Special Companies, Public Economic Bodies, Contracts, Form, Judgment in the United Sections, Court of Cassation, III Civ. Section, Order n. 3566 of 14/02/2018

Question referred to the judgment of the United Sections

Establishing whether the contractual will of special companies owned by the State or public bodies must (or not) necessarily be written down is a matter of particular importance.

– Special companies (defined as independent business structures with respect to the advertising organization) of local authorities are public economic bodies subject to public law rules as regards their internal organization and to private law regulations regarding the economic activity from the same outstanding.

Reforming the first sentence, the Court of Appeal rejected the opposition basing on the jurisprudence of the United Sections of this Court which equates the special companies (defined autonomous business structures with respect to the public organization) to the public economic bodies, with consequent inapplicability relative contractual formalities both in the employment relationships with the employees and in terms of the manifestation of the contractual will (they are mentioned in the point of Cassation No. 5085/97 and No. 5685/11).

The appellate judge adds (citing “like public economic bodies, municipal companies must be able to intervene in economic life in a similar position to that in which similar private companies are located and, therefore, must be able to take decisions and conclude consequent stores with the speed and elasticity with which these companies operate “, thus deducting that the special companies of local authorities are public economic entities subject to public law with regard to their internal organization and the rules of private law as regards concerns the economic activity carried out by them.

The jurisprudence of this Court identifies precedents which state that “the special company, as an instrumental public institution of the local body, while acting iure privatorum, is subject to the rule that requires the written form ad substantiam for the contracts of the PA, expression the principles of impartiality and good performance pursuant to Article 97 of the Constitution ” (Box No. 9219/14) and, more generally, that the written form is a condition of validity of the contract even in all the cases in which the P.A. act according to the canons of private law (No. 1606 / 07.11, 1702/06, No. 14524/02).

Such an orientation must necessarily be compared and coordinated with the considerable jurisprudence – especially of the United Sections – which in the last decade, in the light of the normative references, redefined (not only for the purpose of the division of jurisdiction) nature and functions of special companies.

In this regard, in addition to the precedents indicated by the impugned sentence (Court of Law No. 5085/97 and No. 5685/11), also Cass. ON. n. 7799/05 (which states that the relationship between the public limited company and public participation does not change its nature as a subject of private law only because the Municipality possesses, in whole or in part, the actions: the relationship between the company and the body the local authority is completely autonomous, as the Municipality is not allowed to affect unilaterally the performance of the relationship itself and the activities of the joint-stock company through the exercise of authoritative or discretionary powers, but only by availing itself of the instruments provided for by company law, to be exercised by of the members of municipal nomination present in the organs of the society).

Then take note of Cass. ON. n. 24591/16, which, after examining the legal nature of the investee companies – from the Report to the Civil Code of 1942 up to the jurisprudence of the EU Court of Justice – observes that the reconditioning of the matter in question to the civil law is implemented today by D. Lgs n. 175 of 2016 (obviously, inapplicable ratione temporis to the case), of which the provision of the third paragraph of art. 1, according to which “For everything that is not derogated from the provisions of this decree, the rules on companies contained in the civil code and the general rules of private law apply to companies with public participation”.

In conclusion, to establish whether the contractual will of the special companies owned by the State or public bodies must (or not) necessarily be transposed in writing is a matter of particular importance.

Therefore, it is necessary to submit to the First President the opportunity to refer the matter to the judgment of the United Sections.

Source Supreme Court of Cassation