Sommario:

1. Premessa: la determinazione AVCP n. 4 del 22 maggio 2013. 

2. La “causa” giuridica del contratto di disponibilità. 

3. Dei rapporti tra il contratto di disponibilità ed il leasing finanziario ed operativo. 

4. La locazione finanziaria nei contratti pubblici. 

5. La disciplina giuridica del contratto di disponibilità. 

6 Considerazioni conclusive.

Abstract:

The legal concept of “contract of availability” is brought back by the legislature
in the more general category of “public private partnership contracts”.
The main innovation compared to other solutions partnership governed by the
Code (for everyone, think about the project financing) is to be found in the prediction
that the contract at issue, the Trustee assumes the risk of the building (including the
design and development of the race) and the technical management of the work for
the period of the provision of the contracting authority.
In this regard, some points that we would like to be able to share should be centered on the need to safeguard the difference related to the tripartite structure of the
case of a finance lease, if the contract does not require the availability of the third figure lender. In any case, it was pointed out that a profile difference between the contract and the availability of finance lease is given by the management component of the services entrusted to the private sector, which will necessarily be present and characterizing the contract of availability, while it is purely ancillary to the lease contract.