L'in house providing tra funzione e struttura: controllo analogo, partecipazione "pulviscolare" ed eterodirezione della società

The author addresses the issue of in house companies after the EU Directives and the recent Act disciplining State owned companies, as amended by the subsequent “corrective” decree. After dealing with two opposing visions attributed to them, the author addresses the control that the contracting authority exercises over the legal person concerned which is similar to that which it exercises over its departments. The author deems to be critical of the special nature that a widespread opinion and the Italian Supreme Court attributed to them, highlighting that the control involves the management and coordination rules under art. 2497 of the Italian civil code. From this standpoint funcional profiles should prevail over organizers under EU law and in this perspective in house companies play a pivotal role as a cooperative instrument.