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Vol. V/2007







Public Transport in Italy: an example of services of general interests


Massimo Pellingra Contino*



1.  Premises

2.  Deregulation

3.  Public and private ownership and in – house providing

4.  Public services and services of general interest in Europe

5.  The European pattern

6.  On the interests in transport services

7.  A general glance at the reform: qualities and deficiencies

8.  Considerations about Independent transport agencies

9. Conclusions: Perspectives and general considerations




1. Premises


In the mid-1990’s Italian Parliament approved a large program relating to privatization and deregulation which regarded several network services, deciding to shift them from an internal regulation to an external one.

The local governments (Regions, Provinces and Municipalities) were committed to run the liberalization of important public services, such as water, gas, electrical energy, solid waste refuse and public transport, but were late on applying such reforms. Several of the above mentioned institutions ignored them and some of them pressed the national legislator to withdraw.

At the present time several state-run enterprises or formerly owned by the local governments have been sold to private share-holders.

In the local public service, laws have imposed the transformation of municipal enterprises into joint- stock companies open to private capital participation.

In those public service defined as economically relevant (gas, electrical energy, solid waste disposal and urban and suburban transport) as well as other sectors (telecommunication, air and rail transport) we now assist at a form of competition in and for the market. But it is beyond question that after ten years we can’t help thinking that the market incentives are still missing.


2. Deregulation


As we have already written in the premises, we must now consider the effects of privatization and deregulation that must be underlined as tending to increase the economic power.

However, we cannot expect that political institutions will base their approaches on the named system of values! New politics introduced in the nineties had to get clear in terms of interest group dynamics but they have not yet given good marks.

Italian experience[1] of deregulation and privatization is not connected with ideological trend that is common in every political market. We should remember that the main laws on privatization and liberalization were passed by parliamentary groups and by left-centre governments and parliamentary factions.

But in many cases the regional and communal authorities, from both ideological sides have ignored the national reform laws. However, we can admit the importance of other factors such as technological progress and macroeconomic constrains and above all the weight of European institutions which since the approval of the Single Act (1987) have increased the local services and assured conditions of competitiveness and free markets.

As to networks services, over the last 20 years the real technological leap regards the telephone sectors whereas the same progress has not occurred in the fields of gas, energy and waste collection and disposal.

As regards urban and metropolitan transport what has changed are the environmental conditions and not the technology of the means of transport.

What influenced the decision to undertake privatization and regulation in the public service sector was the accumulation of public debt unsustainable for the Italian economy. Italy was near to enter in the EMU and the Maastricht Treaty 1992) set out restrictive financial parameters.

So a large number of privatizations were carried out. The adoption of the EURO did not solve the problem of the public debt in Italy; the Stability and Growth Pact (1997) is more restrictive than the Maastricht Treaty.

In the second half of the eighties Europe has been marked by an upward thrust toward an important completion of the market and full freedom of movement.

Moreover, with regard to the Agenda signed in Lisbon 2000 there has also been an increasing development in the European economic system. This process has gradually interested several public services and important changes in the organization of markets.

Political market has given and interesting explanation of what occurred through the nineties thereafter. But not enough to explain what took place during the second half of the period because of a change in the interest groups.

For economists, the shift from self-regulation within the public administration to an external one has its main design in the improvement of the conditions regarding users in particular a reduction in the prices of the services.

It is not clear to part of public opinion how the new regulation will be an advantage to users!


3. Public and private ownership and in – house providing


It is clear that what we already said does not explain the ideological assumption of those involved in the problem that is subject to symbolic value.

The first one is that linked to public ownership of providers which is praised by a part of them and hated by others.

Economic analysis has discussed on the merits of private enterprise and public ones, concluding that private enterprises are more efficient but admitting that public enterprises can be efficient too. This happens when the public authorities that own the enterprises hand over the control to a professional management. Briefly, public and private enterprises operate best when they are in competition.

When a public enterprise operates in a competitive market its ownership doesn’t represent an obstacle to efficiency.

This is linked to the fact that public service is characterized as an activity regulated by public powers in view of the purposes of general interest. Such regulation must assume an element of proportionality regarding to purposes to reach and has to substantiate an imposition of a certain continuity in the supply of the public service.

So we have to reveal regulation as means to adopt a rather large concept which is comprehensive of the interest directed to correct an objective bad-functioning of the market and of the measures adopted to guarantee the efficiency of the same market.

On these premises we can conclude that public service range overlaps only in part of the activity subject to service duties.

We find a clear resolution in a Community note art. 2 Regulation CEE n. 1191/69 dated June 1969 on railway transport, overland transport and sea freight, which states, “for duty service” are meant the duties which the transport enterprise, in case is considered the own commercial interest, would assume or not assume in the same measure and at the same conditions”.

When the independence of the regulator is not certain the public enterprise can offer the advantage of giving the rent for the Community. We can have the same result by means of a tax on the extra profits.

The debate about the merits and defects of public and private ownership is full of interest regarding the mechanism the municipalities choose to assign services not omitting the large number of joint–stock companies totally or in part owned by municipalities and especially as regards the European context is the concept of in – house provision.

Now we should explain what does in – house refer to!

This concept comprehends the production within the public administration and the one which is carried out by an internal enterprise. The concept is less clear when the service is produced by a public – owned joint- stock company.

In this case the public authority must exercise a good control over the company. But we have noticed that there is a permissive approach on the part of local Italian government, other national governments and some European organization as there are severe rulings by the European Court of Justice that are very restrictive.

The Court has stated that art. 43 EC and 49 C, are to be interpreted as preventing a public authority from awarding a public service concession to a company limited by shares.

Surely the above judgement by the Court opens the way to a strong criticism in regard to the creation of public companies under private law in order to obtain an in – house award. Because such companies cannot carry out the functions normally linked to the legal form that applies to joint- stock companies.

It is the case, as normally happens, when the management of a company runs after easy profits to avoid to bankruptcy. A public company specially one created to replace a municipal department so to provide an in house- awarded service risks no bankruptcy.

The public company subject to private law and suitable for the in – house awarding not only does not offer the common advantage of the limited company but creates a large number of drawbacks in the system of public administration.

Now we have to consider that on the above said there are a certain number of arguments to underline: Italian and EU law demands that the municipality has the same control over the in-house company as it has over its departments.

According to private law the control the shareholders exert over management is not sufficient, there should be other means of administrative law control[2].

Public accounting is not compatible with the rules for corporate balances where there is more room for discretion this might make public accounting not very clear.

At last, expenses and incomes that invest an in – house service provided by a joint – stock company are not part of the parameter required, that is, the limits imposed by the national government on the spending and burrowing that are to respect the Stability and Growth Pact.

The in house provision represents a way to restrict the market. The in house joint stock company compared to the in house administrative department entails the defects we have mentioned: they raise doubts of democratic transparency because it complicates the agency relationships. In the case of an in house award to an internal department the relationship is between the municipal council and an agent represented by municipal functionaries. In the case of an in house to a joint stock company there is a third party that raises between the principal and the agent: the company board of directors and these are always made up of local politicians.

The approach used in the economic analysis of agency costs, leads to the unfavourable conclusion regarding in house awarding to a joint stock company from my point of view; in fact deregulation reduces the agency costs by opening a sector to market competition. When market competition is not possible and when public ownership of the joint stock company is not contestable, the agency costs can be reduced by the procedures provided for public personnel under administration law.

Last but not lest we are obliged to note that in order for the public enterprise to operate and in order not to prevent the market’s competitive pressure, certain constraints must be imposed on this enterprises.

This holds for the in house to a joint stock company or where public enterprises compete with private ones (as occurs in the transport sector). The code of conduct that the public enterprise should adhere to have recently been drawn up by the OECD[3].


4. Public services and services of general interest in Europe


Going down towards a more detailed analysis of the European disposition, we have just recalled the first date which raises from the reading of the Treaty CE is the absence of a direct definition and regulation of public services[4] as underlined by a large part of doctrine.

This derives, firstly, from several social and juridical traditions of the State members, where the meaning of public service reveals various connotations, as for a conceptual standard and as related on functional organizational models to the fulfilment of service.

Nevertheless it does not mean disinterest of the community regulation for we should look for references in other regulations in the traditional concept of the public service adopted by our legal system.

First comes the evidence of the combined competition set out in the articles 49 and 50 of the Treaty which abolishing the restrictions of the free circulation of the services, undertakes a residual definition of this last category. In this limit we could find some activities in our systems qualified as public services[5]; in such context the principal of the free service of an activity qualified as economic could be departed in conformity to the articles 45,46 and 55 of the Treaty CEE, when it can be proved that the activity takes part, by chance, to exercising public powers[6]. If we can exclude that the national concept of public service matches with the community service, the community notion that is very close is the one we can extract from article 86 of the Treaty in the part in which individuates and regulates the services of general economic[7] interest.

Such  equanimity can be guaranteed as from a state subvention as from a concession of exclusive rights on appointed markets but such measures may rise motive for a dispute with the Treaty rules in point of competition and safeguard of the fundamental freedom: troubles in expressing clearly the matter comes out at the moment when it must deal with finding out exceptions to the system of common law; exceptions obviously designed ( and so sjustified) to guarantee the operating income of the enterprise.

In order to understand the importance assumed by this disposition for the solution of the problems connected to the management of the public services, also local, we have to consider that its first paragraph is addressed to the State members and compels them not to adopt measures adverse to the Treaty in support to the public enterprise or to those enterprises which have special or exclusive rights. The second paragraph is related to the enterprises and points to a possible exception to the rules of competition in the limits in which the relevant application may be opposite to the compliance of the particular mission[8] entrusted to them.

From the reading of both the two paragraphs we can gather the formulation of the agreement: at the subjection by the enterprises to the rules of competition[9] is opposed the possibility acknowledged to each State to entrust them tasks of a large collective importance. But the competitive principles represent the rule to fail to comply only at the occurring of particular premises given from the rule[10]. On the basis of the art. 86 CE Treaty it has been, for a long time, possible to justify the reservation of economic activities in consideration of a Community jurisprudence[11]; the evolution of the European system, the process of progressive integration between State Members and a substantial change of monopolistic contexts[12] have however given raise to a process, which has given body to a certain closing of Court’s jurisprudence. In particular, in this way the literal interpretation of art.86, which had characterized the first decisions on the matter, has been overcome; doctrine has maintained[13] that, although such rule assumes the existence of enterprises ownership title of special or exclusive rights, since that it doesn’t follow that such measures are anyway congruous with the Treaty[14]! Therefore, through a reading of the two paragraphs of the called art. 86, we can realize that the same special or exclusive rights are not properly justified, but it is necessary that derogation to the free competitiveness system is legitimized by the general interests and that the relative measure is proportionate to the preservation of the same requirements[15].      


5. The European pattern


Services of general economic interest (SGEI) are considered an important factor in the competitiveness and promotion of economic and social cohesion.

They play the most interesting role in determining the quality of life of citizens, they are the pillars of the European social model.

The new article 16 of the Treaty of the European Union adopted by the European Council of Amsterdam in June 1997 recognizes SGEI as components of “shared values” and their role in promoting social and territorial cohesion and urges the Union and its Members States to ensure they can “fulfil their mission”. Besides article 36 of the Charter of basic rights of the European Union proclaimed at the European Council of Nice in December 2000, underlines the importance of SGEI for European construction and for the citizens and residents of the Union.

Even if the clear identification of the category of SGEI is not immediate, and each word is open to different definitions[16] the common concept of general interest is tied to the category of market failure.

In many SGEI there is a mixed situation of market failures due to reasons of efficiency (monopolies, costs and public goods) on the one hand, and on the other to decisions concerning solidarity and the welfare outcome of the standards of services[17]. For these reasons self-regulation through the market is not possible or not sufficient and public intervention can be justified. Furthermore the concept of services of general interest is a dynamic concept: areas so treated change over time and space, along with economic development and technological and political changes.

Technological progress can play role in reducing the importance of the monopoly characteristic of certain network industries, such as in the telecommunication and energy areas; at the  meantime what is considered of general interest depends on what characterize a society in a given period.

That enlightens up on the “general interest”; it is not a characteristic of an activity, but derives as a result of a political choice.

The concept[18] of economic and non-economic services is a controversial matter. It has interesting practical implications; the European legal system, based on the freedom, the right of establishment and the competition and state aid rules of the Treaty, only applies to economy service. On the other hand the distinction has other dark areas (European Parliament 2005) since economic and non-economic services often blend into one another (European Commission 2003) depending on the condition of their provision.

So it is therefore to be hoped that the definition of the term “economic”, may as soon as possible differentiate at the EU level from those of the member States.

The European model of SGEI has been characterized over the last 25 years by important changes[19] such as liberalization, privatization, de-regulation and welfare state reform. This development has highlighted the controversy on the nature of SGEI, and so it has been difficult to prevent conflicts among three different priorities: market opening and increasing competition, the preservation of public interest and public finance stability.

There are some elements that can be condensed as follows: firstly the progressive opening-up of the market and the application of the rules on competition also to SGEI can be followed by measures to protect the general interest[20] (European Commission 2003).

The term “universal services” began to be applied to telecommunication, postal services and electricity, and that of “public service obligations” (PSO) in energy and transport: they refer to the possibility for public authorities to impose specific requirements on the provider of the service[21], even avoiding the Treaty rules on market competition.

This is an important role for the public authorities, for they have the responsibility to express what they consider to be a general interest and to impose public service obligations and at last to verify what operators do with the public service missions entrusted to them.

The total result can be seen as a combination of deregulation and re-regulation[22] which change the features of state intervention without reducing or eliminating it.

Secondly, derogations from competition rules are subject to the principles of the EC Treaty regarding freedom of establishment and freedom to provide services (art. 43 and 49 of the EC Treaty).

They comprehend (European Commission 2000) the principles of quality of treatment transparency, proportionality and mutual recognitions. All this provisions are intended to protecting the interests of operators and to avoid the risks of preference to national applicants.

Thirdly, the European legislation allows providers of services of general economic interest to be compensated for the extra costs they support in fulfilling their mission: compensation that exceeds what is necessary to discharge the public service could result in an illegality.

Following judgements of the European Court[23] and the demand for legal certainty expressed  by the public consultation on the Green Paper on SGEI (European Commission 2003), the Commission has launched a  package SGEI and public service compensation consisting of a Commission decision on a modification of the transparency directive which was adopted in 2005.

In particular, public service compensation is not considered state aid and is exempted from notification requirement if it fulfils some conditions[24] (European Commission 2005): a) the public service should be notified; b) the parameters cannot exceed cost; c) the company in charge of the mission should be chosen through competitive procedures.

It seems clear that when a tender is used, it guarantees that the service is procured at the lowest price offered.

Fourthly, if we think at the meaning of the Community law on public contracts and concessions[25], the State members can certainly decide how to guarantee services of general economic interest[26] by providing them or entrusting the provision to an external subject. However, providers including in house service supplier are considered undertakings and are subject to the competition rules of the Treaty (European Commission 2004a), in particular those regarding public service compensation. In order to this general framework we must underline that some further specifications can be pointed out: that is when local legislation can foster competition excluding in house or providing for competition in the market[27], when it is determined that market operators can guarantee a suitable both qualitatively and quantitatively level of supply[28].

The separation of the undertaking providing the service is seen as an important instrument to realize the organization, the cost and the financing of SGEI the clearest[29]. From this point of view a particular attention is given to the problematic in terms of independence from public authorities ownerships.

Finally, a subsidiary company is considered a leading subject in the field of SGEI, since competent national, regional and local authorities of each Member State are free to define what they consider to be a service of general interest so that they can organize, finance and control their provision.

The debate on the Green Paper has shown a strong doubtfulness on the part of Member States.

Some sectors, such as several network services, have been influenced by the de-regulation policy of the EU, so that a conflict between subsidiarity and market opening can be foreseen for the future.

The accomplishment of these common principles differs between sectors we will point up in the next part of the paper on local transport.


6. On the interests in transport services


Important general or public interests[30] are related to the provision of transport services, above all in urban areas; this can justify the introduction of public service obligations by Member States and local authorities[31].

Market failures can be caused by: - absence of competitive markets: many transport services have the appearance of a monopoly, with relevant lowered costs (rail networks, rolling stock, depots, shelters), that can raise barriers to the development of competition within the market; - arrangement economies: strong interdependences throughout the transport chain (parking facilities, single away track, rail and bus service, different types of tickets, time tables, information) can make it easier to have only one operator, or, at least, the integration of different actors to reduce costs for users; - social adhesion: collective services ensure accessibility to a right – transportation – above all for some categories who cannot afford or use private cars: very young people or too old to drive, low income earners, the disabled, large families, migrants an so on; - territorial cohesion: to reduce spatial lack of balance and disparities. From this point of view it is important to enlighten that local transport is not less important than other public service and so it is useful to assure a more accessibility for particular areas and to avoid disparities between the city centre and outer areas; - sustainable development: to ensure conditions for the development of economic, environmental and social activities[32].

This situation has became more and more relevant, because the role played by private cars linked to economic development in recent times has taken origin to a dynamic trend difficult to be sustained in the long period. If on the one hand income growth has allowed a partial reduction in the restrictions offered by private means, it has also generated important problems: traffic congestion, hair pollution, noise pollution. The consequence can influence the competitiveness and management of local areas and gives to local public  transport a new improving global role not only for equity consideration but also for efficiency. The collective transport distribution deals therefore with economic efficiency, cheapness, effectiveness, and also equity and solidarity in an optic in which public intervention can be right to reduce and regulate private actors, in terms of access to infrastructures, and to guarantee the regard of obligations of service of general interest[33]. Moreover, collective transport services are usually considered as an economic service[34], so that the EU legal system on competition puts on.

The way and the level of planning and control on the part of public authorities can be different, but they can be traced back to antithetic opportunities: one that regards the public action in which authorities order which services have to be produced, and the other on market initiative. The operators are given the possibility to develop services as they like. The level of regulation differs deeply among different opportunities.

In the open entry an upside – down approach prevails, where the planning capacity of market operators is exploited and where public intervention is in terms of light regulation (safety norms, requisites for enterprises and personnel, contract enforcement, civil law, authorizations); in the public provision all the levers, from the more strategic (transport policy, financial instruments, areas covered) to the operational ones (fares, routes, vehicle maintenance, marketing) are in the hands of transport authorities which are ill – disposed at delegating or contracting out to external subjects.

Between these two forms, there are other intermediate ones, where responsibilities and tasks are shared among different subjects or where many regimes can even coexist as in the case of the United Kingdom[35] bus system.

In this framework, the point of tendering the provision of services between authorities and operators which have caught a lot of attention in recent times in many European countries, can be seen as a particular selection mechanism in the context of regulated systems (even it is often associated with the terms deregulation[36] or liberalization).

Even if it is true that this mechanism introduced some forms of competition among providers, more transparent systems, a redistribution of the economic risks, attention to customer satisfaction it should be clear that the role of public authorities remains difficult in governing contractual schemes.

In other words, the State still has the responsibility for the public mission.




6. The way towards the accomplishment of organizational forms: the case of Italian transports.


Market failures in transport has led since the beginning of the 20th century to an intervention by public authorities in most European countries.

In Italy the form of “industrial municipalism”[37] where local administrations[38] have replied the market and acted as an employer in designing and run many local public services (collective transportation), has made a relevant support to the process of industrialization, avoiding problems about urban migration and social and territorial exclusion. At the end of the sixties some questions began to emerge which concurred with the development of private motorization and highlighted the incapacity of that actual organizational form to face the challenges concerning economic development of urban settlements.

The systematic settlement of the deficits of local transport authorities by the state through a national conditioned fund[39] has lowered the financial responsibility of local governments and increased the supply services on the national budget.

On the other end, the absence of market pressure and the overlapping of political and administrative functions have caused law productivity, high operative costs (excessive and expensive[40] manpower) law fares, high imbalances between operative costs[41] and little attention to customer satisfaction.

That situation has undermined the ability of collective service to perform their role, above all in terms of an alternative to the use of private cars. Since the nineties there has been a change in the urban transport as part of a general reform of Italian public administration[42] and of an even more general international trend characterized by the decentralization of administrative responsibilities and the adoption of new organizational and management solutions.

It has to do with a course, common to other local public utilities, that has been promoted by the implementation of the separation of daily management and in short time planning from strategic policy regulatory and planning functions that refer to a long period[43], as we recalled; we have to add that it is increased by a certain legal and operational responsibility to service providers.

Self-production promoted by units which are organic to local authorities should have been replaced by operators connected to the buyer by contractual shapes[44].

Legislative Decrees n. 422/97[45] and 400/1999[46] have contributed to promote the transfer to the regional[47] governments the responsibility for planning and financing[48] expenditure decisions, adopting the reduction of public aids to operators; carrying out the improvement of these legislative instruments and  finally guaranteeing some forms of competition in a  perimeter safeguarded by local monopoly[49].

The principal purpose of the called measures adopted has been the so called getting back of efficiency with the aim to support the expansion of resourced addressed to collective services[50] and infrastructures.

The implement of the reform has showed difficulties above all with regard to the introduction of new organisational shapes, in terms of modifications and integrations which certainly have generated confusion in order to organize useful methods and techniques to select providers.

Law 326/2003[51], especially the reform of art. 113 of the Consolidated Act on Local Autonomies (Law 267/2000), contains three organizational forms alternative for ensuring economic services[52]: first of all in house production, managed to mixed companies[53] in which the private operator is selected through a public auction, and competitive tender to stock option companies. As we have said before, according to subsidiarity and to the regulations of the Community[54] law on public contracts[55] and concessions[56], has settled to the local corporations the political choice of providing a public service themselves or entrusting it to an another operator[57]. It means that the awarding act of the title of service – with deals the art. 113, paragraph 5, Law 267/2000 – should assume a valence in part publicistic, while the privatistic system should regard rather the managemental phase, whose aspects of collective interest should be ensured through the technique of service contract[58].

After years of arguments on the necessity of giving a general reform of the system as referred to the Law 8 June 1990 n. 142, local public services have been object of a new rule delineated by art. 35, Law 28 December 2001, n. 448, whose main aim was represented by widespread sector to the competitive dynamics[59]. The soul of this regulation was in the spotting, in the sphere of the services of competence of local authorities, of a restrictive area, qualified by the industrial relevance, where the previous system of favourite provision and the typical system of managemental forms were left according to a line defined as a true de-municipalization.

Such model, before entering in the system, was modified by the art. 14, Law 24 November 2003, n. 326, which, through a juridical operation, has impressed on the profile of the provision of service; it is maintained the principle of the public property of the infrastructures and other furnishings designed to the public services of economic relevance, in a regulative context characterized by an access to the infrastructures to the subjects legalized to the supply of final works.

Such discipline, if, in its general lines, should represent an accommodation of the previous model to Community guidelines, at a more careful examination is unsatisfactory. The new regulative system introduces a unique management model of the sector, the one of provision, without defining the substantial parameters for a delimitation of public service; besides local authorities have a large power of intervention.

After the constitutional Law n. 3/2001 became effective, the area of public local services (in particular transport, navigation and production and distribution of energy) have been lead back to the residual regulation competence of the Regions[60] (art. 117, paragraph 3, Italian Constitution).

In consideration of the aforesaid, that part of the provision was soon changed by Law 308/2004, which restored public tender as the only mechanism, with a deadline of 31 December 2005 for carrying out public tenders.

The latest normative measures in local transport seems to support that competitive tendering will became the usual way of awarding contracts for providing local services. Two conditions seem to be useful to change this supposition into practice: on the one hand, the effective development of the market, with a certain number of potential providers with technical and financial requirements and, on the other the capacity of local public government to put into practice qualified forms of regulation for safeguarding general interests in the management of services[61].



7. A general glance at the reform: qualities and deficiencies


The various innovations introduced since the beginning of the nineties, even if characterized by a lack of a general use of competitive techniques in order to the selection of the providers, seem to have been the effect to give to the local public utilities a more effective meaning.

The economic results of local transport operators have been underlined by a relevant growth that shows the deficit of the public operators in the sector. Tariffs increases and efforts to the reduction of labour costs have represented more than 2/3 of total costs; this operation has given these results.

It seems clear that in the first years after the reform the introduction of a stricter budget contributed to adopt management mechanism through the abolition of National Transport Fund, enforced by an internal Stability Pact in 2000. That has been joined by aggregations of transport areas, clearer accounting systems, negotiation of the subsidy, sub-contracts, management capacity, without creating political costs.

However, the results have not been determined; public subsidization is very high and anyway difficult to realize, even in consideration of some State interventions that not always comply with the logic of the reform. In this framework, the necessity to once more move down the line of the reform can be related to some critical problems and chances.

In fact by the analysis of the Decree 422/97 we can deduce that regional governments have the responsibility to program and finance the so-called minimal services, which should be considered according to the needs and principles with respects of level of traffic and congestion, aspect of network system, use of general social services. Local governments of course have the responsibility to finance additional services.

Besides regional resources have improved from 1996 to 2007, imposing a growing need to find new sources (higher tariffs, higher contributions by local or national budgets), in order to ensure the same level of services. Then resource reliability and efficiency represent the basis of financial accountability and of the possibility for the competent authority to address regulation in the best way!

An important aspect that has revealed and reveals nowadays is the tendency to reach the called capacity to manage contracts. That is contractualization, in particular public service contracts, has been seen as the instrument for practicing the principle of separation between the political competent authorities and the private operators, in consideration of defining mutual involvement in a more useful and clear manner.

Without considering the forms adopted to award contracts either directly or through bidding, the capacity to create and manage contracts so shows a turning point of the reform. In fact effective applications[62] of the reform[63] have enlightened many disadvantages on the part of local corporations in fulfilling a role of buyer of services on the market. In consideration of this, a few months ago, by the Transport Committee were proposed amendments to common rules for local and regional public transport contracts were adopted, after six years of disagreement in the Council of Transport Ministers. The purpose of the Committee is to give to regional or local authorities more discretion over whether to award small-scale public transport service contracts directly, or open them to tender. In January 2007 the European Council finally submitted its common position, which Parliament had repeatedly requested since 2001. In its first reading, six years ago, Parliament set the tone by adopting amendments that greatly improved the autonomy of local and regional administrations in providing their own public transport services, rather then procuring them via a call for tenders.

The problem to analyse is: competitive tendering, or direct award? The new legislation will supplant a whole of national regulation ruling the extent to which public transport is open to competition. The Council now proposes a new system offering the freedom to competent authorities to choose between competitive tendering and direct award and suggests derogations where authorities may award contracts directly.

In order to define competent authorities, it has to underline that the Committee used a stricter definition of “ competent regional or local authority”; it means that a region which has administrative competences or a city which has the status of Community or the surrounding area within its sphere of influence.

It was agreed that the award of public service contracts by road and by rail should comply with the new regulation within eight years of the date of entry of this regulation. During the period 1999-2007, Member States must take measures in order to avoid problems relating to transport capacities.

Besides more peculiar amendments were adopted on a definition of an “internal operator”, to whom a contract is awarded and who is not allowed to take part in calls for tenders elsewhere.     

With regards to the Italian state of art, in consideration of the award provision it has exercised a strict control by the Italian Court of Auditors; this last one has shown that are not developed very much the rules on the execution of controls, on the general management[64] and on the prevision of tariffs[65]. In a certain sense, the control on the results is left to a formal verification of documents presented by operators; as I have said before, two structural problems seem to present themselves. The transformation of the municipal enterprises into joint stock companies with the prospect of privatization has transferred part of technical competences to the provider.

This circumstance is rather problematic with franchising, where proposals have to be compared to each other and where the old incumbent is only one of the potential bidders. So the recalled nature of contracts is not much credible in consideration of the previous analysis; in fact it is more probable that local authorities will conduct their companies to the bankrupt without determining a lowering of budget.

In order to the role of competition, the contributions given by competition to the main purposes of the reform have been minimal, either for a normative insecurity but also for a substantial lack of general requirements to make the market really functional. Really, before the end of last year, awarded tenders have been relatively few and concentrated above all in the Regions belong to the North of Italy with the result that incumbent publicly- owned companies have been in general entrusted to provide local transport services[66]. The definition of law tariffs for public services obligations, the decisions adopted on asset-ownership, and the relevant importance attributed to qualitative parameters in awarding techniques have reduced very much the level of competition and misrepresented the choice in favour of public operators.

For example, cases are not a few in which the choices for tender have called participants to provide general goods, adopting a break towards the qualifying requisites to the incumbent and reducing the number of competitors.

All principal assets can represent barriers for new entrants, so the organizing authority or an independent one, should hold and then allocate them to providers.

This was the choice taken by the local transport agency of Rome (ATAC) that is responsible for most of instrumental assets (underground network, depots, vehicles, information stations, equipment). The same choice was taken by Lombardia and Emilia Romagna. Of course, multidimensional tenders based on the most advantageous ones provided by the regulation[67] can allow a higher level of discretion to the franchiser in selecting bids.

It was this one the first Italian experience with tendering in 1998 in the Tuscany region. The first reform which recognized of great interest to the saving of costs is considered suited to reduce the multidimensionality of awarding procedures.

The reform established also minimum standards on quality factors such as: climate control, video surveillance, service reliability targets, customer satisfaction, passenger safety. There were also adopted types of contractual schemes as in the case of net cost contracts, assign commercial risks on the operators and introduce incentives to meet customer expectations.

We can see net cost contracts as an instrument to reduce the information requirements of the regulators and the necessity to control the conduct of operators.

As for the supply of services, market competition can be amplified in case of a certain number of operators equipped with good technical and financial capacities.

When we consider the operative costs in regard of labour costs it could be very useful improving staff efficiency through greater production, wages and flexibility.

Even if the increased flexibility given in Italy to labour affinities, the approach assumed by regional laws as granted, the existing staff the right to a job under the same conditions.

Certainly we all know that clauses of this type can reduce at most the possibility of the turnover of providers and to lose gains in production costs.

The three tenders awarded in Rome from 1999 to 2001 attest this opinion: new providers and an important lowering of unitary costs for the public incumbent can be accounted for those services awarded were additional and no social clause had been imposed; and there are other opportunities to go beyond this barrier without imposing costs.

It could be a good idea to allow companies to re-negotiate contracts for new employers by applying the conditions of their staff. Recently in Italy a bill was proposed in order to extend the use of welfare support to transport operators.

In a wider perspective it should deal with weakening the relations between the single provider and a certain territory, through a promotion of the growth of a strict number of operators with regard to the European scale. The attempt to improve forms of aggregations among transport companies also should realize the private relationship between competent authorities and operators.

The Italian case in this matter is rather difficult because of the excessive influence of the transport companies by the economic environment which of course doesn’t favour the opening up of the instruments to control competition system. At the moment they have been created groups of private local providers (for example ATI) that have avoided price competition but not effective agreements able to guarantee productivity and efficiency[68].



8. Considerations about Independent transport agencies


The last years have been characterized by the creation of specialized transport agencies that have brought an important benefit to the progressive implementation of the reform. In fact, agencies (London transport, ATAC of Rome), can permit public authorities to preserve competences and “know how” realized during the last time. Agencies have acquired a legal form with a simultaneous degree of autonomy in respect to political influence and to municipal undertaking, guaranteeing a certain efficiency in the management of contractual relations and in the awarding procedures.

From this point of view the purpose of the regional agencies can be interpreted not only as regards to instrumental assistance to local authorities but also as regards to higher involvement by administrative bodies able to oversee the techniques in the management system[69].      

 However many doubtful points rest on the powers of agencies of transport. Regional agencies provide for a better degree of independence and autonomy[70] with respects to territorial interests, so answering to the parameters of unity, neutrality and independence. 

Agencies at municipal degree as occurred in Rome, are linked with the territory and can be favourite when they have a certain set of competences (system ownership, awarding, management, planning), which can be governed by a regional body.

Another aspect to consider is connected to the privatization phenomenon: the privatization of previous monopolistic providers out to be a relevant step in the process of reform with reference to the competition of the market. It is important for tenders, as privatization can offer the full independence of the awarding authorities in the local context.

In Italy privatization has crossed two moments: one formal that is the transformation of public bodies in joint stock companies and a second substantial with the casting off of power of the State in public shareholding. Effectively the second form of privatization has not reached good results even if some regional laws have taken further steps in this direction, giving financial incentives and instances regarding the transfer of the majority of shares. Until our days formal privatization has not been followed by relevant forms of substantial privatization and of course that has showed in the transport matter[71]; so the awarding procedures allow the participation of public owned companies, since their exclusion should very much restrict the level of competition. 



9. Conclusions: Perspectives and general considerations


Because of their nature, it is very probably that local public transport services can enter into conflict between the necessity to guarantee right and equal treatment to all providers and that of saving the principle of subsidiarity. All this requires strict resolutions and management options distinguished in strong local commitments.

In the European States the Commission, following the European Parliament’s position is taking this direction[72] offering the local authorities the power of choosing between providing local transport or entrusting an external operator through a tender procedure.

In the last fifteen years the Italian experience shows an interesting term of reference in this field, because of the reform which was characterized by the decentralization of administrative responsibility, and new management of solutions and techniques provided through a difficult process for the introduction of so-called “regulated competition”. This general method to award services after a transition period should end by 2007. This choice seems admissible!

In fact it is coherent in the sectorial objectives established in the European White Paper on transport[73] and in the Lisbon Process where competition elements in the transport sector is seen as an important instrument for efficiency. Then it seems the best solution for meeting the requirements of the EU Court’s [74]ruling as regards compensation for public service.

Finally it better serves the original aims of the reform that is, separation of planning and operational responsibilities.

In my opinion its rationality is fortified by same points and by the controversies of the alternative in house solutions; in particular this solution has taken a good improvement in Italy. Even if the introduction of competitive incentives seems to be definitive and the completion of competition has been slow, partial and opposed by consolidated interest, some results have already came out, above all the reduction of costs, the introduction of more flexible relationships in the labour market and at last the diffusion of resources (service contracts, independent agencies, separation of assets) which can promote a better connection between the competent authority and the enterprises.

According to the principle detailed at the European level, both private and public enterprises can work in the same field.

Some types of independent ways, for the deputing authority can be derived through the development of inter-institutional transport agencies or by assigning the tendering procedure to government when the local authority is also the owner of one of the bidders.

In consideration of what we have written before, it should be necessary an approach tended towards the market competitiveness, where its rule is seen a way to reduce the degree of manoeuvre and to restrict the requirements of public authorities, conferring a certain freedom and sense of responsibility to private actors. Then the privatization of operators and the improvement of awarding procedures and contractual layout (net costs contracts, tenders and public ownership) should be considered as choices useful to this approach.

It concerns of an approach which certainly calls for the actual establishment of a European transport market, where a proper number of operators run against one another with the same opportunities and capacities and make competition possible for a great range of relevant services.

In the case in which the confidence in market power is not total, we could think if the preservation of the in–house option as provided by the European laws of regulation, may not represent the more adapt preference.

* Dottorando in Diritto dell’Economia, dei Trasporti e dell’Ambiente, Cultore di Diritto Pubblico e Amministrativo.

[1]    Bagnetti G., Robotti L. (2003) The reform of Public utilities in Italy, “Annals of public and Cooperative Economics”, p.117-137.

[2]    Vigneri A. (2005), Questioni di attualità nelle modalità di gestione dei servizi pubblici locali in “Astrid Rassegna”, n. 20.

[3]    In order to make it clear the state as an owner should decide prioritises. They may include avoiding market distortion and the pursuit of profitability, expressed in the form of targets such as rate – of – return and dividend policy. Such objectives may include trade – offs, for example between shareholder value, public service and even job security. In doing so the state should avoid interfering in operational matters, and thereby respect the independence of the board (OECD 2005, p. 23).

[4]    European Commission (2003), Green Paper on Services of General Interest, (COM [2003] 270final); European Commission (2004a), White Paper on Services of General Interest, (COM(2004)374final); European Parliament (2005), Services of General Interest in the Internal Market, DG Internal Policies of the Union-Directorate A, Working Paper.

[5]    That is occurred in the event “Port of Genova”: see Court of Justice (sentence 10 December 1991, C-179/90 in “Raccolta” 1991, I, pag. 5923).That sentence has considered the harbour-activities as unconnected to the concept of general economic interest of which the article 86 deals, but rather included in the sphere of an ordinary performance of services.

[6]    On the part of the State members they have often tried to enlarge the area of the derogation, but such trend has been firmly opposed either by the Commission or the Court of Justice; in particular we can observe this in the sentence of the Court of Justice 18 march 1997, cause C-343/95 Calì Diego against Servizi ecologici Porto di Genova, in Giur. It 1998 p. 1023; Court of Justice 26 April 1994 n.272 in Riv dir pubb com 1994 p. 1348. Compare Racca G., I servizi pubblici nell’ordinamento comunitario in Dir. Amm. 1994, II, p. 205;

[7]    European Commission, Communication 11 September 1996 intitled “The services of general interest in Europe” as underlines N. Rangone, I servizi pubblici, Padova 1999, p. 19.

[8]    It seems at the same time a lowest necessity of guarantee for the single man and current assurance of cohesion of the group; it can be expressed in a social mission (as the one directed to put approachable specific services to the less wealthy ) or in a more comprehensive economic mission.   

[9]    Cammelli M.- Ziroldi  A., Le società a partecipazione pubblica nel sistema locale, Bologna, 1999, p. 101.

[10]   Compare Pioggia A., Appunti per uno studio sulla nozione di pubblico servizio: i limiti e i requisiti della assunzione del servizio pubblico da parte dell’ente locale, p. 200.According to the author, the actual reading that Community  Institutions give to the article 86 underlines not only the opposition to each limitation of the market  but rather the origin of legitimization  for a public action that arises with own means and own rules.  

[11]   Zito A., I servizi pubblici nel sistema giuridico tra continuità ed innovazione, in Qualità dei servizi pubblici all’impresa e dei servizi sociali nel contesto europeo, Cenform, 1996 p. 406; Telese G., Servizio di interesse economico generale e servizio universale nella giurisprudenza e nella  normativa comunitaria, in Jus, 1999, p. 951 and so on. 

[12]   Cassese S., Dalla vecchia alla nuova disciplina dei servizi pubblici, in  Rass. Giur. En. Elettr., 1998, p.234.

[13]   Court of Justice, 25/7/1991, Cause C-353/89, in Raccolta, 1991, I, p. 4098.

[14]   See Franceschelli V., Concorrenza ed antitrust: profili generali, in Trattato di diritto amministrativo europeo, Milano, 1998, p. 511; Romano Tassone A., Monopoli pubblici e abuso di posizione dominante, in Riv. it. Dir. Pubbl. com., 1992, p. 1329.

[15]   Court of Justice, 11/11/1997, Cause C-359/95 and C-379/95, in Raccolta, 1997, p. 6265; Cause 10/12/1991, C-179/90; Pericu A., Servizi pubblici locali e diritto comunitario, in Riv. giur. quad. pubbl. serv., 2002, p. 65; Pericu A., Servizi pubblici locali e diritto comunitario, in Analisi economica  e metodo giuridico, I servizi pubblici locali, Padova, 2003, p. 93.  Europe”, OJ 2001/c 17/04, p.7.

[16]   Communication from the Commission: “Services of general interest in Europe”, OJ 2001/c 17/04, p.7.

[17]   Cox H. Questions about the iniziative of the European Commission concerning the awarding and compulsory competitive tendering of public service concession, in Annals of public and cooperative economics”, p. 7-13.

[18]   Even if there is not an official definition we think to refer as to the term “economic activity” for example any activity which provide services, goods, or carrying out works in a market, even if this services, goods or works are intended to provide a “public service ” as defined by a member state (European Commission 2004b). 

[19]   The time boundary can be considered the single act before which organizational forms where left to national governments.

[20]   In particular art. 86 of the Treaty provides: “undertakings entrusted with the operation of services of general economic interest … shall be subject to the rules contained in this Treaty, especially to the rules of competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them”.

[21]   In the case of a “universal service” certain services are required to be made useful at a certain quality to all consumers and users throughout the country of a member state, independently of geographical location. Compare art. 3 of Directive 2002/22/EC L108, 24.4.2002. 

[22]   Maione G. Deregulation or re-regulation, New York, St. Martin’s Press, 1996; Finger M. A European model of the regulating and re-regulating the network industries, 2005, Paper presented at the International Symposium “Competition and stakes in the regulation of the services of general interest. Feedback of the last twenty years”, 29/30 September 2005, University of Paris VIII – Saint Denis.

[23]   Judgement of the Court, C-280/00 Altmark Trans, and joined cases c-34/01 to 38/01 Enirisorse SpA.

[24]   The so called “Alltmark conditions”.

[25]   The connection between public authorities enterprises entrusted with tasks service the general economic interest should be regarded as concessions: that is the concept developed trough the analysis by Cox H. in the publication already told.

[26]   Caldirola D. La dimensione comunitaria del servizio pubblico, ovvero il servizio di interesse economico generale e il servizio universale, in Servizi pubblici, concorrenza diritti, Milano, 1998, p. 135 ss; Perfetti L. Servizi di interesse economico generale e pubblici servizi, in Rivi t. dir. Pubbl. comm., 2001, p. 484; Sorace D. Servizi pubblici e servizi economici di pubblica utilità, in Dir. Pubbl., 1999, p. 389; Telese G. Servizio di interesse economico generale e servizio universale nella giurisprudenza e nella normativa comunitaria, in Jus, 1999, p. 951

[27]   As occurred for example for telecomunications.

[28]   Vigneri A. Questioni di attualità nelle modalità di gestione dei servizi pubblici locali, in “Astrid Rassegna ”, n. 20; Ammanati L., Servizi pubblici locali, società per azioni a partecipazione pubblica locale e concorrenza, in Ammanati L. - Cabiddu M.A.– De Carli (a cura di), Servizi pubblici concorrenza diritti, Milano 2001; Lo Monaco P. M. I servizi pubblici locali ed il sistema di scelta del socio privato nelle società miste a prevalente capitale pubblico locale, in Giust .it. riv., on line, n. 04/2001; Vasques L., I servizi locali nella prospettiva dei principi di libera concorrenza, Torino, 1999, passim.

[29]   European Commission, Green Paper on Services of General interest (COM [2003] 270 Final).

[30]   Thiry B., Monnier L. (1997), Introduction: the General Interest: its Architecture and Dynamics, “Annals of Public and Cooperative Economics”, p. 321.   

[31]   As provided by article 73 of the Treaty and carried out by Council regulation (EEC) N. 1191/69 of 26 June 1969, which indicate how competent authorities for public passenger transport can introduce such obligations to guarantee a good subvention of transport services to sustain development, social integration and regional balance.

[32]   Confservizi (2004), Servizi pubblici, sviluppo, regolazione, compatibilità sociale e ambientale, Roma.

[33]   Massarutto A., European policy concerning services of general interest and the “White Book”: much ado about nothing?” in Economia delle Fonti di Energia e dell’Ambiente, n. 1, pp. 5-16, 2004.   

[34]   On the point, see Judgement of the Court, C-280/00 Altmark Trans.

[35]   Newbery D. M., Privatization, restructuring and regulation of Network Utilities, Cambridge (Mass.), MIT Press.

[36]   Corso G., Attività economica privata e “ deregulation ”, in Riv. trim. dir. Pubbl., 1998, p. 629; Sorace D., Servizi pubblici locali ed iniziativa  privata, in Econ. Pubbl., 1993, p. 13, Maione G., op cit.     

[37]   This concept was introduced under Law 103/1993 and Decree 2578 of 1925.

[38]   These are to be meant as Municipalities, Provinces and Regions: on this point a relevant disamination is conducted by Cavallo Perin R., Comuni e province nella gestione dei servizi pubblici, Napoli, 1993; see in particular the doctrinal contribute supported by Corso G., La gestione dei servizi pubblici fra pubblico e privato, in Servizi pubblici locali e nuove forme di amministrazione, Milano, 1997, .    

[39]   Fond national transport.

[40]   The 2001 Italian Master Plan for Transport reports that in the period 1984- 1995 labour costs in transport services were  about  22% higher than the Industrial sector.

[41]   This estese adoption of different solutions about problems of administrative type has been usually called New Public Management, a word that refers to a certain number of public management instruments that besides seem to be shared as a planning approach by many States belong to Western European areas. The New Public Management really is acted to the provision for fulfilment of various techniques for example: privatization, deregulation, strategic instruments and management, development of constructive relationships among enterprises and public administration and between the same public administrations, the result of  efficiency in competitive action, public service management capacity, new forms of  accounting methods, the price-list instruments and the division of politics from administration.

[42]   Compare Bassanini reform Law 57/97 and its modifications and extensions.

[43]   See Laws 142/90 and 498/92, D.P.R. 533/96

[44]   Law 25/95 which defines the tasks at best and obtain certain levels of quality and costs.  

[45]   In particular see art. 17 and 19 of Legislative Decree 19 November 1997, n. 422 in which it is established that skilled corporations, when they have defined the necessary obligations of public service, provide for contracts of service the economic compensations, the characteristic of offered services and the programme of exercise, the minimal qualitative standards, the adopted price-list structures, further to procedures of modification of the relation and to the penalties in case of non-fulfilment.

[46]   Both of the Laws have introduced in the public transport sector some principles such as the regionalization of legislative, planning and financial responsibility, through the prevision of general rules foreseen by the national governments. The reform, which follows the sudsidiarity principles, produces a delegation of operational functions to local administrations, excluding those services which require a total management at regional level. Another prevision of the called Laws is the formal privatization of operators, that is the legal transformation of the so-called municipal enterprises into joint-stock companies, according to the prevision of the Italian Civil Code; other previsions, which have been added, are the adoption of “service contracts” directed to structure the most important regulative elements (duration, qualitative standards,  tariffs, sanctions ) in the connection between the transport authority and the provider.  

[47]   Corte dei Conti, La gestione del trasporto pubblico locale e lo stato di attuazione della riforma a livello regionale. Relazione comparativa e di sintesi sull’andamento dei trasporti locali, Deliberation 1/2003, Roma, 2003.   

[48]   Dexia-Crediop, Public Finance. I servizi pubblici locali tra opportunità e criticità: dati ed analisi della trasformazione in corso, Roma, 2003; Di Gaspare G.,  Servizi pubblici locali in trasformazione, Padova, 2001

[49]   Van De Velde D. M. Organisational Forms and Entrepreneurship in Public Transport. Part 1: Classifying Organisational Forms, in “Transport Policy”, 6, pp. 147-157, 1999.    

[50]   Cassese S., Dalla vecchia alla nuova disciplina dei servizi pubblici, in AA.VV. Divenire sociale ed adeguamento del diritto ( Studi in onore di Francesco Capotorti), Milano, Giuffrè.

[51]   Ferri M. – Baldazzi P., I servizi pubblici locali: liberalizzazione, regolamentazione, forme di privatizzazione, Rimini, 2000, p. 199; Trimarchi F., Sistemi gestionali e forme contrattuali dell’outsourcing nella pubblica amministrazione, in Il diritto dell’economia, 2002, p 1 etc.

[52]   After the Constitutional reform of 2001 (Law 3/2001), which conferred exclusive legislative competence to regional government as far as local public services – as transport services are commonly considered – is guaranteed in terms of competitiveness. At this regard the discipline of non-economic services is on the contrary left to local authorities, as for competition policy is not able to be applied in this case and public intervention is not required. 

[53]   See in order to a relevant analysis of the argument Stumpo G., L’appalto di servizi, la concessione di servizi e l’affidamento della gestione di servizi pubbblici locali a società miste, in Riv trim. app., 2002, p. 827; Cammelli M., Le  società a partecipazione pubblica: comuni, province, regioni, Rimini, 1989, p. 57; Dugato M., Le società per la gestione dei servizi pubblici locali, in Quaderni del Giornale di dir. amm., n. 3/200, p. 111. Martelli V., Servizi pubblici locali  e società per azioni, Milano,  1997, p. 21; Parisio V., La gestione dei servizi pubblici locali: tradizione ed innovazione nel quadro della collaborazione pubblico-privato, in Giust. civ., 1993, p. 495. In argument see Ottaviano V., Le società miste per i servizi locali, in  Atti Convegno, Messina, 22 November 1996, Milano, 1999, p. 5.

[54]   On the point it is not shared the opinion expressed by Piras P., Sulla compatibilità delle società per azioni a partecipazione comunale con l’ordinamento comunitario, in Riv. it dir. Pubbl. com., 1994, p. 1231; see also for every one of the sentences, Court of Justice 19 May 1993, Cause C-320/91, Courbeau ,in Raccolta, 1993, p. 2553.  

[55]   The first regulative reference is showed by CE Regulations n. 1191/1969, as changed by CE Regulations n. 1893/1991, (see CE Regulations n. 3577/1992 in maritime transport matter), which established the public contract as a contract concluded between independent authorities of a State Member and an transport enterprise on the purpose of furnish necessary transport services to the collectivity. Compare on the regard Albanese A., Il contratto di servizio tra diritto comunitario e diritto interno, in Riv. giur. quad. pubbl serv., 2002, p.53 ss., in which it is maintained the existence of a substantial contrast between the Community model and that one introduced in the Italian legal system.

[56]   See Pericu G., Il rapporto di concessione di pubblico servizio, in La concessione di pubblico servizio, Milano, 1995; Pioggia A., La concessione di pubblico servizio come provvedimento a contenuto convenzionalmente determinato. Un nuovo modello per uno strumento antico, in Dir. pubbl., 1995, p. 567; Malinconico C., Le concessioni e le convenzioni, in Servizi pubblici locali e nuove forme di amministrazione, Milano, 1997; Scoca F. G., La concessione e gli altri strumenti di gestione dei servizi pubblici, in  la concessione di pubblici servizi, Rimini, 1997; Romano A., Profili della concessione di pubblici servizi in Dir. amm., 1994, p. 459; Corso G., La gestione dei servizi pubblici locali fra pubblico e privato, in Atti del XLI convegno di studi di scienza dell’amministrazione, Milano, 1997, p. 21 etc.; Sorace D. – Marzuoli C., Concessioni amministrative, in Dig. Disc .pubbl. Particularly, Romano Tassone A., Il contratto di servizio, in Dir. Trasp., 1998, p. 616 etc; Cavallo Perin R., Riflessioni sull’oggetto e sugli effetti giuridici della concessione di servizio pubblico, p. 196-197; Cavallo Perin R., La struttura della concessione di servizio pubblico locale, Torino, 1998: according to his analysis, the configuration of the relation with users as strict administrative intercourse has gone beyond.

[57]   That happened in reference to some metropolitan areas (for example Milan, Rome, Bari) for an in-house award to the incumbent operator.

[58]   In this sense see Perfetti L., I servizi pubblici locali. La riforma del settore operata dall’art. 35 della L. n. 448/2001 ed i possibili profili evolutivi, in Dir. Amm., 4/2002, p. 622, according to him the awarding act seems to refer to the power of exclusive right derived  by the nature of  goods designed to the course of the service; see besides Dugato M., La riduzione della sfera pubblica?, in Dir. Amm., 2002, p. 179.

[59]   Vasques L., I servizi pubblici locali nella prospettiva dei principi della libera concorrenza, Torino, Giappichelli, 1999.

[60]   Rolla G., Relazioni tra ordinamenti e sistema delle fonti. Considerazioni alla luce della l. cost. n. 3/2001, in  Regioni, 2002, fasc. 2, p. 320; Torchia L., La potestà legislativa residuale delle Regioni, in Regioni, 2001, p. 343 etc.; Cubiddu M. A., La riforma dei servizi pubblici locali tra Stato e Regioni, in Nuove leggi civ. comm., 2003, I, p. 60; Zitto A., I servizi pubblici locali dopo la riforma del titolo V della Costituzione, in Dir. amm., 2003, p. 395.

[61]   Bance P., Opening up Public Services to Competition by Putting them out to Tender, in Annals of Public and Cooperative Economics, p. 33-61, 2003; Bottani A., Cambini C., Le gare per I servizi di trasporto locale in Europa e in Italia: molto rumore per nulla? In Economia e Politica Industriale, p. 65-99, Angeli Franco, Milano, 2004.

[62]   Confservizi, Servizi pubblici, sviluppo, regolazione, compatibilità sociale e ambientale, Roma, 2004.

[63]   Corte dei Conti, La gestione del trasporto pubblico locale e lo stato di attuazione della riforma a livello regionale. Relazione comparativa e di sintesi sull’andamento dei trasporti locali, Deliberazione 1/2003, Roma.

[64]   OECD, Public management Service, Best Practice Guidelines for Contracting out Government Services, Paris, 1997; Mussari R., Il management nelle aziende pubbliche, Padova, Cedam, 1994.  

[65]   On the point the Court deals with “an almost complete absence of monitoring and control mechanisms”.

[66]   Dugato M., I servizi pubblici degli enti locali, in Giorn. Dir. Amm., 2/2002, p. 126.

[67]   Cassese C., Regolazione e concorrenza, in Tesauro G. e D’Alberti M. (a cura di), Regolazione e concorrenza, Bologna, Il Mulino, 2000.

[68]   Catturi G., Impresa pubblica: efficienza, efficacia e qualità, University of Siena, Intervention Series, n. 39, 1996; Garlatti A., Enti locali: nuovo ruolo e sfide emergenti nel settore delle utilities, in Comuni d’Italia, April 2003, p. 36-41; Garlatti A., Enti locali e società miste, Milano, ETAS, 2001.

[69]   See the cases of Milan and Rome. In particular the example of Rome is very interesting because ATAC trough a service contract carries out an important function about local public transport, as well as given more general responsibilities in consideration of management in the local mobility.

[70]   Compare the analysis conducted in the Congress on local public utilities carried out on 10th February 2006, Siena University, The Law School; in particular Caia G. who dealt with “The public services in the state of autonomy”: the author has described the variety of management forms of public utilities. Firstly he has explained the excesses of the management system of local public services in the light of Law 142/1990, in which the imposition of tender as single management model. Secondly have been analised the contributions operated by Buttiglione Decree of 2003 and the most important sentences of Constitutional Court. Particularly these last ones have enlightened the distribution of competences between State and Regions, from which it emerged the limit of statual power to issue regulations too deep in this residual matter of the Regions.

[71]   See the Revised proposal for a regulation on public transport services by rail and by road (COM [2005] 319.

[72]   Compare the mentioned Revised proposal for a regulation on public transport services by rail and by road (COM [2005] 319).

[73]   COM (2001) 370 final.

[74]   Altmark Judgement of 24 July 2003 in Case C-280/00.


Data di pubblicazione: 10 settembre 2007.