Autore: Ferrari, Camilla
Titolo: Il contratto per l'avvalimento: un caso di formalizzazione e tipizzazione progressiva?
Periodico: Osservatorio del diritto civile e commerciale
Anno: 2012 - Fascicolo: 2 - Pagina iniziale: 257 - Pagina finale: 274

Italian administrative law, along a line first drawn by the European directives on public procurements,has introduced quite a remarkable kind of relationship. As per Section 49 of theCode on the Public Procurements, an economic operator may rely on the economic, financial,technical and logistic capacity of other entities regardless of the legal nature of the relationwhich it has with the latter, for the purpose of meeting the requirements commanded by thepublic contracting authority. This relationship is called «avvalimento».The procedure drawn up by the Code commands for a first step featuring general contract lawfacets: the economic operator shall file with the contracting authority the agreement wherebyanother entity undertakes to lend to the competing entity its capacities and to make availablethese resources for the entire duration of the public procurement.Case law has qualified the so called contract of «avvalimento» as an atypical contract mirroringthe characteristics of «mandate», or, as an alternative, recalling the more traditional schemes ofthe purchase agreement or lease agreement of a business concern, the deposit, the financial lease,the consortium, the contractual joint venture. Scholars, on the other hand, have focused on the innerstructure of the agreement, giving consideration to the legal effects produced on the contractingauthority, and have consequently called forth the structure of the «contract in favor of thirdparties», the cumulative external assumption of debt, the «promise of the fact of the third party».The contract of «avvalimento» as such, is however not recognized by the law. Section 49 of theCode on Public Procurements and Section 88 of the Regulations thereunder (DPR 5 October2007, No. 110) spell out very minor requirements of this contract and command to marketoperators a task which is at the very opposite of the task of qualification, that is the task ofverifying that a certain agreement, of any kind, so long as valid and enforceable, features suchelements and could therefore be validly submitted to the contracting public authority. Suchminor requirements encompass the scope of the contract, which can never be merely determinablebut rather well determined, if not overly determined, along the very same contentdrawn up for consumer contracts. In addition, the contract duration must tally with to thelength of the works for which the public procurement was set up, leaving the loophole of thevalidity of an anticipated termination provided under general civil law principals.The commingling between public and private law calls for the further question as to the admissibilityof a «naked» contract that is a contract of avvalimento setting out solely the aforementionedrequirements: the answer to this question should be drawn from the standpointof the contracting authority, which should indeed be entitled to decide over the cause of thecontract justifying the involvement of the lending entity in support of the competing entity.A contract , however detailed, that would only set out the scope and duration of the «borrowing», would not serve the best interest of the public contracting authority.




SICI: 2281-2628(2012)2<257:ICPLUC>2.0.ZU;2-#
Testo completo: http://www.rivisteweb.it/download/article/10.4478/72691
Testo completo alternativo: http://www.rivisteweb.it/doi/10.4478/72691

Esportazione dati in Refworks (solo per utenti abilitati)

Biblioteche ACNP che possiedono il periodico