Even in this case, the deficiency order to be filled by applying, by analogy or a similar legis iuris, the principle according to which contracts below the EU threshold are always subject to the particular process of automatic exclusion.
In this regard, it must be emphasized that the transitional and final no different for the trial procedure (consisting in both cases the mechanism of automatic exclusion), but only to the different way of finding fault threshold.
It follows, then, found that the regulatory gap created after the termination of the transitional period, covering exclusively a measure of the anomaly, could in no way be remedied by referring to provisions governing the procedure for verifying the bids, but rather to identify appropriate criteria or standards (additional or alternative) aimed at establishing the extent beyond which bids are to be considered abnormal.
In this sense, therefore, does not appear in any way agree with the thesis (enforced by the contested decision) that, the transitional period expired, even intra contracts remain subject to the verification procedure in contradictory, expressly provided for contracts with major Community.
In fact, the broad interpretation (or analog) of the first sentence of paragraph 1 - a is prevented from competing at least three reasons.
A) The provision confines its scope applied only to contracts for amounts not less than 5 million.
B) The guiding principle of the discipline (and transitional regime) intra procurement is always, by the automatic exclusion procedure.
C) In any case, the problem of finding the limit of the anomaly must remain autonomous and conceptually distinct from that on the exact determination of the applicable procedure.
It also rejected the view that the expiry of the transitional period, we will take effect on complex verification system outlined by Law No 14/1973. In this way, in fact, allow the revival of a discipline finally repealed by Act No. 216/1995 and expressive principles opposite to those established by law framework.
Neither can understand why the lack legislation on the extent of the anomaly should be remedied by reintroducing a substantive and procedural rules are no longer consistent with the objectives pursued by the legislature in 1995.
14. In principle, then after 1 January 1997, there are no prohibitions or regulatory constraints that impede the administration to adopt specific provisions of a contract such as to fill the (temporary) on the lacuna in the automatic exclusion of abnormally low tenders based on the positive indication, direct or indirect, of the anomaly threshold, which is pegged to benchmarks objectives logical and consistent, between-which can be inserted into the same criterion adopted by the transitional provision (average of falls increased by a fifth).
such rules of the lex specialis of race
A) is fully consistent with the guiding principle of the matter of the works contracts under the EU threshold;
B) prevents the creation of unjustified inharmonies time of the system, because, otherwise, the procedure adversarial testing would be imposed only in the procedures carried out in a specified and limited period of time;
c) it respects the principle of equal treatment among the bidders, because it puts all competitors in the possibility of preparing their bids knowing the consequences of an excess of decline.
In this regard, it should be noted that the ruling of the illegality of the automatic exclusion of unusual deals, arranged according to specific provisions of the notice, and subsequent affirmation of the obligation of the administration to carry out inspections on the adversarial process, would lead to a genuine distortion of the competitive process, penalizing the legitimate expectations of the companies that define their offers (discounts on the premise that contains the automation of exclusion.
Even if it is deemed unlawful the provision of a contract relating to the automatic exclusion and determination of threshold anomaly cancellation can not therefore determine a simple correction of the results of the race, but would imply the need to revamp the entire procedure, allowing participants an equal opportunity to award ( CDS, Sec. V, May 11 1998, 226 )
2) GAP IN THE NARROW GAP AND IDEOLOGY: The difference between the two hypotheses can possibly make in the presence of the second there is room only for intepratazione and never for the comparison? In this regard: "The fact that are not specifically identified the criteria or evidence to infer the political, trade union, religious, economic, sporting or cultural magazine, according to the Chamber, far from being a gap in the law, is actually the result of a conscious option legislature that he considered it unnecessary to provide any criteria or normative element to identify the political, trade union, religious, economic, sporting or cultural magazine and returning, so the implication that these terms have meaning in everyday language: it is was thus avoided the creation of meaning "normative" of those characters that are required periodically to take advantage of the contributions provided by law, eliminating, first, the confusion would be created between the meaning of "normal" and that those terms "legal" and, secondly, the "static" content of those characters, that is, allowing their meaning, even for the granting of the contributions in question, it followed the evolution (with the result, for example, that denied a historic moment in political, trade union, religious, economic, sporting or cultural specific periodic, the same character would later recognize on the basis of historical development, social and lifestyle of its meaning) " ( CDS, Sec. IV, October 5 2005, 5359 )
3) ANALOGY AND PRINCIPLES OF COMMUNITY LAW: " From a legal point of view must, in addition, observed that the Administrative Court (cons. St., V , May 14, 2001, No 2641) has clarified that even after the entry into force of Legislative Decree 17 March 1995, n. 157, has allowed the participation of consortia of companies, with outdoor activities, invitations to tender public service. as such disciplinary body of public services contains the admission to the races on business structures of association - defining the limits and conditions, for associations ventures and similar teams bringing together a plurality of economic entities - thereby taking into account the significant evolution of the legal forms of cooperation between the enterprises and the new reality that demands, even in the service sector, more specialized interventions and were included in large-scale organizations, that, therefore, to overcome the outdated concept of a purely anti-competitive consortium rather enhance the function and cooperation between various business associates, which reinforces its market position in the antitrust sense (and, therefore, meets the principles of Community law on free competition). It is therefore argued that the possible regulatory gap concerning the regulation of the participation of member companies in tenders for public services, can be remedied by extending by analogy the provisions relating to public works contracts, since the rules that express the general principles of Community law attributable to the foundations (protection from competition and free movement of resources) and to the constitutional values \u200b\u200bof freedom of economic initiative "(TAR , Abruzzo Pescara, November 6, 2003, 924 ).
4) RATIO AS LIMIT: " should be noted, indeed, that which is rightly detected by the first judges, including the requirements specified by law for the transfer agent of the quality of public security under Article 5 of the law most often cited March 7, 1986, No 65, no provision is that of good behavior, on whose alleged failure the administration has established the suspension imposed on Mr. Emilio Santaroni.
This omission, according to the Chamber, not the result of a slip of the legislator and not a regulatory gap to be closed, in the practical application of that rule, referring to the general rules on the subject of a police authorization that expressly provides for the requirement of good conduct. It is indeed
to underline that, on the one hand, the contribution of the quality of law enforcement officers at issue relates to subjects which are already the status of civil servants, as members of the municipal police, and on the other hand, the as the agent of the public may be given to the staff of the municipal police is limited to the auxiliary functions and specifically to cooperate with law of the State Police "under provision of the mayor, when he is made for specific operations, motivated by the request competent. " So
outlined the quality of law enforcement officers who may be given to members the municipal police, seems reasonable that its contribution is only dependent on the ascertainment of those requirements deemed necessary by the legislature itself, in accordance with the principles laid down in Article 97 of the Constitution for the exercise of auxiliary functions, absolutely and completely listed in Article 5 of Law March 7, 1986, No 65.
There is no reason, in the silence of the law, given the ratio of the standard and the fact that prospective employees are already public anyway, to believe that it is necessary for that purpose, the possession of the further requirement of good conduct .
The Court - after all - has ruled (CGA, February 26, 1998, No 70) that the allocation of the functions of public safety personnel to the municipal police is subject to the mere verification of the requirements strictly according to law, so that the contribution by the Prefect of its agent for PS, as well as loss of that quality is an act of purely bound, without any discretion ( CDS, Sec. IV, September 30, 2002, 4982 )
This omission, according to the Chamber, not the result of a slip of the legislator and not a regulatory gap to be closed, in the practical application of that rule, referring to the general rules on the subject of a police authorization that expressly provides for the requirement of good conduct. It is indeed
to underline that, on the one hand, the contribution of the quality of law enforcement officers at issue relates to subjects which are already the status of civil servants, as members of the municipal police, and on the other hand, the as the agent of the public may be given to the staff of the municipal police is limited to the auxiliary functions and specifically to cooperate with law of the State Police "under provision of the mayor, when he is made for specific operations, motivated by the request competent. " So
outlined the quality of law enforcement officers who may be given to members the municipal police, seems reasonable that its contribution is only dependent on the ascertainment of those requirements deemed necessary by the legislature itself, in accordance with the principles laid down in Article 97 of the Constitution for the exercise of auxiliary functions, absolutely and completely listed in Article 5 of Law March 7, 1986, No 65.
There is no reason, in the silence of the law, given the ratio of the standard and the fact that prospective employees are already public anyway, to believe that it is necessary for that purpose, the possession of the further requirement of good conduct .
The Court - after all - has ruled (CGA, February 26, 1998, No 70) that the allocation of the functions of public safety personnel to the municipal police is subject to the mere verification of the requirements strictly according to law, so that the contribution by the Prefect of its agent for PS, as well as loss of that quality is an act of purely bound, without any discretion ( CDS, Sec. IV, September 30, 2002, 4982 )
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