Appunti di Administrative and Public Procurement Law

- RIGHTS IN REM AND OTHER TITLES

(DIRITTO REALE)

Real estate properties can be held through one of the following rights or titles:

Ownership or co-ownership: the first indicates an absolute right to fully and exclusive enjoy

• and dispose of the property (Art. 832), while for the second, an example is the condominium

Other “in rem” rights: non-absolute right to enjoy the asset. They can be registered in the real

• estate register and be enforceable towards third parties (opponibile ai terzi)

o Right to build on soil : the beneficiary builds and maintains a building

(diritto di superficie)

on or underneath the other party's property. It can be without or for a specific period

and when this expires the landowner becomes the legal owner of the building. If the

seller is a public authority, usually the maximum time is 99 years stadiums

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o Right of usufruct : the beneficiary enjoys the other party's real estate

(diritto di usufrutto)

for a specific period of time that cannot be longer than the lifetime of the beneficiary

(“natural person”) or 30 years (company/legal entity)

o Right of use : right to use real estate asset in order to meet the

(diritto d'uso e di abitazione)

needs of the beneficiary and his/her immediate family

Lease or bailment title: the first is the use of the asset in exchange for a sum

• (affitto) (comodato)

(rent), while the second is the use of the asset without rent but with the owner with the right to

receive it back. Respect the right of usufruct/use, they are not enforceable toward third parties.

General rule for assets owned by the public (State or other entities):

Concession of use for public domain and undisposable asset: it is a discretionary

• administrative act (transfer of the rights or creation of a new one) through a payment of a fee

(Ex. In Italy the seashore demanial concession for management of beaches)

(canone)

Rights in rem, lease and bailment for disposable assets

•

- THE LIMITATION TO REAL ESTATE PROPERTY

Art. 42 The limits imposed on private property for public interest can be negative (obligations not to

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do), positive (“facere” obligations), and the expropriation of the right for the holder (compulsory sale).

Significative limitations are expropriation (D.P.R. 327/2001), planning legislation, and cultural

heritage and environmental law. The expropriation procedure steps:

a. Preliminary identification of the asset with the approval of local planning instruments (5 years)

b. Declaration of public interests of the works

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c. Indemnity for the private owner before final expropriation decree, based on market

(indennizzo)

value. The authority makes a proposal and if not accepted, the value will be determined by a

special commission

d. Expropriation decree final act that determines the transfer

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6. Special regulations on stadiums and sports facilities under Italian law

Evolution of legislation…

Legislative Decree 38/2021: issued by the Government and modified by D.lgs 120/2023, it

comprehends the rules related to the building of stadiums/sport facilities.

- Art 1: scope rules about construction, renovation, management and safety

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- Art 2: definition of sport facility an outdoor or indoor facility intended for carrying out sport

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events…

- Art 3: state-regions relationship based on Art. 117 of Constitution, it defines the exclusive

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State legislative competence on public order and safety, and the concurring competence on

sports system (governance of territory)

- Art. 4: procedure for construction/renovation feasibility study + final design, conference of

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services with fixed deadlines (simplification), special regime for public asset/land (D.lgs

36/2023).

The essential steps of public procurement procedure for sport facilities:

1) Document of feasibility of “design alternatives”: it contains the economic-financial plan

with CBA, the document on compliance with economic, territorial, environment, social

sustainability of the project, and the summary of terms and conditions for relationships

between private and public parties. it’s possible include the right of surface (max 99 years) and

usufruct (max 30 years), the acquisition of property from the public, and guarantees.

Others information to be included: extra uses for the building (foods and beverages), and the

possibility of demolition and reconstruction with different volumes and shape (D.P.R.

280/2001). The works in brownfield are preferred (par. 14).

The first level of programming phase consists in this preliminary documentation drafting,

called (Docfap).

2) Evaluation by competent authority: done during the preliminary conference of services for

of the

declaration of public interest that has to be called within 7 days from filing (deposito)

feasibility document and to be held within the following 15 days. The participation of fire

brigade is required by law, and it’s possible to ask for modifications to the project/conditions.

3) Technical and economic feasibility project: draft convention with obligations for public

services work related to the proposal, plan of works, relationships with public entities, and

public benefits. Economic-financial plan certified by a bank or financial intermediary with the

costs of the proposal, the project and the relevant financial coverage (Art. 193 of P.P.C.).

4) Final approval: done during the conference of services with the participation of competent

entities. It’s possible to require the proponent for clarifications/modification and to approve

support provisions for financial plan. In the final minutes there is the approval and the

declaration of public interest and urgency of the works. Deadline for the call is 15 days (after

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the day agreed?) and 60 days for the final decision (Municipality) or 80 days (Region). In case of

approval, every authorization/permit not included is substituted by an affidavit of

(dichiarazione)

the proponent, except for fire prevention compliance, while in case of denial, the proponent

can prepare and file another proposal. The approval of the final project by the contracting

authority is equivalent to a declaration of public utility.

Special provisions:

- Art. 4, par. 12 (sport association as user of the facilities and sole proponent): rights,

negotiation of existing contract, public procurement rules, special purpose company.

- Art. 4, par. 13 (association with registered office in the Municipality with land for sports

facilities that can be sold): negotiation of the area and selection of the buyer

- Art. 5 (proposal of renovation/regeneration and management by non-profit companies)

- D.P.R. 151/2011 and Art. 8 (health and safety provisions)

Regarding the project financing, there is a special procedure to select private party of a public-

private partnership PPP, an economic operation (Art. 174 of D.lgs 36/2023) that consists in long term

contractual relationship for a public goal, where private party finances in a significant measure and

executes and manages the project, with the financial risk on its side, while public party sets goals and

verifies their execution.

7. Italian building permits and fundamentals of environmental, cultural heritage law

for (sustainable) buildings

- BUILDING AUTHORIZATION

D.P.R. 380/2001 (Testo unico dell’edilizia): it contains the fundamental parts for building

interventions and authorization system, the control on building activity and sanctions, and the

technical rule of buildings (technical requirements). The categories of works (Art. 4) are:

planned/ordinary maintenance, extraordinary maintenance, restoration and conservative restoration…

Building renovation: transform buildings through a systematic series of works which may

• result wholly or partly different from the previous state, with same dimensions and shape

(different if with a “connection” to existing building, especially for compliances related to anti-

seismic, energy efficiency, accessibility for disabilities, urban “regeneration”)

New building: construction of new buildings, of infrastructure (“urbanization”), installation of

• towers and pylons, of light framed buildings, including prefabricated

Urban renovation/redevelopment: new urban area with a systematic series of works that

• involves new design of blocks and neighborhoods

There are three ways distinction based on building permits required:

“Contributo di costruzione”: for new buildings, urban renovation or important building

• renovation (volumes and, in city center, change of use)

“SCIA” (Segnalazione Certificato di Inizio Attività): certified notification of commencement

• of works for building works 13

“CILA” (Comunicazione Inizio Lavori Asseverata) or “Attività edilizia libera”: for building

• works with no effect on the local area and not subject to the issuance of permits but only

possible inspections

“Permesso di costruire” is issued from local authority (Municipality), is regulated by Regional Law

(Lombardy Law 12/2005) and involves the payment of a “building fee” related to infrastructure works

and the increase of building value. It can be substituted by a special form of “SCIA” in case of

important building renovation.

- ENERGY EFFICIENCY AND SUSTAINABILITY IN BUILDINGS

D.P.R 280/2001: regulates the energy efficiency in the Italian Building Code. The conformity with

energy efficiency and renewable standards is a prerequisite for any building works (Art. 6 on “free

building activity”, Art. 6-bis on CILA, art. 20 on building permit). The compliance (calculations and

verifications) must be attested by the technician of the works in “Law 10 report” (Art. 8 of D.lgs

192/2005) with the request of authorization. If in contrast, it’s not possible obtain authorization.

Municipalities have specific legislative and administrative powers to control the requirements.

For energy efficiency, the most important provisions for real estate are D.lgs 192/2005 (Now D.lgs

48/2020) and its implementing decrees, which were introduced into Italian law to implement the

former EPBD Directives (Energy Performance of Buildings Directive). For renewable energy, the D.lgs

199/2021 (EU Directive 2001/2018 “RED3”) identifies the minimum requirements.

Energy efficiency regulations refer to:

- “Command and control” regulations: minimum energy efficiency requirements, the power

supply from renewable energy sources, and the provisions regarding electric car charging

stations specific obligations with sanctions in case of non-compliance, with exceptions for

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cultural heritage interest and technical impossibility

- Economic and "regulatory" incentives

- "Market" regulations

EU law requires the Public Administration to play an "exemplary