La necessità di ristabilire una coerenza di sistema. Il tema della precisa collocazione degli atti adottati dall’ANAC rappresenta un problema.
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Articoli e saggi Critical assessments on the role and on the acts adopted by ANAC. ˜e requirement to restore system coherence*Vinicio BriganteS˜˚˚˛˝˙: 1. Useful inputs for a deˆnition of (administrative) corruption. Œ 2 . From the need for a public body to ˆght corruption to the present conformation of the Na – tional Anticorruption Authority. Œ 3. Procedural ˇexibility and soft law: linguis- placement of the acts drawn up by ANAC. Œ 4.1 Guidelines (linee guida) issued by ANAC: an inappropriate uncertainty. Œ 4.2 Anticorruption National plans. Œ 4.3 Recommendations and the power of dynamic supervision on the public procure – ment cycle. Œ 5. Concluding remarks.1. Useful inputs for a de˜nition of (administrative) corruptionregarding acts issued by the National Anti-Corruption Authority (from here on out, ANAC), within a to ˆnd those legality traits that are essential to independent authorities and to the relative protection of citizens Prior to proceeding with the analysis of speciˆc acts issued by ANAC, some useful information is provided on the notion of administrative corruption in Ital – ian law and the reasons that led the legislator to establish a special authority for * ˘is essay represents an extented, revised and updated draft of the report carried out at the annu-al conference of IASIA-LAGPA (International Association of Schools and Institutes of Administration Œ Lat -in America Group for Public Administration), held in Lima, Peru, in July 2018. Please note that, during the course of the text, the Italian translation of some categories of acts is reported in italics, as the English transla-˘e author would like to express his sincere gratitude to Professor Ferdinando Pinto for the shared and continuous discussions on this theme, which has been discussed and studied in depth together.
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424the ˆght against corruption. ˘is introduction can be useful to provide a legis-lative path in which to frame acts of the authority, the ˆnal landing place of the research. ˘e path ideally outlined in this essay tries to provide further guidance to broaden the notion of (administrative, because it is linked to the rise of the phenomenon in the ˆeld of public contracts) corruption, to then analyze the leg- islative context that led to the establishment of the Authority and try to provide useful keys to understanding the issued by the latter, to (try to) bring back legal consistency in the overall system.˘e issue of corruption in public procurement represents a fascinating line of research for both academics and authorities; the attention paid to this topic is due to several factors, which have prompted scholars of administrative law to inves -tigate a subject that did not belong to the cultural horizon of this branch of law.First of all, corruption causes serious harms to economic activities, both rules. Costs of corruption are not precisely measurable, especially when it comes to public contracts where is it not always possible to trace the cash ˇow 1.Secondly, the term ‚corruption™ has multiple meanings, ranging from the legal to the economic and ethic dimensions 2, circumstance that makes it possi– ed 3, the notion of corruption is governed by categories that are linked to very dif-ferent types of unlawful conduct whose nature is not of the same theoretical and therefore legal nature. Obviously, administrative corruption is not linked to an sanctions, are unwelcome by the national legal system 4, even if this assumption may represent a contradiction in terms but is coherent with a system which does not rely only on repression to combat the phenomenon (a task which falls within the competence of the criminal law) but which requires prevention of corruption (a task which falls within the scope of administrative law) 5.1 On the subject of developing a reliable indicator for measuring corruption, see M. Gnaldi, Indicatori di corruzione e nuovi indicatori di prevenzione della corruzione , in M. Gnaldi, B. Ponti (eds.), Misurare la corru – zione oggi. Obiettivi, metodi, esperienze2 S. Cassese, Ipotesi sulla storia della corruzione in Italia, in G. Melis (ed.), Etica pubblica e amministra-zione. Per una storia della corruzione nell™Italia contemporanea(Delitti di) cor-ruzione, in Enc. dir. , Milano, 1962, even in the criminal code the discipline of corruption is fragmented and reveals a factor of disintegration.3 S. Belligni, Corruzione e scienza politica, in Teoria politica4 E. Carloni, Misurare la corruzione? Indicatori di corruzione e politiche di prevenzione, in Pol. dir., 2017, standards of conduct, abuse of power for personal gain, violation of the common interest, pathological devia- tions of legal standards, with a signiˆcantly variable extension depending on the criterion chosen5 Critically on the development of a concept of administrative corruption see S. Torricelli, Disciplina degli appalti e strumenti di lotta alla corruzione, in Dir. pubbl.-
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425˘irdly, corruption undermines social cohesion and fundamental rights as it violates the so-called social solidarity bonds together public administration and citizens 6. Corruption, even its mere perception, undermines values that must govern relations between administrations and citizens such as legitimate and mutual trust between the parties.It should be clariˆed that, in this premise, economic theories about the corruption 7 or about the need to maintain an optimal amount of corruption 8 are not taken into account.˘e meaning of corruption assumed in the present work goes beyond the deˆnition provided by the Italian Criminal Code, which takes into account behaviours that can lead to a criminal trial; after the enactment of Law no. 190 of 6 November 2012 there is an administrative notion of corruption, broader than the traditional one, that opens the door to other forms of liability or describes practices that are not sanctioned in any way, but that can alter the principle of sound administration laid down by the article no. 97 of the Constitution.In view of the above, the notion of corruption used in this paper does not refer to the now overused notion of ﬁmaladministration 9ﬂ, to avoid reducing all the innumerable problems facing the public administration in the area of corruption 10. ly rooted in the legal conscience to admit twists and has a capacity of resistance in the general perception that 6 G.M. Racca, Dall™Autorità sui contratti pubblici all™Autorità Nazionale Anticorruzione: il cambiamento del sistema, in Dir. amm., 2015, 347, discrimination linked to corrupion is reˇected in a breach of loyalty to Republic; in accordance with this statement, see F. Manganaro, Corruzione e criminalità organizzata , in C. La Camera (ed.), L™area grigia della ‚ndrangheta, Roma, 2012, 119, corruption is the crime committed by the inˆdels.7 Please refer to F.T. Lui, An equilibrium queuing model of bribery , in J. Polit. Econ., 1985, 93, 760, who proposed a model where customers can decide to pay bribes for buying better positions in a bureaucratic queue; J. Hall, J. Levendis, ˜e e˚cient corruption hypothesis and the dinamics between economic freedom, corrup -tion and national income, in Working Paper of the West Virginia Collage Business and Economics8 R. Klitgaard, Controlling corruption, Boston, 1988, the optimal amount of corruption is identiˆed between the costs caused by corruption and costs of the ˆght against corruption; J.S. Nye, Corruption and polit- ical development: a cost-bene˛t analysis, in ˜e American Political Science Review9 ˘is concept was coined by S. Cassese, Maladministration e rimedi, in Foro it., 1992, V, 243; accord-ingly, see A. Police, New instruments of Control over public Corruption: the Italian Reform to restore Transparen- cy and Accountability, in this Journal, 2015, 190, «in the Italian legal language, the term corruption has so far – ing is consistent with the fact that the ˆght against corruption took place mainly at the level of criminal perse – cution. ˘ere is, however, even in legal language, a broader sense of the term, which is related to the prevention of political malpractice and administrative, to operate with the proper tools of constitutional law and adminis- trative law. In administrative law, in fact, has been elaborated a notion of corruption broader than criminal law that refers to conduct that is source of liability or otherwise not exposed to any sanctions, but they are unwel- 10 On the need not to overlap the two aspects, please see F. Pinto, Il mito della corruzione. La realtà del-la malamministrazioneLa prevenzione della corruzione e l™il-lusione di un™amministrazione senza macchia, in Riv. trim. dir. pubbl.
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426(which and have a variety of aspects) and the risk of matching the two components is that the necessary speciˆc remedies will not be adopted.If this conceptual overlap between maladministration and corruption is accepted, it should be considered that corruption itself absorbs all the numer- dangerous distortion also of law enforcement instruments drawn up by the legis- lator for this purpose 11.Corruption, especially in the context of public contracts, seems to take on the guise of the pathological distraction of a conferred power. Corruption can- not include all pathological distractions (such as anti-competitive agreements in which there is the circumvention of the public subject and therefore of power) but must concern the exercise of administrative capacity.As pointed out by authoritative scholars 12, corruption ˆnds a breeding ground in the public procurement cycle, and from that point of view Italian case is to be considered symbolic.since they are linked to multiple factors, but in this analysis, it is limited to high- administrations to address the issue investigated.First of all, the fragmentation of public demand transferred to several con- ˘e legislator rectiˆed this situation with the provisions that determine the aggre- gation and centralisation of public purchases 13. Contracting stations thus par-celled out and divided over the territory were particularly exposed to the risk of pressure Œ not necessarily corruptive Œ from economic operators 14.11 F. Pinto, La corruzione, Caporetto e la ‚sindrome del generale Cadorna™, in www.lexitalia.it, 2017, 2.12 G. Piperata, Contrattazione pubblica e lotta alla corruzione. Uno sguardo alle recenti riforme ammini-strative più recenti, in www.federalismi.it, 2015; F. Di Cristina, La corruzione nei contratti pubblici, in Riv. trim. dir. pubbl., 2012, 177; on the relations between administrative organization and prevention of corruption, see M. Dugato, Organizzazione delle amministrazioni aggiudicatrici e contrasto alla corruzione nel settore degli appalti pubblici, in Munus, L™impatto delle misure anticorruzione e della trasparenza sull™orga-nizzazione amministrativa, in this Journal13 On this issue, see L. Fiorentino, Le centrali di committenza e la quali˛cazione delle stazioni appaltanti, in Giorn. dir. amm. , L™aggregazione dei soggetti aggiudicatari di contratti pubblici fra ragioni di integrità, specializzazione e riduzione della spesa, in Foro. Amm.- chia, La quali˛cazione delle stazioni appaltanti, in Giorn. dir. amm.Rovigatti, Il processo di centralizzazione degli acquisti pubblici. Tra evoluzione normativa ed evidenza pubblica, in Merc. Conc. reg.14 May be referenced to the analysis by F. Pinto, V. Brigante, Centralizzazione delle committenze pubbli -che, trasparenza e gruppi di pressione nel sistema regionale campano per la sanità: prime evidenze empiriche, in Ist. fed- able to external pressures that disrupted the regular exercise of public duties. ˘e procedure for the selection of the contractor is a technical function which, in order to preserve its integrity, can be better integrated into tech – nically equipped purpose-built structures.
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427˘is aspect highlights the inadequacy of the administrative structure, espe-cially if small-scale, to deal with and isolate itself from external pressures, espe-cially in certain areas where the corrupt pressure can be declined through recourse to underworld organized 15. ˘is appreciable decision to reduce the number of contracting authorities has a direct impact on the role of protagonists of public procurement, businesses and administrations, but the issue cannot be considered solved because administrations have variable needs among themselves, in relation to the structure™s size, availability of resources, and the custom of setting up and managing public tenders.On the subject of the aggregation of public demand as a deterrent to cor-ruption in itself, there are some doubts, since the administration, however large, appropriate and specialized it may be, is made up of people 16 and for these rea-sons it would be appropriate to shift the reˇection from the themes of the organ – – tive reform on the subject of rotation duties for employees would be appropri- ate in order to prevent public positions from becoming privileged positions for a bridge with companies.˘e second aspect concerns the so-called ﬁelephantitis regulation 17ﬂ, also known as ﬁnormative hypertrophy 18ﬂ; the term is used to describe the great amount of laws dealing with public procurement, with transitional rules beco- ming deˆnitive and forming a disproportionate number of rules. It has been highlighted that the great amount while at the same time the inconsistency of Italian legislative context but seems to have particularly signiˆcant connotations in terms of the regulation of public contracts, in the mistaken belief that hyper regulation is a deterrent factor for corruption and external pressures. ˘e seriousness of the phenomenon, the European Union™s calls on the Sta-te to contrast corruption led our legislator to suppress the Public Procurement Wachtdog (namely AVCP) and to set up the new National Anticorruption Autho -rity (ANAC), a proper authority, with the clear choice of legislative policy to include 15 For a speciˆc and cross-cutting analysis of issues of corruption and crime, see A. La Spina, F. Roberti, Il contrasto alla ma˛a e alla corruzione: una panoramica sugli sviluppi recenti, in Riv. econ. Mezz., 2018, 442, cor- a speciˆc analysis and contrast.16 It is allowed to refer to the analysis by M.S. Giannini, Diritto amministrativowhose opinion the authoritative, the public administrations have immense resources and live sparingly, which reveals the conditions of the Italian administration.17 On this topic, see M. Clarich, B.G. Mattarella, Leggi più amichevoli: sei proposte per rilanciare la cre-scita, in Diritto e processo amministrativo, 18 A. Di Mucci, D. Provvidenza Petralia, Il principio di trasparenza tra ipertro˛a regolamentare e debo-lezze del controllo sociale: il caso degli obblighi pubblicitari nel settore dei contratti pubblici, in www.federalismi. it, 2016, 2.
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428the term ‚(anti)corruption™ in the label 19, that confers semantic autonomy to the theme of corruption and does not mislead the interpreter in the analysis, since the Authority has transversal tasks that go far beyond the ˆght against corruption.˘e tasks assigned to this authority are so broad and incorporated in gener-al legislative clauses or attributed with a signiˆcant degree of indeterminateness as to require a debate about the impact of measures taken on the legislative frame- work concerning procurement contracts.˘is paper analyses several acts adopted by ANAC in order to evaluate the change of system and related critical issues. Before analysing various acts adopted, it is useful to state the context which led the legislator to set up such an author – ity, in order to understand the framework Œ in terms of attributed and implic- it powers Œ in which acts are set up. Before providing input on the collocation of the acts drawn up by the ANAC, it appears appropriate to report on the leg- islative context that led to its establishment, in order to achieve a more accurate understanding of reasons for critical proˆles that can be grasped in the regulatory framework centred on the recognition of a central role for ANAC in the regula- tion and conformation of the public contract sector.2. From the need for a public body to ˜ght corruption to the present conformation of the National Anticorruption Authority90™s known as ﬁTangentopoliﬂ and showing the existence of a complex and root-ed intertwining of interests between companies and politician for the illegal par – tition of lots and contracts, a radical change was necessary and urgent.˘e immediate response of the legislator took to the enactment of Law no. 109 of 11 February 1994, also known as Merloni-Law, promulgated in a climate of distrust of public authorities; it was clear the willingness of impeding the pub – lic procurement system to choose its private contractor.˘is Law, based on increased transparency of the procedure (but the issue of transparency, at the time, did not have the impact it has today in terms of reducing the distance between the citizen and the administration) and timeliness of public action, was founded on two wrong assumptions but above all about a renewed focus on the aspects related to corruption in the award of public con-tracts and the relative perception of the importance of the issue by public opinion.19 On this aspect, please refer to S. Torricelli, Disciplina degli appalti
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430Among the most relevant functions, listed by the article no. 4 of Law 109, no inhibitory powers were mentioned and the power to impose sanctions was deemed to be inadequate.˘e suppressed Authority held regulatory functions, exercised through adoption of determinations in which the institution could give its own interpre- tation of legal provisions.Moreover, the Authority was responsible for drawing up non-binding opin-ions, as ˆrms could depart from them; three kinds of opinions could be issued by the Authority, namely the opinions on the clauses of the calls, the ones in response to legal questions put by the ˆrms or by the procuring entities and the so-called pre-litigation opinions 25. All the opinions issued by the Authority were regarded as moral suasions to raise awareness about the operators™ conduct.It is considered appropriate to shed some light on the pre-litigation que-stions, expression of the so-called para-judicial task, characterized by a quick pro- cedure leading to the ˆnal decision. However, the ˆnal decision could not be assimilated to the one adopted after the Alternative Dispute Resolution ( ADR), which instead had binding character 26.˘e role of the ‚pre-litigation opinion™ unveiled the legislative and interpre-tative uncertainty about the rules governing the public contracts and the necessi- ty to diminish the amount of administrative disputes 27. ˘e ˆrst change dates back to 2009 with the establishment of a speciˆc Com-mission for the evaluation, the integrity and the transparency in public adminis-tration (namely CIVIT), by Legislative Decree no. 150. ˘is public body held the power of issuing deliberations to examine civil servants performances 28.˘e Law no. 190 of 2012, regulating the prevention and repression of cor -ruption in public administration, identiˆed the Commission as ANAC, creat- ing considerable problems of legal certainty because of the coexistence with the Authority for the supervision on public works (AVCP).25 On this topic, see M.A. Sandulli, Natura ed e˝etti dei pareri dell™AVCP, in www.federalismi.it, 2013, 4.26 M. Calabrò, L™evoluzione della funzione giustiziale nella prospettiva delle alternative dispute resolution, in www.federalismi.it, 2017; M.P. Chiti, L™e˝ettività della tutela avverso la pubblica amministrazione nel procedi-mento e nell™amministrazione giustiziale, in Scritti in onore di Pietro Virga-ni, I poteri giustiziali delle autorità indipendenti , in G. Falcon, B. Marchetti (eds.), Verso nuovi rimedi ammini -strativi? Modelli giustiziali a confronto27 M.A. Sandulli, Le nuove misure di de˙azione del contenzioso amministrativo: prevenzione dell™abuso di processo o diniego di giustizia?, in www.federalismi.it, 2012; Id., Ine˚cacia del contratto e sanzioni alternative, in G. Greco (ed.), Il sistema della giustizia amministrativa negli appalti pubblici in Europa28 G. Nicosia, La valutazione nelle amministrazioni pubbliche oscurità normative nelle prassi applicative, in Diritti, Lavori, Mercati, 2012, 377; R. D™Angiolella, La nuova disciplina dell™arbitrato e degli altri strumenti alternativi per la soluzione delle controversie in materia di contratti pubblici: luci ed ombre, in Rivista dell™arbitra- to, 2018, 345 ss.; P. Mastrogiuseppe, La pubblica amministrazione tra valutazione interna e valutazione esterna , in Il lavoro nelle pubbliche amministrazioni,
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431After only two years, the Decree Law of 24 June 2014, no. 90 at its arti-cle no. 19 changed the tasks assigned and organisational set-up of new Nation-al Anticorruption Authority, aiming at the creation of a single body, the ANAC.ANAC has a marked degree of independence from the government,; this shall not lead to solitary conˆnement and disproportionate techniˆcation of its tasks, rather it is necessary a coordination with other public administrations 29, to – istration, neither for enterprises.˘e Authority holds supervision tasks, both in the ˆght against corruption and in trying to guarantee administrative transparency. Other speciˆc competen- ces concern the imposition of sanctions and the spread of a culture of legality.Furthermore, the Authority holds regulatory tasks, that is, integrating law with various acts that will be analysed in detail in the following paragraph, throu- gh ˇexible regulation and guidance tools, which give rise to acts and measures event of non-compliance and the participatory nature of their adoption.According to an authoritative analysis, ANAC is an authority parallel to the whole executive that is designed to point a way forward for good administrative practices and it must be vigilant about phenomena of maladministration and cor- ruption 30. 3. Procedural ˚exibility and soft law: linguistic antithesis, precarious balances and further complicationsduring the transposition period of the European Directives for the award of pub-lic procurement contracts, it was a shared idea that the enactment of a new Pub -lic Procurement Code was an opportunity and a challenge for a general re-think 31, an historic challenge entrusted to a delicate balance between all the legal arrange – ments involved.29 P. Pantalone, Autorità indipendenti, quoted, 56, the marked independence is revealed more on the functional level than on the structural one. It is worth mentioning the powers of the president of ANAC, a sort of entity within the entity, endowed with various functional competences, such as, for example, the high super – vision of the public contracts market; S. Sticchi Damiani, I nuovi poteri dell™Autorità Anticorruzione, in Libro dell™Anno del diritto (in www.treccani.it), 2015. 30 Please refer to F. Merusi, L™ ‚imboglio™ delle riforme amministrative31 Text of the report performed by the president of ANAC, R. Cantone, Audizione nell™ambito dell™e-same del ddl n. 1678/2014, in www.anticorruzione.it, 2015; P. Pantalone, Autorità indipendenti, quoted, 238.
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432However, just as occurred with the term ‚transparency™ Œ all are in favour of transparency, but too much acclaim threatens to undermine a word of its meaning 32 Œ ˇexibility is a worn-out word, because it does not represent a legal arrangement but it is a general principle and more speciˆcally a peculiar treat of administrative organization 33; an useful and practical meaning must be recov-ered 34, especially in relation to the current legal framework for the award of pub-lic contracts. Factors which help to limit this analysis are the circumstances in which ˇexible regulation is easier to amend and non-compliance does not give rise to sanctioning powers on the part of the authority 35, but are not in them-From this perspective, there was a risk that the whole reform had resulted into a simple implementation of several objectives laid down by the European Union; the replacement of the previous model, based on a single regulation, with a more ˇexible system does not make disappear historical and structural problems.And besides, historical though the reform may seem, the legacy of a system and indispensable aspect that must be taken into account 36.However, it is appropriate to underline that ˇexibility becomes a relevant factor for the award of so-called complex procurements, because it becomes a cru- cial tool for the procuring entity to ˆll cognitive gaps with private companies and conduct. Public administration to an informed decision; in such cases, ˇexibility means that the public administration may be able to use models which involve 32 J. Söderman, ˜e citizen, the Administration and community law, quoted by D.U. Galetta, Trasparen-za e contrasto alla corruzione nella pubblica amministrazione: verso un moderno panottico di Bentham, in Dir. soc., 2017, 43; along the same line, see F. Ledda, Alla ricerca della lingua perduta del diritto, in Dir. pubbl., 1999, 1 Scritti giuridici- ful, trasnparency is deˆnitely a beatiful word, but it should be avoided if applied to administrative law.33 See F. Liguori, Flessibilità e modelli organizzativi del S.S.N, in F. Liguori, L. Zoppoli (eds.), La sani-tà ˙essibile34 On the issue of the useful meaning of legal terms, please refer to G. Corso, Il risultato della teoria dell™azione amministrativa, in M. Immordino, A. Police (eds.), Principio di legalità e amministrazione di risul- tato35 M. Ramajoli, Self regulation, soft regulation e hard regulation nei mercati ˛nanziari, in Rivista della Regolazione dei mercati- tion is identiˆed in the development of standards of conduct that are followed voluntarily by the recipients.36 See, in a critical way, G.D. Comporti, La ˙essibilità nelle negoziazioni pubbliche: questa sconosciuta, in Dir. soc.E˚cienza e riduzione della spesa nel sistema pubblico, in D. Iacovone, R. Paternò, F. Fontana, M. Caroli (eds.), Problematiche e prospettive nel percorso di riduzione della spe -sa pubblica, Bologna, 2014, 96; F. Gambardella, Le regole del dialogo e la nuova disciplina dell™evidenza pubblica, Il partenenariato pubblico privato nel diritto amministrativo in trasformazione, in N. Longobardi (ed.), Il diritto amministrativo in trasformazione
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433a constant negotiating comparison with market for the choice of the contractu-al partner 37.˘is means that ˇexibility is a mechanism that cannot be reduced to an action thus mitigating the information asymmetries between public administra- tion and economic operators 38.Even though historically the legal framework for competitive bidding pro -cess was provided for the possibility of forging atypical procedures, praxis gave us a reality in which the templates used have been inclined to the highest restriction of administrative discretion through tender procedures marked by invariability of bids and automatisms in the evaluations 39; in other words, predilection for strict rules maintains its cultural hegemony.As mentioned in these few lines, ˇexibility has a wide variety of meaning, especially if reported to the issue of public contracts, but here it will be investi – gated the theme of the so-called ˇexible regulation 40, in an attempt to place the acts issued by ANAC in a way compatible with the Italian legal source system.37 See G. Fidone, L™integrazione degli interessi ambientali nella disciplina dei contratti pubblici, in G.F Cartei (ed.), Cambiamento climatico e sviluppo sostenibile , Torino, 2013, 136 D. Della Porta, Lo scambio occulto, Bologna, 1992, 24, adverse selection in the public procurement cycle can produce a system marked by an high density of corruption; M.Clarich, La legge Merloni-quater tra instabilità e ˙essibilità, in Corriere giuridi- coMoral hazard and adverse selection in procu- rement contracting, in Games and Economic Behavior38 See M. Cafagno, Flessibilità e negoziazione. Ri˙essioni sull™a˚damento dei contratti complessi, in Riv. it. Dir. pubbl. com. the contracting authorities and ˆrms, that allows public administration to reduce the technical shortcomings; L. Prosperetti and M. Merini, I contratti di lavori, servizi, forniture. Una prospettiva economica, in M. Clarich (ed.), Commentario al codice dei contratti pubblici, Torino, 2010, 27 ss.39 Please refer to F. Ledda, Per una nuova normativa sulla contrattazione pubblica, in Scritti in onore di Antonio Amorth40 See M. Ramajoli, Self regulation, soft regulation e hard regulation, quoted, «the soft regulation could be deˆned as ‚crypto-hard™. It contains very tight restrictions against regulated parties, with the aggravating cir – cumstance ofthe impossbility of applying the traditional means of judicial protection»; from a compared per – spective, see D. Costa, La normatività graduata in diritto amministrativo francese: le linee direttrici, in Annuario AIPDA 2015La scala ottimale della regolazione, in F. Brescia, L. Tor- chia, A. Zoppini (eds.), Metamorfosi del diritto delle società? Seminario per gli ottant™anni di Guido Rossi, Napoli, Nudging pubblico vs. pubblico: nuovi strumenti per una regolazione ˙essibile di ANAC, in Rivista della Regolazione dei mercatiANAC™s ˇexible regulation is a regu– ed according to the assertive language of the typical sourcrs of law, and carries out the principles of transparency and clarity of the regulation, leading but not mandatory, ehich makes room to the administrative discretion».
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