Public utilities between italian legislation and community law: "the in house providing"

The crux of the problem is to provide citizens with the service by following the most favourable economic conditions and respecting the rules of competition. Local governments are entrusted with the power to take political decisions in the field of public services, hold the network used to provide the service, and are responsible for the quality of service. Nonetheless, they are not always responsible for the management of the network and/or the delivery of public services. Indeed, in the case of public services with economic relevance, the supply takes place within the context of a free market economy, and, therefore, the purpose of public service must be achieved while respecting the competition rules that govern the market. Against this backdrop, the local authority faces the problem to entrust the public service in accordance with both Italian legislation and Community law. The issue is critical because the local government, not only wants to make political choice, but would like to allow a person to entrust the management of service without a procedure with public evidence (such as it is required by competition rules). Indeed, in order to avoid the procedure with public evidence, local authorities tries to consider the public services of general economic interest outside the scope of the market. This line of reasoning triggers a contradiction between the general commitment to competition rules and the need to ensure the public control of processes that could not depend only on economic mechanisms. Services of general interest are not technical or instruments, they give expression to the rights of the person, to social links, to inclusion and integration. The European Commission underlined <<all service of general interest, including network industries such as transport and public utilities as well as financial services, play an important role in ensuring social and territorial cohesion>>. With respect to the possibility of entrusting the service without resorting to a procedure with public evidence can be useful to retrace the most recent cases on the subject, which confirms the importance of the issue.