Administrative, Public Contracts Code, Employment Agreement and so-called theory concrete cause, Tar Napoli, Sec. III, Judgment no. 51, 07 January 2020

Art. 89 of Legislative Decree no. 50_2016.

The exercise of the benefit can be limited, in particular circumstances, taking into account the object of the contract in question and its purposes; in particular, this can occur when the capabilities available to a third party, and which are necessary for the execution of this contract, are not transmissible to the candidate or to the tenderer, so that the latter can only use these skills if the third party participates directly and personally in the execution of this contract.

The contract of availment which finds its complete definition in art. 89 of Legislative Decree no. 50 of 2016 must be considered “typical”; contractual autonomy is conditioned by the objectives set by the standard that the contractual parties must pursue when signing the contract of availment; from this it follows that the contractual scheme defined by the standard contained in art. 89, Legislative Decree no. 50 of 2016 cannot be altered in any way; it is necessary, in fact, that through the specific content of the contract of availment prescribed by the Public Contracts Code, the contracting authority is offered a guarantee of the competitor’s solidity as well as the correct execution of the contract and in certain cases, also of a particular standard quality of execution of the same; for the purpose of evaluating the cause in practice, the legitimacy check is carried out by verifying the actual feasibility of the concrete cause, to be understood as the specific objective pursued by the procedure.

Administrative Justice Source