Domenico Crocco Jean Paul de Jorio PUBLIC LAW AND ADMINISTRATIVE LAW IN THE ITALIAN LEGAL SYSTEM COLLECTED ESSAYS Foreword by DARIO LUONGO Parthenope University of Naples EST R AT TO JOVENE International Research Project «US and EU: Public Law and Political Institutions» Supported by PILS - Research Center for Political and International Legal Studies MIAMI INTERNATIONAL UNIVERSITY EDITORIAL COMMITTEE Carlo Amirante - José Marìn Bogus - Enrico Bonelli Raffaello Capunzo - Donald U. Faberstein Antonio Garrido y Marìn - Dario Luongo - Anthony W. McKenzie Giovanni Neri - Felipe Jaime Ortega - Carmen Parra Rodriguez Jeremy Thomas - Lucrecia Emilce Vega Gramunt - Nichole Willburne Volume peer-reviewed by members of Editorial Committee and other experts in the field DIRITTI D’AUTORE RISERVATI © Copyright 2019 ISBN 978-88-243-2618-6 JOVENE EDITORE Via Mezzocannone 109 - 80134 Napoli - Italia Tel. (+39) 081 552 10 19 - Fax (+39) 081 552 06 87 web site: www.jovene.it e-mail: info@jovene.it Printed in Italy Stampato in Italia VII THE PUBLIC LAW AND PRIVATE LAW ACTIVITY OF THE PUBLIC ADMINISTRATION AND THE PHENOMENON OF PUBLIC MANAGEMENT. INTRODUCTORY PROFILES Domenico Crocco CONTENTS: 1. Premises. Administrative Power as a Direct and Indirect Emanation of the State “Apparatus” and the Introduction of Managerial Logic in the Public Administration’s Activity. – 2. The Traditional Distinction of Public Administration Activities in Public Law Activities and Private Law Activities. Brief Reference to the Most Significant Examples of this Distinction. – 2.1. Public Law Activities. – 2.2. Private Law Activities. – 3. The Effect of the Privatisation Process in the Evolution of the Private Law Character of the Management Activities of the Public Administration. – 4. Closing Considerations. Administrative Function and Adoption of Theoretical Models of a Technical-businesslike Type, between Customer Satisfaction and Quality Management. 1. Premises. Administrative Power as a Direct and Indirect Emanation of the State “Apparatus” and the Introduction of Managerial Logic in the Public Administration’s Activity The administrative function represents, in the context of the structure of the “Rechtsstaat” (or legal State), one of the specifications proper to the state’s imperative power, certainly applicable to the notion of “generic public function”, that is, capable of taking place even when it is not exercised directly from the State, but from entities subjectively separate from the State. Such entities (the reference is, obviously, to the public entities in a broad sense, that is, qualified as such by the EU law meaning relating to public law entities) are often set up specifically to co-operate with the State (that is, to slim up and make more effective the activity of intervention in the relevant socio- 98 DOMENICO CROCCO economic area) with the ultimate purpose of satisfying the collective needs. It is just about appropriate, in this respect, to mention the distinction between direct and indirect administration, the latter still representing an exercise of the administrative function, being it irrelevant, from such point of view, whether the State exercises its administrative power through its own organs, or through other entities (which, once again, might be public or even private entities), which act on its behalf. In this perspective, the acknowledgment that Public Administration might utilise, to achieve the purposes it has been established for, instruments of both private and public law, directs towards the introduction of organizational models and management techniques that are entirely renewed and shaped in a properly managerial logic, mainly concentrated on programmes and on the targets achieved (so-called “public management”). The adoption of private law schemes of organisation and action in the administrative field reveals, in line with the experience in Anglo-Saxon countries, a “new” type of Public administration, where the management represents a cluster of methods and organizational management techniques, taken from the companies’ environment, which nowadays finds its space and legitimization in an idea of the exercise of administrative power always more shaped by criteria of efficiency, productivity and, mainly, oriented towards the citizens, who thus become true clients/users of the public services performed by the State apparatus (in its different structures, both central and local). The Public Administration itself, indeed, reveals an organisational macro-system that: i) finds its basis in the citizens’ demands of satisfaction of their needs; ii) is characterised by the performing of an activity of transformation of resources (be these financial-economic, human, and so on); iii) provides answers to the citizens’ demands in the shape of delivery of public services. THE PUBLIC LAW AND PRIVATE LAW ACTIVITY 99 All this refers, furthermore, also to the development of the full knowledge of the fact that the principle of lawfulness of the administrative action must now be considered superseded by the concept of organizational action, which intents to identify the best way to manage strategically the collective resources available, in order to achieve the satisfaction of individual needs on a large scale, thus optimising, to summarise, the relation costs/results1. 2. The Traditional Distinction of Public Administration Activities in Public Law Activities and Private Law Activities. Brief Reference to the Most Significant Examples of this Distinction A correct reconstruction of the public administration activity in a managerial perspective cannot avoid considering appropriately also the classic distinction between “private law activities” and “public law activities”. These are, indeed, of activities deriving from different origins, which the Public Administrations utilises to achieve the public goals set (expressly or impliedly) by the law. Such distinction shows how the actions of the Public Administration may take place on one hand2, in accordance to provisions (and/or criteria) of public law, through the typical expression of authority of the public power that is the administrative measure, or, on the other hand, in accordance to provisions (and/or criteria) of private law, with the creation of a legal agreement, as manifestation of a substantial relation of equality between the parties3. 2.1. Public Law Activities In the case of the so-called public activities of the Public Administration, the administrative measures take the shape of 1 See: L. LAPERUTA (a cura di), Il management pubblico, Napoli, 2007. F.G. SCOCA, La teoria del provvedimento dalla sua formulazione alla legge sul procedimento, in Dir. amm., 1995, p. 1 ss. 3 See: E. CASETTA, voce Attività amministrativa, cit., p. 525. 2 Cf. 100 DOMENICO CROCCO unilateral legal acts that can be taken by an entity “structured” within the exercise of a public power and that can affect, in an authoritative way, the subjective legal status of private parties4. In these terms, one deals with those acts that represent the most important category among the manifestations of the public administration power, which assumes the primary function of widening or restricting the sphere of private parties, directly producing on such sphere particular legal effects, within the scope of the known relationship “power-subjection”. The exercise by the Public Administration of power in an authoritative form emphasises, additionally, the privileged position that the Italian legal-administrative system recognises to the Public Administration in relation to private parties, albeit with the full compliance with the statutory and regulatory provisions governing it5. 2.2. Private Law Activities The activities of the Public Administration may, however, also take place in accordance with the provision of private law, that is, using instruments that take the shape of agreements, entered into with private parties. The always increasing use of private law tools, even for the care of properly public interest, is also encouraged, besides from the Italian legal system, also by EU law. In this case, between the Public Administration and the other party there is a bilateral legal relation, thus a truly contractual activity that, sometimes, originates by a freely taken choice by the Public Administration to adopt, in specified situations, legal procedures that belong to the category of agreements6. 4 E. CASETTA, Attività amministrativa, cit., 521; ID., Provvedimento ed atti amministrativi, in Dig. disc. pubbl., XII, Torino, 1997, p. 243; B. CAVALLO, Provvedimenti ed atti amministrativi, in G. SANTANIELLO (a cura di), Trattato di diritto amministrativo, III, Padova, 1993. 5 On this point, see: S. CASSESE, Lo Stato introvabile. Modernità e arretratezza delle istituzioni italiane, Roma, 1998, partic. p. 45 ss. 6 Cf. G. DE LUCA, Contabilità di Stato e degli enti pubblici, Napoli, 2004, p. 193. THE PUBLIC LAW AND PRIVATE LAW ACTIVITY 101 These are bilateral legal agreements through which the Public Administation obtains the goods and/or services needed, and that are regulated (save when specific provisions dictate otherwise) in the same way of an ordinary contract between private parties. The doctrine, in this regard, has also observed that the relevant contractual relationship articulates itself in two separate stages: “the first (procedural stage) antecedent, the second (contract-proper stage) subsequent to the agreement. In the procedural stage, which encompasses the decision to enter in a contract, the choice of the system to select the contracting party, the settling of the contract price, the taking place of the tendering process, the drafting of the contract clauses and the final approval of the contract, public law, with its principles and criteria plays a dominant role. In the contract-proper stage, which relates to the performance of the contract itself, private law plays a dominant role instead, so the logic of equality of the parties prevails: both parties will have subjective rights and legal obligations”7. On the subject of Public Administration contracts8, one can then refer to the traditional classification of them as: a) generic private law contracts (or ordinary contracts), regulated by civil law provisions, which do not show any particular different element from the contractual schemes normally used by private parties; b) special private law contracts, regulated by special private law provisions; c) contracts with a public object, presenting both the char7 G. DE LUCA, Contabilità di Stato e degli enti pubblici, cit., p. 194. extensively, on the contractual activity by the Public Administration, among the many works, see: G. DAL NEGRO, La gestione finanziaria e patrimoniale dello Stato, Napoli, 1984, p. 211 ss.; P. SANTORO, I contratti pubblici, Rimini, 1995; D. BORTOLOTTI, Contratti dell’amministrazione pubblica, in Dig. disc. pubbl., IV, Torino, 1989, p. 36 ss., as well as the bibliography therein quoted; G. DE LUCA, Contabilità di Stato e degli enti pubblici, cit., p. 191 ss.; R. CARANTA, I contratti pubblici, Torino, 2004; M. SCIASCIA, Diritto delle gestioni pubbliche. Istituzioni di contabilità pubblica, Milano, 2007, p. 380 ss. 8 More 102 DOMENICO CROCCO acteristis of an administrative measure and of a contract relating to public interest matters. Such activity, also, shapes itself under the profile of the procedure adopted in private law contracts and administrative (more appropriately: with public evidence) contracts. The first ones are those in which any events involving the Public Administration or the contracting party remain subject to the same legal provisions regulated by similar private law relationships. This also takes place when specific rules apply in relation to particular needs or for public law aspects. The latter ones, instead, are those in which the subsequent legal consequences (of the contracts) are regulated, in their substantial shape, by specific public law provisions, which deviate, in a relevant way, from the general law provisions used for similar cases. 3. The Effect of the Privatisation Process in the Evolution of the Private Law Character of the Management Activities of the Public Administration The analysis of the management activities of the Public Administration exercised through private law tools cannot avoid considering the so-called phenomenon of privatisation. The so-called “process of privatisation” of the Public Administration has been subject to acceleration in the recent years, also to ensure a greater efficiency, and this under two aspects: from the legal structure, for which, as an example, Article 15 of the Legislative Decree of 11 July 1992, No. 333, converted into statutory law by the Law of 8 August 1992, No. 359 (which provided for the transformation into companies limited by shares of Italian public economic entities, such as IRI, ENI, INA and ENEL), and Art. 113 of the Legislative Decree of 18 August 2000, No. 267, previously Art. 22 of the Law of 8 June 1990, No. 142 (which allows local public services to be managed also through companies limited by shares). THE PUBLIC LAW AND PRIVATE LAW ACTIVITY 103 The effects on the constitutional balances caused by the privatisation process (a subsequent and potential phase of which, though not relevant in the context of the present work, is the abandonment: Legislative Decree 31 May 1994, No. 332, converted into statutory law by the Law of 30 July 1994, No. 474) have been examined by the Italian Constitutional Court that – deliberating with its decision of 28 December 1993 No. 466 about the conflict of matters of competence between the Corte dei Conti and the Italian Republic’s Government – stated that to the Corte dei Conti belongs the task of controlling the management of the companies limited by shares created by the transformation of IRI and of the other above mentioned public entities, as long as the State holds the totality or a majority of the shares in such companies. On such occasion, the Constitutional Judges also indicated, amongst other things, that the reasons underlying the control exercised by the Corte dei Conti upon those public economic entities, which undergo a transformation into private companies, cannot be considered superseded solely due to the change of the legal status of those entities that have been privatised, and that public control will only lose its justification when the privatisation process will have taken such substantial connotation that they will determine the exit of the privatised companies from the public finance’s sphere (the definition of public enterprise, contained in Art. 2 of Directive 80/723/CEE of 25 June 1980 has substantially the same meaning). Previously (decision of 5 February 1992 No. 35) the same Constitutional Court, dealing with a decision concerning Sicilian regional financial companies, had observed that “the development of this type of indirect administration is connected to a general evolution of the State in the present era, by virtue of which the State utilises in an increasing way, particularly in the field of public services and of public employment, forms of activities and of organisation belonging to private law”: public services in relation to which, in a jurisdictional regulating decision, applied for pursuant to Ar. 33 of the Legislative Decree of 31 March 1998, No. 80, the Unified Section of the Court (decision 104 DOMENICO CROCCO of 30 March 2001 No. 71) noted that the legislator took a meaning not subjective but objective of such services, characterised by the functional element of the direct satisfaction of general interest needs. Further, the process of overall regeneration of the Public Administration, in the name of the more ductile criteria of manageability, shaped towards the maximum efficiency in the management of the available resources, can be seen in the “privatisation” process of public employment, started with the Delegating Law of 23 October 1992, No. 421 and the Legislative Decree of 3 February 1993, No. 29, which subsequently was became part of the Legislative Decree 165/2001. As known, the Legislative Decree No. 29/1993 contained the goal of opening to principles, instruments and methods traditionally belonging to the employment environment in the private enterprise. The adopted method (that is the privatisation of the terms of employment in the public sector) represented, in the legislator’s intention, a fundamental milestone to achieve the goal of turn the Public Administration into an increasingly more rational and efficient operational structure, in the perspective of a substantial integration between public and private employment. Subsequently, with the Legislative Decree No. 165/2001 the legislator sought to achieve the fundamental target of increasing the efficiency of the Italian Public Administration in relation to that of the corresponding entities and services in the UE countries, by razionalising the cost of public employment, so to keep it within the boundaries of public finance, and, lastly, achieving the best use of the human resources present within it. In this way, it can be said that the management criterion becomes an essential element of the theory of administrative action where the directional modalities are more relevant than the organisational modalities, in order to allow the elaboration of forms of resource-management and decision-making that are less cumbersome and much less hierarchical, to allow an increasing development of a simplified organisation, based on autonomy of