PUBLIC UTILITIES: INSTRUCTIONS
The redefinition of the governance system of the participation of municipalities is essentially due to two reasons:
1) The management of social impact, or economic, is likely to occupy an increasingly important role in local government because of known changes that society is experiencing as a whole.
This factor, combined with the contemporary awareness of citizens in transforming its role to "users" (ie taxpayers) to customers (ie subject to influence and guide the choices of service provider), means that local premises are exposed to a real cross-fire arising, for example. by the simultaneous presence of the following factors:
- an increase of customers:
- the higher expectations that customers express in terms of quality of service,
- the need to develop services in a manner consistent with the expectations of quality and cost,
- the ability to ensure the conditions (equipment, personnel. resources in the broad sense) to monitor the application;
- the narrowness of the funds available globally and for individual service to those ideals to create and maintain these assumptions,
- the distance (cultural attitude, professionalism, standards) between the management of local authority and the services that help prevent, manage services as they should manage the local authority and vice versa,
- the increasing devolution of functions from the Central Government to Local Authorities, which pushes them to focus still on institutional activities;
2) The copious production of new legislation is difficult to interpret and correlation
rules affecting companies in which ¬ local authorities are multiple and complicated, but with ¬ linked by a common thread, which can only lead to reflections on the future thimbles society. Article. 13, No DL 223/2006, converted into Law 248/2006 (so-called "Bersani Decree"), requires that companies to which all or ¬ I am, wholly or partly owned by government and regional authorities for the production of be ¬ tions equipment and services must work with local constituents or participating or contracting, and can not participate in other companies or institutions located in Italy, having to sell or spin off assets that are not allowed.
Article. 3, c. 27 et seq. of the budget for the year 2008 no 244 / 2 provides that local authorities are not pos ¬ up companies involving activities of production of goods and services that are not strictly necessary for the pursuit of its institutional and directly recruit or maintain equity, including minority, in such companies. The recent art. 23 bis of Law 133/2008, as amended by art. 15, No DL 135/2009, converted to in-Law 166/2009, and its regulation on economic importance of local public services, approved by Presidential Decree 7 settembre2010 No 168, provided generally relies ¬ ment of the local public services by means of competitive proce ¬ re at a public or society to know ¬ public and private joint venture, provided that the partner selection takes place by means competitive procedures to me ¬ public evidence. During the transitional period, are given different deadlines for the termination of credit facilities do not comply with: the management at the date on Aug 22, 2008 ¬ I ¬ in-house no longer be possible until the mind and without any special resolution December 31, 2011 or the deadline specified in the contract of employment provided that by 31 December 2011, the administration of ¬ yield at least 40 per cent of the com ¬ petitive procedures through a public, which have as their object at the same time, the quality of social friction ¬ bution of specific operational tasks related to the management of the service, the service management of economic assigned directly to companies to cease participation in a combination of public and private, and without exception, without any ap ¬ posita decision December 31, 2011 if the race per la selezione del socio non ha avuto ad oggetto, al tempo stesso, la qualità di socio e l’attribuzione di compiti operativi connessi alla gestione del ser¬vizio, ovvero alla scadenza prevista nel contratto di servizio qualora la gara per la selezione del socio abbia avuto ad oggetto, al tempo stesso, la qualità del socio e l’attribuzione di compiti operativi connessi alla gestione del servizio.
Gli affidamenti diretti assentiti alla data del 1º ottobre 2003 a società a partecipazione pubblica già quotate in Borsa a tale data e a quelle controllate ai sensi dell’art. 2359 del Cod. civ., cessano alla scadenza prevista nel contratto di servizio a condizione che la partecipazione pubblica si riduca anche progressivamente, through public procedures or forms of private placement with qualified investors and operators in ¬ dustrial at a height not exceeding 40 percent by June 30, 2013 and not more than 30 per cent by December 31, 2015, without exception, and without otherwise cease need of special resolution, the date on Jun 30, 2013 ¬ GNO or December 31, 2015. The other partici ¬ pation cease not later than the date of 31 December 2010 ¬.
Finally, the law July 30, 2010, No 122 conversion ¬ tion, with amendments, the DL May 31, 2010, No 78, with particular reference to Article. C. 14 32 that prohibits new companies to the municipalities with population of less a 30.000 abitanti e l’obbligo di messa in liquidazione o di cessione delle partecipazioni già in essere entro il 31 dicem¬bre 2011, ad eccezione delle società con partecipa¬zione paritaria ovvero proporzionale al numero di abitanti costituite da più comuni con popolazione complessiva superiore a 30.000 abitanti. I comuni con popolazione compresa tra 30.000 e 50.000 abi¬tanti possono detenere una sola partecipazione con conseguente obbligo di messa in liquidazione ov¬vero cessione delle altre società già costituite entro il 31 dicembre 2011.
Il quadro normativo delineato conduce inevitabil¬mente quasi tutte le amministrazioni locali a fare in questo periodo delle valutazioni strategiche sulla necessità di liquidare le companies or put on the market ¬ part of market shares in their possession.
Planning is therefore very important not only for compliance but also for sal ¬ vaguardia of the municipal assets, which is the ¬ value of the shares, which are rarely found in the actual budget figures show. ¬ que dun should get in a position to pursue the interests of the institution in the best way and also to defend their choices. The values \u200b\u200bat stake are often important as the quality of future management of the services entrusted to the company.
It is appropriate to begin these steps and highlighting all aspects in a logical order to with ¬ siderite.
Analysis ha appunto lo scopo di guidare questa fa¬se preliminare, partendo dal presupposto che si sia già compiuta la ricognizione di tutte le partecipa¬zioni interessate, nonché già adottata la scelta di procedere alla cessione di parte o di tutte le quote. L’esame della fase preliminare alla cessione, peral¬tro, può fornire utili spunti anche alla precedente scelta che l’ente deve fare se cedere le quote o li¬quidare la società.
I Servizi
L’ente locale deve fare una ricognizione dei servizi gestiti dalle società, perché va accertato se eventua¬li servizi di natura diversa possono continuare a convivere.
Si tratta del caso delle cosiddette multi utilities. Non è raro, infatti, that over time the body hauls ¬ entrusted to local public services is the same company that services equipment covered by the above mentioned art. Decree 13 of July 4, 2006, No 223, converted into Law August 4, 2006, No 248 (Bersani Decree). The rule is designed to preserve ¬ Vare competition and the market from the risk of high ¬ ration, ensuring equality of operators when ¬ C are wholly owned or public enterprises that do not play an instrument but an entrepreneurial activity administrative or on behalf of the entity to which they belong.
companies engaged in these activities, in fact, have very tight constraints and make clear that in ¬ compatible performance of activities of other gene ¬ king. To rectify such situations companies in ac ¬ ment with the agency apparently contracting authority, may, in respect of public procedures, transfer activities not permitted to third parties or sliding ¬ porarle, even forming a separate company.
This reorganization should be completed within thirty months after the entry into force of the decree, based on the ro ¬ ovve amended, by January 4, 2010.
But, of course, not always the case, notwithstanding the rule stipulates that contracts for the spin off assets not disposed of or ¬ you lapse on the expiry of the term.
To a great extent the issue has been clarified through wholesale ¬ interpretation by the Constitutional Court with the decision of 1 August 2008, n. 328. This docu ¬ ment has been quite effective in defining the scope of the rule and, more particular ¬ share the definition of "service equipment". The Court noted that these provisions "... define their scope is not in accordance with the legal title under which the companies operate, but in relation to the corporate purpose of the latter" and "... ¬ tion based on the distinction between administrative activities in the form ¬ ca and from private business activities of public entities. One wing of
¬ may be conducted through companies such ¬ leaders, but the conditions of deployment is different. In the first case there is administrative work, of natural ¬ ra final or instrumental, engaged in by corporations acting on behalf of a public administration ¬ am. In the second case there is provision of services to the public (consumers or users), in competition. "
It was thus intended to mean "... separate the two spheres of activity to prevent a person who carries out administrative
, carries on business activities at the same time, benefiting from the privileges of which it can be enjoyed as a public administration" The requirement instrumentality has often been analyzed also by the court adminis ¬ trative. By decision of Cons. State, sec. V, 7 ¬ lu Council 2009, n. 4346, it was clarified that this requirement exists to ¬ "... when the activities that companies have to play is facing the same promoters or other shareholders of the company to perform the support functions of these public administrations, under the laws adminis ¬ trative "and the pursuit of their aims ¬ tional institutions (see also Cons. State, sect. V, 12 June 2009, n. 3766).
Among the first steps, therefore, is the existence of any real ¬ Pussy situations of incom ¬ patibility of its kind in the investee companies. It is clear that in order to conduct fair trade ¬ sions of shares to private parties should first solve these problems ¬ Ste.
Heritage
The local authority must then assess the possibility of separating the management of the service at least since the major durable goods. Moreover, this principle has always been the basic effects of the liberalization of public services should be ¬ and ¬ which also found expression in the Consolidated No 267/2000 (8) and in accordance ¬ tive industry (see, for example, the D. Lgs. May 23, 2000 and Legislative Decree no. 164, 16 March 1999, No. 79 in terms of gas and electricity) . But this can
may have a strategic organizational value, since the separation ¬ tion of assets by operation of the service also allows you to assign more subjects to different parts of the service.
The separation of major durable goods may also be an act of preservation of an important corporate assets created with the public's dollars. The responsibilities of the local
.
There are clear legal responsibilities and policies that continue to remain under the Local Authorities.
1) From the standpoint of civil and administrative law, it should be noted that, if the external company:
- is controlled by a local authority (As a majority shareholder or reference), this has both the duty / power to check how the company is run and managed, and the right to intervene in the meeting to take all necessary measures. Any provision, for example, grants a further element of control because the activity is carried out in a truly effective and timely;
- is owned by a local authority (as a minority shareholder qualified) This has both the duty / power to check how the company is run and managed both the right to propose, at the Meeting, the most appropriate measures. The possible participation to fund any loss or delivery, for example, grants are a further element of control because such activity is carried out in a truly effective and timely;
- is not in any way owned by a local authority, but licensee of a public service in his name, this is guaranteed to the users of both the continuity of service both to the details and costs established in the concession.
The failure of an effective and timely action to control similar responsibility therefore falls within the scope of the Local Authority and, as appropriate, may include some aspects of heavy civil and / or criminal penalties. The
corte dei cassazione ha recentemente stabilito con la sentenza numero 28699 del 21.07.2010 ha stabilito che quasi nessuna azienda a partecipazione pubblica sfugge alle sanzioni del Decreto Legislativo n. 231/01.
In particolare secondo la corte di cassazione “sono esonerati dall’applicazione del decreto legislativo n.231/01 soltanto lo stato, gli enti pubblici territoriali, gli enti che svolgono funzioni di rilievo costituzionale, e gli altri enti pubblici non economici.”
Quindi la natura pubblicistica di un ente è condizione necessaria ma non sufficiente dall’esonero della disciplina “dovendo altresì concorrere la condizione che l’ente medesimo non svolga attività economica”.
To remember the Legislative Decree 231 and that:
On 08.06.2001 was issued in execution of the authority under Article 11 of Law No 29 September 2000 300 - Legislative Decree No 231 entered into force on 4 July, which sought to adapt the national legislation on liability of legal persons to certain international conventions to which Italy has long adhered, such as the Brussels Convention of 26.7.1995 on the protection of European Communities' financial interests, the Convention also signed in Brussels on 26.5.1997 on the fight against corruption involving officials of the European Community or the Member States and the OECD Convention 17 diecembre 1997 on Combating Bribery of Foreign Public Officials in International Business Transactions.
With the decree in question was introduced into the Italian system of administrative liability (attributable largely to criminal liability) against the companies for certain offenses committed in the interest or for the benefit of themselves, by natural persons who are representatives , administration or management of such companies or their organizational units with financial and functional autonomy, as well as natural persons, de facto, the management and control of such companies, as well as individuals under the direction or supervision of one of the aforementioned individuals.
This responsibility is in addition to the natural person who has materially the fact.
The expansion of liability is to be involved in the criminal punishment of certain companies that have benefited from the commission of the offense.
Among the penalties, the most serious measures are representative of such disqualifying bias or revocation of licenses and concessions, the prohibition on contracting with the PA, the prohibition of the exclusion or withdrawal of funding and contributions, a ban on advertising goods and services.
Responsibility provided for in this Decree also in relation to offenses committed abroad, provided these do not proceed to the state of the place where the crime was committed.
regard to the type of offense intended to result in the scheme of administrative responsibility of companies, the decree in its original text, refers to a series of crimes committed in their relationships with the public administration, namely:
- wrongfully grants, loans or other payments from the state or other public body (Article 316-ter);
- fraud against the State or other public body (art.640 paragraph 1, 1 cp)
- aggravated fraud for obtaining grants public (Article 640 - bis)
- computer fraud against the state or other public body (Article 640 - ter)
- corruption of an official act (art. 318 cp)
- for corruption act contrary to official duties (art.319 penal code)
- corruption in judicial proceedings (Article 319 - ter)
- incitement to bribery (art. 322 cp)
- extortion (art. 317 cp)
- embezzlement against the State or other public body (Article 316 - bis)
After Article 6 of the Law No. 23.11.2001 409 entitled "Urgent provisions of the euro" has included in the decree art. 25-bis, which aims to punish the crime of "forgery of money, credit cards and bolllo values." More recently, art. 3 of Legislative Decree 11.4.2002 n. 61, effective from 16.4.2002, under the new company law reform has introduced the new art. 25-ter of the Decree by extending the system of administrative liability of companies, even against so-called corporate crimes, as configured by the Legislative Decree No 61/2002 (false company false company to the detriment of shareholders or creditors, false statement, false reports or communications from the auditors, prevented control, undue return of contributions, illegal distribution of profits and reserves, illegal transactions involving shares or shares of the parent company of creditors in court transactions, fictitious capital, unlawful distribution of corporate assets by the liquidators, unlawful influence on shareholders, insider trading, obstruction of the supervisory functions of public authorities).
2) From a political point of view (that is, according to the perception that the citizen has in his dual role of client and voters), the local authority remains the owner, to all intents and purposes, the service entrusted to third parties. This means that fall on the shoulders of local authorities also those situations that are not relevant from the legal point of view but are still attributable to a 'bad' or 'poor', exercise of powers by whom, those powers must exercise
is the case, for example, connected the birth of problems due to the quality or cost of services provided by the "controlled" and on which the local authorities were not able to exercise in form and in due time, their actions to monitor and control.
In conclusion, the local authority (and, in particular, its directors) which uses a "controlled" for the management of a particular service:
- retain ownership the service itself;
- if not exercising due control action, the legal risk of incurring penalties for civil and / or criminal and the political risks paying a heavy price image.
It becomes important to establish how and by what means the local authorities can and should exercise due control action.
governance and its instruments
• governance: within the company to re ¬ limited liability status may start in different mo ¬ do the powers of the shareholders' meeting and the organization no administrative ¬. This is an important point ¬ little income that must be planned in preparation for of the private (or private partners). Since the administrative or ¬ Gano is collegial type (¬ obvious mind), the other key factor to plan ¬ king is the internal division of powers between the various figures (President, CEO, executive committee); the
• procedures for the appointment of the administrative and control ¬ vo and limits on autonomy
• majorities: constituting a quorum and decision-limitation of power, etc.. Each of these ele ¬ ments should be set according to the configura ¬ company will be undertaken and should be reviewed whenever changes occur;
• the protection of corporate assets: management autonomy to be given to the private entity must not jeopardize the protection and maintenance of immovable heritage ¬ tion that the institution retains ownership through the company;
• the movement of shares: transfer, pre-emption, withdrawal, exclusion, etc. .. There are a number of possible events that have the ability to modify the care ¬ corporate structure and to determine a range of powers over ¬ tion and society
the output of the member / manager: possession of the assets by the private life is related to established expectations of the management of the service. As seen from the recent pre ¬ implementing regulation
art. 23 bis of the DL June 25, 2008, No 112 (9). In the statute should therefore be re ¬ introdur rules adapted to this kind of planned transfer of shares (to be integrated in each case with the shareholders' agreements);
• Investment: often the figure is related to the private investments. The financial aspects related to these operations (confer ¬ ence, sales, divestitures, etc.). Can you be in par ¬ prescribed by the statutes and partly in ¬ stead be regulated through the call for it LOCATING ¬ partner;
• control: control bodies are governed by the law ¬ born, however, the statutes may es ¬ obligations set most evenings protection (certification requirement of the budget, with compulsory ¬ Statutory Auditors are not met even if the limits of the law, etc.).
• Use art. 2449 Civil Code. making it possible under certain conditions to restrict the public body to ¬ the appointment of members of the am ¬ ministers. Although planned for the spa, the dot lace ¬ admits it also estimates by analogy ¬ statutes of limited liability companies (10);
• relations between the acts of the company and measures ¬ ments of the Employer: com ¬ tional regulations, the company's business plans, municipal plans, etc. •
systems of supervision, management of the company and the quality of services;
• the ability to create subsidiaries to delegate part of the activities (making it more difficult to control by the institution);
• l ' adoption of rules of procedure in accordance with Legislative Decree no. June 8, 2001, No 231 relating to the regulation of administrative responsibility of legal persons.
• Shareholders' agreements are agreements outside of the gene ¬ Rato social bond with the purchase or subscribe for a share of the capital. Serve to re ¬ golare among its members to exercise their rights. • This contract will
¬ between members are placed in a subordinate position to ¬ the existence of social constraints, from which I draw ¬ no origin as non-standard contracts are governed by the rules on contracts and obligations (Book IV of the Civil Code) and take effect only between the parties .
• The provision of input to private shareholders in ¬ TY public members must be accompanied by refinement of appropriate arrangements between partners in order to in ¬ crease or maintain control of the public portion. While the company public spaces should normally be within the common interests of the institution to which they belong, with the expansion of capital to the private interests represented in the undertaking are diversified and partly diventano contrastanti.
• Per conservare idonei poteri in mano pubblica, quindi, vanno previsti almeno due distinti patti:
• quelli conclusi esclusivamente dai soci pubbli¬ci;
• quelli tra tutti i soci (pubblici e privati).
• Le principali fattispecie di patti attinenti al caso delle società pubbliche sono le seguenti:
• il sindacato di voto, con cui i soci si impegnano ad esercitare il diritto di voto in assemblea in modo concertato;
• il sindacato di blocco: che limita i diritti di tra¬sferimento delle quote possedute.
Un moderno sistema di controllo di gestione al fine di:
1. definizione delle variabili da tenere sotto controllo e delle relative modalità procedurali;
2. definizione degli strumenti operativi di supporto al Servizio partecipate necessari alla sviluppo delle attività;
3. impostazione del sistema di controllo e definizione delle eventuali modifiche organizzative interne e di raccordo con la singola partecipata, necessarie all’introduzione e/o all’implementazione del sistema di controllo.
1. Creazione di un “cruscotto” per ciascuna partecipata, in grado di sintetizzare Io stato dell’azienda ed il progressivo raggiungimento degli obiettivi programmati, realizzando così un sistema di costante monitoraggio della situazione del sistema;
2. Definizioni degli indici significativi di controllo for the various activities;
3. Finding ways and means of internal communication;
4. Implementation and monitoring of trial results;
a) Financial statements and budget analysis;
b) Budget balances and variance analysis;
c) Consolidation of data for areas of interest;
d) Consolidated Budget;
e) Financial statements of consolidated operations;
f) Drafting Procedures Manual Control and Consolidation,
g) Assistance in choosing and implementing any software
N. Documents work performed for the Body Benefits Products
1) Definition of the methods of implementation Manual control of the management control of investee Improving information flows to support decisions regarding the investee companies
2) Setting up a reporting system
3) Realization of the control system of the "enlarged Community" Report on the investees
1) defining the objectives, resources and services procedures;
2) Development of operational tools needed to participate in the service development activities;
N. Documents work performed for the Body Benefits Products
1) Building or in the case of existence of the analysis procedures of the service organization owned Proposals e di nuove procedure Miglioramento gestione società partecipate
• CHI DEVE FARE CHE COSA
• Ai sensi dell’art. 42 c. 2 lett. e) del Tuel è attribuita al Consiglio comunale la competenza in materia di partecipazione dell’ente locale a società di capitali. La procedura di cessione totale o parziale delle quote deve prendere necessariamente avvio da un provvedimento consiliare, che dovrà adeguatamente motivare le scelte in relazione al perseguimento degli interessi pubblici rappresentati dai bisogni della collettività amministrata, faro che deve guida¬re l’azione amministrativa nel suo complesso. Tale principio si traduce nella necessità evidence public as a means to find the best agent to meet market needs between ¬ transparency and impartiality required by Article. 97 of the Constitution. The same national legislation, but in ¬ tery public accounting requires the use of bankruptcy procedures for each pro ¬ contractual activity of public administration, by limiting in some exceptional circumstances that the possibility of direct custody.
• The legislature in imposing the public evidence pre ¬ supposes that it is attractive to the equity market, in which case the sale can be relatively simple to set up.
• Otherwise, if companies that perform ser ¬ vices unprofitable, there is a real danger that the race should be empty. In this case you will need to pro ¬ surrender with the liquidation of the company, with all the problems concerning manpower, resources and Risor ¬ if resulting therefrom.
An important point is to clarify who is the subject that the public tender for the purchase of shares and for
asset management. On this there is no doubt if it is proposed to enter into society without a partner ¬ through to an increase in the capital of the call can also be published by the company. The capital increase is a useful mode when you provide new investments. The company, having the necessary knowledge, however, can adequately deal with the technical re ¬ garding the management of activities to be provided in the notice.
But when, as frequently happens, the municipality intends to recover the value of shares held in the im ¬ mobilized (and help your budget), then it is identical to that published when securities are pub ¬ a contract to dispose of part or all shares held. CONCLUSIONS
institutions must put their hand subsidiaries and must do so not only because it provides but because the legislation had become indispensable for careful management of resources. It means not putting their hands bound in a performance, but to give body to a location that has a soul best companies and management that aims to define strategic plans for the sale or development, management and control systems similar to, practically everything that is now commonly under the name of the government subsidiaries.
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