Rivista giuridica dei servizi pubblici 3/2023

Rivista giuridica dei servizi pubblici 3/2023



Autore rivista AA.VV.
ISSN 2240-4732
Prezzo rivista Italia € 100,00
Prezzo singola rivista (Italia)€ 30,00
Prezzo rivista estero€ 280,00
Link per acquistare la rivista: Editoriale Scientifica

Indice Munus 3-2023


Editoriale

Giuseppe Morbidelli, Intorno ai principi nel nuovo Codice dei contratti pubblici

Saggi

Fabio Giglioni, La proprietà al cospetto della modifica costituzionale dell’art. 9

Abstract
The protection of the environment is not only a value of a global nature, but it can also now be considered a global constitutional value, given its provision in most of the founding charters of countries. Italy is no exception, which in 2022 expressly introduced such protection within Article 9 of the Constitution with Constitutional Law no. 1/2022. This innovation generates significant implications on a legal level, particularly with regard to the right to property and its conditioning due to the “environmental value”, which are the mainly considered in this paper.

Marco Bevilacqua, L’esercizio dei poteri pubblici per lo sviluppo delle infrastrutture di comunicazione elettronica 

Abstract
The aim of the paper is to investigate the evolution of the market model in the electronic communications infrastructure sector. The strategic usefulness of (ultra) broadband as a tool for reducing physical distances between remote areas is evident. The introduction of the laissez-faire model within the EU legal system has brought with it several risks arising from the inefficiency of free market self-determination, such as the abandonment of rural areas because they are not economically viable. According to the recent positions expressed by the European Commission and, consequently, by the Italian legislator, the research will examine whether there is a possible change in the configuration of electronic communication services. More precisely, can the public institutions limit themselves to the role of regulator – or controller – of the market, or could it be admissible to consider a greater impact – such as a model of tempered nationalizations – of the public sphere in the economy?

Ambrogio de Siano, Investimenti pubblici nella ricerca scientifica. Considerazioni brevi sui Dottorati al tempo del PNRR

Abstract
The attempt to use the extraordinary amount of resources derived from Next Generation Eu in a way that would generate widespread socio-economic growth could only involve the university and research. With the intention of strengthening the relationship between science and business, substantial investments have also been allocated to the Ph.D. program, where free research and free education are practis ed as a function of cultural, social and economic progress.It is precisely the high concentration of resources on the Ph.D. Program that is the subject of the analysis in the essay, which is based on the following research hy-pothesis: the funding of the doctoral
programme is not sufficiently designed to allow the development that the NRRP is intended to achieve. In the attempt to prove this, and after a nod to the normative network of Constitution-al rank dedicated to the autonomy of science, the essay will focus, precisely, on the consistency of the funding in question, with the ultimate aim of assessing (also in the light of data derived from recent Anvur and Court of Auditors findings) its reasonableness and proportionality with respect to the objectives to which it is declaredly dedicated.

Francesco Dalla Balla, Fare Stato ad ogni effetto: l’intervento di Cassa Depositi e Prestiti nel mercato Contratti pubblici e innovazione

Abstract
The article examines the renewed interest in S tate shareholding and explores the reasons behind the overall strengthening of public companies at the European level. In the national framework, the role of the Cassa Depositi e Prestiti, which now has extensive powers to intervene in the market, is given particular prominence in a dialogue and multifaceted relationship with the government. t. Some of the financial operations carried out , for example, by Cdp Equity S.p.A. and Patrimonio Rilancio, demonstrate the interest and influence of the shareholder in the company’s management decisions , thus contributing to the pursuit of economic policy

Gianfrancesco Fidone, L’innovazione attraverso i contratti pubblici: il c.d. innovation procurement

Abstract
Contracts for innovation (so-called innovation procurement) can take many forms and models, which this study proposes to analyse, both with reference to the awarding procedures and contract types. Among the many tools available, the most appropriate model for achieving innovation can be identified after assessing the innovativeness of the good or service sought and its concrete characteristics. The objective of the administration that proposes to innovate, in line with the provisions of Article 1 of the Code, is that of the innovative result, which may take various forms and contents, and which must be understood as the best use of public funds allocated for this purpose. On the basis of the principle of trust set out in Article 2, administrations wishing to innovate are provided with flexible instruments, based on negotiations, which are based on a broad exercise of power. It is essential for them to be able to manage these flexible instruments which allow them to improve their information base through confrontation with private parties. In accordance with Article 1(2) of the Code, competition must be seen as functional to the outcome. All this presupposes an administration that is not only honest but also capable of achieving results. In the case of complex contracts and in the even more specific case of innovation contracts, which are very complex contracts, the capacity required must be much higher than that required of a generalist administration.

Alessia Depetri, Il Green Public Procurement tra riforme, mercato ed effettività

Abstract
This contribution focuses on the institution of the Green Public Procurement, attributing to it a fundamental role in the process of integration between the environment and the market as well as a strategic function for the concretisation of the new logics of the blue economy. Starting from the international, European and national evolution of the institution, attention is drawn to the choice of the Italian legislator to give a binding scope to the Green Public Procurement, through the declination of CAM. This approach is confirmed – albeit with some differences that will be analysed – also in the new Public Contracts Code, with the intention of overcoming the application criticalities of application identified during the monitoring phase.

Marco Macchia, Digitalizzazione dei contratti pubblici e legge della fiducia

Abstract
Digitalisation can be the toolbox with which public procurement can be achieved quickly, unlocking the eternal issue of contracts. IT tools can strengthen the public certification function, increase transparency and improve trust in the administration without reducing guarantees or depriving public procurement of procedural safeguards. In this way, the technology can optimise the confidence in the public action, increase the control tools with the interoperability of the databases and counteract the phenomena of the defensive bureaucracy. However, to take advantage of this, digitalisation requires coordination and responsibility, loyal cooperation and mutual recognition. In other words, digitalisation requires a law of trust, a rule of cooperation and sharing of activities in the public sphere, so that they converge towards a common result.

Articoli

Fabio Cusano, Il principio do not significant harm (DNSH) e il fischio del merlo

Abstract
This paper, having examined the nature of the dnsh principle and the dnsh conformity assessment, analyzes two recent pronouncements on the application of the said principle. In addition, comparing the dnsh assessment with other environmental permits and the dnsh principle with the other guiding principles of environmental law, the author noted certain critical elements underlying the adjustment of pnrr projects to the dnsh principle.

Tommaso Di Prospero, I regolamenti UE su sovvenzioni estere e investimenti esteri diretti tra complementarità e dissonanze applicative

Abstract 
The article examines the relationship between two significant pieces of EU legislation: Eu regulation No. 2019/452 concerning foreign direct investments’ screening, and Eu regulation No. 2022/2560 on foreign subsidies distorting the internal market. Through the examination of two practical cases, the potential decisional differences arising from the application of these regulations are highlighted. The paper then examines the legislative evolution that led to the adoption of the two regulations and the structural relationships that characterize them, analyzing their role in the European Union’s new strategy for managing globalization and exploring the challenges of coordination between the two disciplines.

Opinioni

Massimiliano Atelli, Minoranze societarie e società ad azionariato pubblico diffuso fra vecchie e nuove tendenze: prime notazioni 

Abstract
We can see regulatory trends that reveal the opportunity for a reflection on the role of minority shareholders, including public ones, within companies with widespread ownership.

Recensioni

Fabio Giglioni, P. Duret, Status activae civitatis. Nuovi orizzonti della sussidiarietà orizzontale nel community empowerment, Napoli, Esi, 2023

Abstract
The protection of the environment is not only a value of a global nature, but it  can also now be considered a global constitutional value, given its provision in most of the founding charters of countries. Italy is no exception, which in 2022 expressly introduced such protection within Article 9 of the Constitution with Constitutional Law no. 1/2022. This innovation generates significant implications on a legal level, particularly with regard to the right to property and its conditioning due to the “environmental value”, which are the mainly considered in this paper

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