Note e Relazioni

Article 80, paragraph 5, letter c) of the Code of Public Contracts provides for exclusion from participation of economic operators who have been convicted of serious professional misconduct affecting their integrity or reliability. The rationale for this prevision is «the need», of the public administration, «to ensure the reliability of those who propose themselves as contractors» (Council of State, decision no.1412, of April 11, 2016) through an evaluation process to determine their integrity. This provision has been the subject of a recent decision by the Regional Administrative Court for Sardinia: no. 646 of October 3, 2022. That decision focused on the discretion left by this provision – at the point where it provides for the exclusion of the economic operator for serious professional misconduct on the basis of any means considered by the Contracting Authority as adequate. The decision has clarified how this evaluation presupposes a specific reasoning based on two levels: one objective and one relative, which considers both the gravity of the professional misconduct committed by the economic operator, and the prejudice that it may cause to the specific contract in question.

In the current emergency situation, national legislators attempt to manage the invariance in public procurements by means of analytical rules of mechanical application. The consequent regulatory chaos (in a continuous – almost inconsistent – reformulation of the rules) makes it preferable to manage the emergency through undetermined legal concepts (good faith, first of all), which better perform the homeostatic function in the legal system.

The following paper shows how the introduction of electronic instruments and databases for contracting authorities, like the e-procurement portal “Tutto Gare” used by Brescia Infrastrutture S.r.l., has brought a substantial simplification in public commitment procedures, allowing for the adjudication of public tenders even during the lockdown period caused by the COVID–19 pandemic. However, the path to digitalisation of tendering procedures hasn’t been concluded yet. The hope is that in the aftermath of the pandemic all the information concerning economic operators and tendering procedures could be found on uniform and centralized databases (like the so-called Economic Operator’s Dossier ex art. 81, c. 4, d.lgs. n. 50/2016), which will help both the contracting authorities in the selection of the contractor as well as the economic operators themselves.

The Italian Civil Code has been characterised, ever since the original text dated 1865, and also in the legislative act issued in 1942, and still in force today, by its durability and resistance over time: first of all the paper analyses the reasons underlying this temporal permanence. In the same way, and also over the course of time, strong connections have been highlighted between the rules contained in the Civil Code, and their application with regard to public administrations: these connections are also discussed in the paper, both with regard to specific areas of the organisation of public administrations, and with regard to the general principles, deriving from civil law, that are applied today within administrative activity.

With the decision n. 248/2022 of the 12th of February 2022, the Administrative Court of Puglia has ruled on aspects of the impact of a new generation of agrivoltaic plant, concluding them to be less impacting than a traditional photovoltaic plant. The Judge of first instance recognized the inadequacy of the Regional Territorial Landscape Plan of the Region of Puglia with reference to these new plant configurations, concluding agrivoltaic plants as being compatible with the agricultural and pastoral uses activities in the region.

As part of CERIDAP's "Book Forum" initiative, a study meeting to present the book "L’intervento pubblico di contrasto della povertà"(Editoriale Scientifica, Naples, 2021), written by Prof. Claudio Franchini, was held on 27th of January 2022. The contribution aims to review the interventions of the meeting.

In a recent judgement, the administrative court of Lazio has annulled the circular of the Ministry of Health concerning the domestic management of Covid-19 patients. It has in fact argued that the binding nature of the circular undermines the possibility of the physicians to freely select the most suitable therapy for the patient. The Council of State has a different opinion and, reforming the judgment of the TAR, has also ruled on the complex issue related to the relationship between the standardization of care and autonomy of the physicians. This contribution offers an overview on the rulings of the administrative courts on this topic and then focuses on a short analysis of the second instance judgment.

By judgment No. 2309 of 17 March 2021, the Council of State has further confirmed – overcoming the idea that the term for the conclusion of ARERA’s sanctioning procedure is merely ordinary – the peremptory nature of such term, therefore its overrun affects the challenged sanctioning measure, implying that it is unlawful. Indeed, the provision of a procedural time frame, to be determined by the Authority on a case-by-case basis, shall ensure that the time of sanction ascertainment is close to that of its punishment, thus meaning that the undue time lapse of the administrative action implies the unlawfulness of the sanction measure.

The Council of state refused the appeal against the judgement of the T.A.R. Lazio, which denied a protective order for suspension of the mandatory use of so-called Green Pass, in order to exercise certain activities as introduced by the Decree of the President of the Council of Ministers of 17th June 2021. The decision stresses the importance of the vaccination as one of the UE measures for citizens’ health protection, as well as the evaluation of a real or a merely potential risk of security in processing of sensitive data, or in ensuring right to privacy and non-discrimination.

With the decision n. 261/2021 of the 10th September 2021, the Administrative court of Friuli Venezia Giulia has ruled on relevant aspects related to the compulsory vaccination for healthcare personnel established by art. 4 D.L. 44/2021. The court has clarified that it is incorrect to claim that the vaccines used in the current vaccine campaign are still on trial, since they have been authorized by the Commission with a conditional marketing authorization, after EMA recommendation.