Public subjects operating in the economy of the Kingdom of Italy
The world of production and exchange of goods or services, with an economic method, has the entrepreneur as the protagonist, that is, the subject who carries out economic activity aimed at the market.
The production and exchange of goods or services, depending on the law, can be carried out with the business model, but also with models other than the business, such as those of a social nature. It means that it is the positive order that connotes the characteristics of a specific activity aimed at the production and exchange of goods or services.
Private economic initiative is free. It cannot take place in conflict with social utility or in such a way as to cause damage to safety, freedom or human dignity. The law determines the appropriate programs and controls so that public and private economic activity can be directed and coordinated for social purposes. For purposes of general utility, the law may originally reserve or transfer, by expropriation and subject to compensation, to the State, public bodies or communities of workers or users certain companies or categories of companies, which refer to essential public services or sources of energy or situations of monopoly and are of an overriding general interest nature.
Entrepreneur
Entrepreneur is someone who professionally carries out an economic activity organized for the purpose of producing or exchanging goods or services. The entrepreneur can be any entity, public or private, natural or legal person, which carries out an economically relevant activity. The economic activity must at least respect the principle of cost-effectiveness, i.e. covering costs with revenues.
An entity that manages a public service of a social nature, whose activity is carried out according to principles other than the principle of economy, or which acts as a public authority, making use of prerogatives that go beyond common law, privileges and powers, is not an entrepreneur.
Services of general interest
In particular, within the context of services of general interest, a distinction must be made between social services and services of general economic interest. Social services - such as health services, long-term assistance, social security services, employment services, school services - are inspired by the principle of solidarity and are provided without the constraint of the principle of economy. Services organized according to the bureaucratic model come to the fore. with the adoption of this model, the activity becomes an articulation of an administrative apparatus, within which it does not differ except for managerial aspects, such as for example some organizational or financial autonomy.
The provision of the service may generate income (the social security institution, for example, imposes and receives contributions to be able to disburse checks and pensions; the health institution can receive a ticket for the service); however, the principle of economy of management does not apply.
The characterizing datum is that the organization follows the type of administrative organizations in the strict sense and follows the procedural techniques in the legal relationships between the service provider and the user of the service (with the exclusion of relationships of a contractual nature).
Public Administration
The public administration, in addition to acting as a regulator, can directly carry out an economic activity, as an economic operator. The direct carrying out of an economic activity is possible only in so far as it is functional to the pursuit of publicity purposes.
The ways in which the public administration acts as an entrepreneur can be traced back to three:
- direct exercise of economic activity aimed at the market;
- creation of an ad hoc body, distinct from the reference body, which carries out exclusively or mainly an economic activity (so-called public economic body);
- shareholder in a private law company or participant in another private law entity.
Public-law company
The Public-law company (Impresa di diritto pubblico) is established when the public body adopts an entrepreneurial model and directly carries out economic activity aimed at the market, through a given branch of its administrative apparatus, endowed with strong organizational autonomy (the Autonomous State Companies within a Ministry or the Municipal companies within the municipality).
In these cases, the business activity is by definition secondary and ancillary to the institutional purposes of the public body. Furthermore, the public law company has a relationship of subordination with the reference public administration body.
The organizational autonomy of the public law company is very broad, since the company has, in addition to its own bodies and its own personnel, its own income which derives directly from its capacity as entrepreneur (that is, they are considerations for the contracts it concludes with users) own assets, own balance sheet.
Public entities that carry out entrepreneurial activities in an ancillary way are subject to the general statute of the entrepreneur, as well as, where the activity is commercial, to all the remaining regulations envisaged for commercial entrepreneurs. These entities, on the other hand, are exempt from the obligation to register in the business register, as it is only required for public entities whose exclusive or main purpose is a commercial activity. However, the Public-law company lacks a fundamental requirement of the private company: that of business risk and its consequences. The financial responsibilities have, by law, coverage by the public management body, and the risk is transformed into administrative and political responsibilities of the directors of the Public-law company. Furthermore, the existence of management powers of the reference public administration body means that a more or less wide band of entrepreneurial direction choices, and consequently, of contractual decisions, passes from the company's management bodies to those of the body of direction.
In any case, for these companies there is a dissociation between the power of political-administrative direction and the power of managerial determination, the first of the bodies of the reference public administration bodies, the second of the entrepreneurial bodies.
Autonomous State Companies
The Autonomous State Companies (Aziende Autonome dello Stato) are part of the overall organization of the State, albeit separately connoted on a functional level, with respect to the Ministries, with decision-making and accounting autonomy.
The Autonomous State Companies are organs of the respective ministry; they have contractual capacity and are holders of legal relationships and also enjoy a separate legitimacy by virtue of which they stand in court in their own right; they have state assets for carrying out their activities. They carry out - in relations with third parties - an activity mainly in the forms of private law from which they derive, in whole or in part, the resources they need for their activity, autonomously administering the related income. They are administered under public law.
Normally devoid of juridical personality, Autonomous State Companies are governed, with the capacity of president, by the relevant Minister who also represents them; the Minister is assisted by a board of directors and by the general manager.
Therefore, the composition of the bodies of the Autonomous Company constitutes a direct emanation of the State Administration, that the legal regime of the personnel employed by them is equivalent to the state personnel, that the method of approving the budget is an integral part of the State budget.
Municipal Companies
The general model of management of public services is that of the Municipal Companies (Aziende Municipali), having, at the local level, the same scheme as the companies or autonomous state administrations, set up by the municipalities for the management of one or more local public services (urban transport, collection and disposal waste, distribution of water, gas, etc.).
As in the Autonomous State Companies, the Municipal Companies are administered under public law and are given to third parties under civil law. Municipal Companies are bodies of the Municipality, endowed with separate legitimacy. Employees are not civil servants, but private workers. The organizational autonomy is considerable, greater than that of the Autonomous State Companies in the financial and contractual fields.
Economic Public Bodies
The Economic Public Body (Ente Pubblico Economico, E.P.E.) is an entity - endowed with its own legal personality - which exclusively or mainly carries out an economic business activity. There is no need for profit: only cost-effectiveness of management is required.
Carrying out business activities, the public law activity is marginal, limited to the power of certification and internal self-organisation acts. The Economic Public Body has the status of entrepreneur, and is subject, in principle, to the statute of the entrepreneur in general and, if required, to the statute of the commercial entrepreneur. The Economic Public Body acts through negotiating deeds - with the exception of self-organization deeds - and is subject, in principle and subject to express exceptions, to the rules of private law. The employment relationship with employees is under private law, with consequent jurisdiction of the labor judge.
The rules relating to business management are, in principle and subject to exceptions, extended to economic entities, including those not included in the code. On the other hand, the provisions on companies do not apply to Economic Public Bodies, given that these bodies have their own and different legal form.
The carrying out of economic activity by the public administrations through the public economic body is possible only insofar as it is functional to the pursuit of public purposes. this entails an organizational relationship of subjection to direction by the State. The public economic body is usually modeled on the corresponding private company. Bodies of the public economic body are the president; the board of directors; the board of statutory auditors, with powers similar to those of the statutory auditors of joint-stock companies. Corporatist representation is ensured on the Board of Directors.
Economic Public Bodies are the main vectors of the State direct economic action. The category includes the large managers of national public services (such as E.N.EL., E.N.I., and others) a large part of the Italian banking system and the management bodies of state holdings (such as the I.R.I.).
Private entities owned by public entities
The public body often participates, as a minority or majority member, in a private law body such as associations, foundations, committees, companies_ the participation is considered functional to the protection of public interests. The participated entity, except for regulatory exceptions, remains subject to its own discipline. The fact of the participation of the public body, the instrumentality of the body in a public interest, does not affect the private discipline.
The most widespread and well-known case is that of the participation of public entities in private law companies. The private entities responsible for carrying out administrative activities ensure compliance with the criteria of economy, effectiveness, impartiality, publicity and transparency. In the exercise of these functions, the companies adopt administrative acts, which can be challenged before the administrative judge.
There are three types of companies owned by the public body:
- Companies owned by the public body;
- Companies controlled by the public body;
- In-house company.
Companies owned by the public body
Public administrations can only participate in corporations. The corporate purpose is limited: it can only be that aimed at the production of goods and services strictly necessary for the pursuit of the rellevant Public administration's institutional purposes.
The resolution of participation of a public administration in the establishment of a company, as well as all the most important choices in the life of the same company, is adopted with: decree of the Duce, on proposal of the Chief of Government, in agreement with the Minister of State Participations and those Ministers and responsible for the matter, in the case of the partecipation of the State. The rights of the shareholder are exercised by the Ministry of Economic Activities
of the economy and finance, in agreement with other relevant Ministries.
If the participation is from another entity, a formal request from the Head of the public entity concerned is required in addition to the agreement of Ministers. The rights of the shareholder are exercised by the Head of the public entity concerned.