1. Private and Public law lesson 11 T he power of the public Administration to enter into agreements, according to the Italian Civil Code; legal enforcement of administrative decisions - May 9, 2014-

2. Is the Administration allowed to negotiate and enter into agreements with private individuals / companies? If so, is the Administration free to choose any method to entertain relationships with private individuals / companies? The power of the Administration to enter into agreements _________________________________________________

3. The power of the Administration to enter into agreements _________________________________________________ Need to set up relationships with private entities Duty to pursue public interest

4. The power of the Administration to enter into agreements _________________________________________________ Need to set up relationships with private entities The ultimate aims of the Administration are set out by the law (i.e., they are not an option for the Administration)

5. The power of the Administration to enter into agreements _________________________________________________ Definition of contract (appalto) under the Civil Code Definition of contract (appalto) for the purposes of public law - all passive agreements - agreements regarding the carrying out of public works, the provision of services and the supply of goods

6. The power of the Administration to enter into agreements _________________________________________________ Obligation of the Administration to specify the reasons justifying the choice to act under the norms of the Civil Code (in the light of the duty to pursue public interest)

7. Art. 1, paragraph 1-bis of Law no. 241/1990: general principle of contractual autonomy of the Administration: when issuing decisions other than those based on public authority, the Administration is generally allowed to resort to agreements and tools regulated by the Civil Code The power of the Administration to enter into agreements _________________________________________________

8. Art. 1, paragraph 1-bis of Law no. 241/1990: general principle of contractual autonomy of the Administration: the Administration should preferably resort to agreements and tools regulated by the Civil Code The power of the Administration to enter into agreements _________________________________________________

9. Art. 1, paragraph 1-bis of Law no. 241/1990: general principle of contractual autonomy of the Administration: There is no obligation for the Administration to use authority (nor to act under the norms of the Civil Code). By way of exception, the law may provide that, in certain situations, the Administration must resort to authority The power of the Administration to enter into agreements _________________________________________________

10. Art. 1, paragraph 1-bis of Law no. 241/1990: general principle of contractual autonomy of the Administration: When the Administration acts under the norms of the Civil Code, it is subject to the general rules regulating relationships among private individuals (e.g., liability regime, etc.) The power of the Administration to enter into agreements _________________________________________________

11. Art. 1, paragraph 1-bis of Law no. 241/1990: general principle of contractual autonomy of the Administration: When the Administration acts under the norms of the Civil Code, it is subject to all rules regulating the relationships among individuals The power of the Administration to enter into agreements _________________________________________________

12. When the Administration acts under the norms of the Civil Code, the following norms are applicable to the Administration: - the norms regulating pre-contractual / contractual liability - the norms regulating default interest and termination due to the Administration default - the obligation to enter into the final agreement (when a preliminary agreement was entered into) - the obligation to specifically consent to clausole vessatorie The power of the Administration to enter into agreements _________________________________________________

13. Exception: art. 21-sexies of Law no. 241/1990: il recesso unilaterale dai contratti della pubblica amministrazione è ammesso nei casi previsti dalla legge o dal contratto The Administration is entitled to freely withdraw from the agreement, without the need to: - justify its decision in the light of public interest - specify the reasons justifying its decision to withdraw The power of the Administration to enter into agreements _________________________________________________

14. - are regulated by both the Civil Code and the special legislation (if any) - both common agreements and special agreements - active agreements and passive agreements Agreements entered into by the Administration _________________________________________________

15. - are regulated by both the Civil Code and the special legislation (if any) - both common agreements and special agreements - active agreements and passive agreements Agreements entered into by the Administration _________________________________________________

16. The power of the Administration to enter into agreements _________________________________________________ Making the decision to enter into an agreement: an administrative proceeding Performing the obligations set out by the agreement special legislation + Civil Code Civil Code

17. Phase 1: the Administration adopts a resolution regarding the entering into of the agreement OR the Administration approves a draft agreement, to be submitted to the counterparty Phase 2: the Administration selects / identifies the counterparty and the latter is formally entrusted to carry out the works (aggiudicazione) Phase 3: the agreement is entered into (in writing) Phase 4: formal approval of the agreement Agreements entered into by the Administration _________________________________________________

18. In particular, Phase 2: the Administration selects / identifies the counterparty - open proceedings - restricted proceedings - negotiated proceedings Agreements entered into by the Administration _________________________________________________

19. In particular, Phase 2: the Administration selects / identifies the counterparty - asta pubblica - licitazione privata - appalto-concorso - procedura negoziata - dialogo competitivo Agreements entered into by the Administration _________________________________________________

20. Project financing _________________________________________________ Public entity Special purpose vehicle Banks Proceeds of the project Public concession Loans Assignment of receivables by way of security + special privilege + pledges + mortgages

21. - The promoter presents a draft project, regarding the carrying out of public-interest works. The project must be self-sustaining - The public entity sets up a first competitive proceeding (procedura negoziata), in order to select 2 additional players (in addition to the promoter) - The public entity sets up a second competitive proceeding, to be run among the promoter and the 2 players selected during the first competitive proceeding - The works may be allotted in favor of the promoter(s). The special purpose vehicle may later step-in the project Project financing

22. - The special purpose vehicle may issue bonds or other debentures in order to ensure that the project is properly funded - By virtue of the special legislation, banks benefit of a special privilege (by operation of law) over all movable assets pertaining to the project. Banks may enforce such privilege in case that loans granted to the SPV are not reimbursed. Additional guaranties are usually created Project financing _________________________________________________

23. - Several promoters may get together, in order to ensure that the requirements set out by the public entity are fulfilled (with regard to all of them jointly): Avvalimento / Associazione Temporanea di Imprese (ATI). In such cases:. A lead promoter is appointed, to deal with the public body and represent the other participants. Before the setting up of the SPV, each participant is liable for its respective share in the project works. Appropriate evidence must be provided that all segments are actually available and certain (members of the same group; assignment of business; close commercial relationships, etc.) Project financing _________________________________________________

24. legal enforcement of Administrative decisions