Organizzazione, autonomia e funzionalizzazione dell’attivita’ della pubblica amministrazione. Riflessioni a margine del T.U.S.P.P. e del Codice dei contratti pubblici

Abstract

The paper investigates the methods of the Public Administration’s action in light of the evolution of the concepts of organization and party autonomy.

In the sign of a proclaimed transition from the “Public Function” to the “Result-based Administration”, the persistent centrality of the “functionalization” of the P.A. activity is highlighted, as already identifiable in art. 97 of the Italian Constitution.

This leads to reflect that, despite the recognition of different instruments of action for the Public Administration according to the l. no. 241/1990, even the non-authoritative acts of the Public Administration – albeit subject to private law – are also “functionalized” for a specific public interest’s pursuit. It follows, that the centrality of the notion of “legality” is, therefore, necessary to identify, in the specific case, the organizational choice eligibility to achieve the purpose indicated in the law.

The intertwining of activities governed by public law and under the Civil Code leads to the need for a careful comparison between the new Public Contracts Code (Legislative Decree no. 36/2023) and the Law on Public Companies (issued less than a decade earlier with Legislative Decree no. 175 of 2016), which inserts the new regulatory system of public participation in joint-stock companies, in the slow and progressive return to a regulatory State paradigm.

From this analysis emerges that, despite the differences in perspective, in both Texts emerges the centrality of the "functionalization" of the activity, regardless of the legal regime; this leads to the conclusion that it is the legal discipline of the “singular organizational power” that dominates the scene of the entire subject of the Public Contracts Code, not differently from what can be deduced from the general principles contained in the legislative decree n. 175/2016