Prawo Zamówień Publicznych
nr 4/2021
The Italian regulation of Public Procurement to the test of the new administrative model
Profesor Wydziału Prawa Uniwersytetu w Mesynie
Abstrakt
Summary: 1. Introduction: market vs. solidarity – 2. The entry into force of the Third Sector Code. – 3. Resistances to the application of measures for an active involvement of third sector entities. – 4. The interpretation taken by the Constitutional Court in judgment No 131 of 2020. – 5. Relations between Third Sector Law and Euro-unitary Law. – 6. Subsequent regulatory changes to the Italian Public Contracts Code. – 7. New perspectives for actions of general interest by Third Sector entities.
1. Introduction: market vs. solidarity
Over time, the absolutisation of competition, as a principle that regulates and shapes relationships between economic actors, has become a reference principle for a multiplicity of social relationships.It is well known that Europe has made the market and competition perhaps the most qualifying and long-lived aspects that have gone through the various policies, including public ones.In particular, these aspects produce a sort of axiom whereby market competition is a guarantee of efficiency, and so a failure to apply competition leads to inefficiency and waste of public management, with the related phenomena of clientelism and corruption.In the Italy of last decade, it was difficult to find political forces that would question market hegemony, and so we witnessed, in the mid-2010s, the irresistible rise of the National Anti-Corruption Authority (the ANAC ) – which assumed this name in 2013 in place of the previous Supervisory Authority on Public Contracts – to underline the close link between market competition, transparency and immunity from illegal phenomena; and thus making every limitation of the pervasiveness of competition coincide with deplorable, corrupt, clientelist practices also in public administration.Over time, this institution has experienced an anomalous abstention of its ability to influence. In fact, it poses as a technocratic structure that no subject, neither in the political sphere nor in civil society, dares to contradict.The soft law of the ANAC – resolutions taken by a technical body and not by parliament – has gradually become an essential source of interpretation (and not only) of any question concerning relations between public bodies and other subjects, including the sphere of welfare, even though this, by its very nature, cannot be assimilated to the market.In fact, on 16 April 2015, ANAC published the results of a survey of 116 municipalities, in which it denounced 90 of them, in the vast majority of cases for interventions concerning welfare or other sectors of general interest that were seen as ‘distorting’ phenomena for the more attributable to assignments vitiated by practices aimed at limiting market competition, including by resorting to subdivisions of procurements in order to remain under the Community thresholds, or to illegitimate renewals. A significant example of this is the hypothesis of real or alleged irregularities in the reception of migrants.These circumstances prevented the policy from giving a mature reading of what ANAC had highlighted. Alongside some reprehensible cases, those examples where ANAC a distortion of the market were probably more a result of the absence of tools – or the inability to correctly use the existing tools – to guarantee the offer of particular services, such as social services, and to give shape to a relationship between local administrations and third sector entities where the market rules had failed, at least in some cases, to properly adapt.1The finding that 77% of the municipalities examined (certainly not all corrupt!) had experienced difficulties in using the Procurement Code then in force (Legislative Decree No 163/2006) when dealing with the third sector, did not lead to a discussion on the need to for new tools, which would have been natural and easy, but rather to the conviction that it was necessary to bring the transgressors back to order.In July 2015, also following this survey, ANAC promoted the adoption of ‘Guidelines for the assignment of services to third sector entities and social cooperatives’ (released in March 2016), which were adopted to define how to correctly use the Public Procurement Code for welfare assignments. There is also mention of co-programming and co-planning (those of the Prime Minister’s Decree of 30 March 2001 under Law No 328 of 8 November 2000, containing the ‘Framework law for the implementation of the integrated system of interventions and social services’), where ANAC took care to limit possible anticompetitive uses of these tools, and certainly not to enhance them as practices that could provide better services and additional resources.
