Abstrakt

About a chance of anticipate effect of Directive 2014/24 /EU The Directive 2014/24/EU on public procurement, together with Directives 2014/23/EU on the awarding of concession contracts and 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors, published in the Official Journal of the European Union of 28 March 2014 (L 94/1), are waiting to be transposed by Member States by 18 April 2016. Indeed, in the meantime, with reference to some of their provisions, the issue of a possible early effectiveness has been raised1. In particular, art. 12 Directive 2014/24 / EU drew the attention of the interpreter not only from the theoretical point of view, having introduced, for the first time, a legislative definition of the concept of in-house exemption2, but also from the applicative point of view, for the consequences of the punctuality and the detail used by the European legislator in providing such definition. It is known as the exception to the rule of non self-executing directives before the expiry of the deadline for transposition, it finds space only for those situations where the provision has an unconditional nature, still holding some discretion in the hands of the Member State3. After all, in Italy, the supreme body of administration jurisdiction, the Council of State, has been called to address this issue, with reference to the case of a direct 21awarding of contracts for ITC services from partners (Ministry of Education, Universities, Research Entities) to a consortium (CINECA Interuniversity Consortium). Firstly the determinations of the Italian Court are of particular interest because of the reflections that the arguments adopted by the same may take regard to the specific discipline of public procurement. The draft law for the implementation of the new Directives, as well as “to revise the current legal framework of public contracts for works, services and supplies” (Camera Act n. 3294), approved by the Senate on June 18, 2015, in relation to provisions of in house, portends a slavish transposition of directives or even a failure to transpose the relevant part, still being able to rely on the direct application, once the deadline for transposition is over4. The interpretation of the Italian Administrative Courts merits a thorough reflection then, regarding an second and even more relevant aspect, the potential accidents on the discipline of those performances, known as local public services, whose coloring (public or private) is waiting – (after the repeal of article 23 of Decree n. 112 of 2008 by referendum and the ruling of unconstitutionality on, to contrast with the outcome of the referendum, art. 4 of Decree n. 138 of 2011) – to be definitively established and clarified in its forms in the implementation of public administration reform, set out in Law n. 124 of 2015. In fact art. 19 of the cited Law n. 124 of 2015, delegating to the reorganization of the local public services, makes explicit reference to the Directives, above mentioned, to set:– according to the letter c), the objectives of a „identification of the general rules on the regulation and organization of...