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Here comes “Decertification”

The so-called “de-certification” - introduced by article 15 of the 2012 Stability Law (Law 183/2011) containing amendments to Presidential Decree no. 445 dated December 28, 2000 - came into force on January 1, 2012 with a view to preventing certificates concerning the status and quality of a private citizen being requested by Italian governmental bodies.

The aforementioned provision states that: Certificates issued by governmental bodies in relation to the status, personal qualities and circumstances of private citizens may be validly used only between private citizens. As regards relations between governmental bodies and public service providers, certificates and the affidavits are always substituted by the statements provided for under articles 46 and 47.

This means that Italian governmental bodies or public service providers may not, as from January 1 2012, request or accept any longer from private citizens certificates concerning the latter’s status, personal qualities and circumstances. The latter may acquire such data directly from the governmental bodies that are in possession thereof or request from private citizens, in the cases provided for under article 46 of Presidential Decree 445/2000, personal sworn statements and, in the cases provided for under article 47 of Presidential Decree 445/2000, self-drafted affidavits.

Article 15 of Law 183/2011 provides, moreover, that there must be affixed, under penalty of nullity, the following statement on certificates that are to be issued to private citizens: "This certificate may not be submitted to governmental bodies and public service providers.” It follows therefrom that certificates issued by the governmental bodies (which, as stated above, will only be relevant to relations between private citizens) not containing such wording will have to be considered altogether null and void.

It must, lastly, be pointed out that the recent reform provides that Governmental bodies and public service providers are obliged to acquire “ex oficio” the information contained in the substitute declarations provided for under articles 46 and 47, as well as all the data and documents in possession of governmental bodies indicated by the interested party as being indispensable.

It must be pointed out, moreover, that article 18 of Administrative Procedure Law (Law 241/1990, as amended by Law-Decree 35/2005) provides that documents certifying acts, circumstances, qualities and subjective status which are necessary for acquiring the necessary data for an administrative procedure are acquired ex oficio when they are held by the governmental body dealing with such administrative procedure or are held institutionally by other governmental bodies. The governmental body dealing with the administrative procedure in question may request from the interested parties only those elements that are necessary for searching for the documents and can ask that the person in charge of the procedure ascertains “ex oficio” the facts, status and qualities which such governmental body or other body is obliged to certify.

In the light of the aforementioned provisions, we are of the opinion that governmental bodies and and/or public service providers must, in any event, make their request firstly to other governmental bodies (eventually requesting private citizens only such elements as are necessary for searching for documents) and, subordinately, may only then request from private citizens the substitute declarations provided for under articles 46 and 47 of Presidential Decree 445/2000.

 

This post is also available in: Italian

Roberto Alma

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