La responsabilità dell’ente pubblico per l’attività di direzione e coordinamento sulle c.d. società strumentali

The article critically analyzes a recent trend of the Italian jurisprudence, according to which the public entities would not incur liability pursuant to Article 2497 of the Civil Code in the event that the companies subjected to their decisive influence exercise purely instrumental services, since they cannot be qualified as “entrepreneurial activities”. Instead, according to the thesis presented by the author, also in the light of an analysis of teleological and systematic nature, the public purposes of the body exercising the directive activity should always be considered substantially irrelevant and the only decisive elementfor deciding of the liabilityregime is tobefound in theeconomiccharacter of the activity carried out by the directed company, quite possible even in the case of so-called instrumental services.