| AGEA, Agency of the Ministry of Agriculture and Forestry for the grants in agriculture, which is responsible coordination and management of agricultural activities and the subsequent acquisition and verification of all data related to the agricultural sector through the National SIAN, the national agricultural information system, without the powers of direction and monitoring of the Ministry, organized a competition for selecting the private partner's minority joint venture formed SIN Ltd., with registered capital fully subscribed dall'AGEA through the execution of a public procedure. historical evolution of the joint enterprise law The introduction of the joint enterprise with private-public capital as a model for management of the public, is dated article. 22 of L. No 142/90 (a), which allowed the use of the model of public shareholding company with a majority for the provision of services of an economic-entrepreneurial, should that be 'appropriate in relation to the nature or scope of the service area the participation of several public or private entity. " Later, as the Legislative Decree no. 157/95 allow public participation in these companies also to the regions and the State, the L. No 172/97 amended Article. 22 of L. No 142/90, providing for the joint venture with a majority public shareholding as a model of alternative service management, among other things, the grant. Article. 35 of L. No 441/2001, however, arranged to amend Art. 22 of L. No 142/90, meanwhile transfused art. 113 of Legislative Decree no. 267/2000 (known as the Consolidated Local Authority), providing for limited liability companies, chosen through competitive tendering, as the only method for managing local public services relevance to industrial (2). model for the joint enterprise was, however, "resurrected" by L. No 326/2003 (converting Decree No 269/2003), as well as art. 4, paragraph 234, of L. No 350/2003, are today ranked among the entities that provide local public services under the said Article. 113, TUEL. The current expectations of the public service in local joint ventures, in accordance with art. 113, paragraph 5, letter. b) of Legislative Decree no. 267/2000, is, however, subordinate, for its compatibility with the national standards and, above all, EU competition law, the performance of a race, with public procedures for the choice of private shareholder. claims that this is in addition to implementing the principle of competition, possible explanation is also the intention of the Italian legislature to legitimize the direct management of hitherto existing, identified, for the most part, be entrusted to corporations arose in Following public offerings (3). The Plenary Conference No 1 / 2008 of the State Council, do not express directly the status (public or private) that is attributable to the joint enterprise (4), has placed this type of society under the concept of Public Private Partnership (PPP), found in the " Green Paper ", presented by the EC Commission April 30, 2004, and references to all the "forms of cooperation between public authorities and the business world that aim to ensure the financing, construction, renovation, operation or maintenance of infrastructure or the provision of a service". In the aforesaid document, the European Commission shows an increase in the use of the instrument of the Public-Private Partnership, and brings them back - with a view of the evolution of the state's role in the economic sphere by the operator to direct organizer, regulator and controller - to several factors including the need to obtain private funding and opportunities to benefit from the methods of operation of the private sector in public life. As evidenced by the aforesaid decision of the plenary session, the ratio of the institute is found in the difficulty of the administration to find, independently, the necessary resources to ensure the provision of a work or service to the community and the consequent need to resort to to guarantee efficient and effective administrative action, heavily based on economic criteria, to private capital and energy. The use of forms of Public Private Partnership should not, however, as stated by both the Commission and the European Parliament, to be identified as the "antechamber" of a process of privatization of public functions, being just an alternative means to the latter, in As a possible means of organization and management of public functions by public administrations, which continue to be holders of the wider choice of whether to exercise its institutional tasks directly, use or not to private individuals or third wholly owned subsidiary. addition, the Public-Private Partnership (5) can be considered forms of cooperation in the long term, governed by contract, between the public and private sectors to carry out public duties, within which resources are managed and risks associated with joint projects are divided proportionately based on the skills of risk management partners the project, do not represent "a first step towards privatization of public tasks," since they "represent a possible way to organize the completion of the tasks of the public sector and the latter in the future must remain free to decide whether perform a function either directly or through their own company or with third parties in the private sector (6). Without the conditions listed above, the Plenary Conference of No 1 / 2008 of the State Council considers the principle now acquired in the internal necessity, in the field of establishment of joint ventures, use of selection procedures for selecting the private partner; principle, however, found de jure seasoned, Article in the text. 1, paragraph 2, of Legislative Decree no. 163/2006 (7), the extent to which prescribes that "Where the regulations allow the establishment of joint ventures for construction and / or management of a public work or service, the choice of private partner is with public procedures. " It follows that, within our legal system was codified the principle that, in the establishment of joint enterprises, allowed only in cases provided for by special rules in respect of the principle of legality, the choice of partner must be "with public procedures. Finally, Article. 23-bis, paragraph 2, of Legislative Decree 112/2008, converted with amendments by L. No 133/2008, on local public services in economic importance, provides that "The conferral of management of local public services is, ordinarily, in favor of employers or companies in any shape formed identified through competitive procedures to public evidence, in accordance with the principles of the Treaty establishing the European Community and the general principles relating to public contracts and, in particular, principles of economy, efficiency, impartiality, transparency, adequate publicity, non-discrimination, equal treatment, mutual recognition, proportionality . The draft regulations of the Decree of President of the Republic currently available on the Internet (8), laying down in the art. 23-bis, Section 10 of Decree 112/2008, art. 2 states that "The local public services are entrusted to: a) in the ordinary way for entrepreneurs or companies in any shape formed identified through a public competitive procedures in accordance with art. 23-bis, paragraph 2, and joint venture companies in public and private sectors provided that the partner selection is carried out by the same procedures, in accordance with the principles set out in that Article. 23-bis, paragraph 2, which concern, at the same time to qualify for membership and the allocation of the operational tasks related to the management of the service. " Therefore, in light of the last intervention of the legislature in that field - although the Government Regulation art. 23-bis, Section 10 of Decree 112/2008 has not yet been issued - the expectations of the public service is a joint enterprise, by now, given how ordinary expectations, provided that the partner selection is carried out by the same procedures, in accordance with the principles set out in that Article . 23-bis, paragraph 2, which concern, at the same time to qualify for membership and the allocation of the operational tasks related to the management of the service (according to the actual provisions of art. 23-bis, paragraph 10, of DL No. 112/2008). The three distinct theories direct custody According to joint ventures the Second Section of the State Council in its Opinion No 456/2007, the fundamental equation of the race for the award of public service and the choice of partner, there are distortions that prevent the free play of competition and violation of the principle of equal treatment to the detriment of all economic actors operating in sector concerned by the object of custody (9). fact, regarding the legality of credit facilities without notice in favor of joint ventures in which the private partner has been well chosen race, you are in the recorded positions. For a first position, recently upheld by CGA Sicily, 27 October 2006, no 589, is must conclude that the illegality community and need for disapplication of Article. 113, paragraph 5, Legislative Decree no. 267/2000. Several arguments in support of that position. First, it is noted that while it is true that upstream, at the stage of formation of company structure and because the member is guaranteed the unfolding of the competition, it is also true that there may be individuals interested in obtaining the service local public, not even to do so in partnership with the public authority: the rules in question would, therefore, to require the person concerned to enter into a partnership with local government. The second argument is that with which it is noted that the same criteria for selection of a partner, and downstream of the one who should manage the service, are different. While the race for the selection of the decisive socio economic criteria of reliability, financial strength, organizational capacity, in commending the service, by contrast, took the decisive influence assessment of the actual capacity of the tenderer to manage the service . So also change the selection criteria. The fact that there was a mountain race does not, therefore, exempt from running the race in the valley, in the expectation of the service. is easier in this regard, noting that object, if the company was created with an object well-defined, it is certainly possible, even at the time of selection of the partner, the comparison between prospective partners, taking into account not only of their financial strength and organization, but also by comparing the actual management of the service projects they are required to submit . Thus, it is true that the selection criteria for the selection of partners and those downstream of the subject to be entrusted with the service must necessarily be distinguished: may overlap provided that the public service should be entrusted to the valley formed company is already defined at the time is the invitation to tender for the selection of partners. Moreover, in the second race, the public would be in the room, irreconcilable position of authority and administration (as a shareholder of a company interested in acquiring the service) as a competitor. A reverse address hermeneutic, however, manifested mainly in teaching, said the joint venture with a majority public ownership may be more foster direct services, provided only that the choice of the private contractor has taken place through transparent selection procedures (in our tax law In general, the accounting rules relating to "active agreement"). The basic idea of \u200b\u200bthis hypothetical reconstruction is that the social contract has characteristics and functions are radically different from those of their contracts with the Consequently they would not particularly relevant rules - also derived from Community - designed to ensure competition in the areas covered by the Directives on procurement. orientation in favor of the legality of services directly assigned to joint ventures based its guidelines on the purpose underlying the very existence of these kinds of companies. It should be noted, in fact, especially in relation to local authorities, the joint stock company joint venture comprises the Public Administrations' principal purpose of the public services they rely on their own jurisdiction, "it is not emphasized otherwise useless (10). A third interpretation, intermediate between the first two, expressed in an advisory from the second section of the State Council (Opinion No. 456/2007), also moves from the premise that the phenomenon of custody to a mixed public and private should be carefully distinguished the In-house operation. According to this approach would, however, illogical to admit, as an alternative to custody 100% of the service outside the (only) the total surrender to the market with the company publishes in-house and not allow, however - in specific areas, identified by law considering the peculiarities of a given subject, and thus the inappropriateness of a total allocation to individuals, but also technically impossible to leave entirely to manage the service "part public "- a partial opening to more flexible" forms of cooperation "public-private, where such opening is rationally justified by the need for tighter control on the operator, as done, not in his capacity as principal, but the membership and, especially, is defined by all the guarantees of definiteness of the object and the duration of the trust which alone can bring to an outsourcing model (although in some respects peculiar) and not as an expectation house (11). In other words, as stated in Opinion of Section II, "if it is true that the joint enterprise, as such, is not subject to similar control, is nullifying the fact that it is the external component, which excludes the occurrence of IN house is selected by a tender procedure: the share outside the public administration, ie, found with the use of a market that is certainly rewarded, unlike in case of "closing in on itself" the administration in a model of pure self. And this interest is combining the exploitation of resources in the market which would otherwise be left unfulfilled by the logic of public monopoly, with the interest of the public the choice of organizational forms that enable it to exercise control not only external (such as entrusting party), but internal and organic (as corporate partners) explaining the private entity selected to manage. " As in the case of this thesis, then it seems permissible to resort to the shape of the joint enterprise (at least) if it is not, essentially, is the recipient of a "direct award", but how an organization with which the administration controls provisions of the award, with notice, the "operating partner" of society. According to the decision under review, in fact, it shines out in Opinion No. 456/2007, for the rigor of the arguments that took place there anything else you think you can or should add, the underlying concern - that draws, with principal reference, the model of "company mixed "- that a" shared model of IN inconfigurabilità house for joint ventures might lead, to enforce the guidelines of the Luxembourg Court, as a sort of encouragement to the establishment of public companies to 100% without any procedure selective and without any recourse to the market. This section considers, however, that the public trust in 100% represents, in some ways, the negation of the market. conditions which legitimize the direct assignment to the joint enterprise Council of State, in the present case, it previously, is reported to the plenary session of the ruling Council of State No 1 / 2008, which set out the conditions to which is attached to the legitimacy of direct award of a public service to a company, and in this regard recalls that it had highlighted the difference between the in-house firms and joint enterprise. In fact, when the first acts like a real organ of "the substantive point of view" (because of the mentioned requirements and the target of similar control prevailing in the business of the house in favor of the administration ), the different shape in mixed company with majority public participation, in which the private partner is chosen by a public procedure, requires the establishment of a new model, in which public and private interests find convergence. matter of contention concerns the circumstances under which articulated are met in this case in question, the conditions that - in the opinion of the Second Chamber of the State Council No. 456/2007 - can legitimize the use of the CD. "Public-private partnership", and the celebration of a single tender for the selection of the private and the expectations of the service, "without impingere in need of protection of competition within the EU, which have developed and translated into national regulatory system." It is not disputed, therefore, the core of the aforesaid opinion of the State Council No. 456/2007, in so far as it held that "it is possible to rely leading to a joint enterprise that is established specifically for the provision of one or more services to make certain at least prevalently in favor of the public making the establishment, through a competition that aims not only to select the private but also the same expectations of the job and that limits, in time, the partnership, providing a new race to the end. " The conditions would, therefore, the use of this form of organization, are summarized as follows: 1) that there is a law that authorizes the administration to use this "tool"; 2) that the private partner is chosen with race; 3) that the newly-formed joint venture activity is made, at least in majority in favor of the public authority which has the constitution thereof; 4) that the race (only) for the choice of partners and custody services to define the exact location of the services (service must be "determined"); 5) that the selection of the best offer is reported not to the financial soundness of the tenderer, but the ability to perform the specific performance under the contract, 6) establishing that the relationship has predetermined duration. In this case, the establishment of the joint enterprise Sin Ltd for the management of SIAN is not a mode of in-house contrary to the guidelines, but a mode organizzatoria for the conduct of the articles are primarily in the formation of the company and then in his opening contribution to the work of a private partner with the chosen race. However, although the complexity of the tasks entrusted by law are justified in the use of the module organizzatorio chosen, once noted the scale of the mission entrusted to it and the obligation of governments to use the services they offered, opinion of the bench, in case the conditions to proceed in terms selected by, and there was no wrong to the court of first instance had endorsed this established procedure (12). But the complexity of the tasks entrusted by law to SIAN (Ironing public interest for the express provision of law and the objective of finalizing them) "justifies" the application form to the organizational and collaborative choice. confirmed the illegality of the form of joint enterprise "open" or type "generalist" The State Council, the decision under review, focuses on censorship of indeterminacy of reliable service, which is linked to that concerning the alleged absence of the prevalence of the condition of the job in favor of the public. In the race submitted to the Panel of Judges, for a detailed list of the core base of reliable service, was joined by the anticipation of the possibility of additional services, but always for the benefit of the public partner and with a maximum annual prefissione, though much less than the amount of benefits is directly aimed at Agea. Also, the fact that the service (if any) in question are specifically defined as "additional and complementary" and that, therefore, include functions closely associated with the typical fields of intervention of SIAN, military, according to the decision under review, in favor rejection of the claim of vagueness. Given the vagueness, in fact, the risk you run is to create companies cd. generalist to whom to entrust the execution of works or provision of services not yet identified at the time of the choice of partner, occurring as a result a distortion of competition. It does not seem, however, the College could cast doubt on the prevalence of the service to the partner AGEA public. With the above opinion of the State Council No. 456 of 18 April 2007, it shall not, in which the private companies have been chosen through a public procedure, the automatic ability to directly assigned to be addressed for the provision of public services. This exclusion, however, is geared specifically to cases of joint "open", ie in which partner, even if selected by race, has not been chosen for purposes defined, but only as a private partner for a company "generalist", which, in a second time, directly entrust the provision of services not yet identified at the time the "choice of partner." In such cases, would allow the company to also undertake extra moenia, with, if anything, the benefits from the privileged relationship established with the public partner (13). is considered permissible to resort to the shape of joint enterprise where, in essence, is not the recipient of a "direct award", but the "form of organization with which management controls provisions of the award, with notice, the "operating partner" of society. " The choice of private partner must fall on the CD. Another social worker complaint examined by the panel in the decision under review, concerns the alleged inadequacy of a "lawful conditions" - according to the College may be the most important, since an accident on the same rationale supporting the use of similar organizational form - among those identified in the Opinion No. 456/2007 of the Second Chamber of the Council of State, in fact, to claim that the selection was not, in fact, targeted to choose an industrial partner, a "social worker", to borrow a phrase dating back to civil, but to secure a massive injection of capital determined from the purchase of a 49% stake in Sin Ltd., it enhances the effect of distorting competition if the former represented by the opportunity to participate in the selection "reserved" for organizational realities have high social capital censored, also, the overwhelming weight given in practice (30 points) to the economic component of the offer. The entire production jurisprudence of the Court of Justice has been forming scrutinizing cases of direct award to societal mixed modules made without prior selection of private party through the execution of a public tender. The same judicial bodies have, then, by indicate that the private partner should not be a simple "social funding", whose function is exhausted in the transfer of the capital and, therefore, financial resources and assets, but he must have much more depth in other words, it must pose a " industrial partner. " In a nutshell, the courts of the State Council believe that the individual chosen should be perfectly capable of performing the services which characterize the object of the joint enterprise entrusted with the service. In this case the status of "operating partner" ("social work" or "industrial partner") is given, as opposed to the "financial partner", then the private partner of a joint enterprise, which was chosen with a public tender concerning not only the constitution of the society, but also allocated to the party "supplier" of its operational tasks and the status of member that "contribute materially to the conduct of public service or phases of the same ", having to demonstrate a certain capacity, not only financial, but mainly" technical management. " It is therefore legitimate to the direct assignment to a joint enterprise, which is established specifically for the provision of one or more specific services where this is supported basically from two guarantees: the fundamental equation of the race for the 'expectations of the public service and match for the choice of partner, in which the latter seem like an "operating partner" and the anticipation of a renewal, the expiry of the period of custody of the selection process. In fact, in the case at issue, the capital contribution in descending from the purchase of the shares, is not a disbursement / economic equivalent of the award selection, but remains a part of the assets of the joint enterprise (and hence in the availability the participant to it, the private minority). After the period of nine-year duration of the transaction, was provided for the purchase of assets by the public partner, and the pricing will be also compared the equity of the company said, a fact, according to the Court which should encourage the private contractor and future outgoing member to work for the more prudent management of the company as possible, depending on what the possible appreciation of your participation. addition, the status of the joint venture and shareholder agreements contribute to identifying the tasks of the private development and management of SIAN, you are not, therefore, in the presence of diversion than the need for the private minority shareholder has the characteristics of industry and has, instead, (which would be unjustified) use of organizational form predicted finalizing to find a mere social capital. In this way would, on the one hand, justified the futility of a second public tender for the concession of the service, already identified and characterized (for conditions, procedures and duration) at the time of incorporation, and, on ' On the other hand, avoided the closure of the service to competition, through the possibility that the private partner to become "social stability" of the joint enterprise, and thus custody "indefinitely" the service, especially when risks exceed that have been solved, since the bid documents for selection of private partner, "the arrangements for the release of same partner (with the liquidation of his position), for the case where the outcome of the next race he proves no more successful tenderer. In fact, the magistrates of the Palazzo Spada believe that, in order to protect the principle of free competition, the direct assignment to a joint enterprise must necessarily be temporary to avoid the shareholder to become stable member of the joint enterprise. The above conclusions Plenary Conference of the State Council No. 1 / 2008, so that the support expressed by the judges of the court than the general reconstruction outlined by the advisory department acquired a value orienting, as pointed out above that envisaged by the No opinion 456/2007 is only one of the possible reconstructions discussed the issue. In practice, the fact that the Court of Justice has not yet ruled on a similar issue and the consequential absence of precedents have suggested that the Plenary an attitude of extreme "caution" seeks to avoid interpretations cd. ol legem. Before the Community Courts hangs, in fact, the question of interpretation raised by the TAR Sicilia, Catania, with the order number 164/08, published in the Official Journal of 2 August 2008 (14). This the question submitted to the Community Judge: "If it is compatible with Community law, in particular the obligations of transparency and free competition laid down in Articles. 43, 49 and 86 of the Treaty, a model of mixed public-private partnership established specifically for the performance of a particular industrial relevance of public service and corporate purpose, which is directly entrusted with the service in question, in which the private nature with "industrial" and "operational" is selected through a public tender, after checking both of the financial and technical management of its operations and those related to the service to be performed and the specific services to be provided. " Even in the face of the new legislative requirements of Article. 23-bis of Legislative Decree 112/2008, and its draft rules, it seems that the issue, according to the wording of the question, continues to constitute a ruling and, therefore, will be decided by the Court of Justice. It should, finally, mark as the Supreme Administrative Board, the decision under review, as pointed out in that opinion, provided two years ago, feels a strong need to address the problem of direct award of public service in-house, as a denial of market principles and competition in that field. The impression, however, is that now the supreme administrative court is trying to recover, through the "promotion" of the model joint enterprise managers, the former administrative law (especially first degree), "Favorable" Institute of IN-house operation, now in the last decade, with the non-application or incorrect application of strict conditions, of Community, the preferred by pa for the delivery of public services, with any deleterious Therefore in terms of competition for the market (15). The Daily source Ipsoa ADMINISTRATIVE LAW With the ruling appealed the Administrative Court of Lazio dismissed the appeal of the first degree, both in terms of the legitimacy of the NA race for the appearance of the quomodo of it, with which it was requested by the company, an annulment of the decision to award the tender launched by the defendant, RTI AGEA for the "selection of private minority of the joint enterprise SIN Ltd., established pursuant to art. 14, Section 10-bis of Legislative Decree no. March 29, 2004, No 99 ', the entire tender documents (invitation, invitation letter and its attachments), any other act of the selection process, with particular reference to the totality of the minutes of the race, as well as any other act in mind, connected with or consequential including the resolution of the Board of Directors of AGEA of 25 November 2005, no 124 in so far as it allowed the direct assignment to the SIN Ltd specified services, and possibly for the non-application of Article. 14, Section 10-bis of Legislative Decree no. March 29, 2004, No 99. The company Appellant appealed the aforesaid decision demanding the annulment as vitiated by errors of law and illegal, proposing, among other things, two complaints in the application for additional reasons at first instance related in several respects, the work of the Commission to race. It was in view, the joint enterprise Sin Ltd., already intervening to oppose the first instance, seeking confirmation of the decision appealed and proposing exceptions trial on inadmissibility of the application of the first instance, and the use of additional grounds for failure to be heard by reason of failure to notify defendant, the one subject (Sin Ltd.), and on account of delay in As the original deadline for an appeal at first instance must be identified in the publication of the notice. It was also the parent company of the defendant, RTI, explaining defenses are identical to those performed by the Right Ltd, and the relevant Ministry which asked, dismissed the appeal as unfounded on the merits, emphasizing the legitimacy and fairness of the procedure. The Daily source Ipsoa ADMINISTRATIVE LAW |
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