Delimitazione legislativa alla partecipazione pubblica in società di capitali

Abstract

The study deepens the two legislative limits set by art. 4 of the Consolidated Text of Public Companies to the corporate organization of the P.A., analyzing its legal nature and its applications.
The first limitation is that of strict need, i.e. public institutions are allowed to set up companies or to acquire (or maintain) shareholdings only where this appears «strictly necessary» for the pursuit of their institutional purposes (art. 4, paragraph 1, Consolidated Text). On the other hand, the second limit is that of the exclusivity of those purposes, in the sense that, where strictly necessary, such corporate bodies may be set up or participated by the Public Administration «exclusively» for the performance of certain types of activities strictly listed by the legislator (art. 4, paragraph 2, Consolidated Text).

With these constraints, confirmed by constitutional jurisprudence, the legislator basically intends to avoid the danger that the use of the corporate instrument could lead to distortions of competition to the detriment of other private economic operators operating on the market, which, on the other hand, do not benefit from privileged positions resulting from public partnership.

In this way, our legislator goes far beyond what is required by Community law, which is concerned that public undertakings should not enjoy privileged schemes.
Finally, the paper analyzes the sanctions imposed by the following articles 7, paragraph 6, and 8, paragraph 2: theabsence, nullity or subsequent annulment of the resolution to purchase the company’s share holding rendersineffective the contract for the purchase of the same share holding. It also requires the liquidation of the stake or, in the case of an essential participation in the achievement of the object of the company, the liquidation of the entire corporate entity, expressly referring to art. 2332 civil code, as regards the nullity of the act of incorporation of public limited companies