The award of public contracts in the emergency context, with particular reference to volcanic risk

Abstract

The issue of exceptions to the ordinary public contracts rules in the management of risks and emergencies resulting from volcanological phenomena allows for numerous considerations on aspects of public contract law and administrative law in general. The topic must obviously be analysed through an interdisciplinary approach focused on the relationship between technology and law. For example, in fact, in order to verify the legitimacy of the application of the derogatory rules (Article 163 of the Italian Public Contracts Code) it is necessary to consider the three-phase structure of volcanic risk: risk assessment, hazard assessment and mitigation of the event. The centrality of the technical issues requires firstly an examination of the legal profiles involving the use of Article 163 in the case of volcanic phenomena. The first aspect concerns the delimitation of both the concept of "paramount urgency" - a prerequisite for derogating from the ordinary discipline - and which events (whether those that have already occurred or those that have not yet occurred) are susceptible to be included in the field of the provision. In this context, the investigation focuses on the practices of individual local authorities that make use of Article 163, from which a significant interpretative and methodological distance emerges. A further profile of interest is certainly the one concerning organisational issues: up to now, the discipline provides that not only the Regions, but also the metropolitan cities and municipalities can carry out emergency works under article 163. This study, instead, intends to examine the benefits deriving from a centralisation of competences in the responsibility of the Regions, from two points of view. The first one concerns an attempt to reduce potential corruptive phenomena that could occur in territories (think of Sicily or Campania) in which unforeseeable maintenance events occur frequently and which could see a total detachment from the supranational principle of rotation. The second one is based on the consideration that leaving the choice to the individual local administrations could mean that one municipality could consider the conditions of 'paramount urgency' to exist, while another municipality, possibly a neighbouring one, could consider them not to exist in the exercise of its own discretionary power. Centralisation would thus move in the direction of uniformity of decision. There are, in conclusion, two other aspects that deserve further in-depth analyses. The first one concerns the necessity of the ex-post controls, which is linked to the centrality of the assessment of the conditions of extreme urgency, and which runs the risk of not being effective considering the extremely restricted time profiles. The second one, seeks to understand whether the exception to the procurement regime also drags in the regime of landscape authorisations or environmental impact assessments: if this were not the case, and if the ex-ante intervention were therefore still necessary, the simplification process of economic operators activities would be inevitably frustrated.