Judgment No. 18837 of 2023: Liquidator of 'In-House' Companies and the Qualification of Public Service Officer

The recent judgment No. 18837 of 2023, issued by the Court of Cassation, addresses a matter of great importance in the field of criminal law and public administration. This decision focuses on the qualification of public service officer for liquidators of 'in-house' companies, clarifying the conditions necessary for the recognition of such qualification. The judgment, which annulled with referral the decision of the Court of Freedom of Palermo, emphasizes the importance of the objective-functional criterion in the analysis of activities carried out by public agents.

Context of the Judgment

The central issue concerns the distinction between public and private activities in the context of managing 'in-house' companies. These companies, controlled by public entities, perform functions of public interest, but their legal structure may be private. The Court clarifies that, to establish whether a liquidator can be considered a public service officer, the total control by the Municipality is not sufficient. It is essential to evaluate the activity actually performed and its legal regime.

• Public and private control: the fundamental distinction
• The role of the liquidator and their responsibilities
• Legal implications of recognizing the qualification

The Ruling of the Judgment

For the purpose of recognizing the qualification of public service officer for the liquidator of an "in-house" company, it is irrelevant that the entity is under the total control of the Municipality from which it originates. Instead, the activity actually performed by the agent and its legal regime must be evaluated, in accordance with the objective-functional criterion referred to in Articles 357 and 358 of the Italian Criminal Code. Therefore, when such activity is regulated in a private form, the public qualification must be excluded.

This ruling underscores the importance of a thorough analysis of the activities performed by liquidators. Despite the control exercised by public entities, if the activities are regulated according to private logic, the qualification of public official cannot be automatically recognized. This implies a case-by-case evaluation, based on objective and functional criteria.

Conclusions

Judgment No. 18837 of 2023 represents an important step in understanding the role of liquidators of 'in-house' companies and their legal qualifications. It clarifies that, for the recognition of the qualification of public service officer, the presence of public control is not sufficient, but it is essential to consider the nature of the activity performed. This decision could have significant repercussions on future legal assessments concerning 'in-house' companies and their personnel, requiring a more careful and targeted approach in distinguishing between public and private activities.