Within the Italian legal system, religious institutes recognized by Civil Law assume the legal personality of ecclesiastical entities pursuant to art. 7, no. 3, of the Agreement for the revision of the 1984 Concordat and the related Implementing Rules (Presidential Decree 33/1987) and establish relations with the State, with third parties and with the public administration through the Legal Representative, a figure provided for by civil law as the holder of the power of representation in Italy and a point of reference for legally relevant acts (art. 36 et seq.).
In canon law, the Superior General is the apex of spiritual and managerial authority, titular of ordinary Government (can. 622 CIC) and is competent with the care of the spiritual and disciplinary good of the members in conformity with their own charism and the constitutions. Its governing power remains within the Institute and refers mainly to the ecclesial sphere.
The coincidence between the two figures is possible and there are no legal obstacles to the simultaneous appointment to the two roles, but it is important to consider some aspects related the opportunity to separate them.
The Legal Representative exercises its functions in the civil (lay) sphere that entail personal responsibility in the event of violations of the law, the Superior General is in charge of the pastoral and charismatic governance of the Institute.
Canon law recognizes a clear distinction and the union of the two roles can generate an inappropriate mixture between the civil forum and the ecclesiastical forum with the risk of directly involving the Superior General in administrative and patrimonial responsibilities extraneous to his mission.
The Legal Representative has competences in the juridical-administrative field that are not always mastered by the Superior General.
Another aspect that should not be underestimated is the limited duration of the mandate of the Superior General, which can be subject to time limits (can. 624 §1 CIC) and transfers, while the Legal Representative can have a much longer duration of his mandate and, if distinguished, guarantees continuity in the management of civil (lay) affairs even during periods of government turnover or vacancy.
The distinction responds to the principle of good ecclesiastical administration (can. 1284 CIC) which requires transparency and prudence in the management of temporal goods. It protects not only the institutional figures but also the Institute itself from possible conflicts of interest, guarantees clarity of responsibility and facilitates the correct relationship of collaboration between the ecclesiastical body and the civil authorities, while the union of the two roles can lead to an overload of responsibilities and a negative intertwining between the ecclesiastical sphere and the civil forum.
In particular for Italy, the process following the appointment of the Legal Representative by the General Council of the Institute deserves special mention.
This appointment must be followed by the juridical recognition of the Holy See so that the canonical provision can have civil effectiveness. The two levels, civil and canonical, run parallel but in this specific case they must meet, so that the change of the Legal Representative is ratified at the Public Register of the Government (Prefettura).
Also not to be underestimated is the nationality of the holder of the office which for all entities that have a recognized legal personality must necessarily be Italian, with the exception of the Casa di Procura and the Generalate for which he can also be of a different nationality.
The offices of the Prefecture responsible for receiving the certificate, in fact, still accept the documents submitted, even if the declared nationality does not correspond to the norm. The registration takes place anyway, but it is necessary to consider that the contravention of the law will become evident at the time of signing the legally relevant administrative act (e.g. a deed of sale, a preliminary contract, etc.), with the possible cancellation.
In conclusion, there are no juridical obstacles to the coincidence between the Superior General and the Legal Representative, but it is appropriate to distinguish the two positions in order to avoid mixing up the functions of ecclesial governance and civil responsibilities, to ensure stability and continuity in administrative management and in relations whether with the Italian State or any another.
Distinguishing between spiritual guidance and legal representation does not mean creating a distance, but rather harmonizing charisms and competences.
In an ecclesial context attentive to transparency and good administration, it can become an indication of co-responsibility and fidelity to the evangelical mission.
S.V. – IMC Legal Team
