ART. 190 - BARATTO AMMINISTRATIVO
M. RENNA - V. M. SESSA, ART. 190 - BARATTO AMMINISTRATIVO, in CODICE DEI CONTRATTI PUBBLICI, COMMENTARIO DI DOTTRINA E GIURISPRUDENZA, G.M. ESPOSITO (edited by), VOL. II, 2226 SS., MILAN, 2017.
Constitutional Court, 20 July 2012, n. 199
Abstract:
In this fundamental ruling, the Constitutional Court has officially recognized the public-private partnership as a management method for local public services, i.e. the selection of an operator via a tender and in-house providing, declaring the unconstitutionality of art. 4 d.l. 13 August 2011 n.138 since it is a replication of the legislation repealed as a result of the referendum of the 12th and 13th June 2011.
Court of Justice UE, january 16 2014, n. 24, C-24/13 - Dél-Zempléni Nektár Leader Nonprofit
Abstract:
With this ruling, the Court of Justice has asserted that, in principle, Member States have the possibility to impose ulterior formal and juridical conditions other than the ones forested at a European level, concerning the “local action groups”, which are structures of public-private partnership aimed at favoring the local development of rural areas. The ruling is threatening to become an obstacle to the development of the associative model in Europe and to create uncertainties and lack of uniformity in the system, as it sets that the Courts will demand the national judge a check of national normativity compatibility with the conditions established by the Regulation on this matter.
Council of State, sect. VI, 16 March 2009, n. 1555
Abstract:
The Council of State, while delineating the differences between an in-house company and a mixed company (operating in the national agricultural information system), has asserted that the main feature of the partnership structures is “the creation of a new model, in which public and private interests will find a point of convergence”.
Council of State, section III, 18 February 2013, n. 957
Abstract:
The ruling in question appears to be particularly innovative, since it considers the award of healthcare and socio-medical services with a high health integration – characterized by the provision of home care services outside public structures – via a procurement of services as an “organizational public-private partnership model that, by outsourcing home care services, entrusts third parties with the task and, for this reason, requires an actual integration effort between the treatment and the care, with a predominance of the scopes of one over the processes of the other”. Therefore, a wide concept of partnership emerges, which considers a traditional procurement of services as a form of collaboration between public and private subjects as a result of the clear social feature of the activities, which are the subjects of the contract.
Regional Administrative Court (TAR) – Lazio, sect. II Bis, March 22 2017, n. 3778
Abstract:
The Regional Administrative Court of Lazio has ruled as legitimate the execution of the public procedure by which the Municipality of Orvinio (RI) has selected the private partner of the mixed company in charge of the management of a drugstore, expecting, among the other private partner’s duties, the payment to the outgoing operator of the costs incurred by this latter for the provisional management of the business operation. This, on one hand, demonstrates the flexibility of the institutionalized partnership and, on the other hand, it attests the respect of the administrative justice towards contractual tools that conciliate the satisfaction of the collectivity’s needs – i.e. the management of a drugstore – with the conferment to the private partner of the prior costs which are due to the administration, not related to the future activity of the newco.