Pre-unification systems

Two different addresses

The problem of the defense of the State in court, in the context of administrative litigation, was addressed by pre-unification legislation with a multiple series of solutions, which can be distinguished, in a first approximation, into two main basic directions: the direct use of officials of the Administration (Piedmont, Lombardy Veneto, Duchy of Modena, Papal State, Grand Duchy of Tuscany) and the use of Patrons of the free forum (Kingdom of the Two Sicilies).
The systems most representative of these two opposing orientations are that adopted by the Grand Duchy of Tuscany and that of the Kingdom of the Two Sicilies.

The Tuscan system

An essential characteristic was the centralisation, in a single body for all the Administrations, of all the powers relating to the management of affairs and disputes. The royal advocate had in practice the function of a body of justice in the Administration, as "...a dispute was not initiated unless advised by the royal advocate, and the case initiated was suppressed or compromised simply by his vote, in whatever state it was was found and also in the face of a favorable sentence. The royal lawyer, before being a defender, was a peacemaker, and always the consultant of the Administration, or the real manager of both the litigation and the legal consultancy" (G. MANTELLINI, Lo Stato and the Civil Code, Florence, 1882).

The Neapolitan system

The jus postulandi was the responsibility of professionals from the legal profession, while the Litigation Agencies institutionally had the function of supervising active and passive judgments concerning State Administrations, as well as directly assuming the management of individual disputes. In practice, however, all they did was distribute the cases among the delegated lawyers and monitor their progress.
The contrast between these two systems is relevant as it reflects, in a certain sense, the evolution of the system adopted by the Italian State, which immediately after its constitution was based on the model of the Dispute Agencies and then arrived, with the creation of the Revenue Agency, to act according to the Tuscan model.

The creation of litigation offices

After the unification, with RD 9 October 1862 n. 915, the Financial Litigation Offices were established, reporting directly to the Ministry of Finance, in Turin, Milan, Naples, Palermo, Florence and Bologna. The latter was then abolished and the related responsibilities were transferred to the Florence Office in 1866, while in 1867 a new Office was established in Venice. On paper, the litigation offices had the task of providing legal advice and judicial and extrajudicial protection of the tax administration, as well as monitoring the correct application of financial laws; but since for representation in court they could use lawyers from the free forum designated by the heads of the offices, in practice the decree of 1862 was applied essentially for what concerned the distribution of cases among the lawyers of the free forum. The reasons for this initial choice of the post-unification legislator essentially lie in the need not to affect the old pre-unification systems with a drastic and difficult to implement reform - especially in the South - such as the establishment of a body of representation and legal defense for the entire territory of the kingdom, modeled on the Tuscan one. It was therefore preferred to opt for a more flexible and "open" system, in which the possibility of making use of free legal professionals was combined with the possibility of directly providing for the defense of the Administrations. At the same time, however, this system soon revealed its weaknesses, essentially due to the lack of a unified direction between the various offices and the unpreparedness of the structures to face the institutionally assigned tasks.

The institution of the public prosecutor's office

The abolition of administrative litigation and the reform of litigation offices

The evolution of justice began with the abolition of the system of administrative litigation (L. 20 March 1865, n. 2248, annex E) and the devolution to the ordinary judge of all disputes in which a "civil right or political" and which were of interest to public administrations (art. 2 of Annex E to Law no. 2248 of 1865), contributed significantly to creating the conditions for a new general arrangement of the defense of the State. As can be seen from the preparatory works, the legislator of 1865 had not wanted to define in detail the boundaries of the competence of the ordinary judge, but had relied on the help of jurisprudence to clarify the limits of the new jurisdiction. This need for clarification also had an impact in the field of state defense. The lawyer in charge of the defense of the State should in fact have provided a decisive contribution to the resolution of jurisdiction problems, submitting them in correct terms to the judicial authority and illustrating the legal and administrative implications of the various possible solutions. This task could not be entrusted to a private lawyer, but required the creation of a body of officials - specialized lawyers capable of giving a unified orientation to the defense of the administrations. At the opposite pole, however, another orientation advocated the idea of attributing the task of defending the State to the Public Prosecutor, a more extreme expression of the intent to ensure, also through the judicial defense of the Administrations, the persecution of the aim of justice. However, the first of the two approaches ended up prevailing, as it was not possible to make the function of "impartial party" - assumed above all, but not only, in the criminal field - and the function of defender of the specific patrimonial interests of the State. The legislator of the reform that followed therefore chose a very different path from that followed by other Western countries, such as the United States, where Title 28, § 507 of the United States Code provides for the figure of the United State Attorney, or lawyer of the State and Public Prosecutor at the same time, responsible for criminal prosecution in the relevant district. This is the framework in which the reform of the Litigation Offices began with law no. 28 November 1875. 2781 and culminated in the regulation of 16 January 1876 n. 2914. It should be noted that the law of 1875 opened the way to the reform of the state defense system only in that it created the prerequisites and conditions for it. First of all, it made a clear reduction in the powers of the Public Prosecutor, excluding the obligation to conclude in civil judgments except for matrimonial cases and for those in which, by law, it had the power to act. Secondly, he carried out a retraining of the staff assigned to the litigation offices, providing for the possibility for the magistrates of the Public Prosecutor to be assigned to the financial offices and legally equating the service provided in the financial litigation offices to the exercise of the profession of lawyer. The art. 7 of the law also delegated the Government to issue a regulation governing the management and handling of cases as well as the relations of the financial litigation offices with the public administrations. It was therefore this regulation that proved, in fact, to be the birth certificate of the State Attorney's Office. The regulation dated 16 January 1876 n. 2914: the regulation of the Treasury Lawyers The delegate regulation gave the administration defense bodies the name of Offices of Royal Treasury Lawyers and significantly strengthened their functions compared to the old litigation offices. The new regulations first of all provided for the direct assumption of the representation and defense of the Administrations in court, which became mandatory before the judicial authorities in the city where the office was located and remained optional only before the other judges of the district. Furthermore, the new offices were given real management power over the Administrations, which replaced the purely consultative function attributed by the previous law. Finally, Administrations were expressly prohibited from requesting consultancy or entrusting the defense to lawyers of the free court, except in exceptional cases authorized by the Ministry to which they belong, subject to the opinion of the Ministry of Finance. Naturally, the efficient functioning of a system conceived in this way imposed the need for unity of direction, which was met by structuring the Revenue Agency as a unitary body, albeit territorially articulated, under the direction of the Attorney General. Furthermore, it appeared necessary to use professionals with high technical skills, which led, during the first decade of the 20th century, to an evolution of the discipline of access to the State Attorney's Office, based on the rule of the public competition, in which one could participate only if they have the required qualifications, an expression of already acquired professionalism in the legal field. Therefore, over the following years, we witnessed a notable process of reorganization of the Institute, with which it was intended to respond to the increasingly emerging needs inextricably linked to the interest of the unitary defense of the State administrations: in other words the Avvocatura followed the socio-economic evolution of the State.

Royal Decree No. 1611 of 30 October 1933

The first thirty years of the 20th century

In the first thirty years of the 20th century there was a progressive "broadening of the horizons" of the tasks of the Revenue Agency. This phenomenon occurred first of all through the extension of patronage to various state bodies (law no. 485 of 14 July 1907 and Royal Decree no. 1303 of 24 November 1913), also due to the doctrine's elaboration of the concept of "person public legal entity", as well as to agents and employees of the State and of public legal entities for facts connected to the service performed (Royal Decree 30 December 1923 n. 2828). Secondly, an ad hoc procedural rule was introduced on the subject of territorial jurisdiction, destined to become one of the cornerstones of the defense of the State in court, as it established the so-called "tax forum": for cases in which a public administration was a party , the competent judge is that of the place where the office of the Revenue Attorney is located in whose district the judge who would be competent according to the ordinary rules is located (RD 30 December 1923 n. 2828). This made it possible, among other things, to resolve most of the logistical problems that had up to this point led the Lawyers Office to continue to consistently use the help of free-court lawyers in judgments that took place "out of office". Another significant innovation concerned the regime for the notification of judicial documents to public administrations, as the need for notification was established, under penalty of automatically detectable nullity, at the Revenue Agency of the district in which the judge seised is located (RD 30 December 1923 n. 2828).

The Consolidated Law approved with Royal Decree of 30 October 1933, n. 1611

The legislation concerning the Institute, issued during the first years of the century, found coordination in the Consolidated Law approved with   RD 30 October 1933, n. 1611: a legal plan was reached for the defense of the State and other non-state public bodies based on a legal body which was not only interested in the favorable resolution of the dispute, but which was above all directed by a defensive conduct always inspired by the weighing of the ultimate and general interest of the State, assumed to guide and coordinate the action to be carried out from time to time in the specific controversial issue. We recalled the idea that the legislative system of the defense of the State and public bodies should be considered as a complex administrative-organisational phenomenon of substantive law, which cannot therefore be placed solely in the procedural dimension; there was a strong and solid relationship between the defended body, the State Attorney's Office and the State-general organisation, a relationship which was a complete administrative system, regulated through the assumption of particular political-legal responsibilities connected to the management and coordination of disputes. In essence, the State Attorney's Office was understood as an element of connection and mediation of multiple public instances to be defended and safeguarded in correlation with the ultimate goal pursued by the State. From this point of view, beyond the practical usefulness of an adequate professional response to the aforementioned needs, the State Attorney's Office, as a body which jointly throughout the national territory provided for the defense and legal advice of all central and peripheral state administrations and of the bodies connected to them meant, constituted an indispensable tool to promote the process of unity of the "rule of law".

The Italian constitution

The centralized character of the Italian State was lost due to the Republican Constitution of 1948, which on the one hand carried out the decentralization of many state powers towards local and professional bodies (art. 5, 18, 39, 49, 114) and on the the other envisaged the possibility of "limitations of sovereignty" by supranational bodies (art. 11). These changes have ended up influencing the role of the State Attorney's Office, called today to operate not only in relations between administration and private citizen, but also in relations between state administration and local autonomies, as well as between the former and the European Communities. However, despite the extensive debate on the point - a debate that is still open today - the constituent legislator did not include the State Attorney's Office among the bodies of constitutional importance, believing that the failure to provide specific constitutional protection would not have jeopardized the content substantial nature of the activity it carries out, albeit by virtue of powers given by an ordinary law.

The Response to Federalist Needs

Since the early seventies, a process began in the country, marked by important stages and significant setbacks, which led to the introduction of the regional system. Consistent with this design,   law no. 103 of 3 April 1979   modified the lines of the institutional apparatus of the State Attorney's Office, adapting it to the new needs that arose as a result of the localization of powers and competences. The result was the image of a State Attorney's Office in an accentuated position of functional independence, identified and modeled as a connection and intermediation structure between state and regional administrations, as a guarantor, through the filter of a general vision, of an administrative activity concretely aimed at better satisfying the public interest.