LMS Presentation – Italy

1. Organisation

Although legislative powers in Italy are divided and at times shared among the (central) State and the twenty Regions, legislation on public procurement widely understood is in the main attracted to the State exclusive competence to regulate competition (Art. 117 (2) (e) of the Constitution). Regions are left to deal with some organisational matter, such as designing the contracting authorities.

What used to be most decentralised was procurement management. Each of the about 8000 municipalities qualified as contracting authorities and the same was true with reference to the many articulations of the State, the Regions and other authorities. Additionally different internal units within many contracting authorities procured independently one from the other. This normally lead to the award of many small value contracts having the same or similar subject matter and to limited professionalization of many procurement agents.

In the past ten years or so, in a bid to save money, centralisation has been much pushed forward especially concerning supplies and service contracts. State services have been directed to buy through CONSIP ( http://www.consip.it/ ), the State central purchasing body, while most local contracting authorities have to buy through either CONSIP or other – normally regional – central purchasing bodies ( e.g. http://www.scr.piemonte.it/cms/ ). Since 2014, CPBs in Italy must be qualified and inserted in a list kept by ANAC, with a maximum number of 35.

Another big issue in Italy is corruption and organised crime. This goes well beyond contract award and affects contract implementation. To try and counter these widespread phenomena Italian legislation tends to limit margins of choice of contracting authorities. More recently the Autorità nazionale anticorruzione – ANAC, which was given the powers previously vested in the Autorità per la vigilanza sui contratti pubblici, has been vested with wide powers to implement public contract legislation and to oversee its compliance (http://www.anticorruzione.it/portal/public/classic/ ).

2. Rules, including those implementing EU law

Italy has a long tradition in regulating public procurement, and especially public procurement of works. In 1865 one of the six statutes laying down common rules for the newly unified country concerned works procurement, including rules on both award and contract implementation. This legislation closely followed French patterns which had been adopted in the Kingdom of Sardinia after the Restoration. Concerning the award phase, the open procedure was the rule, all other procedures being available on exceptional circumstances only. Supplies and services procurements were instead traditionally regulated under State budgetary rules and bylaws. Italian legislation in principle applied to the award of every covered contract, whatever its value. A lower value might however allow recourse to less competitive procedures.

A problem was – and still is – the penchant of both Parliament and Government to change the rules very often, and often to create ad hoc legislation dispensing from the use of competitive procedures or limiting procedural safeguards (Case C-103/88 – Fratelli Costanzo v Comune di Milano is a well known instance). This comes along with the tendency of contracting authorities to read widely exceptions allowing recourse to negotiated procedures if not to bring contracts outside the scope of public procurement law (as it was the case with service concessions and widely understood in house arrangements) (Case C-458/03 – Parking Brixen having started a long line of cases). Also contract changes are quite widespread.

Finally – again along the French model – economic operators enjoy generous standing in challenging award decision and litigation is widespread.

In this framework EU public procurement law (and EEC and EC law before it) has been differently understood and applied. The only stable pattern has been that, given the pre-existent detailed regulation, and ensuing case law, Italy rarely had cut & paste legislation, what is now EU rather being grafted into existing legislation. In the past, beside long delays in implementing European rules, the tendency was to read what has become EU law as something foreign. In the late 90s the case law started to refer more and more to then EC law, including to the Treaty general principles, to fight against direct awards.

A major change took place when the 2004 public procurement directives were enacted by d.lgs. 12 aprile 2006, n. 163 (an updated text is available at http://www.anticorruzione.it/portal/public/classic/AttivitaAutorita/NormativeDiSettore/_sommarioCodice ). For the first time in Italian legal history the rules on different procurements were brought under a same legislative text, a Code, which also covered below the threshold contract awards and contract implementation. However the public works legislation was very much the mould used for supposedly general rules, and this was even more the case with the implementing regulation. The 2004 directives, being far from revolutionary when compared with previous EC binding rules, had already been to a large extent digested in the Italian legislation, and were mostly correctly transposed. In line with policy choices being made in those years, some EC optional rules such as those on central purchasing bodies and framework agreements were also transposed. Some sore points however took years to be healed (reliance to other economic operators requirements being one of them).

The big problem was, as usual, the rapid pace of legislation changes. A newspaper has counted more than 600 changes in about 10 years (http://argomenti.ilsole24ore.com/parolechiave/codice-appalti.html). Contradictory legislation – stop & go – was passed from time to time. In some cases the rationale was to allow more discretion to contracting authorities to try and stimulate economic growth. In other cases, answering some big corruption case, rules were instead enacted to take away discretion and minimise (or so it was thought) corruption risks. The quality of legislation, including its predictability and readability, has suffered.

The 2014 public procurement directives have been enacted through a new Code, d.lgs. 18 aprile 2016, n. 50 (http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2016-04-18;50!vig=). . The Code entered into force immediately on April 19, when the delay for transposition had barely passed. The Code was adopted by the Government based on delegation of powers by the Parliament (l. 28 gennaio 2016, n. 11).

This is a massive piece of legislation. It is made up of 220 often very long articles and 25 annexes. It was drafted rather hastily, so much so that on July 15 the Government issued a press release with an errata corrige having hundreds of entries. Also, contracting authorities had no time to become acquainted with the new rules, leading to a sharp drop in public contracts being advertised (http://www.anticorruzione.it/portal/public/classic/AttivitaAutorita/AttiDellAutorita/_Atto?ca=6540 ).

Many provisions in the new Code just restate old provisions in the light of later legislative enactments and sometimes of the case law. In a number of cases special interests have carved some distinct regulation. Abandoning the traditional reference to an implementing regulation, the power to issue application Guidelines was vested into the ANAC (see them, and the consultation documents leading to their adoption, at http://www.anticorruzione.it/portal/public/classic/AttivitaAutorita/ContrattiPubblici/LineeGuida/ProposteLineeGuida ). Those Guidelines are envisaged to be a more flexible instrument when compared to the previous regulation(s) implementing the Code. Their legal value is however so far an unknown quantity. Also relevant new provisions in the 2014 EU directives have often just been reprinted in the new Code without much effort having been put in coordinating them with the other provisions in the Code issuing from previous Italian legislation.