Commissariamento di imprese limitatamente a singoli contratti pubblici, tutela della concorrenza nella fase di esecuzione contrattuale e Protocolli di legalità

According to Article 32 of the decree n. 90 of 2014, converted into law no. 114 of 2014, the President of the National Authority on Anti-Corruption and Public Contracts may ask the Prefect (competent authority) to adopt extraordinary measures of management (i.e. temporary takeover), support or monitoring of a company. Such measures could be adopted in cases where the judicial authority has opened proceedings concerning the detection or prosecution of a series of criminal offences attributable to the award-winning company of public works, services, supply contracts or the general contractor or the concessionaire of a public contract. This regulation has recently been extended to the health sector. In this essay, the general aims of that regulation have been highlighted. Furthermore, it has been pointed out that the lack of any consideration for the protection of free competition – which is a matter of primary concern to both the awarding and execution of public contracts – is the main critical issue of that legislative framework. The most intrusive measure for a company, among those listed in that legislative provision, consists of temporary takeover, but only for the execution of public contracts. However, that temporary takeover can be avoided if “Protocols of Legality” include specific contractual clauses, which provide both the compliance to the principle of competition and the pre-empted protection in cases where criminal offences have not yet been irrefutably established by a criminal court.