Administrative, Code of public contracts, Legislative Decree 18 April 2016, n. 50, Pre-litigation Anac, Opinion Council of State, Comm. Spec., 26 June 2018, n. 1632
The Council of State made the opinion, in part interlocutory, on the outline of Guidelines on the amendment of the regulation for the issuance of opinions of pre-litigation Anac
In its report of May 2, 2018, the National Anti-Corruption Authority (ANAC) asked for an opinion on the draft Regulation amending the Regulation of 5 October 2016 for the issuance of pre-litigation opinions pursuant to article 211 of the legislative decree 18 April 2016 , n. 50, in consideration of the novelty character of the changes introduced to the current regulation, as well as of the significant impact that the corrective measures will have on the procedure for issuing these opinions.
In the accompanying report to the request for an opinion, Anac clarified that the amendments and additions to the Regulation of 5 October 2016 became necessary, in the light of what emerged in about eighteen months of operation, in order to ensure greater timeliness, adequacy and, consequently, effectiveness of the opinions rendered pursuant to paragraph 1 of the aforementioned article 211 of the Code of public contracts.
Correctly, Anac has not recalled, as a result of the decision to intervene on the Regulation of October 2016, the amendment, introduced by the first corrective to the Code of contracts, approved by Legislative Decree 19 April 2017, n. 56, of paragraph 1 of article 211, of the legislative decree 18 April 2016, n. 50, having limited itself to providing that the opinion was expressed by the Authority “prior contradictory” with the parties. The contradictory, in fact, had already been foreseen by Anac in the 2016 Regulations (in particular, by article 7, paragraph 2, according to which the parties can transmit within five days from the communication of the Office memories and documents and from paragraph 3 of the same Article 7, according to which the Office assesses the need to proceed with the hearing of interested parties)
Therefore, the alleged acquired operational experience remains, in these terms, exclusively an AAC’s heritage, not contributing to making this opinion more precisely informed.
The need to acquire such documentation is evident when one considers that the draft Regulation submitted to the opinion of this Commission was necessary precisely to improve the pre-litigation procedure in the light of the experience of about eighteen months, and therefore on the basis of data and monitoring carried out by the Authority itself.
It therefore considers this Council necessary to suspend the full expression of the opinion pending the Authority to disclose the statistical data of the pre-litigation activity so far carried out.
Source Administrative Justice
