The Public-Private Partnership Law Review: Italy

Overview

PPPs have been formally used in Italy for more than 20 years. An initial law on PPPs was issued in 1994,2 but the first comprehensive regulation was only issued in 2006 in the first Public Procurement Code,3 then replaced in 2016 by a new code4 that implemented EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU. While Part IV of the new Public Procurement Code (the Code) is the primary legal source regulating PPPs, several secondary sources contribute to its regulation and its implementation, including ministerial decrees and the National Anti-Corruption Authority (ANAC) guidelines.5 The Code will be supplemented by an implementation regulation6 but on the basis of its draft it will not replace all current secondary sources, part of which shall continue to apply also after the regulation enters into force.

PPPs have been increasingly used by public authorities to develop projects of public interest. In particular, the number of projects developed under a PPP scheme increased from 332 (less than 1 per cent of overall projects) in 2002 to almost 4,000 (17 per cent) in 2018.7 However, the number of large projects (above €50 million) were a small part of it. For instance in 2017, 17 large projects with an aggregate amount of about €2.2 billion were tendered and in 2018, 41 large projects with an aggregate amount of about €6 billion were tendered. Compared to other European countries,8 it appears that in Italy the use of PPP for the development of large infrastructure projects has been quite limited. In recent years, the government has seemed to be keen to incentivise the use of PPP schemes. Some examples of this are the issuance of the first template design, build, operate and transfer (DBOT) concession agreement in 20219 (PPP contract template), the recent change in law and bills, including provisions to promotethe use of PPP schemes for the development of infrastructure10 and the role of the Department for Economic Policy Programming and Coordination (DIPE) in the promotion of PPP at the local authority level.11 While the covid-19 pandemic delayed the tender, financing and construction of several projects in 2020, in 2021 the PPP market started to increase again.12

In Italy PPP has been used, inter alia, to build and operate infrastructures in the following sectors:

  1. transport (e.g., toll roads, undergrounds, light railways, ports, airports, parking areas);
  2. social infrastructures (e.g., schools, hospitals, prisons, sport facilities, parks, public housing);
  3. energy and water (e.g., public lighting, energy efficiency projects, aqueducts, power plants, energy from waste facilities);
  4. telecommunications and digital (e.g., broadband); and
  5. defence (barracks).

Transport has attracted the most significant investments, followed by energy, water and telecoms. Social, energy and telecoms infrastructure are the sectors with the largest number of PPP initiatives.13 The health sector has also seen several large PPP projects being tendered and developed over the past few years, often attracting the interest of foreign investors.14

The year in review

In January 2021 a PPP contract template15 was issued setting out a clear allocation of risks based on the bankability of the projects and Eurostat principles for the off-balance allocation of the project's costs. Although it is not binding, it will provide the authorities with authoritative guidance and should significantly promote the use of PPP. The template is based on a concession to design, build and operate a project whereby the revenues mainly consist of a fee paid by the authority and include a public grant. Therefore, it was primarily thought up for social infrastructure concessions, but pending the drafting of other templates, it shall be used as a form agreement for any other type of concession, subject to appropriate changes. Currently, the government is working on a number of templates for specific sectors (energy performance contracts, hospitals, schools, prisons and other cold projects).16

In April 2021, the parliament approved the National Recovery and Resilience Plan (PNRR),17 the plan drafted by the government to access the €750 billion of funds of the Next Generation EU. The PNRR provides for investments exceeding €222 billion (of which €191.5 billion is to be funded by the EU Recovery and Resilience Facility and the rest through complementary national funds). The PNRR identifies six core target areas (missions):

  1. digitisation, innovation, competitiveness, culture and tourism;
  2. education and research;
  3. energy transition;
  4. inclusion and cohesion;
  5. infrastructure for susteinable mobility; and
  6. health and resilience.

While the PNRR does not specifically provide that a part of the funds shall be used for PPP projects, it can also be a booster for the development of this type of project. In particular, a number of the PNRR target areas are those where PPP schemes are typically used (e.g., infrastructure, education, health and energy transition). In addition, the PNRR allocates funds for the improvement of the Code with a view to streamlining and reducing the time of tendering and awarding procedures; it also specifically provides funds in favour of contracting authorities to increase their capability to carry out feasibility studies and project design, which are a key element of any PPP project. Finally, although the PNRR funds are substantial, they are not sufficient to develop all projects needed in Italy falling under the scope of the plan. The private funds component in the PPP scheme is deemed the perfect solution to fill the gap. The PPP projects that will most benefit from the PNRR funds appear to be smart cities, susteinable transport, projects in the health sector, other social infrastructure and energy transition projects.

After the approval of the PNRR, the government used its power to enact urgent temporary decrees18 to promptly implement the plan and allocate the funds to specific targets.19 In particular, Law Decree 6 May 2021, No. 59, which approved the plan of national funds complementary to the Next Generation EU funds and Law Decree 31 May 2021, No. 77 (the Simplifications Decree 2021), which set forth some changes to the permitting procedure, including the reduction of the timeline of the environmental assessment of infrastructure and energy projects, in order to accelerate their development.

In line with the PNRR, in Juy 2021 the government submitted to the parliament a bill of an enabling act in relation to the amendment of the regulation on public works.20 The enabling act is intended to provide the government with the power to amend the Code, inter alia, in order to: (1) ensure compliance with EU Directives; (2) reduce the duration of the bidding procedures and the timeline for the execution of public contracts; (3) simplify the procedures for the approvals of the designs; (4) strengthen the technical skills and reduce the number of contracting authorities; (5) set out minimal environmental standards; and (6) promote PPP and project financing schemes. The bill is currently being examined by the the parliament.

In 2019 and 2020, the government also used its power to enact urgent temporary decrees to promote the development of infrastructure. In particular, Law Decree 18 April 2019, No. 32, converted into Law 14 June 2019, No. 55, enacted several rules aimed at accelerating the approval and construction of public works, including a provision giving the right to institutional investors such as Cassa depositi e prestiti,21 pension funds, insurances and bank foundations to present private finance initiative (PEI) proposals22 to public authorities also outside the list of projects within the authorities' agenda, to incentivise the involvement of financial investors in the development of PPP projects.

Law Decree 16 July 2020, No. 76, converted into Law 11 September 2020, No. 120, further strengthened the Italian PFI scheme by granting the right to private parties to present proposals in respect of projects already included in the relevant authority's agenda, if the case includes variations and improvements. In addition, it clarified the method to calculate the private party remuneration under energy performance contracts,23 so approving the inclusion of such contracts under the PPP scheme, and extended to local authorities the power to promote PPP initiatives in the cultural heritage sector, originally entrusted only to the Ministry of Cultural Heritage.24 In July 2020 the government also approved a plan of 130 strategic and urgent infrastructures, most in the transport sector, referred to as 'Fast Italy'. In order to accelerate their development, the government entrusted special commissioners with the responsibility and powers to tender and supervise the construction of 101 of these projects (57 in 2020 and 44 in 2021). It is yet to be seen which projects will be developed under a PPP scheme.

Some of the most significant Italian PPP projects tendered, awarded or proposed by private parties through unsolicited proposals recently are:

  1. for greenfield projects, the €500 million energy from waste project in Trezzo sull'Adda, the €420 million Turin Health Campus, the €338 million University of Milan Campus, the €313 million Trento Hospital, the €405 million energy from waste project in Palermo and the €280 million tramway in Trento; and
  2. for brownfield projects, the €2.5 billion motorway between Tuscany and Liguria,25 the €2.5 billion A21 and A5 toll roads26 and the €800 million A3 motorway concession.

General framework

i Types of public–private partnership

In Italy there are two main categories of PPP:

  1. contractual PPPs, whereby a private party is contractually entrusted to carry out works, services, or both, of public interest under the control of the awarding authority (e.g., EOT concessions); and
  2. institutionalised PPPs, whereby a public entity and a private entity hold participations in a vehicle set up to build, maintain and/or operate a project or provide services of public interest (e.g., local utility companies participating with the competent local authorities, privatisation of public undertakings).

Public authorities are entitled to enter into PPP contracts in relation to any kind of public work27 provided that, in addition to the construction risk, the private party bears the availability risk or the risk of demand for the services to be provided.28

The Code expressly identifies five types of contractual PPPs:

  1. project financing contracts (i.e., DBOT concessions);
  2. construction and operation concessions (EOT concessions);
  3. service concession agreements;
  4. finance leases of public works; and
  5. availability contracts.

However any other arrangement to carry out works or services through a partnership may be qualified as a PPP contract to the extent that it meets the conditions set out in the Code.29 Concession agreements are the most common type of PPP contracts.

ii The authorities

Italy is a state comprising 19 regions and two autonomous provinces. Therefore, in addition to the national governmental authorities, the Italian Constitution grants the regional and local authorities with several administrative functions.

In light of this, Italian authorities can be grouped into three institutional levels; the national government,30 regional governments and local governments. These three levels are granted with different but concurrent and coordinated powers and functions. Each authority level is entitled to exercise these powers through PPPs. Moreover, specific departments of a public authority at any of these three levels may enter into PPPs in their specific field, and single local units of those departments may act as a contracting authority.31 As examined above, the government intends to reduce the number of contracting authorities and increase their technical competence.

A particular role is played by the Ministry of Infrastructure and Transport, which promotes the technical and administrative activities necessary for the adequate and prompt planning and approval of infrastructures and carries out, with the cooperation of the regions and autonomous provinces, supporting activities necessary for the surveillance of the construction of the infrastructures.

The Code also entrusts specific surveillance and control powers to ANAC.32 Furthermore, ANAC is tasked with approving studies and guidelines, and draft standard contracts, promoting best practices and enacting soft regulation instruments. ANAC has issued the Guidelines on 'Monitoring by authorities of the activities of the private partner in public–private partnership contracts' (Guidelines).33

In addition, the Supreme Council for Public Works is entitled to issue:

  1. a mandatory opinion on the final design of projects of national relevance, or projects that are funded by the state in an amount of at least 50 per cent of the total value and whose value is equal to or above €50 million; and
  2. if requested, an opinion on the projects of regional and local authorities exceeding that €50 million threshold.

In respect of public works whose value is less than €50 million, the powers of the Council are exercised by the administrative technical committees of the interregional entities for public works.34

Finally, the DIPE shall assist and support, upon request, any public authorities at the different stages of the proceedings involving private resources for the construction or operation of public infrastructures or public services.

iii General requirements for PPP contracts

A number of internal requirements must be met, and approvals must be obtained by public authorities, before calling a tender for a PPP or entering into a PPP. In particular, among other things, public authorities must:

  1. provide the reasons underpinning the need of a PPP to be executed and the advantages of using a PPP compared to a different type of public contract procurement;
  2. ensure that sufficient funds for the PPP are available;
  3. carry out a feasibility study that analyses the economic–financial basis for the contract. This study must provide an estimate of potential demand and profitability, the construction, operational and technical risks, the project costs and the potential financing; and
  4. set forth the administrative and technical terms and conditions of the tender and the PPP.

Bidding and award procedure

The Code applies to PPPs insofar as they are compatible with using the same bidding and award procedures as those provided for public contracts, that is, open procedures, restricted procedures, negotiated procedures, competitive dialogues and innovation partnerships.

Compared to other public contracts, PPPs have the advantage that, in accordance with the principle of free administration, authorities have an higher degree of flexibility in deciding how to best manage award procedures provided that the general principles of economy, efficiency, impartiality, equal treatment and transparency governing any tendering procedures are fulfilled.

In Italy, the open procedure35 is the most-used award procedure as it guarantees the largest participation of tenderers. The call for competition is published together with the project design and specifications of the relevant works or services, the draft PPP contract and the economic and financial plan establishing the allocation of risks between the private party and the public authority.

i Expressions of interest

As mentioned above, any PPP shall be preceded by an assessment of the actual convenience for the authority to use a PPP instead of procuring the works under a traditional contract for public works or services. The assessment shall cover an analysis of the relevant market, the sustainability of the project and the relevant risks.

Although not specifically regulated under the Code, authorities usually acquire this information by publishing a request for expressions of interest addressed to any private party. As this is an informal and non-binding phase of the procedure,36 the contracting authority has a large discretion in evaluating the feasibility of the project and deciding whether to proceed with the PPP.

ii Requests for proposals and unsolicited proposals

This procedure is specifically regulated by the provisions concerning the project financing, but it applies to any PPP. Any interested private party (promoter) may submit a proposal to start a PPP, even if the relevant project has been already included in the relevant authority agenda.37 The proposals shall include a feasibility study, a draft PPP contract and an economic–financial plan validated by a bank. No later than three months after the submission, the authority shall select the best proposal. Once the proposal is approved, the proposed project becomes the basis of the public procurement procedure to be started by the authority for the award of the PPP. The promoter shall be invited to the tender and, if its offer is not the best offer, it shall be entitled to match the best offer.

iii Evaluation and grant

The PPP is awarded to the most economically advantageous tender identified on a best price–quality ratio basis. The call for competition shall specify the criteria used by the authority to determine the most economically advantageous tender.

As anticipated above, if the PPP procedure is based on a promoter's proposal and the promoter is not the selected tenderer, it can match the best offer and be awarded the project. If the promoter decides not to match the selected offer, it shall be entitled to the reimbursement of its costs for the preparation of the proposal in an amount of up to 2.5 per cent of the value of the project.

The contract

i Payment 38

The typical remuneration of the private party consists of the revenues generated from the operation of the project. Depending on the type of project, the remuneration may consist of revenues paid by customers (e.g., tariffs applied to vehicles using a toll road) or by the authority in exchange for ensuring the availability of an infrastructure (i.e., an availability fee) or for services of public interest (i.e., a fee for specific services, e.g., in hospital projects, such as laundry, catering, cleaning, etc.).

The amount of the fees paid by the authority is calculated taking into account the cost of works net of public grants, if any; the private party's equity; maintenance over the time of the concession; and the concession's duration. Fees are indexed to inflation.39

The frequency of the fee payments shall be set out in the PPP contracts (e.g., quarterly, semi-annually). The contract shall also set forth tariffs and the criteria for their periodical update.

PPP contracts should include quality and quantity standards, as well as provisions for the automatic reduction of fees if such standards are not met.

Part of the remuneration of the private party may consist of a public grant if necessary to ensure the economic–financial balance of the project.40 The grant shall not exceed 49 per cent41 of the total cost of the project (inclusive of financial costs), and may be in the form of cash paid in parallel with the progress of the works, immovable assets that are no longer of public interest transferred to the private party, or a right of use of assets instrumental and connected to the project, or a combination thereof. Grants have been largely used for greenfield projects requiring large capex that cannot be amortised over the concession term (e.g., motorways and hospitals).

In addition, the private party may also be remunerated through the payment upon expiry of the concession of an amount calculated taking into account, inter alia, the investments made by the private party, the remuneration already paid to it and the residual value of the project.42

ii State guarantees

PPP projects do not benefit from state guarantees on a regular basis, but different types of guarantees have been or may be made available on a case-by-case basis, such as:

  1. guarantees issued by SACE (the Italian export credit agency) in favour of the financiers of strategic infrastructures:43 these are issued in exchange for a fee based on the risk of payment default;
  2. guarantees pursuant to the guarantee fund for water infrastructures and dams44 in favour of the financiers of water facilities;
  3. European Investment Bank project bond credit enhancement, used for instance in relation to the Passante di Mestre toll road project with demand risk; and
  4. guarantees pursuant to the guarantee fund for public infrastructures) issued in favour of parties involved in the construction and operation of public infrastructures to ensure the economic–financial balance of projects.

iii Distribution of risk

The allocation of risk is a key feature of the PPP contract template and one of the drivers for its drafting. The PPP contract template attaches a risk matrix that outlines the main risks and their allocation, and cross-refers to the relevant contract provisions. In general, the risks are allocated according to traditional bankability standards and in line with the Eurostat principles. For instance, the authority bears the risk of:

  1. late or omitted authorisations;
  2. changes in law;
  3. supervened lack of political support;
  4. extra costs for expropriations outside the concessionaire control;
  5. prolonged suspension of the works or of operations; and
  6. force majeure.

Risks concerning the design, financing, construction, operation and availability of the project are allocated to the concessionaire. The demand risk is also normally allocated to the concessionaire, but depending on the type of projects it may also be allocated to the authority.

The risks of the concessionaire are typically mitigated in line with international project finance standards, such as the incorporation of a special purpose vehicle, due diligence, pass-through to EPC and O&M contractors, insurances and reserve accounts.

ANAC has been monitoring the application by contracting authorities of the risk matrix attached to the PPP contract template. With a view to ensure the correct allocation of risks, in October 2021 ANAC launched a public consultation to obtain from the stakeholders proposals for the simplification of the obligations of the contracting authorities with particular regard to risk identification and monitoring activities. The consultation results are currently under assessment and will be used by ANAC to update the Guidelines.45

iv Adjustment and revision

A key feature of the PPP is the allocation of the project's risks between the parties to ensure that the projects economic–financial plan is balanced throughout the PPP concession term. Whenever the balance of the economic–financial plan is altered due to reasons not attributable to the private party (e.g., force majeure, changes in law, suspensions, delays in the authorisations), the Code allows the revision of the contract with the purpose of re-establishing the balance. The Code provides that, upon occurrence of reasons not attributable to the private party, the contracting authority 'may' (not shall) allow the revision of economic–financial plan. However, eminent scholars46 tend to confirm the existence of a juridical situation (subjective right or legitimate interest) that, if necessary, can be protected before the relevant courts, rather than a mere faculty.

The revision procedure starts upon written request of the private party and, in any event, periodically, at the end of any relevant period, which vary depending on the project (e.g., three to five years). In the case of projects of national interest or projects that have obtained national public subsidies, the revision is subject to the prior mandatory opinion of the ministerial consulting department for the implementation of guidelines regulating public utility services (NARS47). The revision shall be comprehensive and regard all elements of the economic–financial balance that have been altered. The revision shall maintain the allocation of the project's risks originally allocated to the private party.

In the case of an agreement on the balance of the economic–financial plan being reached, this shall be incorporated in an addendum to the PPP contract. In the case of an agreement not being reached, either party may withdraw from the PPP contract. In this case, the private party shall be entitled to the reimbursement of:

  1. the costs of the works duly performed, net of any public grant received or, if the withdrawal occurs after the project commissioning, the value of the works duly performed and ancillary costs, to the extent not amortised, net of any public grant received; and
  2. penalties and extra costs incurred or to be incurred by the concessionaire due to the termination (excluding hedging breakage costs).

v Ownership of underlying assets

Assets that form the basis of PPP contracts may belong to the private party (temporarily or permanently) or to the authority, depending on the type of infrastructure and PPP scheme. For instance, normally social infrastructure facilities (hospitals, schools, sport facilities, etc.) are initially owned by the concessionaire, which build them on the basis of a surface right48 and then transferred to the authority upon expiry of the concession. The same would normally apply if the PPP was based on a finance lease scheme, while if the PPP is based on an availability contract, the ownership of the assets would always remain with the private party. On the other hand, toll roads, undergrounds and railways belong directly to the authority. As examined in Section V.i, the private party may also be the owner of assets transferred to it as part of its remuneration.

The authority typically transfers the ownership of assets to the private party under separate notarial deeds, the cost of which (including tax) are on the private party. Assets owned by the private party under a surface right are automatically transferred to the authority upon expiry or termination of the concession and surface right. Registration formalities and related costs would normally be on the private party.

The assets belonging to the private party are typically subject to security interests in favour of the project financiers (e.g., mortgage, pledges and general privilege).

vi Early termination

A PPP contract may be terminated before its expiry date in the following circumstances:

  1. failure to deliver the project design by the relevant deadline and failure to sign the project financing or place the project bonds within an appropriate term not exceeding 18 months from the execution of the concession agreement.49 In these circumstances, the private party shall not be entitled to any indemnity or compensation (not even for the designing activity) and shall pay to the authority any direct and indirect damages, including the costs for retendering the project and the penalties set out in the contract;50
  2. material breaches of contract by the private party, subject to a cure period of no more than 60 days51 (these include, inter alia, failure to deliver the bonds in favour of the authority, material defects of the works, poor maintenance of the project, penalties in excess of the contract thresholds, breaches of health and safety rules, unauthorised change of the concessionaire shareholding52). The guidelines53 to the PPP contract template clarify that termination should be the remedy of last resort. The authority shall notify the intention to terminate to the financiers to allow them to exercise their step in rights. Upon termination, the concessionaire shall pay to the authority an amount equal to the aggregate of the following, net of the amount of the costs incurred for the works duly carried out less any public grant already paid to it:
    • penalties;
    • direct and indirect damages (in excess of the penalties) incurred or to be incurred by the authority to remedy the breach;
    • costs necessary to complete or, if the termination occurs after the project commissioning, to restore the project in compliance with the design and technical specifications; and
    • the costs for retendering the project;
  3. certain misrepresentations, offences, loss of qualifications or breach of payment traceability duties, in which case the consequences examined under (b) above shall apply;54
  4. material breach of contract by the authority, subject to a cure period of no more than 60 days55 (e.g., failure to pay the amounts due to the concessionaire and other breaches that impair the concessionaires capacity to perform the contract56). Upon termination the concessionaire shall be entitled to:
    • all unpaid amounts accrued to its benefit under the contract;
    • an amount equal to the cost of the works duly performed, net of any public grant received or, if the termination occurs after the project commissioning, an amount equal to the value of the works duly performed and ancillary costs, to the extent not amortised, net of any public grant received;
    • penalties and extra costs incurred or to be incurred by the concessionaire due to the termination (including hedging breakage costs); and
    • a loss of profit indemnity equal to 10 per cent of the value of the works yet to be performed or, if the termination occurs after the project commissioning, the present value of the project revenues until the original expiry date of the concession, as resulting from the economic and financial plan; or
  5. withdrawal by the authority for public interest reasons. In this circumstance, the private party is entitled to the same amounts as for breach of contract by the authority (see (d) above).

Finance

PPP projects are normally financed by commercial and public lenders57 on the basis of project financing schemes. Some larger projects have also been financed (or refinanced) through project bond issuances58 or a combination of project credit facilities and notes. The Code and the PPP contract template include several provisions aimed at ensuring the bankability of PPP projects.59 Financings of large infrastructure projects60 often attract the interest of international financiers and are structured on the basis of international project finance or project bond standards. Such standards are normally also met by medium-sized projects financed by Italian lenders. Project bonds are typically listed in foreign stock exchanges, which make the notes more attractive to international noteholders.61

A typical project financing or bonds transaction would require extensive security interests regarding the project company assets, including pledge or security assignment of the receivables in relation to the authority.

The main obstacles experienced by sponsors in obtaining the financing for a PPP project were traditionally unsophisticated PPP contracts, including non-bankable terms and conditions, and the uncertainty of the timeline of the authorisations (including the approval of project designs). As mentioned above, the publication of the PPP contract template and the recent changes in law are directed at significantly mitigating such risks.

Recent decisions

Recent decisions of the administrative courts have focused on public procurement procedures for the award of PPPs. In particular, a remarkable decision rendered in a case concerning the award of a concession for a public lightning service in Busto Arsizio (Milan) confirmed that, in the context of project financing, the promoter is entitled to have access the pre-emption right (and therefore to the award of the contract at the same terms offered by the first-ranked entity) only if its bid has been duly submitted to the tender.62 The court considered the pre-emption right as a mere possibility, connected to the fact that the promoter has participated in the tender and to the extent that he is usefully placed in the ranking list, so that the participation in the tender constitutes a condicio sine qua non for being able, if necessary, to exercise the pre-emption. Any derogation from the requirements of participating in the tender and the successful admission in the relevant ranking would be contrary to the prescriptive scope of Article 183, Paragraph 15, of the Code.

Outlook

Although largely used since its first regulation more than 25 years ago, the Italian PPP has not been deployed to its full potential, especially for large projects, due to a number of obstacles such as:

  1. an unclear allocation of risks in the concession agreements;
  2. uncertain time frames;
  3. political instability;
  4. inadequate tender documents and procedures;
  5. a lack of standards of PPP contracts; and
  6. a lack of funds.

The government seems to have taken some significant steps to tackle such obstacles. In particular, in light of the recent law and soft law developments examined above, the PNRR, the actions taken to train and support contracting authorities in the implementation of public procurements, the €222 billion available to Italy under the NextGenerationEU and complementary national funds and the ambitious plan for the development of infrastructure implying about a €200 billion investment over 15 years, the prospects for PPPs in the coming years appear bright.

Footnotes

1 Simone Egidi is of counsel, Andrea Leonforte is a senior associate and Vanessa Nobile is an associate at Herbert Smith Freehills Studio Legale.

2 Law No. 109/1994 on public works, referred to as Law Merloni.

3 Legislative Decree No. 163/2006: Code of public contracts relating to works, sendees and supplies in the implementation of Directives 2004/17/EC and 2004/18/EC.

4 Legislative Decree 18 April 2016, No. 50.

5 Examined in Section III.

6 Single Regulation to be issued pursuant to Law Decree No. 32/19 converted into Law No. 55/2019. The draft prepared by the ministerial commission in charge was delivered to the Infrastructure Ministry in July 2020.

7 Report on the Public Private Partnership Market in Italy, www.cresme.it, referred to in Report 2017-2018 of the government department for economic planning and coordination.

8 Based on European PPP Expertise Centre data published on https://data.eib.org/epec.

9 The template contract was approved by ANAC by Resolution of 22 December 2020, No. 1116, and by the State General Accounting Department of the Ministry of Economy and Finance (MEF) on 5 January 2021.

10 Law Decree 16 July 2020, No. 76, converted into Law 11 September 2020, No. 120, Law Decree 18 April 2019, No. 32, converted into Law 14 June 2019, No. 55 and the bill DDL S.2330 of 21 July 2021(the enabling act in relation to the amendment of the regulation on public works).

11 As examined below, DIPE is the government department for economic planning and coordination.

12 IFEL and CRESME report, October 2021.

13 Based on the Report on the Public Private Partnership Market in Italy, op. cit. footnote 7).

14 Recent hospitals projects awarded, tendered or subject to unsolicited proposals under a PPP scheme include the €320 million Novara Health Campus, the €420 million Turin Health Campus, the €200 million Macerata Hospital PFI, the €175 million Filettino Hospital, the €313 million Trento Hospital, the €240 million Terni Hospital and the €46 million San Martino Hospital. M&A transactions closed in 2019 and 2020 included, among others, Niguarda Hospital, Alba-Bra Hospital, Tuscany Hospitals and Brescia Hospitals.

15 Op. cit. footnote 9.

16 Based on the State Council opinion on the draft template of DBOT concession agreements dated 22 April 2020.

17 Piano Nazionale di Ripresa e Resilienza (PNRR), approved on 28 April 2021.

18 Law decrees are issued by the government and immediately effective, but expire after 60 days unless they are approved by the parliament.

19 Law Decree 6 May 2021, No. 59, converted into Law 1 July 2021, No. 101; Law Decree 31 May 2021, No. 77, converted with amendments into Law 29 July 2021, No. 108; and Law Decree 6 November 2021, No. 152, converted into Law 29 December 2021, No. 233.

20 Bill DDL S.2330 of 21 July 2021.

22 PFI proposals are the type of PPP referred to as project finance pursuant to Article 183, Paragraph 15 of the Code.

23 Article 180, Paragraph 2 of the Code.

24 Article 151 of the Code.

25 A12 Sestri Levante–Livorno, A11/A12 Viareggio-Lucca and a further stretch of the A15 connecting to the A10 motorway – based on InframationNews.

26 Tender for the 180km A21 Turin-Piacenza and the 67km A5 Turin-Quincinetto toll roads, as well as additional connecting stretches in the Turin area - based on InframationNews.

27 Article 180, Paragraph 2 of the Code.

28 Article 180, Paragraph 3 of the Code.

29 Article 180, Paragraph 8 of the Code.

30 As outlined in different sections of this chapter, the MEF and its units have several powers and tasks in relation to PPP.

31 In this chapter, reference to the authority is intended to indicate the authorities contracting public works.

32 Article 181, Paragraph 4 of the Code.

33 Guideline No. 9 approved by Resolution of 28 March 2018, No. 318.

34 Technical administrative committees at the interregional supervisory boards for public works.

35 In an open procedure, any interested private party may submit a tender in response to a call for competition published by the contracting authority in the Official Journal of the European Union. The tender submitted shall contain the information necessary for the qualitative selection of the tenderers, the economic offer and the technical offer. This is a single-phase procedure as, after the submission of the tenders, the relevant contracting authority shall examine the documentation received by the tenderers and decide on the relevant selection.

36 This principle has been confirmed by judgment No. 696 of 1 April 2019 of the Regional Administrative Court of Milan and judgment No. 843 of 8 February 2011 of the Council of State.

37 The plan of public works and services periodically approved by the contracting authorities.

38 This section is based on the template of DBOT contract. Op. cit. footnote 9.

39 Normally by reference to the Italian National Institute of Statistics' consumer price index for families of workers and employees (excluding tobacco). This should be regulated in the PPP contract.

40 Article 165, Paragraph 2, and Article 180, Paragraph 6 of the Code.

41 As on the basis of Eurostat principals for a project to be off-balance the grant should not exceed 30 per cent of the project value, authorities are inclined to maintain grants below this threshold.

42 This is expressly envisaged in the Code for availability contracts under Article 188, Paragraph 1, but it has been used in other types of PPP contracts such as in concession agreements in relation to toll roads and gas networks.

43 The financiers of the Brebemi toll road benefited from such guarantee.

44 The Fund was set up by Ministerial Decree DPCM 30 May 2019.

45 Op. cit. footnote 29.

46 Fabio Cintioli, 'The consequences of the Covid-19 pandemic on service concessions and on economic and financial balance', in II diritto dell'economia, 2020.

47 Upon request of the contracting authorities, NARS has also a consulting role in relation to other projects.

48 Surface rights pursuant to Article 952 of the Italian civil code, consisting of a temporary right to build and own a building on a plot of land of a third party.

49 Article 165 of the Code.

50 Clause 36 of the PPP contract template.

51 Clause 37 the PPP contract template.

52 The guidelines to the PPP contract template clarify that each PPP contract should include the most relevant breaches in relation to the specific project which justify the termination of the concession.

54 Clause 38 of the PPP ontract template.

55 Clause 37 of the PPP contract template.

56 The guidelines to the PPP contract template clarify that each PPP contract should include the most relevant breaches in relation to the specific project which justify the termination of the concession.

57 e.g., the European Investment Bank and Cassa depositi e prestiti SpA.

58 M5 Milan Underground, Mestre Link Toll Road, Pedemontana VenetaToll Road, Brebemi Toll Road (refinancing). Article 185 of the Code provides specific rules aimed at facilitating the use of project bonds.

59 e.g., Articles 176, 182–186 and 188(5) of the Code. The guidelines to the PPP contract template were drafted with a view to ensure that the contract is bankable.

60 Above €100 million.

61 For instance, the notes for the 2019 refinancing of the Brebemi toll road project were listed on the Official List of Euronext Dublin and admitted to trading on the Global Exchange Market. In addition, the notes for the greenfield financing of the Pedemontana Veneta toll road were listed on the Official List of Euronext Dublin.

62 Judgment No. 37 of 7 January 2021 of the Regional Administrative Court of Milan.

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