The Italian Government decree no. 162/2019, unofficially known as "Milleproroghe", has been converted into law by the Italian Parliament (cfr. law no. 8 of 28 February 2020; hereinafter, in the consolidated version with the aforementioned decree, "Law 8/2020"). Following its publication in the Italian Official Gazette on 29 February 2020, Law 8/2020 has come into force on 1 March 2020.
Article 35, paragraph 1, of Law 8/2020 governs the termination of public concessions in relation to roads and motorways, including toll roads. Please find below a summary of its main provisions.
1. Provisional management of ANAS S.p.A.
In case of revocation, disqualification or termination of public concessions concerning roads or motorways, including toll roads, pending the tender procedure for the transfer to new concessionaires and for the time strictly necessary to this aim, ANAS S.p.A. can be entrusted with the management and maintenance (ordinary and extraordinary, including potential investments needed) of such roads or motorways.
For the purpose of carrying out these activities, ANAS is also entitled to purchase the projects developed by the (former) concessionaires, upon payment of a consideration determined on the sole basis of design costs and intellectual property rights.
In order to detail scope and modalities of ANAS's provisional management, an implementing decree will be adopted by the Ministry of Infrastructure and Transport, in concert with the Ministry of Economics and Finance.
2. Indemnity for early termination
Article 35 also governs the indemnity in case of early termination of public concessions due to breaches of the concessionaires. In this respect, Article 35 provides that concessionaries are only entitled to the amount set out in Article 176, paragraph 4, letter a) or "Letter A" of legislative decree no. 50/2016 (so-called "Public Contracts Code"), namely:
- the value of the works carried out plus ancillary charges (oneri accessori), net of amortisations (al netto degli ammortamenti); or
- should the works have not yet passed the testing phase (fase di collaudo), the costs actually incurred.
It is noteworthy to mention that, since the reference is made to Letter A only, concessionaries are not entitled to penalties and compensation for loss of profits (respectively provided for under letters b) and c) of Article 176, paragraph 4, of the Public Contracts Code).
Any conflicting clauses of public concessions (for instance, those providing for higher indemnities), regardless of the fact that they may have been approved by means of a law, shall be considered void and mandatorily replaced by Letter A and by the indemnity set out therein.
Moreover, Article 35 specifies that the mandatory replacement, as per above, cannot lead to the termination of the affected public concessions. This seems to have a precise aim: to make ineffective eventual clauses providing that public concessions are terminated should significant change of law occur.
On the contrary, clauses of public concessions excluding the payment of indemnities (thus, in pejus compared to Letter A) are not affected and remain in force.
3. Effects of termination
The effectiveness of the public concessions' revocation, disqualification or termination is not subject to the previous actual payment by the public entities of the indemnity due under Letter A.
This is a derogation from Article 176, paragraph 6, of the Public Contracts Code, whereby the aforementioned payment is set forth as a condition precedent for the termination to become effective.
