Il regime giuridico degli atti deliberativi "prodromici" delle P.A. nel testo unico in materia di società a partecipazione pubblica

The Supreme Court (id est: Corte di Cassazione) and Adunanza Plenaria of the Council of State were not able, in their judgements, to define the perimeter of the category of “prodromal” acts, issued by Public Administrations. The state of legal uncertainty, resulting from their judgements, was overcome by the legislator in 2016, establishing a “numerus clausus” of the administrative regime “prodromal” acts. Those “prodromal” acts – which administrative regime, in strict adherence to the principle of legality, can be deducted from some elements of positive legislation – are properly identifiable in: acts for the establishment of the public-controlled company; acts for the acquisition and selling of shareholdings of that company; acts for the change of the activities of that company; acts for the adoption of the resolutions relating to some special operations expressly specified by the Single Act; acts concerning the stipulation, modification or dissolution of the shareholders’ agreement. In outlining the relationship between the “prodromal” acts and the subsequent company resolutions, it has been referred to the relationships existing between the prior administrative acts and the subsequent acts governed by the private law in our legal system. With the reference to those relationships, it has been highlighted how some anomalies or states of invalidity of the prior administrative acts affect the subsequent acts governed by the private law, in determining no legal effect or the subsequent invalidity of them. Considering that the “prodromal” acts are administrative acts, it has been examined the power of annulment and the power of withdrawal that can be exercised by the Public Administrations partners of the public-controlled company. Lastly, it has been taken into account the court scrutiny over the “prodromal” acts that is exercised by administrative judges.