Public Transport in Italy: an example of services of general interests
Massimo Pellingra Contino*
3. Public and private ownership and in – house providing
4. Public services and services of general interest in
Europe
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
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.
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].
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.