ITALY: An Introduction to Public Law

STATE OF PLAY in ITALY 

Part of 2021 will certainly be dedicated to addressing the consequences of a difficult 2020, due to the impact of the COVID-19 pandemic, but it cannot be denied that this year has also created unexpected challenges for the legal sector and it seems that it will continue to affect the activity of professional law firms for the foreseeable future.

Despite the uncertainty surrounding the first months of the pandemic, based on the requests received by VILDE – in many and different sectors connected with public law – we can confirm that the legal market seems to be active and dynamic.

1. Development in the near future 

In the coming months, the National Recovery and Resilience Plan (‘Piano Nazionale di Ripresa e Resilienza’– PNRR), which is – as known – the investment program that Italy will present to the European Commission as part of the Next Generation EU, will take on fundamental importance, in order to respond to the pandemic crisis caused by COVID-19.

The areas that we believe will be most affected by European funding are those relating to healthcare, telecommunications (with the creation of broadband and 5G), energy (to increase production from 'renewable energy sources' (RES) and the development of the electricity transmission network) and, last but not least, to the building and construction sector (aimed at increasing the recovery, regeneration and renovation of buildings and urban areas).

Furthermore, on the basis of the legislative proposals currently under discussion in Italy, we can assume that the impact of the PNRR will also be extended to the entire structure of the national legal system with substantial reform actions that will concern justice, public administration, taxes and public tenders.

2. The legal market overview 

Taking inspiration from certain sectors to which we dedicate ourselves on a daily basis, we intend to give a brief overview of the legal market, from the point of view of public law, and of the subjects that we believe to be of the greatest interest and with important development prospects.

2.1 Real Estate 

The pandemic crisis has brought significant changes in the real estate sector. In 2020, despite a decrease in investments compared to the previous year, we observed a trend of significant growth, in particular regarding the logistics and residential area, which seems destined to continue throughout 2021. There is a stalemate in the hotel sector, which is most likely expected to recover with the gradual resolution of the health crisis, while the office department remains the main asset class of the Italian real estate market. It should also be noted that the experience of the 2020 lockdown resulted in a reconfiguration of demand, both for purchases and for leases. The aforementioned data is also confirmed by the annual analysis of companies experienced in the real estate field.

It was therefore possible to notice an evolution in the market characterized, above all, by the change in the stakeholders involved. In the last period, in fact, an increasing number of funds have invested in Italian real estate. The scenery shifted from a more traditional building and construction activity (typical for many years in Italy), characterized by the presence of minor companies that independently developed individual sectors, to a market in which portions of real estate portfolios owned by funds and asset management companies are sold or transferred, often for a total redevelopment of the assets and the entire portfolio. In fact, for these realities, the new prospects for 2021 are the construction and renovation of technologically advanced properties, compliant with international and environmental regulations.

In this regard, it should be noted – for example – that with Regional Law no. 18 of 26 November 2019 (amending Regional Law no. 12 of 11 March 2005), the Lombardy Region has introduced concessions and incentives specifically in order to promote urban regeneration and recovery projects of the existing building heritage in the urban area.

In this context, investment funds have therefore clearly expressed the need not only for a professional figure specialized in the management of real estate, but also – and increasingly – for legal technicians expert in the construction and urban planning sector, as well as having an overall knowledge of the dynamics of the territory.

This is where our professional contribution comes into play. In fact, in this last period, Studio VILDE has been asked to support international structures of great value operating in the real estate sector, specifically because of the over twenty years of technical experience we have in the construction and urban planning sector.

The expertise that a specialized law firm can give in this sector is in fact twofold. On the one hand, it can provide support in assessing the feasibility of the operations and, on the other, it can help organize and match reliable complementary professionals present in the area.

We, therefore, believe that in this sector there will be greater outsourcing of specialized legal consulting; in-house experts, in fact, are unlikely to benefit from the territorial capillarity that characterizes smaller realities, but with teams with years of specialization and experience.

2.2 Public Procurement 

2020 also saw us actively collaborate with those companies whose main businesses comes from relations with the Public Administration, through the tenders launched by the latter, also because of the important innovations that have characterized the procurement sector. In this sense, the exceptions to the Legislative Decree 50/2016 (Public Contracts Code), introduced with the Law Decree 76/2020 (converted by law 120/2020), so-called D.L. Simplifications, will be operational until 31 December 2021.

To deal with the crisis caused by the coronavirus pandemic, it has been provided that the direct procurement will have differentiated thresholds – compared to the previous ones – for engineering and architecture projects and services. This solution should make possible the rapid opening of new construction sites and the smooth conclusion of the interventions, in order to efficiently use the resources allocated in an anti-crisis way. For this purpose, the D.L. Simplifications has raised the threshold within which it is possible to resort to direct assignment up to EUR150,000.00, while originally Article 36 paragraph 2 of the Legislative Decree allowed direct assignment without consultation of companies only up to EUR40,000.

A confirmation in this sense comes from the data provided by ANAC in the annual report presented to the Chamber of Deputies, on the basis of which in four months of 2020, contracts were awarded without resorting to tender procedures, for a value equal to EUR20.1 billion (+41% compared to 2019).

Furthermore, reference is made to the “2021 Milleproroghe Decree” (Law February 26, 2021, no. 21), which, with article 13, letters a) and b), of paragraph 2, extended the simplifications envisaged for the years 2019 and 2020 from the so called Law Decree “Sblocca cantieri" (Law Decree 32/2019) for the award, respectively, of the design activities and of contracts for ordinary and extraordinary maintenance works.

2.3 Energy – The free energy market 

The launch of the free market has been expected for some years and will entail the need for more careful and precise protection and advice in the interest of companies operating in the energy sector. The “free market” implies that all users can freely choose which supplier and under which economic conditions to buy gas and electricity. This liberalization of the energy market in Italy is taking place gradually. In fact, those who have not made the transition to the free market yet have been guaranteed the “higher protection regime”, which is the condition where consumers have access to energy at the economic and contractual conditions set, and revalued quarterly, by ARERA.

This protection regime is destined to terminate soon, thus making it mandatory for everyone to adapt to the conditions of the free market and to choose a new electricity supplier.

The complete liberalization of the energy market should have taken place by 1 January 2022, but the ‘2021 Milleproroghe Decree’ postponed the end of the protected market for electricity and gas, as well as the mandatory transition to the free market, by one year, to 1 January 2023.

We have noticed interesting development prospects in a tangential sector to both the analysed topics (2.2 and 2.3): the public-private partnership. In particular, in a constantly evolving market context, VILDE is currently carrying out consultancy activities relating to numerous Project Financing activities (pursuant to article 183, of Legislative Decree no. 50/2016) aimed at the construction of photovoltaic systems (and not only), the gain of which constitutes the basis for carrying out articulated economic and financial operations. These operations combine the current focus on renewable energy sources (RES) with the interest in innovation.

2.4 Telecommunications 

The telecommunications sector also deserves a mention. In particular, the aforementioned Simplification Decree has made some interesting changes for the installation of electronic communication networks and facilitations regarding the presentation of self-certifications for changes in the characteristics of the systems, as well as changes to Legislative Decree 259/2003 (Electronic Communications Code).

Further reforms and measures will be introduced with the aim of better protecting consumers, entrusted by Directive (EU) 2018/1972 (European electronic communications code) to the regulatory authorities.

In the future, we will expect new regulations about access to ultra-broadband, the cybersecurity chain, and digitalized healthcare and public administrations.

2.5 Health law 

The emergency caused by COVID-19 has overwhelmed the national health system and, in some ways, has brought it to its limits, especially deriving from the lack of integration between the central hospital and services distributed throughout the Italian country.

For this reason, during the pandemic, the government launched important reforms aimed at strengthening the National Health Service (NHS), the territorial assistance network and the functions of the Ministry of Health, through the increase of human and instrumental resources. Therefore, the recruitment of medical specialists, the extraordinary conferral of self-employment assignments to retired health personnel, and the re-determination of the staff needs plans of companies and NHS entities have been envisaged. In addition, some more interventions were implemented to strengthen the Higher Institute of Health.

Subject of intervention will be the updating of the Essential Levels of Assistance (“LEA”), in fact, not only citizens and patient associations will be able to make requests for updates, but also healthcare companies, professionals, manufacturers, the Regions and the Autonomous Provinces.

Obviously, the health system of each region has also shown its weaknesses and has led the regional legislature to address the need to introduce legislative changes. For example, it should be noted that in the Lombardy Region, regional law no. 23 of 2015 is under review, which will be concluded only following a discussion with the Government, after the conclusion of the expected process of involvement of stakeholders by the Technical Committee of the Lombardy Region.

2.6 Sports law 

Studio VILDE is dealing with some issues, both in court and out of court, in terms of sports law and supply contracts, specifically anti-doping kits, on which the new World Anti-Doping Code is highlighted among the relevant innovations approved by the World Anti-Doping Agency (WADA) and implemented by NADO ITALIA (with the Anti-Doping Sports Code) in force from 1 January 2021.

The Italian “world of sport” can almost be conceived as a ‘separate’ legal system, which includes a plurality of legal entities (athletes, coaches, referees, etc.), organized and required to observe a set of legal rules. All these subjects are included in a complex sports organization headed by the Italian National Olympic Committee (“Comitato Olimpico Nazionale Italiano” – CONI), which enjoys ‘legal personality under public law’ and it is subject to the supervision of the Ministry for Cultural Heritage and Activities.

The sports law sector, which undoubtedly has important development prospects in Italy, is strongly influenced by the legislation and jurisprudence of European sports law.

In this sense, very recent, and with important practical consequences, is the judgment of the IV section of the Court of Justice of the European Union (CJEU) of 3 February 2021, cases C-155/19 and C-156/19, concerning the nature of the Italian Football Federation (FIGC).

In the aforementioned judgment, the CJEU laid the foundations for the definitive qualification of national sports federations as bodies governed by public law, identifying some essential preconditions.

The CJEU sent the final assessment of the FIGC’s management autonomy with respect to CONI to the Council of State. Once the Council of State concludes the complex investigation relating to the assessment of the requirements, it will be possible to make a definitive legal qualification regarding the national sports federations.

3. Conclusion 

We can therefore assume that, in such a particular moment of strong evolution and growth of new perspectives and legislative reforms at European and national level, a large part of professional work comes from the foreign market and, more specifically, from large companies or highly specialized SME. Law firms, whether they are specialized boutiques or differently structured entities at a multidisciplinary level, cannot exempt themselves from the task of identifying new market opportunities, continuing to focus on specialization and innovation, in order to remain a reference point for consultancy and judicial activity, necessary for companies to grow their business.