11. Administrative Unification and Public Intervention in the Economy

Merusi (2013).

Irti (2004) and Ciocca (2012).

D’Alberti (2008).

Picozza and Ricciuto (2013) and Di Gaspare (2015).

Mazzucato (2014).

Aimo (2015).

Calandra (1978) and Nigro (1980).

Cassese (2012a, b).

Orlando (1940).

Merusi (2012).

Trimarchi Banfi (1992).

Sorace (2013a, b).

Cafagno et al. (2013).

Torricelli (2016).

Lazzara (2017).

Cintioli (2017).

Carullo (2005, p. 225), Ciocca (2006, p. 19), Corso (2007, p. 279), La Spina and Majone (2000), Ogus (2000, p. 19) and Trimarchi Banfi (2014, p. 26).

Brosio (1989), Coase (1989, p. 167) and Fama and Jensen (1989, p. 213).

Moe (1989, p. 25), Napolitano and Abrescia (2009, p. 203) and Lindsay (1989, p. 377).

Comporti (2011), Ledda (1982, p. 317), Pericu (2009a, b, p. 631) and Sorace (2013a, b).

Cafagno (2001) and Picozza (2010, p. 29).

Ledda 1982, p. 317) and Giannini (1981, p. 459).

Rizzo (1994, p. 7) and Doni and Mori (2011, p. 41).

Dimitri et al. (2006), Klemperer (1999), Schmidt and Schnitzer (1997, p. 97) and Wolfstetter (1995, p. 367). Please also consult the online essays at http://​www.​market-design.​com/​library-general.​html.

Klemperer (1999), Vickrey (1961) and Schmidt and Schnitzer (1997).

Bajari and Tadelis (2006), Cafagno (2001), Doni (2005, p. 307), Klemperer (1999) and Schmidt and Schnitzer (1997, p. 97).

Williamson (1986a, b, p. 485).

Also read the report of the AGCM on Competition and regulation in public utility services, AS026, of July 1, 1994, at the address http://​www.​agcm.​it/​, p. 26. Cf. Crocker and Masten (1988, p. 327), Goldberg (1997, p. 342) and Laffont and Tirole (1993).

The Report on the fight against corruption COM (2014) 38 final, Annex 12—Annex on Italy—p. 12, reports that, according to the empirical studies and reports of the Court of Auditors, “in Italy corruption is particularly lucrative in the post-award phase” and often, after formally unassailable tenders, “the quality of the work is intentionally compromised in the execution phase” (our translation). On the subject you can also read the so-called Cassese report, Parliamentary Acts XIII Legislature—Chamber of Deputies, Report of the Study Committee on Corruption Prevention, presented to the Speaker of the Chamber on October 23, 1996.

In particular, the previous contract code, Legislative Decree 163/2006, with the annexed implementing regulation.

Court of Justice, Second Chamber, 7 October 2004, Case C-247/02.

See par. 39 and ff. of the motivation of the sentence.

Communication on the concessions of 12 April 2000.

The Opinion of the Economic and Social Committee “Strengthening the law of concessions and public-private partnerships (PPP)”, of October 19, 2000, commented on that first act of address even deprecating the absence of an explicit invitation to prefer competitive negotiated procedures, judged to be more suitable to cope with the high degree of uncertainty that generally distinguishes concession assignments.

Commission Communication of 11 March 1998, COM (98) 143.

The 42nd recital of Directive 2014/24/ EU begins with the statement that “it is essential that contracting authorities have more flexibility in the choice of a procurement procedure that provides for negotiation” and it is plausible “that a more extensive use of these procedures also increases cross-border trade”. Thanks to the new rules governing procurement in the ordinary sectors, there is the possibility of using the competitive negotiated procedure.

Tenders Electronic Daily, online version of the Supplement to the Official Journal of the European Union, for public tenders and concessions, at http://​ted.​europa.​eu/​TED/​search/​search.​do.

Brosio (1988).

Dugato (2013, p. 855).

Article 2 of Directive 2014/23 / EU of 26 February 2014, on the awarding of concession contracts; in jurisprudence, see for example Court of Justice, Grand Chamber, 9 June 2009, in case C-480/06, according to which “a public authority can fulfill the tasks of public interest upon it through its own instruments without being obliged to resort to external entities not belonging to its services and may also do so in collaboration with other public authorities”; this is compliant, among the many precedents, with the Court of Justice, 6 April 2006, in case C-410/04; Court of Justice, Sec. I, 11/1/2005 n. C-26/03; among the interpretive documents confirming the orientation, Communication from the Commission on the “application of Community law of public procurement and concessions to institutionalized public-private partnerships”, C (2007) 6661, Brussels, 5 February 2008.

European Commission, Communication on “Application of Community law of public procurement and concessions to institutionalized public-private partnerships”, C (2007) 6661, Brussels, 5 February 2008, cited: “in Community law, the public authorities are free to carry out their own business or entrust it to third parties, for example to mixed capital entities set up as part of a public-private partnership. However, if a public entity decides to involve a third party in the exercise of an economic activity under conditions constituting a public contract or a concession, it is necessary to comply with the provisions of Community law applicable in the matter”. Cf. Contessa (2014).

Court of Justice, 18 November 1999, case C-107/98.

Contessa (2014), Sorace (2010, p. 20) and Trimarchi Banfi (2012, 2013).

Autonomy Section, resolution no. 24/sezaut/2015/ FRG; the document is drafted for the purpose of the report to Parliament, pursuant to art. 7, co. 7, l. June 5, 2003, n. 131.

Through a survey that involved 4935 bodies.

A situation in the equivalent substance is represented by the report for the year 2014, Court of Auditors, Autonomous Section, resolution no. 15/sezaut/2014/ frg.

The sentence of the Constitutional Court n. 199 of 20 July 2012 has overturned the rule, as repetitive of provisions abrogated just the year before, at the end of a referendum consultation, without however calling into question the choice of limitative merit of the in-house procedure and indeed recalling, in the opposite direction, what had already been stated in the judgment of 17.11.2010, n. 325. Cf. Trimarchi Banfi (2012, p. 723) and Caputi Jambrenghi (2012, p. 123).

On the reasons for the change, Camporesi (2015). In this direction, for example, the “crescitalia” decree was promoted—with the endorsement of the Constitutional Court (see judgment of March 20, 2013, No. 46) in regulating the bonuses intended for cost limitation policies in the field of public services (Cocco 2013). In the different sector of the supply of assets and capital goods, some recent rules on spending review have shown an even more radical closure towards the self-production scheme.

Council of State, Sec. III, 7/5/2015 n. 2291; the sentence is published in the online magazine Law of Public Services, http://​www.​dirittodeiserviz​ipubblici.​it.

Where indeed it is stated (point 8 of the grounds) that “the in-house procedure, as constructed by the jurisprudence of the community, seems to represent, rather than a model of organization of the administration, an exception to the general rules of the law”.

Obviously there is no lack of jurisprudential pronouncements of a different sign. For example, Council of State, Sec. III, 24 October 2017, n. 4902, affirmed “the ordinary and non-exceptional nature of in-house assignment, using the conditions” and that the “decision of the administration, if justified, escapes the legitimacy of the administrative judge, save the hypothesis of macroscopic misrepresentation of facts or manifest illogicality”.

Chiti (2009), Clarich (2010), Dugato (2013), Scoca (2005, p. 239), Goisis (2006, p. 2961), Ibba (2011), Pizza (2007) and Valaguzza (2012).

ISTAT, the public subsidiaries in Italy, December 22, 2014, at www.​istat.​it.

Marcovecchio (2012, p. 104).

See the critical evaluations of Assonime, Principi di riordino del quadro giuridico delle società pubbliche, September 2008, in www.​astrid-online.​it.

Clarich (2009) and Marcovecchio (2012, p. 104).

Deliberation n. 24 / sezaut / 2015 / FRG, cit.; see also Chamber of Deputies, Research Department—Department of Budget, Societies with public participation, Dossier n. 337, 4 April 2012, in http://​documenti.​camera.​it/​leg16/​dossier/​Testi/​bi0506.​htm.

Antonioli et al. (2015).

Nigro (1966) and Cafagno et al. (2013, p. 493).

COM (2011) 15 Def.

The Economic and Social Committee, in its opinion delivered on 13 July 2011 on the same Green Paper, has in its turn remarked (Section 3.6.4) that “the negotiation of contracts, especially if complex, requires (...) that the buyer has a considerable skill set. The introduction of a general negotiated procedure will have to be accompanied by a series of measures aimed at ensuring that purchasers can have staff with the necessary skills and experience”.

D’Alberti (2008, p. 134).

Siclari (2017a, b).

Zatti (2017).

Siclari (2017a, b).

Manganaro (2014, p. 45).

Lazzara (2017).

Cintioli (2017).

Manganaro (2010, p. 23).

Tropea (2017).

Trimarchi Banfi (2012).

Napolitano (2011).