Società miste e affidamento di contratti pubblici

The essay deals with the conditions required to establish a mixed capital company (i.e. a company whose capital is held jointly by a contracting entity and a private partner) which is awarded public contracts or concessions. Firstly, the essay describes the conditions required under EU law, especially as set out in Green Paper on public-private partnerships and Community law on public contracts and concessions [COM(2004) 327 final], in Commission interpretative communication on the application of Community law on Public Procurement and Concessions to institutionalised PPP (IPPP) (2008/C 91/02) and in Court of Justice judgment of 15 October 2009, in case C-196/08, Acoset. These conditions are (i) that contracts or concessions shall be granted through a competitive procedure for the selection of the private partner of the mixed capital company, who, at the same time, will be entrusted with the operation and thus with the management of the contract or concession awarded to the company; (ii) that the duration of the private partner participation in the company shall not exceed the duration of the contract or concession awarded to the company and (iii) that over this duration the tasks entrusted to the company shall not be substantially modified or extended unless a new competitive procedure is launched. Secondly, the essay analyses how these conditions have been confirmed by Italian case law and juridical theory and, more recently, by Italian law, under article 17 of legislative decree No. 175 of 19 August 2016. Then, the essay explains provisions of article 17, particularly with regard, among others, to the ways to entrust the private partner with the operation of the contract or concession awarded to the company, to terminate the corporate relationship with the private partner at the end of the contract or concession and to ensure to the contracting entity the supervision of the company's management committed to the private partner.