Models of regulation for transport services in the European liberalized market: local public transport in Italy
Key words: public service; public contrac; in house providing, public services requirements; compensation
Public transport is an important area of the service market, characterized by a structural imbalance due to misalignment between satisfying requirements of supply (accessibility and pricing) and the cost of activities. It is, in fact, a service mainly directed to satisfy the mobility needs of citizens and (general) objectives of territorial cohesion; thus, it must be provided even when the conditions of supply generate important diseconomies.
For this reason, historically, in all European countries there has been a pervasive intervention of public authorities in this economic sector, culminating in a public monopolistic management of transport services or in endemic financial support of business activities subject to public service obligations.
European liberalization of transport services that, since the end of the last century, involved all transportation modes of goods and passengers, led to a general review of public intervention models, which is more evident in the area of network services (railways) and in regional and local services; in these economic areas, in fact, the application of competitive policies is not possible without first “creating” the market dynamics, ensuring fair access to (and use of) infrastructure and basic facilities to production.
In Italy, a comprehensive reform of local public services took place with Legislative Decree. NO. 422, 19 November 1997, implementing law 1997, n. 59, amended several times.
The paper deals with the new legislative organization of the local transport services market in Italy, with special reference to applicative issues, which have emerged since its adoption, above all, in the implementation of the fundamental principles of the reform: the gradual opening of the sector to competition, through divestment of direct management and the start of tender procedures for the award of services; the separation between exercise of administrative functions, exclusive responsibility of the public sector, and the service entrusted to the market.
National legislation is analyzed with regard to the particular complexity of the regulatory framework it operates in, considering both the regional prerogatives in the field at a constitutional level (see the constitutional reform of 2001), and the European regulation of reference ( reg. 1370/2007) which, while not directly affecting local public transport, lays down general rules regarding terms and conditions, as well as public intervention limits in the different modes of transportation. EU Reg. No 1370/2007 directly disciplines, in fact, only national and international public road and rail services; however, the competent authorities at a local level can, when the transitional period expires (December 3, 2019), enforce rules on the direct entrusting of local services (Art. 5), provided that this solution is “not contrary to the domestic sector legislation”.
In any case, public interventions remain subject to the general principles of EU legislation, on the rules concerning State aid and the conditions which, under Article. 106 TFEU, allow public authorities to avoid the application of rules of competition in respect to companies entrusted with the operation of services of general economic interest. In this context, the decisions of the European Court of Justice take on a fundamental importance regarding in-house providing of regional and local transport services.
Particular attention is paid to the role played in the process of liberalization and regulation by those called to exercise independent administrative functions (such as the newly instituted National Authority of Regulation of Transport), and to analyze the actual efficiency of new tools for legal relationships between administrations and managers (public service contract), also regarding elements of conflicts between the public sector, companies and users, which have emerged from numerous court rulings.
