1 / 24

The power of the Administration to enter into agreements ___________________________________________ ______

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-. The power of the Administration to enter into agreements

calida
Download Presentation

The power of the Administration to enter into agreements ___________________________________________ ______

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

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

  2. The power of the Administration to enter into agreements • _________________________________________________ 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?

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

  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. The power of the Administration to enter into agreements • _________________________________________________ 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 allowedto resort to agreements and “tools” regulated by the Civil Code

  8. The power of the Administration to enter into agreements • _________________________________________________ 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

  9. The power of the Administration to enter into agreements • _________________________________________________ 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

  10. The power of the Administration to enter into agreements • _________________________________________________ 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.)

  11. The power of the Administration to enter into agreements • _________________________________________________ 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

  12. The power of the Administration to enter into agreements • _________________________________________________ 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 “clausolevessatorie”

  13. The power of the Administration to enter into agreements • _________________________________________________ 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

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

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

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

  17. Agreements entered into by the Administration • _________________________________________________ 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 counterpartyPhase 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

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

  19. Agreements entered into by the Administration • _________________________________________________ In particular, Phase 2: the Administration selects / identifies the counterparty- “astapubblica”- “licitazioneprivata”- “appalto-concorso”- “proceduranegoziata”- “dialogocompetitivo”

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

  21. Project financing - 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 (“proceduranegoziata”), 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

  22. Project financing • _________________________________________________ - 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

  23. Project financing • _________________________________________________ - 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.)

  24. legal enforcement of Administrative decisions

More Related