Studio Legale VILDE

Constitutional court, March 10, 2023, no. 40 In this ruling, the Italian Constitutional Court assessed the constitutionality of administrative sanctions imposed for violations of rules protecting products with designation of origin (DOP) and geographical indication (IGP). Specifically, the Court declared the unconstitutionality of Article 4, paragraph 1, first sentence, of Legislative Decree No. 297 of November 19th, 2004, insofar as it provided for a fixed pecuniary administrative sanction of “50,000 euros”, instead of a range "from a minimum of 10,000 to a maximum of 50,000 euros."

According to Art. 105, par. 1, of Legislative Decree n. 50/2016 (Public Procurement Code – “Code”) the awarded operator (also “Operator”) shall directly perform the works, the services and the supplies under the agreement, and neither the contract nor the execution of its obligations can be transferred to third parties shall the (strict) requirements under Art. 105 not be met.

GENDER EQUALITY IN THE LEGISLATIVE DECREE 18th APRILE 2016 NO. 50 (PUBLIC CONTRACTS CODE) In Italy, the Public Contracts Code (hereinafter also “PCC”) is a tool through which the Law-Maker can impose virtuous practices on the companies, at least in the performance of the public contracts. And in fact, all participants in public tenders must have the so-call “moral requirements” (such as not having any fiscal irregularities or their managers cannot be involved in criminal proceedings).

On 17 December at 2.30 p.m. a conference will be held at the University of Studies of Milan to present the "Scritti di diritto processuale amministrativo dedicati a Riccardo Villata" (Writings on administrative procedural law dedicated to Riccardo Villata), fifty years after the publication of “L'esecuzione delle decisioni del Consiglio di Stato" (The enforcement of decisions of the Council of State) by Professor Riccardo Villata.

Council of State, Plenary Assembly, 9 November 2021, nos. 17 and 18

COUNCIL OF STATE, SECTION 2, 17 FEBRUARY 2021 NO. 1452 The judgment in question, while stating that the construction of new buildings without a building permit always entails the imposition of a restorative sanction, according to the article 31 of Presidential Decree 380 of 2001, also recalls that the possibility of replacing the demolition sanction with a pecuniary sanction - provided for by article 34 of Presidential Decree 380 of 2001 - must be assessed by the competent Administration during the executive phase of the proceedings, which is subsequent and autonomous with respect to the demolition order; an executive phase in which the parties may argue that the stability of the building is at risk, which is the basis for the application of the pecuniary penalty instead of the demolition penalty, with the result that such assessment is not relevant for the purposes of the legitimacy of the demolition order.

The Court of Justice of the European Union addressed, in the judgment of 7 May 2020, case C-641/18, LG v. Ente Registro Italiano Navale and others (ECLI: EU: C: 2020: 349), the question about the nature classification and legal certification of ships performed by private entities on behalf of the States. The ultimate addressees of the obligation established under article 94 of the UN Convention on the Law of the Sea and under the International Convention for the Safety of Life at Sea or SOLAS Convention (respectively approved in Montego Bay on 10 December 1982 and in London on 1 September 1974, both ratified by all Member States) to adopt all necessary measures in order to safeguard safety at sea, are indeed the States, more particularly by making sure that vessels flying their flag are designed, built, and maintained according to structural, mechanical and electric prescriptions either established by a classification society recognized by national authorities or in accordance with the applicable national legislation providing for an equivalent level of safety.

With the sentence dated the 30th of January 2020, the European Court of Justice was called to comment on the provision of the Public Contracts Code which contains the automatic exclusion of the competitor for the tender, which indicated a subcontractor then found to be without the requirements.

By implementing the European legislation, Legislative Decree 152/2006 (so-called‘Environment Code’) enabled the Italian law to take a firm step towards a circular economy model, alsoregulating – through Article 184ter -the theme of end of waste.

1. Overview In the context of the protection of natural persons with regards to the processing of personal data, Article 25 of Regulation EU/2016/679 (General Data Protection Regulation or “GDPR”) sets up the Data Protection Impact Assessment (“DPIA”) in pursuit of GDPR’s aims through a risk-based approach.

1. Overview  In pursuit of the environmental aims set by Kyoto Protocol (COP3, 1997), the European Union has taken several measures in order to reduce gas emissions causing the global greenhouse effect. Among these gases, the most important are Carbon Dioxide (CO2), Methane (CH4), Nitrous Oxide (N2O) and the Fluorinated gases (“F-gases”), which are Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs), Sulfur Hexafluoride (SF6) and Nitrogen Trifluoride (NF3). With respect to “F-gases”, the European Union firstly enacted Regulation No. 842/2006, which was implemented by Italy through Presidential Decree n. 43 of 2012 (in relation to general rules) and Legislative Decree n. 26 of 2013 (in relation to sanctions). Afterwards, the EU enacted Regulation No. 517/2014, which abrogates the Regulation introduced in 2006 - in effect since January 1st 2015. Recently, Italy implemented the European act through Presidential Decree n. 146 of 2018. 

The confiscation measure examined in this essay is provided for in Article 44 § 2 of Presidential Decree no. 380/2001 (hereinafter, “Construction Code”), under the heading “Criminal sanctions”. Article 44 § 2 states: “In a final judgement establishing that there has been unlawful site development, the criminal court shall order the confiscation of the unlawfully developed land and the illegally erected buildings. Following the confiscation, the land shall pass into the estate of the municipality on whose territory the site development has been carried out. The final judgement shall constitute a document of title for immediate entry in the land register”.

In Italy, the “Public Contracts Code” (Legislative Decree No. 50/2016) pays particular attention to the integrity and reliability of the potential public tender contractor. The Code specifies a series of cases in which an economic operator must be excluded from the participation of a call for tender as it has been found guilty of grave professional misconduct in its execution of previous public contracts.

A recent judgement delivered by the Administrative Court of Brescia (No. 964/2018) clarified uncertainty on the responsibility of decontaminating a polluted area, specifically enquiring the relationship between ownership and decontamination. 

The article is a further contribution to an ongoing debate on jurisdiction in which Riccardo Villata provides, amongst other interpretations, an insight into the constitutional system resulting from Articles 103 and 113 of the Italian Constitution.

The Italian legal system, being in line with European law, provides for the institution of an RTI – a temporary association of companies (raggruppamento temporaneo di imprese) - (hereinafter, “RTI”). Under this institution, a company that lacks the necessary economic and/or technical requisites called for by the commissioning body in a specific public procurement procedure joins with another company in order to broaden its requisite qualifications laid down by the tender.

The IPPC (Integrated Pollution Prevention and Control) is an administrative act which is required by State authorities to allow an emission plant to operate. Initially conceived by the European Union (Directive 96/61/CE), every Member State later implemented national environmental legislation with the aim of reducing their emissions in compliance with EU legal parameters. 

The Public Administration Electronic Market is a digital marketplace, created in 2002 and managed by Consip S.p.A., the Italian central purchasing body, on behalf of the Ministry of the Economy and Finance. Through the Ministry, registered authorities can purchase goods and services offered by suppliers that have been vetted and authorised to post their catalogues on the system for values below the European threshold.

Studio Legale Villata, Degli Esposti e Associati is pleased to announce the forthcoming publication of Professor Villata’s latest article. The work, In tema di questioni di giurisdizione (alla luce di un recente Momorandum), explores questions of jurisdiction following the recent Memorandum from the heads of the three jurisdictions (ordinary, administrative and accounting) addressed to the President of the Italian Republic.

The Article n. 103 of the new Code of Public Contracts - Legislative Decree n. 50/2016, most recently amended by the Legislative Decree n. 56/2017 - provides assurances for the execution of the public contract - the so called final assurance -, issued by the contractor. In particular, paragraph 8 regulates the decennial posthumous insurance, also provided by the Art. 1669 of the Italian Civil Code.

The Law Decree No. 21 of 15 March 2012, converted by Law No. 56 of 11 May 2012, introduced a new set of special powers for the Italian Government in relation to strategic sectors such as defence and national security, energy, transport and communications.

The article concerns the regulation of the Renewable Energy Market in Italy, providing a brief overview on the matter at hand. 

ANDREINA DEGLI ESPOSTI’S CONTRIBUTION TO THE NEWLY RELEASED SIXTH EDITION OF THE VOLUME “THE ENERGY REGULATION AND MARKETS REVIEW”

The Legislative Decree No. 164/2000 (also known as “Letta Decree”) qualifies the natural-gas distribution activity as a public service. This qualification derives from the aim of natural-gas distribution to meet the needs of the community, by ensuring the equal access to the gas grid (so-called “third party access”), the continuity and the quality of the service. After stating the public service nature of the distribution activity, Article 14 of the aforementioned Decree regulates the procedure for awarding it through mandatory public tenders launched by Local Entities. Within a gas distribution market qualified as a natural monopoly, the choice for tender procedures is directed at ensuring competition between different companies (in order to earn benefits in terms of efficiency, quality of the service and more reasonable prices for the end-consumers).

Studio Legale Villata, Degli Esposti e Associati is pleased to announce the forthcoming publication of a volume on the reform of the Italian Public Procurement Code. A number of experts in Administrative and Public Law will contribute to the work, which is coordinated by Professor Villata.

Studio Legale Villata, Degli Esposti e Associati is pleased to announce the imminent publication of Professor Villata’s latest article, which explores the extent of, and the limits to, the jurisdiction of Italian Administrative Tribunals.

With Legislative Decree No. 50/2016 (the so-called “Public Procurement Code”, hereinafter “PPC” or “the Code”) Italy implemented the EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, concerning, respectively: (i) the award of concession contracts; (ii) public procurement; and (iii) procurement by entities operating in the water, energy, transport and postal services sectors. The PPC, by repealing the 2006 Code on public procurement (Legislative Decree No. 163/2006), reorganised the pre-existing Italian legislation on public contracts relating to public works, services and supplies.

It is estimated that there are about 8,000 companies in Italy whose capital is owned by public administrations (State, Regions, Provinces, Municipalities, etc.…). Ultimately, the need for spending review has led the Italian Government to intervene (again) in this sector of the Public Administration, by issuing Legislative Decree No. 175/2016 (“the Decree”), which follows other reforms promoted by Minister Marianna Madia pursuant to Law No. 124/2015. The Decree aims at regulating the participation of public administrations in the share capital of companies, in order to rationalize the number of public companies and make sure that they are duly managed.