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TAR SICILY PALERMO - 901 DEL 2006

TAR Sicilia Palermo, sec. I, April 21, 2006, No 901



ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
The Regional Administrative Court of Sicily, Section One,

gives the following Judgement on the appeal
No 484/2006 Section One, proposed by Prof. Michele Carrara
, represented and assisted by you and Angelo Fernando The
Petralia at the office to which the address for service in
Palermo, Via Mariano Stabile No 142, AGAINST

- University University of Palermo, in the person of the Rector pt,
represented and defended by District State
Palermo, whose offices at Via Alcide De Gasperi n. 81 is
address for service by operation of law,
AND AGAINST
- Prof. Rosalba Alessi, defendant, represented by lawyer
defense. To Prof. Sergio Holly in electively
whose study is domiciled in Palermo, Via Brunetto Latini No 34,
for cancellation (after suspension)
- Decree No. 9946 of 19/12/2005 issued by the Rector
University of Palermo with which we proceeded to the appointment of the defendant, Prof. Rosalba
Alessi
component to the Board of Directors of the University
intimated, representing the Professors and after
declaration of the requirements prescribed;
- all acts of conditions, related and consequential damages.
Given the appeal, notified on 17.02.2006 and filed on 03/01/2006
, with annexes;
Since the entry of appearance in court
Advocacy of the State Administration for intimacy;
Since the act of incorporation of the defendant, Prof. R.
Alessi and its memory;
appointed rapporteur to the chambers on March 21, 2006 the
Referendary Dr. Roberto Valenti
heard the lawyer. To A. Petralia for the plaintiff, the lawyer. To state F.
Bucalo resistant to the administration and the lawyer. To S. Pensabene
Lionti, replacing Att. To S. Holly, for the defendant
;
The facts and legal considerations as follows: Beginning



document

With the use hereof, duly served and filed, the applicant states that it first participated as a candidate and nq Professor of full-time, in elections for the renewal of the Board of Directors of the University of Palermo, held with No DR 8841 of 17/10/2005.
also participated in the same election as another candidate (and the same "category" of Professor), the defendant intimated Prof. Rosalba Alessi.
Following the vote of that question, which took place on 28/11/2005, the appellant came first instead of unelected, with no votes 78.
The defendant, Prof. R. Alessi was instead placed in the useful third and last spot available in the same category (id est: Professor full-time), having reported no 94 votes.
By application to the Electoral Commission and to the Rector of 28/11/2005, the appellant disputed the contention that the conditions for eligibility in the hands of the defendant, since, as it was named - since 1999 - liquidator three government-owned businesses in the Sicilian Region, the same should have been placed on leave office, so losing the legal status of teaching full-time person required for the purposes of the electorate for the office in question.
In the absence of response to the application in mind, the applicant also took care to notify On 15/12/2005 an extrajudicial act of formal notice and a summons, addressed to the Rector of the University intimated, explicitly requiring the verification of the requirements for the appointment in question in the hands of the defendant, with specific reference to the fact that current legislation requires the placement on leave for university teachers in case of management functions in government-owned businesses.
On 19/12/2005, however, was issued in which the DR 9946, after clearance by the Rector of meeting requirements by Prof. R. Alessi, the same was appointed member of the Board of Directors of the University. Only
on 28/12/2005, rettoriale then subsequently to the decree in the introduction, with prot. 77761 Rector found the act of formal notice (also enclosing copies of the minutes of the Electoral Commission - which the applicant's application was declared inadmissible - and Guarantee Commission of the Academic Senate, respectively, 02/12/2005 and 12/12/2005 ) confirming the existence in the hands of Professor Alessi requirements necessary for its participation in the election and subsequent appointment to the Board in question.
against the measure as an epigraph, along with other related, the applicant brought the present appeal, given the following complaints:
violation and misapplication of the law in relation to Articles. 11, 13 and 15 of Presidential Decree 382/1980, art. 53 D. Lgs. 165/2001 and art. 6 Rules for the election of the Board of the University Professors and Researchers - too much power.
DR contested, and the next footnote 77761 28/12/2005 (response time of warning), unlawful possession of state requirements for eligibility for election in the hands of Prof. R. Alessi: indeed, under current regulations, the same should have been placed on leave office under Article. 13 co. 1 No 10 of Presidential Decree No. 382/80 due to the appointment as liquidator of public entities: in addition, pursuant to art. Regulation 6 of the election to the Board of Directors, Professors put on leave retain only mandatory vote. In any event, at the time of the assignment in question, the defendant would still opt for the regime to time defined, equally incompatible with the duties of elected members of the Board. The Administration defendant then failed to check the regularity until the end of the legal status of the defendant, unlawfully keeping the electorate to the same person.
He asked the applicant for annulment, after suspension of the contested measure and of all acts assumptions, and related follow-up. With the victory of the costs.
It also highlighted its interest in the applicant as, pursuant to art. 13 paragraph 2 of the electoral rules, in case of resignation or loss of the requirements for eligibility for election, the Chancellor must ensure, by decree, appoint a replacement in the first non-elected.
The State Attorney, in court, did not explain pleadings.
It was Prof. R. Alessi defendant who first raised the issue of the inadmissibility of the appeal because the appellant is challenging the illegality of a measure mere omission of the University: in such cases, indeed, the only possibility is recognized by the formal notice of the Administration and The appeal of so-called silent refusal. In another profile, however, if the applicant is grieved at the time of NO given to respondent, the same result today or otherwise applying them unassailable by the GA. Substance requested the dismissal of the appeal, as unfounded, because the legislation provides for callback, as a prerequisite for putting on leave office, the appointment of the liquidator: the nature of the restriction in question would not, therefore, no chance of interpretation by analogy, consider also the different functions of the chief executive officer (or president) of a public body than those exercised by the liquidator.
muster Chamber of 21.03.2006, having heard the parties, as per the report, the appeal was held in the Board decision.





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think at the outset, the Board that the views can be defined in a simplified form, ruling issued pursuant to art. 26 L. 06/12/1971 No 1034, as amended by art. 9 L. 21/07/2000 No 205, following the closed session for discussion of the instance supervision, given the lack of opposition parties, made by the Chairman of the Board Mindful of that eventuality.
is at issue in terms of expectations of the office of university teachers, as governed by art. 13 Presidential Decree 382/80, with particular reference to the assumptions set out in No Article 10 of the (appointment a chairman or managing director of public bodies), for refluenze that a possible application of the institution to the present case, by the disappearance of full-time requirement requested and may have regarding eligibility for election for the election of board members University of Palermo, in particular, the thema decidendum is the case of a university professor, has already been appointed liquidator of regional public authorities, and has also contributed, with good results, the appointment of elected members of the Board of 'University of Palermo.
should examine the question previously raised by the defendant, with reference to the supposed inadmissibility of the appeal: with the originating application the applicant complained of a mere omission University intimated. All the possible illegality, therefore, could be invoked only after the formation of the so-called silent refusal as a result of formal notice. In any case, if the appeal sought to challenge the legality of the authorization of 04.13.1999 (protocol 127/99), issued by the President of the I ^ Degree in Law from the same faculty (according to art. 11 DPR 382/80), the same would be final and today, however, is not disapplied by the GA.
The exception is unfounded in both respects.
In the first case, in fact, unlike the findings of the respondent, the applicant has in effect put the letter in Administration.
Indeed, by summons served on 15/12/2005, Prof. M. Carrara, said "that the rules on incompatibility and non-overlapping (...) seems to exclude the possibility that Professor Rosalba Alessi to exercise those functions of the liquidator without being placed on leave office (...)", expressly warned the University intimated to verify the legal status of the defendant, and to verify that the conditions of eligibility required.
Moreover, since the DR 9946 of 19.12.2005 (with whom he appointed, following the voting process, Prof. R. Alessi board member of the University, after confirmation of fulfillment of requirements), the administration summoned, with footnote 77761, 28/12/2005, found in the formal narrative: "having further verified the existence of the eligibility requirements in the hands of Prof. R. Alessi, (we) believe that the same could be lawfully appointed member of the Board of Administration ". What
measure related to the appointment referred to in DR 9946 cit, note the warning in response to the premise is formally and explicitly evoked in the first ground of appeal taking issue with, of course, the illegality of recognition in the hands of the defendant, the existence of the eligibility requirements.
As regards the second, the exception is inconducente the case.
Indeed, the appeal brought by the applicant does not intend to challenge the legality of an order authorization well established, but the lack of enforcement - as a direct consequence - the Institute of leave office which he considers apply in this case, and which will be discussed further. In
the action is founded on the arguments set out below.
premise is that the University of Palermo, with settlement on 11 / 11/1998 - issued pursuant to art. 58 D. Lgs. 29/93, as supplemented and / or amended by art. 26 D. Lgs. 80/98 on incompatibility and assignments paid - provided that "teachers and researchers may not receive full-time positions funded by government, from entering public flights (...) issued unless authorized by the Dean of the School studies ... " (Article 1). So and so far as relevant, and the possible appointment of managing director of a public body, is - like species - the appointment of a liquidator of public bodies, must be previously authorized.
terms of regulation, should also be observed that the matter is regulated by Presidential Decree 382/1980 cit. whose article 11, after stating that the commitment of professors is "full-time or defined time ", in paragraph 5 letter a) provides that a full-time" is incompatible with the conduct of any business and professional consultancy and by taking any paid assignment and the exercise of Commerce and ' industry, are subject to the participation of legal and technical-scientific advisory bodies of the State, local governments and research institutions and activities, however, conducted on behalf of government departments, public bodies and agencies to prevailing state participation loan as long as experts in their subject area and in accordance with the performance of their official tasks. "
circumstances, the art. 13 in terms of "expectancy required for situations of incompatibility", states:
Subject to the provisions in force concerning prohibition on engaging in the office of professor with other public or private use, the professor is placed on leave office for the term of office of office or office in the following cases:
1) - 9) Omitted;
10) appointment to the positions of chairman, managing director of public bodies, national, interregional and regional, government-owned businesses of public companies, including for-profit organization. Remain in each case excluding the charges, however, guidelines that institutions are primarily cultural or scientific and the President, if unpaid, the publishers of scientific publications.
applicant complains in particular the non-application of Article. 13 Presidential Decree 382/80, as reported, requires putting on leave office when the professor is called to serve on "management" of a public, national, interregional and ragionale or public bodies economic, public companies, including for-profit organization.
On this point, the defendant, Prof. R. Alessi and state representative Attorneys argue the impossibility of applying the rule in question, by analogy, in this case: in fact no Article 10 in question provides Only the different positions of chairman and chief executive, not even that of the liquidator, the first non-verifiable. In the view of the defenses, leans in this direction is the letter of the rule, both feature different teleological which are responsible for the different positions on the subject, and the impossibility of proceeding by analogy to an exceptional provision limiting the liability of the electorate and officium jus . At the same event would have already expressed, according to allegations, including the State Council, by decision of the section VI. No 792/1998.
The assumption of unconvincing as specified.
For a better understanding of the subject matter, it is necessary to build on LR No 5 / 99, which was ordered the suppression and liquidation of economic entities AZASI regional (Sicilian Asphalt Company), EMS (National Mining Sicilian) and ESPI (Sicilian Institute for Industrial Promotion). Under paragraph 3 of art. 1, the President of the Region, to the suggestion of Regional Industry, after deliberation of the Regional Government, appoint a liquidator of the three entities deleted.
a view to take over the function in the premise, the Alessi P.ssa took care to request and obtain, under Article Mantua. 11 co. 5 letter a) DPR cit. (And also because art. 11/11/1998 Reg 1 of the University referred to below), the authorization to cover the office of the liquidator of Public Mantua. Authorized, the same was then appointed to the position in the narrative, just Decree of the President of Sicily Region, 29/04/1999.
circumstances, the Board believes that the necessary authorization measure of 13.04.1999 (protocol 127/99), whose legitimacy is questioned (as for other well-established, or subject to appeal) does not exempt, under appropriate circumstances the other conditions of the law, the burden of applying to the matter of the Institute of leave office referred to in Art. 13.
puts down the words to that effect is a literal reading of the provision in question (id est: Without prejudice to existing on non-overlapping with other office of professor of public employment) and the systematic position of the institution in question in relation to Article. 11 cited. governing, for what reason, the cases of incompatibility with the commitment of full-time professors.
must now tackle now the crux of the matter before and verify, therefore, the concrete possibility to apply the institute of leave office even to cases where the professor is called to fill the duties of the liquidator of institutions public, that as similar to those of the president or CEO evoked by the provision in question.
If successful, the respondent, losing the requirement of full-time person required for admission to the electorate, would be ineligible to the Board of the University of Palermo, under the regulations governing their formation.
For the survey to be conducted, the Board considers it appropriate to build on the identification of the rationale of the Institute of Art. 13 DPR 382/80.
According to the clear authority of the same Constitutional Court (Cfr.Cort.Cost., Sent. May 23, 1985 No 158) governing the placement of an ordinary university professor on leave is intended to ensure "the maximum commitment of the teacher in the performance of 'teaching activities in teaching and research, being able to play the university professor and implement its tasks in parallel with other functions of such great importance and commitment "such as those indicated in art. .. 13
He cited the Court held that the incompatibilities laid down are justified in their view, based, of inability of contemporary performance, as appropriate, of a university professor with the tasks related to public office or the public sector covered.
satisfy the conditions of the law, then you set up "a situation of incompatibility (I) involves the placement office on leave for the duration of compulsory charge "(see TAR Naples, Sec. II, September 17 2002, n. 5426).
If that is the ratio of the institution in question, on which no one doubts, the Board believes that it can certainly be considered to ousting the application of the same species if only the teleological significance of the different functions which they are respectively responsible for the President or 'CEO of a public body with respect to the liquidator, not specifically covered by the rule but similar to the first because of a possible broad interpretation of the provision.
Does the Board not to share, about the precedent raised by the defenses set up and invoked the memory of the other party (cons. State. Sec. VI. No 792/98).
Although it wanting to give the standard argument in the source feature of "exceptional", which indeed it is doubtful, and as such not open to interpretation by analogy, the same can still be "subject to broad interpretation, which is the result of a logic aimed at identifying the real meaning and scope of this provision, which allows to determine the exact scope of operations, even beyond the limit apparently marked by its wording, and identify the actual semantic value of the provision, taking into account the 'intention of the legislature, and then extending the regula juris in cases not expressly provided for by law, but by the same implicitly considered " (Civil Cassation, sez. I, August 26, 2005, No. 17396).
The concerns highlighted on the real substance of the provision at issue here stem from the fact that, indeed, the institution of such leave does not include any injury officium jus the teacher: the latter, in fact, has not only deprived of his post work, but not completely inhibited from teaching, which will continue to play under the same Article. Since last 13. co. Presidential Decree 382/80, in the form of a series of conferences and seminars and research also applied (see Cons. No State 7945/03 cit.)
addition, any person refluenza electorate, for the loss of the requirement of "full time", was born by a conjunction of different institutions and not directly from the norm in a comment.
That said, it should be noted that the powers now exercised by the liquidator in practice are not at all dissimilar to those of the managing director: the function performed by the first, far from being simplistically attributed solely to the extinction of the Body, also requires the liquidator - proceed with the divestiture of assets and closure of the slopes - to work to achieve the best result possible useful for the regional administration.
Which means to an end, the applicant does not fail to point out that Article. L. 1, paragraph 6 5 / 99 states: "to the extent not provided for by this Act, the provisions of the Civil Code and laws of the State in the subject. "As noted by the same office and legislative office of the Region," the powers of the liquidator of regional economic bodies, by virtue of the reference made by the standard, are governed by Articles . 2278 and 2279 cc, as well as art. 10 L. 1404/56. Codicistiche In particular, the rules stipulate that the liquidators may perform the acts required to clear, with only the prohibition of new operations; art. 10 of the cit. L. 1404/56 provides that the liquidator of the bodies public law may, in carrying out validation, perform acts of management (...) (opinion 294.01.11).
The temporary the powers vested in the liquidator does not affect that the merits of the arguments already made (which would be temporary, however, some nell'an but not even when, as is shown - so far as relevant - the fact that in the present case is not expected to time limit for the exercise of the given, despite the intervening years, has not yet completed the liquidation of the bodies that issue). The same law of the State Council, however, generally agreed that "the temporary management of the liquidator, who took over the financial and legal relations" of the entity to liquidate "is a limitation of the exercise of a purely chronological powers of the Commissioner, but does not, of itself, no restriction on the powers of the consistency of quality "(cons. State, Sev. IV, 14 February 2005 No 444).
Despite the above mentioned by the state representative , the same government has shown the ability to carry out an extensive interpretation (and not analog) of the same legal provision. Although the rule makes express reference only to full professors, the Council of State has always recognized the direct applicability of 'compulsory leave office also associate professors, although not expressly mentioned (Council of State Sec. VI, 03 December 2003 n. 7945, July 4, 2000 No 3663, June 30, 1997 No 996).
the Board also believes that the difference teleological, while subsisting between the functions performed by the liquidator and the CEO is not taken - as reasons - in order not to allow the application of the rule in question: the substantial fall within the functions exercised by the liquidator to those assigned by the CEO, given the underlying objective, you can also extend the application of the institution to the case.
The arguments lead to the College does not have access to the assumption that the fact that the legislature has not counted in the legislative provision in question was the figure of the liquidator, although known order, as questionable as a choice - the ratio of the standard expected and the undoubted impegnatività of tasks and related management activities - is explained, in all likelihood, the temporal and teleological physiological limitations of the specific tasks of the liquidator.
Far from being a bold and not allowed legal hypothesis of orthopedics, the one at issue, unlike the view, shows indeed allowed a broad interpretation of the provision referred to, respectful of the exact ratio.
On closer inspection, the only permitted exceptions from the norm are related to participation in management positions of institutions in the primarily cultural or scientific, or the presidency, provided that unpaid activity of publishers to scientific publications: in such cases the legislature exercises a clear compatibility option and, sometimes, complementarity of these activities with the provision of teaching and research full-time teacher, consistent with the spirit of the institution for as far outlined.
As with the above, therefore, the certificate of ownership in the hands of the defendant, the eligibility requirements for the office of member of the Board of the University of Palermo, and its appointment of its component, are - as of reason - illegitimate, indeed, for the reasons stated above, the Directors jurisdiction would have to (also because of specific formal notice on the point) ensure that there were species in the conditions for entry have in expectation of office of Prof. R. Alessi, independently and irrespective of the prior existence of an enabling decision. The application of the institution in question, met the requirements of the law, constitutes an act of discretion and not merely due to the Administration. It can not be accessed for more time to the thesis of the applicant to set up purely reconnaissance of the order mentioned.
For the foregoing arguments, in the circumstances for the loan in expectation of the other party - for the duration of time required by standard - the same could not achieve the profit is derived from the elections for the renewal of the Board of the University of Palermo.
The appeal is therefore based, in ways set out in the grounds, so should be welcomed and, in effect, absorbed the additional profiles, the decision must be annulled borne out in the epigraph.
There are, however, according to the renovated art. 92 Code, to provide for the right reasons compensation between the parties of the costs, because of the non-unique jurisprudence which has been detailed in motivation.

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RELATIONS MEETING NEXT MEETING

MEETING OF 5/28/2007

regard to root nodes of the issue, shared thoughts were concerned:

- the role of art. 3 cost. as cause and effect of analogy

- the need for definition / delineation of a class to apply the mechanism of analogy and the tools that are proper

- the function of equivalence, and the reasonableness of similutidine in the demarcation of classes

- assumptions of the legislature specifically exempted daparte

-legal application of the assumptions of analogy: the equivalence

E 'was found activity as a possible bargaining coverage, especially in terms of trends in case law regarding the cancellation will affect the contract award. Specifically, it was considered that since the judgments of the Supreme Civil and CDS in order to define a mapping of logical patterns in the reasoning of the judges.

As a point of reference of doctrinal reasoning is the contribution of Giannini.

Please note the sentence TAR Sicilia Palermo, Sec. I, April 21, 2006, No 901.

Al After the meeting it was decided to allow time for the two speakers to coordinate their ideas and actions, not without any recourse to the aid of other members of the group.

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Next meeting:
Monday, June 15, 2007, in the examinations
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ANALOGY - GREEK CONTRIBUTION / CONSOLI

PRINCIPLES AND COMMUNITY regulatory gaps.

Monday meeting in 21 U.S. had also stressed that the principles of law Community is a tool to bridge the regulatory gaps.

In this respect we can point out how the Council of State, recognizing the exclusive jurisdiction of the GA in a service contract for an amount less than that required by the guidelines, drew and shared the guidelines of the Court of Justice, pointing out that binding Community rules may well prevail over the narrow scope of the procurement directives. In fact, ga, referring to the position of the EU Commission points out that, even in cases where not applicable secondary Community law (in this case the Directive on the procurement of services, pouring in the event of a public service concession), the choice of contractor still encounters the limits set by the Treaty rules to ensure non-discrimination, equal treatment and transparency (cons. St., Sec. IV, 15 February 2002, n. 934).

Always starting from the EU principles, which become key analog interpretation of state standards, the TAR Lazio Latina, September 8, 2006, No 610, held that "the principle laid down in Art. 3, paragraph 1, rd November 18, 1923, No. 2240 (General Accounting Law of the State) and Art. 37 rd May 23, 1924, No. 827 ( accounting regulations of the State), that the contracts from which it derives an income for the state must be preceded by public auctions must be regarded as applicable by analogy, given the identity of a ratio, even with the concessions contract-state property and / or property, does not indicate, for those purposes, the authoritative time as relating solely to the decision to transfer power in the hands of the third and not the method of choice of the latter. "

are also significant two circulars from the Department of Community Policies. Circular 1 March 2002, No. 3844 states that" in terms of expectations, through granting of public relevance Community The fundamental principles of Community law (retractable primarily in Articles 43 and 49 of the EC Treaty), and the general principles that govern matter Public Contracts (extracted from the directives on public works, services, supplies and excluded sectors, requires the proceeding to act in ways that preserve the advertising of credit and non-discrimination of businesses, markets the use of competitive procedures selective. "In the circular June 6, 2002, No. 8756 states that, even in public procurement with a value below the threshold laid down by Community secondary legislation, authorities are still required to observe standards of conduct that allow to avoid discrimination on the basis of nationality and residence, ensuring all interested companies can come in time to knowledge Administrative intention to enter into the contract and their chances to play competitive through the formulation of appropriate tenders.

INORME EXCEPTIONAL INTERPRETATION AND ANALOGY.

Always light of what emerged in the last meeting, is of particular interest the decision of the TAR Sicilia Palermo, Sec. I, April 21, 2006, No 901, with which, in the opposite direction to what was held by the State Council (decision VI Sec. No 792 of 1998), it was decided to make extensive use (and not analog) of an exceptional rule (Art. 13 DPR 382/1980). In particular, the TAR states that "... ... a broad interpretation, which is the result of a logical operation aimed at identifying the real meaning and scope of this provision, which allows to determine the exact scope of operations, even beyond the limit apparently marked by its wording, and identify the actual semantic value of the provision, taking into account the legislature, and then extending the juris rule to cases not expressly provided for by law, but by the same implicitly considered.

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JUDGMENTS - CONTRIBUTION TO ANALOGY SESSA

Since the procedure requires an analog hermeneutic by which date back to the principles that govern matter , to ensure that these include the cases not provided for in the context of such principles can not be still count - not a question of general rule - the extension to the entire staff of the extension of the retirement age up to the seventieth year of age, however, until reaching full retirement pension.

TAR Lazio Sec. II, 06/06/1992 No 1439

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SOURCES

Trib Adm. Reg, 1992, I, 2447

While the ban does not prevent the analog interpretation broad interpretation, however, this may speak only when the case is not expressly provided is equal to that covered and may thus be considered implicit in the norm when, in fact, the case is not expected to be similar to that covered only present, that is, with respect to some elements of this diversity, but also (and especially) the elements of identity, the application of normally it is only possible if it is allowed to rely on the similar case.

Cons. State Sec. VI, 03.12.1982, No 112

pic Min Uttaro

SOURCES

Cons. State, 1982, I, 333

regulated in art. 272 Code of Criminal Procedure for the duration of custody in case of the issuance of new arrest resulting from the breach of the obligations imposed in the order for the release effect terms can not extend to other cases of withdrawal of the benefit of bail for violation of the obligations imposed on all ' note of the grant of such as there is about a legislative referral (as there is in other respects in the same institution) and is not eligible for a kind of analog procedure because of the different nature and purpose of the two different institutions and cover in matter of personal freedom.

Cass. pen., 27/02/1985

Di Crocco

SOURCES

Riv. Pen., 1985, 1132

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- DOCUMENT MAZZEI - CONTRIBUTION TO ANALOGY SESSA

Luigi Mazzei

(Lawyer)

The analogy and the contract will

Some regulatory gaps in terms of criteria for the award of public works contracts led the interpreter - in search of a discipline - to make (obvious and proper) use the analogy basing, however, (of virtue of necessity?) Research on the standard helper become more of a similarity lexical similarities of actual closeness of "cases" or, Melius, extending well beyond the limits that allows such a delicate operation hermeneutics, where the interpreter replaces the legislature.

As is known, the criterion for the award of public works, to measure (which unlike the case of the legislature, appears to be in practice, the prevailing mode) with the law 109/94 (cd Merloni) et seq. modif., is the "... lowest prices determined by supply unit ...", (and, for those to rely on the body by decreasing list prices).

Early complications arise in search of ways to the discipline of the race.

the rule does not say - art. 21 L. 109/94 and succ. modif. - As proceed to make such an offer, even if no one is no exception to the relevance of that indication, because it is hardly necessary to remind you, the administrative procedure for the selection of the contractor is aimed precisely at conclusion of a contract that is agreement between two parties (must then match the wishes expressed by the parties) on certain elements that, in the contract (which is identical, even for this aspect, public and private) is the commitment to give something ( opus ) against a consideration.

The indication that this element is therefore crucial and is the point which focuses on the critical analysis that is intended to offer here.

In the notices, - probably on the idea of \u200b\u200bunprovoked ministerial circular - the reference (a little 'uncritical) is the procedure under Article . 1 letter. e) of L. 14/73, as specified in Art. 5 of callback L. 14/73.

As you recall the Law 14/73 regulates the procedures and criteria for deals in private treaty.

In the case of Art. 21 cited. L. 109/94 and succ. modif. it of public auction, but this difference does not seem relevant, by doing the pre-selection phase competitors who did not rifluenza articulation of the procedure.

The difference is that art. 1 letter. e) and in art. 5 of L. 14/73 is discipline a criterion other than art. 21 L. 109/94: is, in fact, offered (note the plural) of unit prices.

The different terms used by those two provisions - which are different concepts - already constitute a decisive element (Article 12 preleggi) for the interpreter not to assert identity criteria and feel the need to investigate how much similarity retain for analog application.

And the most important aspect is that the criterion of tenders unit costs (Articles 1 and 5 L. 14/73) the award is in favor of tenderer offering the lowest price given by the sum of the products of unit prices for unit of measure for each occupation necessary to give the 'opus , with the particularity that what is relevant are the individual contract prices, (the co. Article 11. 5, in fact, it specifies the price offered "... are counted as contract prices") and not to leave, the Administration, the victim of variations that increase the amount of individual categories, adds the norm (Co. 12) that this bond lasts until physiological increase (20%), then substituting determination under Regulation (Article 22 RD 350/1895).

Assuming, however, art. 21 L. 109/94, is the lowest price what seems to rise to the dignity of contract although it remains to see how the phrase "... determined by bid price unit, which reads the rule cited above, applies to alter this conclusion.

In terms of lexical (definitely relevant) mode, with the which asks for the lowest price for how much impact you want to give it , do not apply to the "lowest price", the item does not significant contractual will.

And this consideration would be sufficient to realize that can not be applied mutatis mutandis to the art. 5 of L. 14/73, for all those provisions that refer (and rightly so) only to the individual unit prices which expressions of the will bargaining, as such, of course, can not be modified in the verification of bids.

For Article. 5 L. 14/73, in fact, the "total price " is just one element of facilitating the identification of the highest bid, but certainly nothing that belongs to expression of will, and then anything which may affect the contract so as to power be changed if you do not recognize a consistency in products between moltiplicandi (unit prices) and multiplier (unit) or the sum of final products (the "total price").

And those rules can not be applied bid regulated by art. 21 L. 109/94 and succ. modif. is rejected from further notations on the importance of the indication of prices in this offer.

Bear in mind, in fact, that the prices that apply for accounting work can only be as the list prices of project, (duly approved), and apply - of course - what increase the percentage of category of work that should change (except as tempers compensation if the changes affect the balance of the contract and subject to rejection contractor over sixth-called fifth).

Indeed, in the absence of a specific rule derogations (Co. 11, art. 5 L. 14/73), the Administration is bound by the price of the project, unless the fall, and may very well, the participant in the tender art. 21 L. 109/94, increase some prices, while offering a discount on the total.

E 'hardly necessary to point out that there is a set of rules that comply with the process of formation of the will of the PA intervention bodies of technical advice, intervention (almost always) Funding, in addition to the rules governing changes to projects that make the whole rigid an indication of an item so important, for contracts to measure, such as that unit prices .

And only a specific law (Co. 11, art. 5, L. 14/73) that allows an exception to that rule in the case of race regulated by the Articles. 1 and 5 L. 14/73, which means that its exceptional character seems not to doubt, excluding its application by analogy.

If this is true you can not apply the rules provided for in Article . 5 L. 14/73 to tender issued by the criterion of art. 21 L. 109/94 and succ. modif. without taking into account such significant differences.

line art. 5 cit. is expected to consider relevant individual unit prices offered for they are the expression of those negotiations will and the sum of individual prices (Melius products because the price offered is multiplied by the unit of measurement of individual categories of work: mq, mc 3, weight, length, etc..), where it was wrong, it should be correct, but obviously not allowed (or could be) the correction of negotiation will, or the individual prices .

There may be some discrepancy between the indication in letters and figures in the and is considered binding in the letters, this being an indication that expression requires more attention and is - the external material - less uniform than it is the put the figures together (hence the possibility of minor errors ). It 'an event that requires greater reflection and thus protecting the party that says, shall be deemed - in case of discrepancy - that binding.

For Article. 21 L. 109/94, however, individual unit prices could be wrong as you want, but having no relevance negotiation, not rises to contractual elements, can have no influence on the competitive process: the final price is the only element of supply could influence negotiations. It 's the price that must be weighed against all other prices offered by other competitors - to determine which is the lowest, since this particular (being, arithmetically, the lower the prices of all offered) that determines the award and, therefore, that changes in price or consideration or contractual amount.

If you determine that this element (consideration) is determine on the basis of reduction to be made at a maximum price designated by the party calling for tenders, not can in any way and for any reason distort the expression of the will of the tenderer that in case of Art. 21 L. 109/94 and succ. modif. is that the lowest price.

But, he points out, that price is determined by supply unit prices. If there is discrepancy between the prices in figures and words or there is error in the product, being the total price formed by the sum of the products of individual unit prices for the units of the various categories of work, here is wrong with the total price.

Reasoning that is flawless but not as a conclusion (the problem is not arithmetic but legal) the correction of the total price.

It is said that Unit prices do not become contractual elements and their importance is therefore confined to the mere highlighting the location of economic assessment of the tenderer, with possible impact on the manifestation of the will negotiations.

But from now expect to change this expression of will (ie an indication of the lowest) by grinding operations who represents the counterparty or this has been delegated to certain activities instrumental in the formation of the contract there is an abyss (On which they stroll casually to attend the celebration of many races).

It is certainly not unbridgeable chasm added a or administrative proceedings or a decision in the administrative process.

In the expressions of will can make mistakes and the Civil Code - of the defects that can lead to the annulment of the will the shop - it shows the error and discipline .

The fact that an individual commits such a mistake in expressing its willingness to a government does not change the rules in the Civil Code.

The error in the unit price or the product may (at) be central to affirm the recognition that - as is known - is one of the elements that must be error (must be recognizable) to be relevant and therefore have the potential to cancel the event will.

essential and should be - without being here to remember how to Art. 1428 cod. Civ. - If you do not seem to possess this requirement. It 'a simple calculation error that did not appear to affect the amount, when the participant to the tender offer price is what it intends to offer, and if wrong to make some additions or multiplications does not mean anything in itself.

And above all - must say - not third no legitimate claim to the correction: the only one with this power are those who have expressed their will. If you want to cancel it must show that his mistake is recognized and essential and that affects the amount: that is the price stated in return for giving the opus is not the total supply, but what is written after have adjusted prices or goods or money.

The alleged unacceptable to say the least (but very frequent what you hear in the halls of the TAR) is that it requires a third and that it does a representative of the party contract or an act of the administrative process, certainly eligible to declare the legality of an administrative act or to punish the unlawful, but also unfit to judge the validity of the event will an individual, even if this event is targeted at a public administration.

You can not confuse the position of those in an administrative process has legitimacy and interest in asserting the illegality of an act of a Public Administration that covers one third share by this act, the persons entitled to assert the error in the expression of will by one third well that is the subject of proceedings.

Other well understood is that the seat of a race so detect incorrect price offered (x instead of y) by a third party: the error of the PA and anyone's interest to do so is entitled to point out. But the investigation into the training and outside of the will of a third party - even participate in the proceedings - is quite another thing: it belongs to the private third party (which does not become a public entity for its participation in this ), is regulated from the civil code, and legitimacy to counter it is permissible to the extent that they concern the regulation of private autonomy.

The PA is the recipient of the money supply: the elements for its determination (unit prices) are not part of the offer because they do not become elements negotiations.

There is more. Consistent with the differences between the two procedures for the award, there is no obvious difference in the Subprocedure verification of "anomalies."

While assuming governed by art. 5 L. 14/73 check the administration on any abnormality is related to individual unit prices (the bid), in the case of Art. 21 L. 109/94 and succ. Modification. the anomaly is given by the total price if it is inside or outside of the average mentioned above.

As you know, with DM 28/04/1997, to establish the discriminating between normality and abnormality, we refer to the average Offers of the tenderers increased by the difference of the arithmetic average of the bids that pass the first media.

In simpler words, to exemplify, if you are in a race accepted offers one hundred and the average decline is 25, is added to that number (25) that the is determined by calculating the arithmetic average of the gap (the difference from the first average) of all those deals (the one hundred allowed) in excess of 25 (global average). Always to remain in the example, the seventh grade (about the only deals that exceeded the first one) is equal to 4, which added to the first average is 29.

are anomalous bids in excess of this grade. In fact, thus remain outside the deals only with the strongest declines, because they exceed even the second corrected mean differences showed that the deals that were already beyond the sixth grade. A sort of repechage not leave out all the deals that exceeded the grade.

These articles procedure - which seems (to us please forgive the audacity ) studied more experts than by lottery obsequious interpreters of EU directives - has to do with the concept of fault established by art. 30, par. 4 of Directive com. No 93/97 of 14 June 1993, has not given understand.

It 's a policy that does not connect to the national market (just compare means of the rebates in the south and center-north of the country), which aggravates the areas of crisis (the average of bids in our island is 30% or below the balance any possible reciprocal) that has no connection with the provision in question contract.

can be such an indication (lowest) product price most bizarre and at odds with the market: if the total price is within the average this offer can not be considered abnormal.

trying again so as we saw above the diversity of contractual elements that are relevant in two cases under consideration.

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In conclusion it must be said that in tendering art. 21 L. 109/94 and succ. modif. seems legitimate use of the analogous application of Article . 5 L. 14/73 limited to submission of tenders (Co. 1-3), indicating that what is binding is the total bid price.

Consistent with this specification and the criteria (illegal) verification of the anomaly, will be quite possible to verify all bids, taking, of course, this, that the item you must take firm and unchanging is the price (total) offered.

Even more obviously, in this event will be apply all the rules that the Civil Code, with the addition of principles identified in the case of common sense administrative order in the case of obvious clerical errors (cons. State, Sec. V, 21 October 1995 No 1467).

E 'hardly necessary to add that it would take very little to bring the matter within of legitimacy, it seemed that with sufficient circular (and in Sicily with an updated edition of notices type) drawing the attention of the government not to extend the analogy beyond the limits permitted , excluding, in particular, statements regarding the alleged immutability of unit prices.

unchanged is the price expressed, thus also consistent the proceedings of the event that Article. 21 L. 109/94, makes reference only to that data. Last but not least a positive end to the notation "adjustment" of the judicial races, which represent the distortion serious results of the competitions that produces uncritical reference analog noted above. Being limited by the judicial administrative proposition reason, just report the errors that "serve" to readjust its media (rightfully, however, as the action permissible within the limits interest) and the game is done . Pace of negotiations and will Limits of analog.

Pending the publication of the above has triggered Lr 21, September 2, 1998 ( GURS 44 of September 5 1998) by which the regional legislature seems to retrace old (and steep) roads.

Before some notations related to the new standards on procedures of custody must be made a general observation. The legislative autonomy region has its justification when it intervenes to regulate specific aspects of reality that island where they were governed by state regulations refluenze suffer negative fact, as is common ground, an identity of discipline for different phenomena, produces the same disparity diversity of discipline for identical phenomena.

If so, how hard you do, you can not understand why was repealed a rule such as that the two co. art. 14 Lr 4 / 96 Modification. LR 22/96 "I criteria for the award are governed by state legislation in force at the date of the resolution of the notice by the contracting Administration.

A part that is hard to find a reason explaining why should be different criteria for the award of public works contracted by Municipality of the City of Messina and Reggio Calabria, the look - on the one hand, hilarious, tragic the other - that is, after deleting a provision so important, not outlines new criteria.

It makes a statement of principle (Article 1 co 1). essentially useless (the public auction has always been the sole criterion lowest price and the deal is so private that does not exist worth dwelling) and, below, will bring together multiple criteria, riintroducendo (de facto) the restricted tender for the work below the EU threshold ( contradicting the choice of which to the RL 10/93: Articles. a 34 et seq.) and legitimate, with the repeal of remembered improvident 2 co. art. Lr 14 4 / 96 and the statement the first paragraph of art. 1 ("... ...") amount of any doubts that are input into the criteria of Article Sicily. 21 L. 109/94 Modification. L. 216/95, or art. 30 of Dir. com. June 14, 1993 No 93/37/EEC.

with obvious consequences on the constitutionality of the measure .

It may be noted, in contrast, that the reference is made to public auction and private treaty, but the silence over the other procedures and provisions in the following paragraphs, referring to criteria for bidding private, legitimize, as we shall see, doubt.

*

Turning to the merits of the new rules are added to short notations.

The first is the inexplicable reference to media reads the third paragraph of art. 1.

Which media? Article. 5 L. 14/73, to which reference is made, not contain any media.

for the hypothesis that the reference should be made as set the next co. 6 is immediately told that the task of the interpreter is very difficult .

First, you must use a new canon of interpretation: intuition. Co. 6, it appears that regulations are the fault of tenders. And doubt that it expresses is more than justified because there is only one mention of the institution: indeed, according to the rules dictated by art. 12 of preleggi cd, it seems that it regulates a new case of exclusion (it is unclear whether the race or adjudication) resulting in doubts about the legality of such a rule.

Following the hypothesis that the regulations, however, any abnormality of the tenders, the embarrassment of interpretation, just returned of a period. In fact, after referring to the policy of automatic exclusion (in our opinion low also illegal under the EU threshold) where the downward exceed a certain percentage (20%) the average of the offers, is introduced unexpectedly ... the cabal.

In fact, in the event that tenders are not less than six , regardless of the award procedure chosen (in the absence of other indication, the rule does not that can cover all procedures), the first automatic sorting there is another.

The temporal adverb "then" you read the second sentence of paragraph 6 , leaves no choice.

But even want to read it and give it a value of alternative nature and not consequential, the absurdity (there is no other term) end. In fact the rules of the event is passed to a new criterion for the award. Instead of the secret ballot in art. 2 L 14/73, you replaces the average of the offers remained, after excluding the 25 per cent of deals with major declines and 25 percent of deals with smaller declines.

At this point it is quite clear that there is no abnormal nothing but the choices of the legislature. In fact, what may well be a criterion for award of the work (with the positive effect of limiting the harshness of competition, which is destroying businesses and wealth and can not give work done well) is used in any way, such as corrective anomaly. And this in procedures as a criterion for the award is refer to the lowest price or offers of unit prices.

The result of what is thus established that the invitation to tender, instead of indicating that the award will proceed with the (new) policy of Average ... media (the so-called cutting of the wings does not affect the media, except to the hypothesis that the number of companies are odd) it will show the public auction and, then, even if you do not detect any abnormality, the award will be introduced by a different criterion.

If there is something reasonable in all this, if this is the way to conclude a contract, a quotation to a conscious entrepreneur do not seem to interest. We hope that he may soon be taken over by those who have always considered the irrationality crippling defect of the legislative will.

*

to remain art. 1, there may be some positive certain hankering for rigorous evaluation that occur with the inclusion of rules essentially criminal in nature (co ult. period. 5) or pretend to dictate new grounds for exclusion (Co. 4). Some ocelots are, unfortunately, difficult to die.

E 'is further proof of the art. 2: In an economically depressed area , such as Sicily, in a sector in serious financial crisis, the choice to reintroduce the burden of provisional security leaves you speechless. O there would be better, but it is not appropriate to say here.

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E 'right, however, say that there is something good in the measure. And that something is in the specification, which unfortunately has become necessary, the duty of the polling notice, to proceed with the reading of all bids. also those excluded.

There are, in fact, offers examples of reasons for excluding irrelevant which, incidentally, when they are readmitted to the data now known, have a downward winning the money!

also appreciate the addition to the standard co. Article 6. 5 L. 14/73, with the prescription of procedures for verification of the statements of all candidates. Unfortunately, what was said above is not enough. The discrepancy between the provisions of Article . 5 cit. L. 14/73 and modalities of the event referred to in Article . 21 L. 109/94 and succ. modif. remains unsurpassed.

You can not ask for the lowest price as part of negotiations and taken to maintain, in the case of error, the unit prices.

Especially when the anomaly is then evaluated on the basis the lowest price and not the individual unit prices.

*

When the legislature (and not just regional) will be recalled that the procedures for the award of contracts are a tool to conclude a contract and that the selection of candidates should be based more on assessment of practical skills business (as they want the EU directives) than on a hurdling will be the dawn of a new day.

Objectively, it seems that measures like this will be the ad.