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SUBCONTRACTING: THE RELEVANT DISCIPLINE BETWEEN THE ITALIAN REGULATION AND THE EUROPEAN FRAMEWORK.
Moreover, the current wording of Art. 105, par. 19, of the Code states that the obligations transferred by the Operator to the sub-contractor (or sub-contractors) shall not be subsequently transferred to third parties.
The latter provision is commonly referred to as the “prohibition of subcontracting chains” since the Italian legislator prohibited subcontracting chains, even in those cases in which the final executor of the services/works/supplies possesses the general and special requirements as indicated in (or integrated by) the tender documentation.
The Code thus shows a deep distrust towards subcontracting (and subcontracting chains) in public contracts, since this tool is believed to be a potential vehicle for criminal infiltration into the (profitable) public contracts sector (in this regard, see Law no. 55/1990).
In this respect, it is worth also noticing that the Italian regulator’s disfavour seems not to be shared by the European ruler, which has always considered subcontracting with great favour since “it allows the widest participation and access to public contracts by small enterprises” (please see EU Commission infringement-procedure no. 2018/2273).
A brief excursus of the main issues raised by the EU Authorities about the Code’s subcontracting regulation and a concise overview of the major corrective legislative actions can be found below.
The infringement procedure no. 2018/2273. Open points and adopted/foreseen solutions.
Given the mentioned regulative and perspective framework, the European Commission activated the infringement procedure no. 2018/2273 against Italy to solve the reported non-compliance of the Code with the EU legal framework. In particular, according to the “Keys decisions – Infringements package” (updated to April 6, 2022 - https://ec.europa.eu/commission/presscorner/detail/EN/INF_22_1769) the Commission called on the Italian authorities to address the detected issues already raised in the previous letters of formal notice, such as “the prohibition for subcontractors to use other subcontractors” and, among others, “the imposition of a threshold limit for the obligations to be subcontracted”. As indicated in the mentioned procedure, the EU Commission activated its powers to “ensure the correct transposition of the Directives on public procurement and concessions (Directives 2014/24/EU, 2014/25/EU and 2014/23/EU)” and raised the following objections (partially corrected by the Italian ruler as specifically noted below):- The insertion of a general threshold limit for the obligations to be sub-contracted.
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The indication of a set of subcontractors.
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Subcontracting chains.