Vita e Tempi dell' età illiberale: appalto e concorrenza tra codice civile ed evidenza pubblica

This is a study in the relationship between the civil law substantial rules of competition and contract and the (not very much related) public laws of transparency and procedure for awards of contracts under competition rules. The book title refers to a famous work of the Canadian Philosopher McPherson. The topic remains the civil and public law of procurement and it is looked at and considered through the lens of the enforcement of labour compliance statutes (which is one of the "evidence" requisites). The topic is though treated in the larger context of general principles of "liberalism", with particular reference to the rule of law. It offers also a personal insight in the nature of "post - modern society" as a social structure based on a new (reverted) relationship between individual rights and public spending (and debt) as the source of their entitlement or "in - vestiment" (see RUDDEN). It is submitted that "in-vest(i)ment" by debt has substituted in-vest(i)ment(um) in the land as the main source and mean of control of wealth. This paper performs in depth analysis of the Italian system for certification of labour compliance as a requisite of public procurements. The resulting conclusions show the interaction between the definitions of "contract" in public and private law . The UE directives on public supply adopted a neutral definition of contract as "any economic operation made by any economic person". This concept is largely independent from the economic and legal "substance" of the contract, as far as it discriminates contracts by their sheer economic value, in order to submit them to public rules of transparency and procedure in the award process. Private law rules , on the other side, depend on the substance of the contract and, while regulating in a different way different kinds of contract, are largely neutral to their economic value. The paper shows how far the neutral concept of contract communicates from public to civil law, via the competition rules, in Italian law. First, making all contracts of any kind subject to transparency rules, without any reference to their "substance"; second, applying public rules of competition to (almost) ALL contracts for work,products and service supply without any reference to their economic value; third adopting the competition oriented neutral definition as a basis to compel compliance of any (not competition oriented) transparency requirements whatsoever EVEN when they are not made subject to competition requirements. It is submitted that, by this approach, a large number of contracts in the "public sector" have been subtracted to public controls - e.g. rules against money washing, conflict of interests and corruption - because the public party (say, a public corporation with no exclusive rights) is "exposed to competition on the market". Whilst a large number of public contracts that, by their economic treshold, should be exonerated even by competiton rules, have been made subject to ALL public rules because the public contractor (universitiers, local authorities and the like) must be "transparent" to competition. This conclusion stands even in fields, like labour law compliance, where enforcement of social security credits depends on the particular substance of a particular contract. This conclusion appears with particular strenght in Italian law, where the "neutral" definition on the directives has NOT been transplanted, in the official national instrument, with the Italian noun for a generic operation (say "supply" contract", "procurement") but with a noun ("appalto") that under italian civil law (art. 1655 c.c.) designates a specific contract that, by its nature, was reserved to construction of buildings (see official version of draft directive "on public procurement" - com 2011-896 - as "direttiva sugli appalti".