Reform of the Third Sector: the opinion of the Council of State n. 02052/2018

With a meeting of 26 July 2018, the Special Commission of the Council of State, at the request of the ANAC in order to respond to certain interpretative doubts that emerged regarding the discipline on social assignments, expressed opinion no. 02052/2018, published last 20 August.

The new provisions of the articles 56, 57 and 58 of the Third Sector Code have in fact increased the number and scope of the methods of entrusting social services to the ETS, alongside the discipline envisaged by the Public Contracts Code, as amended by Legislative Decree no. 56/2017 which in Italy implemented the provisions of EU directives (2014/23/EU, 2014/24/EU, 2014/25/EU).

Basing its reasoning on a careful examination of internal rules and Community legislation and highlighting the meaning of the concept of onerousness, which draws the line between economic and non-economic services of general interest, the Commission states that the new award procedures introduced by the CTS (accreditation, co-planning and partnership) do not always have to take into account the provisions of the Code of Public Contracts: only in the event that the services are carried out on an expensive basis, the procedures for assigning social services contemplated by the CTS will be subject to the Public Contracts Code; conversely, if the free rendering of services is envisaged, the said procedures may not take into account the more restrictive provisions of the Public Contracts Code.

In any case, since these are assignment methods structurally reserved for non-profit entities which, as such, "lead to substantial market segregation" and do not allow for-profit companies to be entrusted with the service, the adoption of these procedures will require the Administration to promptly justify the "social" broad sensu reasons for this choice.

The Commission also states that the provision of a service can be considered free only when the remuneration, even indirect, of all production factors is excluded; any reimbursement of expenses incurred must therefore include only those that are actual and documented by the reimbursed institution.