After the not exactly happy outcome regarding the procedure for choosing the private operator entrusted with the public lighting service in the streets of Trani, the dogma of competition and the free market seems to be falling once again on the company entirely owned by the Municipality in relation to other no less important services, such as that relating to the management of public parking areas. These reflections follow the debate that has recently arisen following the more than acceptable findings made by the CEO of AMET, lawyer. Nigretti regarding the apparently immovable position taken by the Municipal Administration to proceed, with a certain speed, with the completion of the public tender procedure for the assignment of the aforementioned service.
Among the main reasons given by the Administration to justify its choice is the impossibility of qualifying AMET as an in-house company and, therefore, an unsuitable recipient for the direct assignment of the public service by the Municipality.
In other words, AMET would be treated like any other competing (private) company, with very significant legal and social repercussions. Therefore, what we are about to explain must be understood simply as a mere starting point for starting a reflection-debate and a (re)evaluation of what has been declared in a political context, in order to protect the sole and exclusive public interest guaranteed, as always, by municipal company. On the subject, it is useful to preliminarily remember that the same administrative jurisprudence has long attributed an ordinary – and not exceptional – nature to in-house assignments (ex multis, Cons. Stato, section V, 18 July 2017, n. 3554).
First of all, some doubts must be raised regarding the Municipality’s assumption according to which AMET could not benefit from the qualification of an in-house company. In this regard, reference must first of all be made to the jurisprudence of today’s Court of Justice of the European Union (CJEU), which outlined, in the well-known Teckal precedent of 1999, the fundamental requirements for in-house awarding, namely: legal personality (of the company); II- the so-called similar control, i.e. the participation of the Administration as a sole shareholder, the suitability of the same to exercise control over the entity similar to that which it exercises over its own bodies and offices (we speak, in this regard, of companies in house as an externally managed company); III- finally, there is the so-called prevalence constraint, according to which the in-house entity must carry out 80% of its activities in carrying out the tasks entrusted to it by the municipal administration and from which an equal percentage of turnover (which is partly confirmed within the same Report sent by the Ministry of Economy and Finance and recently referred to by the Administration, p. 79). Based on what has been summarized, AMET certainly seems to reflect the first two requirements, while some doubts certainly remain regarding the third, which however must be better explored and read, especially, in light of the now, apparently, imminent dismantling of the sales and distribution of electricity. But there is another fundamental legal aspect to take into great consideration.
Secondly, in fact, as is known, with the d. lgs. 31 March 2023, n. 36, the Government has adopted the new Public Contracts Code, which presents important, and for the future of AMET, essential innovations regarding in-house assignments and the principle of competition. The new Code has entirely revised the relationship between the latter, public interest and private interest as regards public services and their possible direct assignment. In particular, the principle of competition no longer presents itself as the defining principle of administrative activity, nor can it be represented as an end in itself. It must instead be interpreted in light of the principle of results, which is furthermore pursued “in the interest of the community” (art. 1 of the Code). This principle is capable of attenuating the rigid application of the competitive principle in the presence of needs for efficiency, cost-effectiveness and good performance and transparency of administrative action. In this sense, the principle of result takes on the appearance of a ‘super’ principle (quoting the expression of G. Montedoro, President of the section of the Council of State).
The principle of result is accompanied by the principle of administrative self-organization (art. 7 of the Code), which expressly allows the Administration to proceed with the direct assignment of works, services or supplies to companies in which it participates with a reasoned provision, in which takes into account “the advantages for the community, the related externalities and the economic congruity of the service”. For this purpose, the Code also allows the Administration to make use of the parameters updated by Consip Spa. Therefore, in light of what has just been noted, it may be extremely convenient to focus on the regulation of public contracts and on the opportunity to carefully evaluate the (obvious) advantages ), beyond the requirements that the in-house assignment of the public service to AMET would be able to guarantee to the community, weighing up the interests at stake and the convenience of advertising the service.
Thirdly, it should be clarified that art. 7 does not appear to absolutely bind the Administration to resort to the market, but leaves the decision to opt for valid alternatives, among which there is certainly the direct assignment to a subsidiary company. However, it is useful to highlight how the Report sent by the MEF to the Municipality seems not to take into account the entry into force of the new Public Contracts Code and the important innovations introduced by it, in particular in terms of principles, since the Report limits itself to recalling the previous regulation of 2016 (especially pp. 79-80 of the Report). Consequently, the evaluation for the in-house choice should be carried out on the basis of the current regulations, which, moreover, no longer require prior registration in the appropriate ANAC register.
In essence, the obligation and content of the motivation of the provision with which the Administration decides to proceed with the in-house assignment, rather than the verification of the requirements, appears to be fundamental. In this direction, the declaration of in-house qualification within its statute certainly plays in AMET’s favor and, no less important, the repeal, following the entry into force of the 2023 Public Contracts Code, of register and the supervisory power of the National Anti-Corruption Authority (ANAC). Which would entail the possibility for the Administration, based on the principle of trust (art. 2 of the Code), to “presume” that a company which declares to possess the in-house requirements is actually in possession of them, assuming and not granting that AMET does not have one. In any case, this does not prevent AMET from fully integrating the necessary requirements to obtain and/or confirm, once and for all, the qualification of in-house company.
Ultimately, the entire municipal council, the investee company itself and the managers competent in the matter could suggest to the Administration to insist on the line that we have tried, albeit in principle, to outline here, being able to highlight the latter, to the light of the new Code, the opportunity, convenience and advantages that could be achieved following the in-house assignment to AMET compared to recourse to the market, apparently not justified by precise, considered and advantageous decisions relating to the public interest. The ordinariness and legitimacy of the direct assignment to a company entirely owned by the Municipality was recently (2024) also confirmed by the Council of State in the matter of public transport, when the judge considered the direct assignment by the City to be legitimate Genoa Metro for local public transport, which we quietly invite you to take note of and, to the extent possible, why not, take inspiration.
The future of AMET concerns the public service and the entire company, as well as its workers, whose employment relationship must be concretely defended in all offices and with all strength, but also the future of all citizens. For this reason, we must understand the importance and urgency of the issue before it is too late.
Lawyer Francesco Tomasicchio
(PhD student in Comparative Law at the University of Rome “La Sapienza”, currently Visiting Scholar at the Columbia Law School in New York)
