Concession renewal, EU puts Italy on notice

On 8 October, the third complementary letter of formal notice from the European Commission arrived on the table of the Minister of Foreign Affairs, Antonio Tajani, the recipient more as a matter of form than substance considering that the final recipient is the Ministry of Infrastructure. The focus of the missive is on concession contracts and all that goes with them, i.e. public contracts and procurement procedures of the utilities in the water, energy, transport and postal services sectors.

This time, however, with respect to the past - the infringement procedure started in 2019 - the EU has raised its sights and has done so by targeting the new discipline of tenders and, in particular, the project financing procedure. The genesis, in all likelihood, is to be found in two specific events that have raised the tone of the country's confrontation with Europe, namely the renewal of the A22 and A4, on the one hand for the provision of a right of first refusal, against which Aspi itself has taken sides, and on the other hand for the hypothesis of direct assignment of the Brescia-Padova section to Cav, which was proposed in recent months by the Minister of Infrastructure Matteo Salvini and in part confirmed by the fact that not a single leaf has since been moved on this dossier.

In the wake of all this, the EU must have decided to put a couple of firm points on paper, which the letter reconstructs in detail.

In December 2022, the Italian authorities informally submitted to the Commission's services "the new draft of the Italian public contracts code", which was then adopted in April 2023 by a legislative decree. A text with respect to which Europe made a series of remarks that were subsequently transposed into a corrective decree. But evidently the changes, even significant ones, and the reforms introduced were not sufficient to remedy the Italian position. So much so that the Commission writes in the letter: "Some of the remarks made have not been entirely resolved and some of the provisions of the updated code continue not to be in line with EU law on public procurement".

In particular, as has been said, everything revolves around the procedure for awarding project financing which, as it has been declined, does not provide "the adequate procedural guarantees to safeguard compliance with the principles of transparency, equal treatment and non-discrimination and instead leaves too much room for the discretion of the contracting authority". In other words, the tender must be the main instrument with which to manage the awards and any exceptions, such as project financing and in-house procedures, must be justified in a detailed and, above all, convincing manner. An entire chapter, moreover, is dedicated to the provision "of a right of pre-emption in the field to the promoter/proponent" which concludes as follows: "This provision violates the principles of equal treatment and non-discrimination enshrined in Articles 3 and 30 of Directive 2014/23/EU".