IL CONDIZIONAMENTO DEL DIRITTO EUROPEO SULL¿ORGANIZZAZIONE PUBBLICA DEI SERVIZI ECONOMICI. STUDIO SUI LIMITI DERIVANTI DAL DIRITTO DELL¿UNIONE EUROPEA ALLA DISCREZIONALITÀ ORGANIZZATIVA, TRA AUTOPRODUZIONE ED ESTERNALIZZAZIONE

The research focuses on the way in which European law influences the discretionary decisions of national Authorities in the organization of services of general economic interest (hereinafter referred to as “SGEI”). In general terms, to ensure the European compatibility of a model of organization to be adopted to carry out a SGEI, it must be verified that the organizational formula chosen complies with the internal market. Various institutions of European law come into play, both of primary and secondary legislation: the rules on public tender procedures, the new legislation on the “public contracts between entities within the public sector” (art. 12, Directive 2014/24/EU, and the similar provisions in Directives 2014/23/EU and 2014/25/EU), the case-law on public-private partnerships, and the rules on State aids. The phenomenon is particularly interesting since it involves immediate repercussions on the exercise of discretionary powers. The fact that National Authorities must act coherently with the internal market rules implies that the decisions taken on the organisation of SGEI must be consistent with such market. Therefore, all decisions must consider that the service will be provided in the context of a free economy and a pro competitive environment. This means that the decisions on the organisation of SGEI must always state the reasons on which they are based. In particular, it is necessary to clarify why the organizational model chosen is deemed viable having regard to the framework deriving from the European competition principles. As a consequence, a decision to adopt a given organizational model may be contested if no adequate reasons are given to support it. European competition principles may thus be relevant in a “judicial review procedure”. In this context, the applicant could seek the annulment claiming that the choice made by the Public Authority has not been taken in accordance with the principle of proportionality, or that it is not sustainable in economic terms.