specific exigencies, established general rules that instead should rather have been applied only in particular cases and for a restricted period of time.