In the framework of a progressive rationalization and modernization of the matter of public contractsthe legislator adopted the Legislative Decree 31 December 2024, n. 209bearing Supplementary and corrective provisions al Code of public contracts. Such Correctiveendowed with immediate effectiveness, is located in a regulatory furrow already marked by interventions aimed at guaranteeing the punctual implementation in the internal system of the principles and purposes set out in the European directives (Directives 2014/24/EU, 2014/25/EU And 2014/23/EU) and the rules of constitutional rank, such as theart. 97 Cost.which sanction the principles of good performance And impartiality of the administrative action.
In the corrective regulatory system, the modification of theart. 60 of Legislative Decree no. 36/2023 dedicated to Price reviewwhich represents a institute aimed at safeguarding the regular fulfillment of contractual services in the event of exceptional changes in execution costs. With the publication of the Correctivein fact, paragraphs 1, 2, 3 and 4 have been modified and integrated and integrated and inserted the paragraphs 2-bis, 4-bis, 4-ter and 4-quater in the aforementioned art. 60, with a view to greater harmonization of the reference regulatory framework, in particular with the Principle of conservation of contractual balance sanctioned toart. 9 of the code. To strengthen this discipline, the new has been added Annex II.2-bisintroduced byart. 86 of Legislative Decree no. 209/2024which specified the methods of application of the price review clauses to the contracts of works, services and supplies, in compliance with the European forecasts regarding advertising and transparency and in line with what is established by Anac guidelines (National Anti -Corruption Authority).
THE’mandatory the appearance of Revisional clauses in the tender documents, already outlined by theart. 60, paragraph 1 of the codedescends from a precise choice of the national legislator, who intended to overcome the previous regime, partly attributable to compensation patterns ex post (often of an emergency), focusing on a Indexing mechanism automatic and permanent, capable of periodically adapting the fee of the contract. An organic evolution was thus guaranteed compared to the more dated discipline contained in the old code (Legislative Decree no. 50/2016) and in the relative interpretative lines, as well as with respect to the civil rules on excessive expenses that have occurred (cf. art. 1467 cc) and on the possibility of revision of the price of duration contracts (cf. art. 1664 cc as regards the private contract).
On the substantial level, the interventions concerning the revision mechanism are based on the distinction between works contracts And Procurement of services and suppliesalso distinguishing the related activation thresholds: if for the works the Price review operates to overcoming an increasing or decreasing variation of higher than 3% of the total amount of the contract, with recognition of the 90% of the excess value called the threshold, for services and supplies the activation of the revision mechanism follows a deviation of at least the 5%with recognition of the80% of further value. At the same time, the legislator clarified that in the contracts of services and supplies, however, the possibility of inserting “ordinary mechanisms” to update prices is allowed which, if agreed to originate from the parties, do not affect the calculation of the activation threshold. It is a provision that integrates and strengthens the primary purpose of the institute, that is to say that of protecting the public interest in the correct and stable execution of the service, without weighing excessively on the economic operator in the event of significant oscillations of non -attributable prices to the normal contractual Alea.
The interest of the system, according to the constitutional principles and emerging values both by the internal standardization and from the Eurounity sources (with regard to the prohibition of abuse of contractual position or of excessive asymmetry in the relationships between the PA and the private operators), they are expressed in the protection of the synallagmatic balance, in order to prevent that costs unpredictable can make public orders as lacking or qualitatively lacking.
From this point of view, the Price review It hooks to theart. 120 of the Code, which responds to the identical purpose of guaranteeing balanced relationships in the further phases of the execution of the contracts. This plant connects, in turn, to the general context of protecting the principles of transparency and free competition postulated by Treated on the functioning of the European Union (tfue) and from the aforementioned EU directivesas reiterated several times by the jurisprudence of the Court of justice. Moreover, the choice of the Italian legislator to focus on a indexing system It is consistent with the teachings found in certain European systems (think of the “French model” recalled in several doctrinal offices), where the price update mechanism is periodic, automatic and strictly connected to reference official indices, in order to make more The adaptation of the consideration to the changed value of the goods or services provided.
Just about the calculation framework, the Corrective He decided to integrate and clarify the type of indices that can be used, eliminating the exclusive bond of referring to the Istat and introducing i New synthetic indexes governed in the renewed art. 60, paragraph 3 and, above all, in theAnnex II.2-bis.
In it, it is established that, for the works, the contracting stations will have to rely on a catalog of indices attributable to Homogeneous types of processes (Tol) identified with a specific provision of the Ministry of Infrastructure and Transport (in which Istat participates, pursuant to art. 60, paragraph 4).
Similarly, for services and supplies, the use of indexes relating to consumer prices, prices for production or permanent wages can also take place in form disaggregateor, where available, on the basis of sectoral indices Suitable to grasp the peculiarities of certain specialized areas (we think, for example, of energy services, governed by sector regulations that provide specific parameters of variation). From this point of view, the new art. 60 is linked, albeit not textually, to the principle of proportionality of the Eurouna Matrix which affirms the need for a modular application of the provisions.
From an operational point of view, the discipline of Price review must be implemented in the tender documents, by virtue of the provisions of theart. 60, paragraph 1with the clarification that its effective operation does not depend on an application by part, but on the automatic verification of the exceeding of the thresholds referred to in paragraph 2, as confirmed in art. 3, paragraph 2, ofAnnex II.2-bis. The temporal reference, as expressly indicated by articles 4 and 12 of said attachment, is identified in month of awardwhich thus becomes the “zero moment” with respect to which the percentage variation is measured. In the event of suspensions or extensions of the terms, the reference value corresponds to the month of expiry of the maximum term for the award, as defined by theAnnex I.3in order to avoid uncertainties or margins of avoidance.
It also assumes the theme of the financial coveragesince, through the postponement of the provisions of theAnnex II.2-bisthe legislator intended that the expenditure related to the revision does not exceed the limits of the ordinary allocation, in accordance with the public budget rules dictated by theart. 81 Cost. and the EU constraints on the budget balance.
It is also considered the subcontract (art. 60, paragraph 4-quater and art. 8 of the Annex), imposing that the “chain” of the revision clauses remains consistent with the mechanisms adopted in the main contract, thus avoiding that any price oscillations reflect asymmetrically along the chain.
The practical repercussions of the corrective will be perceptible when the new discipline is fully operational, taking into account the Transitional provisions referred to in theart. 16 of Annex II.2-bisby virtue of which, for the contracts of works, the issue of the ministerial measure aimed at identifying the individual cost indexes of the processing and until then the rules will apply the rules in force on 1 July 2023; For services and supplies, however, the full effectiveness of the attachment is immediate.
Only with the passing of the months following the introduction of the Corrective It will be possible to measure the concrete impact of these novelties and evaluate their ability to resolve, in a timely manner, the imbalances due to economic phenomena or extraordinary circumstances, as required by the founding ratio of the Institute.
Ultimately, the intervention carried out through the Legislative Decree no. 209/2024 consolidate the orientation for which the Price review clauses they represent an essential ingredient of the contractual relationships of duration between public administration and economic operators, helping to balance the public and private interests involved in a perspective of continuity of the service and to safeguard the principle of proportionality, transparency and good faith, as outlined from the Constitution (Articles 97 And 41 Cost.), from the Civil code (Articles 1175, 1375, 1467 and 1664), from EU directives on the subject of custody and by the national and European jurisprudence, as well as by the forecasts of the Tfue on internal competition and the correct functioning of the market.
In the perspective of the full operation of these rules, the mechanism of indexing It comes to place itself as an instrument of balance: on the one hand, it strengthens the administration’s ability to support investments without suffering substantial economic alterations, on the other, protects the contractor from the risk of excessive burden of the performance due to unpredictable fluctuations.
Ultimately, the last analysis, the Principle of conservation of contractual balanceas a trait d’union between the internal discipline of public contracts and the need to conform to the fundamental canons of European Union law, in a perspective of greater stability and certainty of legal relationships.