Public entity liability beyond the veil of the inhouse company: insights and suggestions in light of ECHR case law on governmental organisations

The essay aims to analyze the orientation of the European Court of Human Rights, which, in order to protect property (Art. 1 First Additional Protocol ECHR) and the right to a fair trial (Art. 6 ECHR), recognizes, under certain conditions, a liability of the State for the acts, omissions and debts of companies that lack of institutional and operational independence from it. In order to ensure full and effective protection of the company’s creditors, the rules governing the liability of the public authority (including that pursuant to art. 19, paragraph 6, d.l. 78/2009, which exempts the State from liability for “direzione e coordinamento”) should be interpreted in a manner consistent with these principles, which have a specific relevance in the system of the hierarchy of sources of law in our legal system. In the author’s view, this orientation would have significant and specific consequences for in-house companies, as it could deter the public entity from committing abuses against them, in line with their for profit nature.