Abstract

The issue regarding the bankruptcy of public companies has always been at the centre of intense debate. Public companies have been traditionally considered subject to bunkruptcy by virtue of their nature of private-law bodies. However, a part of the doctrine and jurisprudence considered that public companies qualified as public-law bodies were not subject to bankruptcy regulation, in accordance with Article 1 of the bankruptcy law, which exempts from the relevant discipline only the public bodies. The legislative decree no. 175/2016 has set forth that public companies are subject to bankruptcy regulation, except as otherwise provided for in the same decree. Therefore the only way to justify the topicality of the debate could be to consider the concept of public body in a corporate form as still current. Such body would be identifiable in the company 'necessary' for the public entity. As such 'necessity' could not be neither singled out in the tipology of the activity carried out by the company nor in its specific organizational structure (otherwise the bankruptcy of the private companies operating in the essential public services and of the in house companies would not be justifiable), a way could be to spare only the 'legal' public companies from the bankruptcy discipline. Such would be those companies established by virtue of a legislative act expressly setting forth the unavailability of their existence and functional destination to the will of their deliberative bodies.