SOCIETÀ IN HOUSE E PROFILI DI GOVERNANCE

Pursuant to Article 16 of Legislative Decree n. 175/2016 - as amended by Legislative Decree 100 of 2017 - a company with public participation can qualify as in-house - and, consequently, receive direct assignments of public contracts - when three requirements are met: a) he public participation must amount to 100% of the total capital; b) the public administration must exercise a control over the company that is similar to the one it exercised over its own departments; c) more than 80 % of the company’s turnover should derive from the performance of tasks entrusted to it by the controlling public entity. In order to make such a particular type of control possible, Article 16 allows the conclusion of shareholders' agreements in derogation of the maximum five-year term provided by Article 2341-bis, paragraph 1, of the Italian Civil Code (c.c.) and, most importantly, the insertion in the statutes of the joint stock company of clauses in derogation from Articles 2380-bis and 2409-novies c.c. Against this background, this dissertation analyzes the limits to which such a power to depart from the principles qualifying the joint stock company model is considered subject to, in order to reaffirm that the in-house company - far from configuring a new type - is a special-statute company model. To this end, this paper is structured in three parts. Chapter 1 provides an overview of the historical evolution leading to the legislative introduction of the in-house company model, and illustrates its main features and applicable provisions. Chapter 2 analyzes the “similar control” requirement and its implications, investigating the intensity of the relationship between the public entity and the company. Chapter 3 concludes the analysis, focusing on the instrumentality of the exceptions to the organizational structure of the joint stock company, and identifying its limits and the application effects.