The consultative function carried out by the State Attorney's Office, essentially governed by art. 13 RD 30.10.1933 n. 1611, constitutes within the framework of the Institute's activity the form of technical assistance complementary to the procedural representation and defense in court of the Administrations sponsored by it, including all interventions and initiatives not attributable to contentious legal protection in the strict sense; it translates into collaboration with a public institution for the purpose of solving technical-legal and interpretative issues, suitable for preventively illuminating and corroborating the body or entity assisted in carrying out its administrative action on the level of legality and operational correctness. given subjects.
Bodies admitted to tax defense in the disputed area can benefit from this form of assistance (art. 47 RD 30.10.1933 n. 1611) and in any case unlike the latter (see art. 45 RD latest cit., on support provided under particular conditions to employees of entities sponsored by the State Attorney's Office) it can never be provided to natural persons.
The responsibility for issuing opinions is entrusted to the responsible territorially competent office in relation to the constituency of the requesting body.
The consultative activity of the State Attorney's Office, considered in itself, expresses a peculiar form of collaboration between the technical-legal body and sponsored bodies which is only in principle comparable to the relationship between a lawyer from the free court in the capacity of legal consultant and client; this collaboration is qualified by the independence, neutrality and general competence of the consultancy body as well as by confidentiality for the purposes of access pursuant to art. 7 l. 241/90, and is aimed at the best extrajudicial care of general public interests and ultimately at the protection of the patrimonial and non-patrimonial sphere of the entity, up to acquiring the role of collaboration in government action in cases of preparation of bills and regulatory texts.
The opinion of the State Attorney's Office is normally optional, as its adoption cannot ignore the initiative of the active administrative body.
In various legislative cases it is envisaged as mandatory, i.e. of a necessary acquisition and not left to the discretionary evaluation of the administration, through a specific sub-procedure in the context of the preparation of the final act of the process pertaining to the consulting body.
The traditional differentiation between the dogmatic classifications of the optional and obligatory nature of opinions does not, on closer inspection, seem to be suited to the peculiarities of the nature and institutional role of the State Attorney's Office and only concerns the phase of the initiative by the body interested in the consultation, the the release of which is due to the State Attorney's Office; it therefore operationally boils down to the exclusion, in the second case, of the assessment by the assisted Administration on the opportunity to promote the acquisition of the advocacy body's advice regarding the legal issue.
This is without prejudice to the possibility for the consulting administration to disregard the opinion given by the State Attorney's Office, be it optional or obligatory, without prejudice to the fact that by peaceful recognition, including jurisprudential, the orientation contrary to that expressed by the legal consultative body is binding in a manner particular the entity on a motivational level, requiring adequate justification of the dissent in the final administrative act of the assisted procedure.
Furthermore, within the state system, the State Attorney's Office is joined by the Council of State in the ownership of the consultative assistance function of the administrations, in terms of alternatives or even competition.