Collaborative Agreements and Principle of Subsidiarity

In recent years, public bodies, especially those with a local character, have increased the use of collaborative tools to activate relationships with private as individuals or within bodies and to regulate mutual relations with means that pursue common interests. A strong thrust in this direction certainly comes from actors of the commercial field who first felt the need to share their ideas, pooling competences and resources to enhance their innovative capabilities and competitiveness by targeting the quality of products and services offered on the market. The joint venture, the consortia, the temporary association and the network contract are in fact the oldest models of collaboration which were initially used by enterprises. Today such contractual schemes that establish associative relationships to implement a common purpose are frequently found also in relationships between public bodies, between these, enterprises and non-profit organizations, or else between these and private engaged in the care and management of the territory. In this way, the multiplicity of fields in which cooperative agreements are becoming increasingly important can be seen, especially in light of the principle of subsidiarity that, in dealing with the general interest, entrusts to private individuals the implementation of activities traditionally reserved for public subjects. Thus, a multi-faceted and heterogeneous cooperation in the fields of health, culture, environment, territory, education, research and many others is no longer just an opportunity to be seized, but it becomes a responsibility to be shared in the implementation of the supreme values expressed by the Constitution, the Lisbon Treaty, including the European Charter on Fundamental Rights and the European Convention on Human Rights, (article 6 TEU). On closer inspection, it is precisely with this awareness of the centrality of collaboration that the current legislative innovations adopted in the context of the ecological and digital transition are also moving. Collaboration is the main tool for achieving sustainability and innovation goals therein. This is directly witnessed by the energy communities that realize the common purpose of self-production and sharing of clean energy through aggregation and collaboration between individuals, enterprises and local authorities; by the collaborative networks between enterprises, research institutions, public administrations and citizens that can be financed within the framework of the third Pillar ‘Innovative Europe’ of the Horizon Europe Programme; or else by the European Technology Platforms that are the cross-border public-private research partnerships. Indeed, Italy is moving in the same direction where the dissemination of the so-called ‘atypical association’ negotiating practices can be registered more frequently. We can increasingly observe, in fact, the use of the plurilateral negotiating scheme with communion of purpose, typical of traditional associative models such as associations, foundations, committees, societies and consortia provided for by the Civil Code, to regulate relationships between the parties established through the agreement, the pact, the convention. In this perspective, the so called ‘informal’ practices, such as collaborative pacts and declarations of civic use for the care of the territory, are exemplary. In all these cases, even before any legislative prescription, private individuals and local administrations have spontaneously joined forces to realize the common purpose of caring for and enhancing the heritage and the spaces of their community. And they have done so not by constituting an autonomous and separate legal entity, but by signing a pact that identifies goals to be achieved jointly, rights, duties and responsibilities to be shared. On the basis of the success and broad social consensus acquired by these practices, the Italian legislator is bringing particular attention to the role of collaboration with specific regard to relationships between public bodies, Third sector bodies and private individuals, but also between public bodies and enterprises. The Third Sector Code introduces co-programming and co-design, as preferred tools of dialogue between such entities and the public sphere, all equally committed to the realization of social goals and solidarity. The Act on Private Reconstruction, adopted to improve the management of the reconstruction after the experience of the earthquake that struck central Italy in 2016, puts the collaboration at the basis of the relationships between the heterogeneity of subjects involved in the recovery of damaged buildings and, more widely, in the reconstruction of the social, economic and cultural fabric of the territories. In this perspective, the agreements of scientific collaboration between public bodies and research bodies aimed at studying the area affected by the earthquake for a safer and more efficient design and implementation of the reconstruction, are exemplary. But even more the possibility provided for in the Act to adopt extraordinary programs for the reconstruction of historic centers, on the initiative of the municipalities, involving in the development process the population through consultations. Adopting the same collaborative logic, the Public Contracts Code, entered into force on 1 April 2023 with the effectiveness of the rules deferred to 1 July 2023, has lastly been renewed. The new Code not only rationalises and simplifies the existing rules on public contracts (public procurement, concessions, public-private partnership), but through the implementation of the collaborative tools it realizes a broader work of reconciliation and integration of a field driven exclusively by economic and competitive market logic with social, solidarity and environmental needs. In this perspective, it cannot be ignored the explicit codification of the ‘principle of trust’ (article 2 of the Public Contracts Code) that has been placed as a foundation of the relationship between the administration and private individuals. This principle is indeed the essential premise of the collaborative approach, whether it is applied in an economically oriented context (as in case of public contracts) or in the one characterized by solidarity (as in case of the collaborative agreements discussed in the present thesis). All too often, in fact, the lack of trust between the parties, especially when one of them is a public entity, is a source of inefficiency and immobilism and, therefore, an obstacle to the economic, social and cultural recovery of the territory. On the contrary, it requires a dynamic and efficient public administration. Finally, before moving on to the analysis of the legal profiles of collaborative agreements as agreements with common purpose and to verify the impact of the principle of subsidiarity on their discipline, it is important to highlight a crucial shift in public-private relationships that has been accomplished precisely with the aforementioned reform of the Public Contracts Code. In this complex and varied context, full of innovative boosts resulting from the progressive implementation of the European and international principles determined by a constitutional legality open to the integration with foreign sources, it is necessary to investigate the function and structure of the collaborative agreements. This must be done making use of hermeneutic tools able to grasp the evolution of the legal system and its hierarchy of values. The investigation can only apply a methodology that analyzes interests, clarifies the nature, graduates the protection so as to propose appropriate solutions to identify the specific applicable discipline. In this perspective, the aim is to demonstrate in light of the local practices, case-law findings and recent legislative developments how the two spheres, public and private, can, and sometimes would be preferable for them to do so, to regulate through negotiation also non-economic interests. This to confirm the overcoming of any uncertainty on the co-existence of non-patrimonial interests in patrimonial relationships and vice versa in a legal system in which the value-person becomes a dominant value with consequent co-existence of non-patrimonial interests in patrimonial legal relationships. This thesis is, thus, strengthened by the recognition by the new Public Contracts Code (article 6) of the possibility for public administrations to establish with Third sector entities, in the context of the social and general interest activities, relationships of co-administration, devoid of synallagmatic character and based on the sharing of the administrative function with private individuals. Relationships that, as highlighted by the Code itself, are excluded from its scope.