COUNCIL OF STATE sect. V no. 655/2018
This judgement confirms the ruling of the Regional Administrative Court of Abruzzo – L’Aquila no. 152/2017 that rejected the request of the plaintiff to annul the acts and the provisions related to the tendering procedure issued by the Municipality of Teramo to select the private partner and industrial partner of the company to which the management of the environmental health, the cemetery services, road signs, maintenance of green areas and assessment of the heating systems would be awarded. Firstly, the plaintiff sustained that the applicability of the tender procedures provided for in art. 5 par. 1 of the Legislative Decree 175/2016 which states an obligation to analytically state the reasons for the decision act to establish a publicly-owned company, also semi-public company. In particular, it is has been said that the call for tender should foresee an explicit motivation of the decision of the Municipality to proceed with the establishment of a semi-public company. The Council of State has decided that the call for tender and the acts connected to it are excluded from the obligation to analytically motivate as provided for in art. 5 of the Legislative Decree 175/2016, which is foreseen only with reference to the acts in which the Public Administration expresses its own deliberative power to establish a new publicly owned company, namely to acquire shareholdings. Secondly, the plaintiff stated the unlawfulness of the call for tender in the section in which it prohibited the reliance on capacities, since that, according to the combined disposition of art. 179 par. 1 and 2 and art. 164 par. 2 of the legislative decree no. 50/2016, results a general possibility of application of the procedures of awarding concession contracts of public works and services, as far as they are compliant with the norms of the Code of Public Contracts concerning the exclusion, modalities and procedures for awarding, and the publication and drafting modalities of the calls and of the notices, etc. The Council of State has instead stated that “the inapplicability of the PPP contract to the reliance on capacities, since it is an institution that relieves the lack of technical, organizational and financial requirements of the competitor that does not find room within the internal references, which is limited to a compulsory list and with no further hypothesis such as the one operated by art. 164 par. 2”. In a proposal of partnership, the contribution of know-how of the industrial partner in the managerial expertise of the semi-public company is not fungible and therefore the reliance on capacities cannot find room. Furthermore, not relying on capacities is justified by the fact that the entrepreneur assumes the demand risk in relation to his own investment, through the management of the semi-public company, to which he gives a direction according to his own technical-organizational and professional ability (and not someone else’s ability).