The patronage of the state advocacy

The State Advocacy represents and defends in court the constitutional bodies (Presidency of the Republic, Chamber and Senate, Government, Constitutional Court, Council of State, Court of Auditors, CNEL, etc.), judicial bodies (Cassation, Courts of Appeal , etc.) and all the administrations of the State, in an exclusive and compulsory way (so-called compulsory patronage), and the Regions with special statute pursuant to art. 1 of the Royal Decree of 30 October 1933, n. 1611, as well as various non-state public administrations and subsidized entities (so-called authorized patronage), subject to the protection or even only to supervision by the State, among which, in the first place, several Regions with ordinary statute (so-called special patronage of Regions with ordinary statute ), pursuant to art. 107 of Presidential Decree no. 616/1977; the Advocacy also represents and defends some international organizations (for example, the EU Commission, the EIB European Investment Bank, NATO and FAO); the possibility is also foreseen for the Attorney's Office to assume the representation and defense of public employees "in civil and criminal judgments that affect them for facts and service cases, if the administrations or entities request it and the Advocate General of the State recognizes the opportunity "(art. 44 RD n. 1611/1933 cit.). By virtue of the provisions of art. 48 of the Royal Decree n. 1611/1933, the State Attorney's Office also represents and defends foreign administrations, such as, for example, the consulate of a foreign state or even a foreign state (Senegal, ex DPR 19-7-1996).
Of particular importance is the defense of the State Attorney's Office in favor of the Regions and regional bodies (the Veio national park body and all the other national park bodies), in light of the law amending title V of the Constitution.
Today, the State Advocacy defends the so-called independent authorities (Authority for competition and the market, Authority for guarantees in communications, Authority for public utility services for electricity and gas and for telecommunications, CONSOB - National Commission for companies and the stock exchange, Guarantor for broadcasting and publishing, Guarantor for personal data protection, Guarantee Commission for the implementation of Law 12-6-1990, n.146 on the right to strike in essential public services , etc.), some joint-stock companies with public participation (such as, for example, ANAS and CONI) and various other private subjects (for example the lyricosymphonic foundations).
In recent years, the role of the State Attorney's Office has been modifying, in a flexible way, in accordance with the evolution of the state and regional system, also in relation to the different position that the State and the Regions have assumed vis-à-vis the Community. European.

The authorized patronage

The State Advocacy, in addition to the mandatory legal aid in favor of the State Administrations, may be authorized to assume the representation and defense of other non-state public administrations and public bodies, as provided for by art. 43 of the Consolidated Law no. 1611/1933 (so-called authorized patronage).
A necessary condition for the exercise of this patronage is the existence of an authorization provision which, by virtue of the provisions of art. 43 cit., Can be constituted by a "provision of law, regulation or other provision approved by royal decree".
The law 12 January 1991, n. 13 provides today that this resolution will be taken by decree of the President of the Council of Ministers, after consulting the Minister of Justice and the Economy and Finance (former Minister of the Treasury).
When the aforementioned provision intervenes, representation and defense are assumed by the Advocacy in an organic and exclusive way (art.43 of the tu as amended by art.11 of Law no. 103/1979) (see Cassation) and, without prejudice to the hypothesis of a conflict (see Cassation), the same rules apply as for compulsory legal aid: from the examination of these provisions, and despite some residual uncertainty in jurisprudence, it can well be said that the traditional distinction between legal aid has now disappeared. mandatory and optional of the state advocacy, being, however, more correct, to speak of "authorized" patronage. (see jurisprudence on art. 43 of the TU cit.)
Thus, we speak of authorized patronage for ANAS, after the changes by virtue of which it, from a company inserted in the state organization - established with Legislative Decree 06/27/1946, n. 38 - State body without legal personality, with patronage entrusted to the Avvocatura by art. 51 of Legislative Decree 17-4-1948, n. 547 - became the first public economic body - national body for the streets with Legislative Decree 26-2-1994, n. 143, renamed ANAS with art. 9 of Legislative Decree 01/26/1995, n. 24 (statute approved with DPR 21-4-1995, n. 242).
Now ANAS has been transformed into a joint-stock company with public participation by art. 7 paragraph 11 of the Law 8-8-2002, n. 178 (converted into law with amendments to Legislative Decree 8-7-2002, no. 138), a provision that, contrary to what had happened in the past for other public entities that have become joint stock companies (for example

Ferrovie dello Stato and, with some conditions, the Italian Post Office), has retained the patronage of the State Attorney, providing precisely that "ANAS Spa may avail itself of the patronage of the State Attorney, pursuant to article 43 of consolidated text of the laws and juridical norms on the representation and defense in court of the State and on the order of the State Advocacy, referred to in the Royal Decree of 30 October 1933, n. 1611, and subsequent amendments ".
This "inversion" of the legislator's trend was also confirmed for CONI, which was also transformed into a joint-stock company with public participation by art. 8 of the Law 8-8-2002, n. 178, which has in fact entrusted - with an innovative provision compared to the past - the patronage to the State Attorney's Office.
It is also interesting to examine the evolution of the patronage of the Universities for which the jurisprudence has never doubted the nature of the State administration, with the consequent entrusting of the "obligatory" patronage to the Bar and application of the rules on the "State forum" and the notification of judicial documents to the competent State Attorney pursuant to art. 11 of the Royal Decree n. 1611/1933 (pursuant to art. 56 RD 31-8-1933, n. 1592).
Now, the Law n. 168/1989 granted the Universities the so-called autonomy. statutory and jurisprudence is raising the question whether this autonomy has also undermined the applicability of the law on legal aid.
Just recently, the State Attorney's Office, in a detailed opinion, which is published for the part that concerns the present discussion, reaffirmed the exclusive nature of the State Attorney's patronage towards universities, confirming what has already been stated in two previous consultations in August 2000 (for the University) and in September 2000 (for the Naval University Institute of Naples), expressly specifying that even in jurisprudence "even after the entry into force of Law 186/89 it was constantly reiterated that “pursuant to the 56 of the Royal Decree of 31 August 1933, n. 1592 and art. 43 of the DR 30 October 1933, n. 1611, as amended by art. 11 of the law 3 April 1979, n. 103, the representation and defense in court of a State University, where there is no conflict with the State with the Regions, is the "ope legis" of the State Attorney's Office, while it can be entrusted to a defender of the free forum in force of a specific and motivated resolution to be submitted to the supervisory bodies "(see most recently Cass. 1086/2001 and first Cass. 13292/99 and Cass. 7649/97) that" state universities, like other state educational institutions superior, constitute state bodies with legal personality, being included in the state organization "(Cass. 13292/99 cit.) and for this reason it was considered the nullity of the notification of the summons made at the University headquarters and not "Of the State Advocacy" (Cass. 8877/97).
The regulatory and jurisprudential events that have affected the various independent authorities are also interesting, a phenomenon of great importance, following the evolution of the state, as was well highlighted in a recent intervention by the State Advocate General.
The patronage of the State Attorney's Office to these authorities, peacefully recognized by the jurisprudence, can certainly guarantee the necessary balance between the various public administrations, also helping to resolve any conflicts of interest that could come to light.

The entities in relation to which art. 43 are very numerous, as shown in the list which also indicates the law by which the patronage was granted, (or, in some cases, revoked: ACI, Automobile Club Italiano, entity EUR, IRI, Ufficio Italiano Cambi , etc.), taking into account that this form of patronage is the one used for all public administrations other than "state" ones.
The quantity and quality of the entities other than the State that are defended by the State Attorney - among all those identified in the list indicated above, we like, on this page, to mention the different A.DI.SU. - Firms entitled to study (for example the A.DI.SU. Of the University of Bologna), the tax agencies, the AGEA - Agency for disbursements in agriculture, the ARAN Negotiating Representative Agency for Public Administrations, the Italian Red Cross, ENAC - National Civil Aviation Authority, ICE - Institute for Foreign Trade, ISTAT, ISPSEL - Higher Institute for Welfare and Safety at Work, the Polygraphic Institute and the State Mint, the Institute for Insurance Services Abroad - SACE, etc., etc. - are such that, effectively, as has been recently claimed in various journalistic articles, the State Attorney's Office is "the largest Italian law firm ”, able to offer a contribution in the interpretation of the rules and in the evolution of our state system.
A particular story has affected the port authorities, for which, after their transformation as a result of the Law 28-1-1994, n. 84, have obtained the patronage with DPCM 4/12/1997. Before the formal granting of the patronage, there had been many doubts and discussions on the real nature of these subjects which, according to some, had a private nature and, as such, lacked the patronage of the Advocacy. The opinion of the Advisory Committee of the Advocacy is interesting, with which the nature of a State body-body is attributed to said Authorities and, therefore, subject to the mandatory patronage of the Advocacy pursuant to art. 1 of the Royal Decree n. 1611/1933 (lastly, the Decree 3-5-2000 which sets out rules for the liquidation of the management assets "Special budget for port labor offices pursuant to art. 16 Law no. 472/99 which provides for the possibility of liquidator to seek advice from the state attorney's office to be acquired through the Ministry of Transport).
Another issue is that which concerns the representation and defense of public employees by the State Attorney's Office, a defense allowed by art. 44 RD n. 1611/1933 for the Advocacy. Also for this particular type of patronage, the jurisprudence is peacefully oriented in the sense of not deeming any mandate necessary, as was also considered by the lawyer Paolo Di Tarsia di Belmonte in an article on the Review of the State Attorney 1995 with a comment to an order of the Court of Rome which declared the question of legitimacy of the constitutionality ex adverso raised manifestly unfounded.

Mandatory legal aid

The State Attorney's Office, in addition to the consultative activity, carries out activities of representation, patronage and assistance in court by virtue of the provisions of the TU 30 October 1933, n. 1611, with the modalities provided by the relative regulation approved with rdn 1612/1933, in favor of the State Administrations (art.1 of the TU cited), of the Regions, as well as of various public bodies (art. amended by articles 10 and 11 of Law 103/1979).
By mandatory legal aid (see in this regard "The state in judgment" by Pietro Pavone, Ed. Editoriale Scientifica), the activity of representation and defense in court provided by the State Attorney's Office in favor of the "State Administrations, even if organized with an autonomous system ", (art. 1 TU cit), for which patronage is, in fact, mandatory and exclusive, with application of the rules of the so-called state forum referred to in art. 6 of the TU n. 1611/1933 as well as those of the notification of judicial acts to the Advocacy pursuant to art. 11 of the Consolidated Law no. 1611/1933.
The exclusivity and obligatory nature of the legal aid are valid for all disputes in which a state administration is a party, before any judge - ordinary or administrative - which could not ask for the assistance of lawyers of the free forum, if not for in "absolutely exceptional" cases

(art. 5 of the TU n. 1611/1933).
The aforementioned rules, then, apply for the patronage that is carried out in favor of all state administrations (the state, as a whole, all the ministries - see now the Legislative Decree no.300 of 1999 and the amending law n. 317/2001), and of the administrations with an autonomous system (which was, for example, the AIMA before its suppression and the contextual establishment of the AGEA non-economic public body (see jurisprudence), as well as for all the bodies in any case included in the state organization, such as, for example, the Extraordinary Commissioner for the Register of Psychologists, the Regional Electoral College of Guarantee, the AIMA before its suppression, the ANAS before its transformation.

The jurisprudence of the Council of State has held, then, that the same rules also apply to the patronage of independent Authorities, which have been considered inserted in the State, even if they have particular autonomy (see CdS Section, section VI, 25 November 1994, no. 1716)
The rule is very important, according to which, in the exercise of the activity of representation and assistance in court, unlike the lawyers of the free forum, the State Lawyers do not need any mandate, it being sufficient that, in the hearing, they show its own quality

- (art.1 rdn 1611/1933), as interpreted by the peaceful jurisprudence of both the Council of State and the Cassation, which also considered the question of constitutionality manifestly unfounded, having therefore considered the provision in question to be constitutionally legitimate.

Other characteristics of the legal aid carried out by state lawyers are that they are not given the power to dispose of substantive law (see, in this regard, the aforementioned "The State in Court" by Pietro Pavone), while, unlike lawyers of the free forum, have the power to dispose of the dispute, in the sense that they are autonomous in the technical management of the same.
Furthermore, they are special agents of the Administration, so that even in cases where a special mandate is required, they do not need it, as it is sufficient that they make their status as state lawyers established at the hearing.
As regards the question of the defense of the official government mayor, the jurisprudence is oriented in the sense of believing that art. 1 of

YOU. October 30, 1933, n. 1611 "refers to the administrations of the State in the proper sense, that is to the offices or office complexes that are part of the organic structure of the State body and, therefore, the provision itself does not apply in the case of bodies of other bodies that exercise state functions, as happens for the mayor who acts as a government official, with the consequence that the notification of an appeal at the municipal house rather than at the competent State Attorney's Office (C. State, section V, October 27, 1986, n. 568).
No mandate and no authorization resolution is then also required for the establishment of a civil action in favor of State Administrations. And in fact, after an isolated ruling against the Supreme Court, promptly commented in a critical way (lawyer Wally Ferrante, Review of the State Advocacy), the Cassation is now peacefully oriented in the sense of believing that "State lawyers, to carry out the acts of their ministry, they do not need a power of attorney from the administration they represent, as it is sufficient that they "know their quality", taking into account that the mandate conferred on them by law also includes the power to appear as a civil party in criminal proceedings (cf. in particular Cass Section V, 7 October 1999, no. 11441, with a sticky note from the lawyer Paolo Di Tarsia di Belmonte).

The patronage of regions with special and ordinary statutes

Regions with special status

The source of the mandatory and exclusive patronage of the State Advocacy in favor of the Regions with special statutes (Trentino Alto-Adige, Friuli Venezia-Giulia, Sicily, Sardinia, Valle d'Aosta) is constituted, by the various provisions contained in the individual statutes, approved, as is known, by constitutional law, as well as in the various implementing provisions.
In these cases, legal aid is exercised in the manner provided for by art. 1 of the Royal Decree n. 1611/1933.
The constitutional legitimacy of some of the provisions that attribute the patronage of the Regions with a special statute has been examined with reference to the Region of Sicily and the Region of Sardinia, but the issues of constitutional legitimacy have been deemed unfounded, having been correctly held by the Constitutional Court that there is no it is no limitation or infringement of regional autonomy.
The existence of compulsory legal aid for Regions with special statute entails the applicability of the same principles as the legal aid of State Administrations and, therefore, the non-necessity of the mandate and the obligation to notify judicial documents at the competent State Advocacy. The examination of the various legislative provisions, however, must lead us to believe that, even for the Regions with special statute, for which, as mentioned, the patronage was born and was conceived as mandatory and exclusive, it is necessary to make distinctions, with reference to the various situations that, over the years, have matured:

REGION OF FRIULI-VENEZIA GIULIA: the fundamental rule on patronage is found in Presidential Decree 23-1-1965, n. 78 (Official Gazette 03/05/1965, n. 57) issued in application of art. 65 of the special statute, (the constitutional law of January 31, 1963, n. 1). Subsequently the rules of the statute were modified with DPR 1987 n. 469, containing supplementary provisions of the statute, with which it was established that the Friuli Region can also entrust patronage to its own employees; see also regional law no. 30 which regulates the cases of assignment of legal aid to a lawyer of the Region, in cases where the legal aid is not entrusted to the State Advocacy, specifying that this can only take place in legally established cases; Regional Law 1 March 1988, N. 7 art. 244., regional law 22 May 1986, n. 22 which among the tasks of the legislative office also includes the handling of disputed affairs and that of looking after relations with the lawyers, when the legal aid is not entrusted to the state lawyer.

REGION OF SARDINIA: the fundamental rule on patronage is found in the DPR 19-5-1949, n. 250 GU 27-5-1949, n. 121 SO; see also DPR 19-6-1979, n. 348 OJ 9-8-1979, n. 218) see also Regional Law 26 August 1988, No. 32 art. 11 which makes it possible to entrust legal aid also to external lawyers.

SICILIAN REGION: the fundamental rule on patronage is found in Legislative Decree 2-3-1948, n. 142 OJ 22-3-1948, n. 68; see also Sicily Regional Law 23 March 1971, n. 7. With reference to the Region of Sicily, it is necessary to examine a question, connected to the internal structure of the departments which, due to peaceful jurisprudence, have a particular autonomy, which must be taken into account when notifying judicial documents and when exercising legal aid by the State Advocacy.
In particular, the Supreme Court held that "The Region of Sicily, as far as the administrative activity is concerned, does not have its own unitary subjectivity, referring to the individual assessors, to whom, in the context of their respective functions, their own competence with external relevance is attributed , so that each councilor is entitled to stand in court for the branch of administrative activity that he is headed "(Cass. SS.UU n. 2080 of 02/23/1995).

TRENTINO ALTO-ADIGE REGION: the fundamental rule on patronage is found in Presidential Decree 1-2-1973, n. 49 OJ 31-3-1973, n. 84 SO; see also regulations implementing the statute DPR 30-6-1951, n. 574 OJ 27-7-1951, n. 170 and Regional Law of 11 June 1987, No. 5. relating to the competences of the Executive which, among other things, “deals with the handling of cases not falling within the compulsory patronage competences of the state advocacy pursuant to art. 39-41 of the decree of the President of the Republic 1 February 1973, n. 49, possibly also with recourse to lawyers outside the administration ".
VALLE d'AOSTA REGION: the fundamental rule on patronage is found in the Law 16-5-1978, n. 196, GU 23-5-1978, n. 141.

Regions with ordinary statute
As regards the Regions with ordinary statute, the source of the patronage is constituted by art. 107 of Presidential Decree no. 616/1977. in the cases in which, in fact, the patronage is entrusted in individual cases, or by a resolution of a general nature issued pursuant to the provisions of art. 10 of Law no. 103/1979, when precisely the Region decides to entrust the patronage to the State Advocacy in general.
As it was, just recently, clarified in a special circular of the Advocate General, "Another form of patronage of which the State Attorney's Office can become the holder is what could be defined as special patronage of the Regions with ordinary statute due to the fact that neither from an ontological need to benefit from his patronage, nor from a heteronomous determination that authorizes the Advocacy to patronize entities other than state administrations, but arises from an autonomous and spontaneous manifestation of the entity in question which, on the basis of a normative provision which gives him the relative faculty, decides to rely on the patronage of the State Attorney's Office ".
When the Region with ordinary statute (or the regional body) has established to avail itself of the patronage of the Advocacy (so-called genetic moment), the patronage has the same character and is exercised with the same modalities that are connatural to all the patronage rendered by the Advocacy : as clarified in the aforementioned circular, "Fundamental and mandatory characteristics of the patronage of the Avvocatura dello Stato are those of organic consistency and exclusivity consisting, respectively, in establishing with the patronage relationship a relationship of organic sameness with the sponsored subject, so that in within this relationship, the sponsored subject is represented for each profile without the need for a specific mandate from the State Attorney, and in the impossibility of entrusting his patronage to a lawyer other than the State Attorney or to support another lawyer with the State Attorney ".
This is a principle that the jurisprudence has had the opportunity to specify numerous times, with reference to all public entities represented and defended by the State Advocacy, both the State Administrations and the bodies in any case included in the state organization, as we have seen way to clarify on the relevant page, both the defended bodies pursuant to art. 43 of the Royal Decree n. 1611/1933 - so it is, for example, for the ERSAP Agricultural Development Agency of the Puglia Region, for the EAS Ente Acquedotti Sicilia, before the patronage was revoked, for the various agricultural development bodies, in relation to which the latter , the jurisprudence has clarified that, although no mandate is required, the rules of the tax forum and the necessary notification of judicial documents to the State Attorney's Office do not apply.
A problem that has been addressed by the jurisprudence was that of the compatibility of the provisions of art. 10 of Law no. 103/1979 with those referred to in art. 107 of Presidential Decree 616 of 1977 provisions which, as evidenced by the jurisprudence of the Supreme Court, in general, include “the Regions with ordinary statute among the entities for which the State Attorney can assume representation and defense, while art. 10 of the law n. 103 of 1979 provides for a particular procedure through which the aforementioned Regions can obtain the application of the entire special procedural regime of legal assistance and patronage valid "ex lege" for state administrations (see Cass SS.UU n. 9523 of 04/11/1996). Over the years, there have been many discussions and observations on the subject (see, for example, the article by the lawyer Giuseppe Albenzio); even the jurisprudence has repeatedly held that the patronage of the State Advocacy should be considered as a kind of patronage different from that which the Advocacy exercises towards the State Administrations.
In recent years, however, the Supreme Court has now affirmed the principle according to which, when the Advocacy represents and defends one of the regions with ordinary statute with the system referred to in art. 10 of Law no. 103/1979 (general resolution), it is not necessary, for individual judgments, a specific mandate to the Bar itself, being, instead, necessary a specific provision (sometimes subject to the approval of the supervisory bodies), in the event that the Region wishes to exclude such representation, to entrust it to private professionals. From this it follows that the State Attorney's Office, if it acts in court for a Region, not having the need for a specific mandate, is not even burdened with the production of the provision of the competent regional body authorizing the legal representative to act or resist in court (Cass . SS.UU.n. 9523 of 11.4.1996 already cited; see the jurisprudence on the subject).
The same applies to regional agricultural development bodies that have expressly declared their willingness to entrust patronage to the State Attorney's Office (see case law of the Supreme Court).
The principle is, therefore, that every time the State Attorney represents and defends a specific Administration, it does not need any mandate or power of attorney since, as is well known, it is sufficient for the State Attorney present at the hearing to confirm their qualification (see Cassation which dealt with the problem of the patronage of the State Advocacy in favor of the departments of the Sicily Region).
From this point of view, it is particularly interesting to observe that, when the single Region has decided to avail itself of the patronage of the State Advocacy pursuant to and for the purposes of art. 10 Law no. 103/1979, all the provisions regarding legal domicile and notification of judicial documents are applied, as considered by peaceful jurisprudence.
When the single Region has not issued the resolution of a general nature to entrust the legal aid to the State Attorney, the jurisprudence has clarified that “The discipline referred to in the aforementioned art. 107 of Presidential Decree 616/1977 was not abrogated by the subsequent regulation of 1979 of which, in the event that the Region does not issue the resolution referred to in the aforementioned art. 10, the special rule of the second paragraph of art. 11 of the Royal Decree n. 1611 of 1933, prescribing the notification, including of judgments, at the State Attorney's Office (see Cass. SS.UU.n. 8648 of 3-10-1996).
Moreover, the Supreme Court has confirmed the principle according to which, when the State Advocacy represents and defends in court a Region with ordinary statute, it does not need any mandate. It may be useful to recall some of the measures with which the patronage of the Regions with ordinary statute was entrusted to the State Advocacy:

REGION OF ABRUZZO (LR 9/1/1979 N. 3 GU 14/1/1980 N. 12 - statute L. 22-7-1971, n. 480 GU 28-7-1971, n. 190) see now LR Abruzzo 14 -2-2000, n. 9 which establishes the Regional Advocacy and makes the legal aid to the State Advocacy non-exclusive

CALABRIA REGION With a specific regional law of 17-8-1984, No. 24, the regional advocacy of Calabria was established. The art. 3 of the law states that “The legal service has the patronage and legal assistance of the Calabria region. Only for exceptional reasons or for the treatment of cases of particular importance can the assistance of external lawyers be requested ".

REGIONE MOLISE (Regional Council Resolution published in the Official Gazette 30-1-1999 with which the Region has determined to avail itself of the patronage of the State Advocacy; with circular no. 13/99 of the Advocate General it was specified that "starting from 15-2-1999 the provisions of the consolidated act and the regulation approved, respectively, with royal decrees 30-10-1933, n. 1611 and 1612, and subsequent amendments, as well as articles 25 and 144 of the Italian Civil Code ").

PIEDMONT REGION DEFENSE REGIONAL EMPLOYEES (LR Piemonte 18-4-1989, n.21 BUR 26-4-1989, n.17

REGION OF TUSCANY (Art. 4 LR Tuscany 7-11-1994, n. 83)

UMBRIA REGION (Del. 8/10/1979 N. 1329 GU 30/12/1979 N. 354) regional law 17 August 1984, n. 41 establishes the competences of the legal affairs office which handles, among other things, relations with the state advocacy and with the lawyers of the free forum.

REGION OF VENETO (Regional Council Resolution n.825 OF 28/6/1979 (GUN 261 of 22-9-1979 BUR n. 46 of 17-9-1979) now Regional Law 16 August 2001, n. 24) the Regional Bar of the Veneto; art. 8 of the law specifies that the State Advocacy continues to ensure legal aid for pending cases and until the pending trial is exhausted).