Judgment No. 8627 of 2024: Clarifications on the Legal Nature of IPABs

The recent order of the Court of Appeal of Palermo, No. 8627 of April 2, 2024, has shed light on fundamental issues concerning the classification of Public Institutions for Assistance and Charity (IPABs). Following the reform implemented by the enabling law No. 328 of 2000 and Legislative Decree No. 207 of 2001, these entities have undergone a privatization process that has raised doubts about their legal nature, whether public or private. Let us therefore explore the details of the judgment and its implications.

The Regulatory Context and the Reform of IPABs

The reform has significantly altered the landscape of IPABs, establishing that those lacking the requirements provided by Presidential Decree of the Council of Ministers (d.P.C.M.) of February 16, 1990, must be transformed into Agencies for Personal Services (ASP). Conversely, institutions that maintain these requirements can assume the form of private legal entities. This distinction is crucial and determines the operational methods and legal responsibilities of the entities involved.

Nature of Public or Private Entity - Assessment - Criteria set by d.P.C.M. February 16, 1990 - Applicability also by the judge - Existence - Content. Following the sector reform introduced by enabling law No. 328 of 2000 and the subsequent Legislative Decree No. 207 of 2001, Public Institutions for Assistance and Charity (IPABs) lacking the requirements indicated in d.P.C.M. February 16, 1990, were mandatorily transformed into Agencies for Personal Services (ASP), while those possessing said requirements became private legal entities; the assessment of the public or private nature of these institutions, in addition to being entrusted to the regional administrative authority, can be carried out by the judge, based on the criteria established by the aforementioned d.P.C.M., taking into account the statutory provisions and recognizing the private nature of the entity, particularly from the fact that its establishment derives from a private act of liberality, is structured in a way that gives relevance to the will of the founding donors, and draws the means to carry out its tasks from private funding sources.

Criteria for Assessing Legal Nature

The Court highlighted that the assessment of the public or private nature of IPABs is not solely the responsibility of the regional administrative authority but can also be carried out by the judge. This assessment must follow specific criteria, such as those outlined in the d.P.C.M. of 1990. It is essential to examine the statutory provisions and evaluate whether the entity was established through a private act of liberality, as well as whether its funding comes from private sources. This approach ensures a more accurate evaluation that reflects the operational reality of the institutions.

Conclusions

Judgment No. 8627 of 2024 represents a significant step forward in understanding the legal nature of IPABs. With the evolution of regulations and recent reforms, it is crucial that the institutions themselves and the parties involved are aware of the legal implications related to their classification. Clarity on these aspects not only facilitates the management of IPABs but also protects the rights of the beneficiaries of the services offered.