This article presents a review of current legislation pertaining to local public utilities in Italy, which has undergone several innovations over the last decades. Interestingly, the ongoing reform has been widely criticized to be unsatisfactory by both sides of the privatization debate.The study therefore seeks to assess whether the regulatory design for local utilities meets either the EU policy goal of promoting competition in services of general economic interest, or the purpose of preserving the traditional role of local authorities in public service delivery.
To this aim, the starting point is identification of relevant rules addressing service provision contracts, the awarding procedures and criteria, to be implemented by local authorities in a fragmented legal framework.The next step is analysis of identified provisions, with the purpose of reconstructing the “legal models” designed by the Italian legal framework for local utilities organization.
The following section presents such schemes – namely private management, public-private partnership and the situations where a public authority decides to provide a service itself, so-called in-house providing – in the light of the underlying rationale for selection of a specific model. Having found a correlation between the quantum of limits and the intensity of municipalities involvement in utilities organization, the article questions whether the current requirements for the selection of service providers are really consistent with the EU competition principles. In more details, we argue against the equation of anticompetitive nature of local utilities public management as the legal ground for the in-house providing exception, which suffers a disproportionate legal typification.