In fact, one of the many reformations introduced by Pietro Leopoldo in his Grand Duchy was, in 1777, the institution of the “Avvocato Regio”, whose task was to provide judicial defence to the State, in a position substantially equal to the one of private professionals.
This innovation, revolutionary at that time, was inspired by a “constitution in action”, very similar to those that later on, in the mid 1800s, spread all over Europe. It provided, among other things, the separation of powers and the submission of the executive power (when acting as a private citizen) to the judiciary.
2) The historic and cultural roots of the system that, one century later, inspired the institution of the Avvocatura erariale of the Italian kingdom, the Austrian Finanzprokuratur and the Spanish Direccion General de lo Contencioso del Estardo, must be sought for in the Austria of Maria Teresa, where the administrative praxis anticipated the development of administrative law.
The public spirit typical of this system was the expression of an enlightened idea of the administration of the State, and it encouraged a careful and methodical administration of finance.
Consequently, in the above described situation, an institution composed of employee-attorneys, was charged of the defence of the State in tax litigations. Such an institution would guarantee a unitary defence line, a high-profile professional specialization and an efficient economic management.
3) In 1876, a short time after the unification of Italy and the foundation of the kingdom of Italy, the Avvocatura erariale was established. The expression “Avvocatura erariale” does not have a precise English equivalent, but can be roughly translated as “Office of Treasury attorneys”.
The Avvocatura erariale was organized according to the same criteria experienced in Tuscany, when the reformation of the offices of the Public prosecution took place: what actually happened is that magistrates and functions of such offices were moved to the offices of the legal institution.
The restrictive word “Treasury” indicated the fact that the Avvocatura at that time was considered as the defender of the State with exclusive reference to its activity as a private person.
Several reformations, in the period between the two World Wars, significantly changed the nature and functions of the institution: first of all, the Avvocatura, that formerly was a branch of the Ministry of Finance, became part of the organization of the Presidency of the Cabinet; secondly, the name changed from “Avvocatura erariale” to “Avvocatura dello Stato” (consistently with the fact that it was now also charged of the defence of the State in the exertion of its authoritative functions); special rules were introduced, concerning the territorial competence of tribunals in cases involving the State and the service of judicial papers at the headquarters of the Avvocatura; the defence of the Avvocatura was extended to all State administrations, including those provided with autonomy, and – if authorized – to public non-state administrations, to public entities financed, controlled or protected by the State, and to agents or civil servants in judgments having as their object the civil or criminal liability for facts committed in the accomplishment of their duties.
1) The above described procedural and substantial innovations, by increasing the number of entities that may benefit of the defence of the Avvocatura, by putting the Avvocatura at the top of the bureaucratic apparatus, and by permitting a unitary policy of defence, moved all in one direction, as they charged the Avvocatura – directly or indirectly - of the protection of the general interest of the State, rather than trusting it the mere judicial defence of the interests of one single administration.
According to the ground principles contained in the law 1611 of 1933, modified by the law 103 of 1979, the Avvocatura dello Stato represents and protects all economic and non economic interests of the State and of other non state administration without limits of matter.
The reasons for existence of the Avvocatura dello Stato are not only the practical need to manage, with an articulate organization, the enormous quantity of disputes arising between the State and the citizen without the necessity to charge every time a private lawyer - who can be much more expensive for the State - but above all the wish to grant a unitary plead which can also influence the jurisprudence about the limits within which a citizen can attack an administrative act.
The Avvocatura dello Stato belongs to the structure of the Prime Minister Administration and is a technical organ which has the advantage to be formally separated from the public administration it defends whilst belonging to the state administration, which consent to be more sensitive to the needs and the evolution of the juridical experience of the administration, above all through the consultative activity.
In fact, some of the State Lawyers, beside their ordinary work, can also direct the legislative office of a Ministry in order to see and face the juridical problems from an internal perspective.
The State Lawyer is totally independent from his “client”, the administration, and has no hierarchic relation with it. In case of disagreement, in the defence of a specific case, between the administration and the Avvocatura dello Stato, the divergency is solved by the Minister personally. This event, provided by article 12 of the law of 1979, is an exceptional case, considered that usually the administration agrees with the advice of the Avvocatura dello Stato.
* In particular, we have to mention the defence of the Prime Minister in the proceedings before the Constitutional Court concerning the constitutionality of the laws. In such a situation, the Prime Minister is not considered as the head of the executive power, but as the representative of a general interest, directly referable to the state legal system as a whole.
In the same way, the Avvocatura defends the Government whenever a conflict between the powers of the State or between the State and the Regions arises, concerning the limits of their respective legislative or administrative competence or, eventually, in judgments concerning the admissibility of referendums for the abrogation of State laws.
* Another extremely significant task of the Avvocatura concerns the defence of the Italian State as a unitary entity of the international and European legal system before international and super national Courts, such as the International Court of Justice of Le Hague and the European Court of Justice.
One last implementation of the tasks of the institution took place in the 1980s, as the Avvocatura undertook the defence of foreign administrations, such as diplomatic offices, or international organizations such as NATO headquarters, the Commission of European Communities and the European bank of Investments.
* The State Lawyer defends the public administrations in front of the ordinary judge for civil claims and in front of the administrative judge for the administrative claims. In fact, our legal system, like the french system and unlike the anglosaxon system, provides a double jurisdiction.
The distinction between the two jurisdictions was originally based on the difference between a “right” of the citizen, so called diritto soggettivo (decided by the ordinary civil judge) and a mere “interest” of the citizen, so called interesse legittimo (decided by the administrative judge). In the first case, the State is considered on equal terms as regards the private citizen; in the second case, the State is considered in a position of supremacy compared with the citizen.
Some examples of cases decided by the civil judge concern the non contractual liability of the State for medical malpractice in public hospitals or for accident claims when the car belongs to the State (mainly accidents involving the police) or the contractual liability for lease contracts or sale of goods.
Some examples of cases decided by the administrative judge concern public subventions for firms, authorizations for commercial activities, tender for public works, public competitions for civil servants, visa for non E.U. citizens.
Nowadays, in order to avoid the uncertainty about the competent judge, in some matters characterized by a mixture of rights and interests, the distinction between the two jurisdictions is based on two lists of matters more and more specifically provided by the law. For instance, all the acts adopted by the Independent Authorities have to be attacked in front of the administrative judge, as expressly provided by the law.
* The criminal trials belong to the ordinary judge and, in this case, the State Lawyer normally defends, as a civil party, the State which has undergone a damage connected with the crime: for instance the damage consequent to fiscal evasion or the moral and property damage consequent to terrorism or corruption of public officials or environmental pollution.
The State Lawyer can also defend, if requested, the author of the crime when a civil servant is accused of a fact committed during the exercise of his functions.
* In the fiscal proceedings the State Lawyer pleads above all in front of the Supreme Court, as normally, in front of the Tributary Commission, the State is represented by its own officials. This particular fields, as a consequence of a procedural reform, has grown considerably in the recent time as to the number of cases.
* The State Lawyer can also be appointed as arbitrator in arbitrations concerning mainly public works. Originally, in this matter, the law provided that the arbitration was compulsory but a sentence of the Constitutional Court declared this rule in contrast with the constitutional principles, considered that the derogation to the State jurisdiction has to be voluntary chosen by the parties.
The State Lawyers can also act as lawyers in an arbitration proceedings, as well in national and international arbitrations. Some example of this second kind are arbitrations dealing with international contracts between the italian Ministry of Foreign Affairs and developing countries regarding the construction of infrastructures, mainly in Africa and Latin America.
The Avvocatura dello Stato has also represented the Italian State in some important international arbitrations:
- one between Italy and Libia to delimitate the frontier of the continental shelf and territorial sea between the two countries;
- one regarding a credit granted by Italy to Costa Rica which was defaulting in returning the capital;
- one between the italian and the brasilian Military Ministry regarding the construction of a military plane with a Rolls Royce engine where the brasilian Ministry was defaulting in the payment of royalties (the arbitration was conducted under International Chamber of Commerce rules);
- one between Italy and Cuba concerning the reciprocal protection of investments in the two countries.
In fact, the Avvocatura dello Stato can suggest to satisfy the request of a private citizen before the dispute arises, avoiding in this way the length of a trial and the additional fees following the sentence.
Some advices can concern the general interpretation of a new law so that the public department can apply it in the right way, avoiding several potential litigations.
Besides, some advices can concern the transaction or the disclaimer of a specific pending case.
The advices can be optional or compulsory. The majority are optional so that the administration can decide if asking or not the advice to the Avvocatura dello Stato.
Some examples of compulsory advices concern:
- the real estate to be purchased by the State, which have to be ascertained as free from every burden (mortgage, emphyteusis etc);
- the refund of legal cost payed by a civil servant involved in a civil or criminal trial related to his public functions, if the trial ascertains the non responsibility of the civil servant;
- the annulment of a credit of the State if it is considered as irrecoverable.
The pro capite average number of cases is 500/600 per year.
The total cost for the State of the entire Avvocatura dello Stato is around € 160.000.000,00; therefore, the average cost of a single case is around € 800,00 which is much more convenient for the State than what would be the cost of a private lawyer.
Out of these 370 persons, about 70 are Procuratori dello Stato (Junior Lawyers) and the remaining are Avvocati dello Stato (State Lawyers).
About 900 persons belong to the administrative staff.
—-------eoni-pctition. I am persomallv waiting tòr the results of the ~\Titten te The Avvocatura dello Stato is led by the Avvocato Generale dello Stato (Attorney General), whose seat is in Rome and who is appointed with a decree of the President of the Republic under proposal of the Prime Minister and after a deliberation of the Cabinet. The charge lasts untill the age of seventy five. At present, the Attorney General is Mr. Ignazio Francesco Caramazza, appointed on March, 2010.
* The Attorney General expresses the unitary direction of the Institute, he coordinates the institutional activity, he supervises the consultive and judiciary activity, he solves divergencies between the legal advices given by different District Avvocature, he refers to the Prime Minister the trend of the activity of Avvocatura dello Stato with a periodical report.
Their role is to assign the cases, to supervise the organisation of the work, to put a visa in all the procedural deeds subscribed by each Lawyer and to sign personally, together with the Lawyer in charge of the case, all the written advices.
Each State Lawyer belongs to a section and can specialize himself in a particular field, which allows a better quality of the plea.
The new structure aims to rationalize the burden of the work, through a more equitable distribution of the cases; its purpose is as well to increase the positive results, granted by a more specialized and up to date plea.
The main performance indicator is the issue of the trial: the high number of favourable sentences corresponds normally to an efficient defence of the State.
The percentage of won cases is about 65%.
An incentive to increase the efficiency of the defence is the system of distribution of legal fees. In fact, besides the ordinary monthly salary, the State Lawyer receives also, every four months, a share of the legal fees drawn through the won cases.
The most important matters are directly assigned and supervised by the Attorney General, particularly the cases in front of the European Court of Justice, the International Courts and the Constitutional Court and all the cases involving the Indipendent Authorities: Antitrust Authority, Communication Authority; Privacy Authority, Public Works Authority, Energy Authority, Company and Stock Exchange Authority, Assurance Authority.
- Section 1: fiscal proceedings from central departments, Cabinet, Presidency of the Republic;
- Section 1 bis: fiscal proceedings from northern departments, Chamber of Deputies, Senate, Regions;
- Section 2: fiscal proceedings from southern departments, Environment Ministry, Comunication Ministry, Treasury Ministry;
- Section 3: Finance Ministry, Customs Agency;
- Section 4: Interior Ministry, Cultural Ministry;
- Section 5: Ministry of Foreign Affairs, Health Ministry, Military Ministry Agricultur Ministry, Labour Ministry;
- Section 6: Ministry of Justice, Industry Ministry; State Property Agency;
- Section 7: Ministry of Education, Public works Ministry.
At the present time, the Secretary General is Mr. Francesco Sclafani, appointed in June, 2010. The charge lasts five years and is renewable one time.
There is one District Avvocatura in each seat of Court of Appeal, in total 25, more or less in each Region of Italy, which are 20. The exceptions are Sicily, with 4 District Avvocature, Lombardia, Puglia, Campania, with 2 District Avvocature each and Valle D’Aosta with none.
The 25 District Avvocature defend the local organisms of the state administrations before the Judge of first instance and the Court of Appeal. If a decision has to be attacked before the Supreme Court, the District Avvocature send all the papers to the Avvocatura Generale in Rome, competent for the Superior Jurisdictions. The same happens for the cases before the Administrative Judges: the District Avvocatura defend the State before the Regional Administrative Tribunals and to appeal a decision in front of the Council of State, all the papers have to be transmitted to Rome. The Avvocatura Generale is at the same time the District Avvocatura of Rome.
3) Legal advices of particular importance have to be issued in Rome by the Consultative Committee, composed by the Attorney General and by six State lawyers with a deep and long experience. The Consultative Committee, which meets once a month, gives also the main general instructions for the coordination of the defence, solves the divergencies of opinion between Lawyers dealing with similar cases and establishes the criteria to assign the cases.
- five are provided by the law: the Attorney General, two senior Deputies Attorney General and two District Attorneys;
- four (one of which has to be a Procuratore dello Stato) are elected by all the State Lawyers every three years (normally one from north, one from Rome and one from south).
This body has a relevant power as it is entitled to give its advice upon:
- the seat of destination for the winners of the public competition to become Procuratore dello Stato and Avvocato dello Stato;
- the transfer from one seat to another;
- the appointment of District Attorneys and of Deputies Attorney General;
- the choice of State Lawyers as permanent advisors of a public agency or as member of a commission of a public competition or as arbitrator.
5) The executive board is constituted by the State Lawyers Council and by the Staff Permanent Council. It expresses advices and proposals on the organization of the Institute and establishes the criteria for the distribution of the economic resources between the different offices.
- general affairs and staff;
- organization office;
- steward’s office;
- archivist’s office;
- secretaries and professional collaboration;
- external activity (notifications, deposits of procedural deeds);
- recover of legal fees;
- library and juridical documentation;
- informatics office and data base.
For other non state public administrations, the defence by the Avvocatura dello Stato has to be provided by specific laws and the plea can be compulsory or optional.
2) For the Regions, the defence can be compulsory or optional. The defence is compulsory for the five Regions with special statute: Sardegna, Sicilia, Valle d’Aosta, Trentino Alto Adige and Friuli Venezia Giulia; the defence is optional for the other Regions with ordinary statute, so that they can decide each time to avail themselves of the defence of the Avvocatura dello Stato or not.
In any case, the Avvocatura dello Stato can normally defend only public administrations; for this reason, the Railway administration and the Post administration, which have been transformed in joint-stock companies, can no more avail themselves of the legal assistance of the Avvocatura dello Stato.
* When the State or another public administration represented by the Avvocatura dello Stato is one of the parties of a trial, the suit has to be filed in front of the judge where the Avvocatura dello Stato has its seat.
This rule, fixed by article 25 of the italian code of civil procedure, is supposed to assure, with less expenses, a better defence.
* The notification of a claim against a state administration, according to article 144 of the italian code of civil procedure, has to be made to the Avvocatura dello Stato and not to the administration concerned, in order to assure a prompt defence.
1) To become Procuratore dello Stato (Junior Lawyer), one has to succeed in a public competition, which is considered very selective, consisting in three written tests and an oral examination on eight matters. There are normally 800 - 1000 participants for 8 – 10 positions.
2) After this first competition, one is appointed Procuratore dello Stato and after 2 years one is entitled to participate to another public competition to become Avvocato dello Stato, consisting in four written tests and two oral examinations: one on fifteen matters and one on a simulated plea.
To this second competition, can participate also magistrates, private lawyers and officials of public administrations with a certain seniority. The ratio is, in this case, about 80 participants for 8 positions.
The second competition is not compulsory; who decides not to participate, should become, more or less automatically, Avvocato dello Stato after 8 years (nowadays this is no longer the case, due to public expenditure limits) but normally the majority of Procuratori dello Stato don’t wait for the automatic promotion and participate to the second competition, not only for economic reasons but above all to increase the quality of the work and to be entitled to functions one can’t accomplish as a Junior Lawyer, like pleading in front of the Superior jurisdictions.
A law of 1997 has abolished the distinction between Procuratori and Lawyers for the liberal profession but it doesn’t apply to State Lawyers.
The choice of the seat of destination depends on the final marks and on the ranking after the public competition.
3) It is possible to do a free internship of two years at the Avvocatura dello Stato, which allows to be admitted to the exam of private lawyer and as well to be admitted to the public competition to be appointed Procuratore dello Stato (even if, in this second case, the internship of 2 years is not necessary; in fact, one can participate to the public competition directly after the degree in law).
The State Lawyers can participate to the courses of professional training organized for the magistrates every year.
Several meetings with selected lecturers are also organized by the Avvocatura dello Stato about matters of general interest or about new laws or recent jurisprudence revirements.
The Avvocatura dello Stato has its own web site (www. avvocaturastato.it ) and its own review - which is very useful for the professional bringing up to date - where are published articles about juridical matters regarding the defence of the State, sentences of the European Court of Justice, sentences of National Courts of particular importance, legal advices of the Consultive Committee.