Carlo Ibba, Tramonto delle partecipazioni pubbliche?

1. Premessa.
2. I limiti legali alle partecipazioni societarie di enti pubblici.
3. Le dismissioni: termini, modalità previste e non, incongruenze varie.
4. Mancata dismissione e sue possibili conseguenze.
5. Riflessi sistematici. Tramonto delle partecipazioni pubbliche?

The extension of public limited companies, both at national and local level, is one of the main features of the Italian administrative system of the last twenty years.
Pros and cons of such a model, too often object of normative interventions, have been highlighted by the large debate of the legal science. As a matter of fact, the lawmaker has not given the public limited companies statute any systemic order by the use of several random measures, nor has limited the negative effects of the excessive use of such an instrument
Nowadays, a counter-tendency of this phenomenon can be noticed. On the one hand, Law n. 244/2007 denies all the public administrations of acquisition and management of shares, except these are essential to institutional aims or providing public services. On the other hand, Law Decree n. 78/2010, converted into Law 220/2010, generalizes and hardens those measures, limiting them to municipalities.
Such measures have generated incongruities, like the lack of provision of withdrawal of the public partner from the company or the lack of sanctions with effects on the validity of the company and acts with third parties in case of non-divestment of public shares within the legal time-limit.
Legal measures directed to contain public limited companies determine systemic effects and query the legal capacity of public bodies. Does the interdiction for a public body to be a partner of a company lead to the «sunset» of State share-holdings? The real weigh of the norm is difficult to define, first of all because of unstable legislation. The reintroduction of special companies or the contraction of public outsourcing is foreseeable. Anyway, the extent of such developments is still uncertain.