The involvement of private actors in the performance of public tasks is a legal phenomenon which features both ancient origins and an ample diffusion among the legal systems. The phenomenon, however, is far from constituting an invariant: from a descriptive point of view, the procedural and organizational arrangements according to which private actors are involved in the performance of public tasks change significantly depending on the time and place taken into consideration; from a normative point of view, the legal coordinates of the phenomenon vary significantly, in particular in terms of its limits and legal regime.

The book L’esercizio privato di funzioni pubbliche: limiti e regime nel diritto italiano e statunitense (Giappichelli, 2023) addresses the issues posed by this broad and complex topic through a comparative analysis of two legal systems that apparently lie at the opposites of an ideal spectrum. On the one hand Italy, where the conferral of public powers to private actors is traditionally conceived of as a relatively limited and minor phenomenon, and, on the other hand, the U.S., where the phenomenon reaches, instead, its widest breadth.

Limits and regime of the private exercise of public functions

Given the pervasiveness and the heterogeneity of the involvement of private actors in the performance of public tasks, the analysis required a preliminary delimitation of the scope of the enquiry. Among the broad category of public tasks, which include activities that qualify both as public services and as public functions, the analysis conducted in the book focuses on the latter. The choice is justified in light of the potentially greater impact that the private exercise of functions, rather than services, may exert on individual rights and interests, given the authoritative nature of public functions, as opposed to services (according to a legal theorization which is common – but not identical – to many European legal systems).

Two main research questions stem from this specific perspective: the first concerns the limits of the private exercise of public functions; the second relates to its legal regime. Some further words seem useful in this brief overview to elucidate the kind of issues underlying these questions and – consequently – the content of the analysis presented in the book.

As far as the first question is concerned, the issue of the limits of the private exercise of public functions has been neglected to a significant extent in the legal discourse, both in national and in comparative studies dealing with this topic. That is so not in the sense that there lacks an idea that some limits indeed exist, and that, correspondingly, certain functions are inherently public and cannot be delegated to private actors, but rather in the sense that these limits are given as presupposed, and are axiomatically taken for granted, but not critically enquired and discussed. If one instead looks more closely into these limits, several distinctions emerge, rendering the concept of limit less abstract and generic. Limits can in fact be express and formulated in a written provision, or implicit and elaborated by the case law (and further theorized by the legal science). Furthermore, limits can be distinguished according to their legal source: the Constitution, legislation, secondary sources and general legal principles. From a different perspective, limits can be absolute, meaning a tout court ban on the private exercise of a given public function, or relative, meaning that a certain function can be conferred to a private actor provided that certain requirements, guarantees and procedures are followed.

Even with regard to the second question, concerning the legal regime of the private exercise of public functions, the required analysis is an articulated one. It concerns in fact several related, but distinct, aspects, such as: the legal instruments in force of which a private actor can be conferred a public function (e.g. legislative delegation, concession, contracting-out); the rules and principles that govern its activity, both in terms of substantive rules of conduct and in terms of procedural guarantees; and finally the means of protection ensured against the private exercise of public functions, which entail both judicial and non-judicial means, and include among the former both ordinary remedies and public law remedies.

Public functions, private actors: perspectives from Italy and the United States

The book is structured into four chapters. The first, besides elucidating the reasons why the topic is relevant both from a theoretical and from a practical point of view, introduces the aforementioned research questions and delimits the enquired object. The second and the third chapters are dedicated to the analysis of the private exercise of public functions in the enquired legal systems, i.e. respectively Italy and the U.S.

In order to enable a sound and fruitful comparative analysis, the structure of these two chapters  is symmetrical and is built around the research questions. Consequently, both in the second and in the third chapter, the analysis first departs from an inquiry into the limits of the private exercise of public functions according to the legal system’s constitutional, statutory and jurisprudential framework. Featuring also a diachronic perspective, the analysis addresses the inexistence of reserved public functions in the Italian constitutional order and the American doctrines of private nondelegation, State action and the limits to sub-delegation stemming from the structural Constitution.

Secondly, the actual extension and consistency of the private exercise of public functions is analyzed on the basis of a sector-specific analysis, with regard to three main areas in which the phenomenon significantly occurs: a) the involvement of private actors in the performance of functions related to public order (police, prisons, defense and military operations); b) regulatory functions (in the various forms in which private actors can be involved, i.e. private standard-setting, mandated and voluntary self-regulation, co-regulation, etc.); c) declaratory or certificatory functions (private entities authorized to certify compliance with certain standards such as in the case of organic products certification and in the case of the qualification of private operators in the public procurement sector).

Thirdly the articulated issues related to the legal regime of the private exercise of public functions are addressed. The apparent de-publicization of the legal regime, which derives from the private nature of the subject (which in principle must only comply with private law norms), is counter-balanced by different forms of re-publicization, which is in turn required by the public nature of the performed functions. In Italy both statutory law (in force of sector-specific rules and provisions of general applicability) and caselaw require that private bodies exercising public functions must – at least –comply with the principles established by the administrative procedure act, and that the means of judicial protection typically recognized against authoritative powers are equally ensured. This recognition, for as clear and important as it is in principle, nonetheless hides several criticalities which are addressed in the analysis. For instance, to which extent do specific guarantees provided by the administrative procedure act, such as the notice of the commencement of a procedure, or the anticipated notice of the rejection of the party’s request, apply when a private actor performs adjudicatory functions? In the U.S., the subjective scope of application of the statutory rules enshrining the so-called public law values risks undermining the latter with regard to the private exercise of public functions (except for certain rules on transparency). Even most means of judicial protection, typically available under judicial review of agency action, tend to be inapplicable with regard to private bodies: a solution which is only partially remedied by resorting to ordinary remedies.

The different paths of the re-publicization process

The comparative analysis of the private exercise of public functions offers a promising ground for reconsidering fundamental issues in the general legal theory, such as – as the fourth chapter shows –the distinction between private law and public law. As it is well known, in brief and general terms, the former refers to the relationship between private individuals (formally lying on an equal footing), while the latter applies when a body (not necessarily a formally public one) performs public functions (especially authoritative ones). As the book shows, it is not conceivable that rules and principles typically governing the relationships among private individuals continue to apply as such, when private actors perform public functions. The analysis conducted in the book, therefore, possibly confirms the relevance of the – debated – public/private distinction.

Although the limits and the legal regime of the private exercise of public functions are marked in both legal systems by unstable borders, which are indeed coupled by the instability of the distinction between private and public law, there are sound reasons for arguing that such instability does not at all overcome the distinction, nor imply its irrelevance, neither in theoretical, nor in practical terms. As shown in the analysis the public/private distinction is in fact relevant in theoretical terms, from the point of view of the qualification of the legal nature of the subject performing the function and of its activity, and entails, from the practical point of view, relevant consequences, such as in particular the re-publicization of the legal regime.

In both legal systems, in sum, the fact that a public function is exercised by a private actor implies that the latter is subject to certain public law rules, principles and remedies. The paths followed by this re-publicization process differ in the two legal systems, but such difference is one of degree, rather than nature.

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Posted by Dr Leonardo Parona, Assistant Professor of Administrative Law at Roma Tre University