Italy: 'Decreto Semplificazioni bis' - The main changes to the environmental, energy, procurement and administrative procedures

In brief

Law Decree No. 77 dated 31 May 2021 entered into force on 1 June 2021 ("Semplificazioni Decree" or "Decree"). The Decree must be converted into law within 60 days and, therefore, it may be subject to further amendments.

The Decree sets forth the regulatory framework aimed at simplifying and facilitating the administrative procedures that may have an impact on the achievement of the targets provided by the National Recovery and Resilience Plan (NRRP). In particular, the Decree simplifies the environmental, renewable energy, infrastructure, procurement and administrative procedures.


Contents

The main changes

  • Environment

The Decree provides for some amendments to the Italian Environmental Code. In particular, the timeframe for the environmental impact assessment (EIA) procedure has been reduced to 130 days for projects included in the NRRP and to 60 days, extendable by a further 30 days in cases of particular complexity, for projects not included in the NRRP.

Some further amendments to the Environmental Code concern remediation procedures. In this regard, an important provision has been introduced in the Decree in order to speed up remediation procedures and the reconversion of industrial sites to be used for the realization of NRRP activities.

As to circular economy, the legislation on the end of waste has been amended. In this regard, the Istituto Superiore per la Protezione e la Ricerca Ambientale (ISPRA) or Agenzia Regionale per la Prevenzione Ambientale (ARPA) authorities shall issue a mandatory and binding opinion within the procedure for granting the waste recovery authorization provided by the Environmental Code.

  • Renewable energy

As to renewable energy sources, in order to speed up the relevant procedures, the Decree provides that photovoltaic plants in industrial areas and with a capacity greater than 10 MW connected to the medium voltage (MV) grid are to be built pursuant to the simplified authorization procedure (SAP) and are not to be subject to EIA screening.

On the other hand, photovoltaic plants with a capacity greater than 10 MW are to be subject to the EIA procedure under state jurisdiction.

With regard to standalone electrochemical storage plants, these will not be subject to an EIA or EIA screening, unless such procedures are required for connection works.

Finally, the Decree sets out that non-substantial revamping and repowering interventions concerning renewable energy plants can be carried out pursuant to SAP.

  • Town planning and constructions

As to the 110% Superbonus deduction, the Semplificazioni Decree establishes that works eligible for the 110% Superbonus are to be qualified as extraordinary maintenance works and are only to be subject to the notification of works commencement (the so-called CILA).

  • Public contracts

The main and most complex changes provided by the Decree are those concerning public procurement procedures.

In particular, the Decree extends the following exceptional provisions, among others, until 30 June 2023:

  • The contracting authority has the faculty to direct award contracts — without the need to consult any economic operator — if their value is below the threshold of EUR 150,000 (for awarding works, services and supplies) or below EUR 139,000 (for engineering and architectural services).
  • The contracting authority has the faculty to adopt the negotiated procedure without a call for tender — after consulting at least 5 economic operators and in compliance with the rotation criterion — for awarding services and supplies with a value above the thresholds set out above (but within the EU thresholds) or within the threshold of EUR 1 million for awarding works.
  • The contracting authority has the faculty to adopt the negotiated procedure without a call for tender — after consulting at least 10 economic operators — for awarding works with a value above the threshold of EUR 1 million (but within the EU threshold).

In addition, to speed up and digitalize public procurement procedures, the Decree also provides for the creation of a specific database concerning economic operators participating in public tender procedures, containing: (i) data concerning the tenders in which the economic operators participated and their final award; (ii) the information necessary to assess the absence of any relevant exclusion causes; (iii) documents/data concerning SOA certificates and the assessment of relevant professional, technical and economic-financial requirements.

In addition, the Decree provides for significant innovations with reference to subcontracts. In particular, until 31 October 2021, subcontracting is allowed if it is within 50% of the value of the works, service or supply contract. From 1 November 2021, no quantitative limit on subcontracting will be applicable but the contracting authority will specify — in the tender documents — which services or works shall not be subcontracted and, therefore, shall be performed directly by the contractor.

  • Administrative proceeding

Finally, the Decree provides for some important provisions concerning administrative proceeding law. Indeed, in relation to the tacit consent (silenzio assenso) discipline, the Decree establishes that if tacit consent applies, the public administration must issue, upon an applicant's request, a document stating that the deadline for the proceeding's conclusion has elapsed and, therefore, the acceptance of the application filed by the applicant. In addition, the timeframe in which the administration may proceed with the cancellation of an illegitimate act has been reduced by the Decree to 12 months (from 18 months).

Contact Information
Francesco Goisis
Of Counsel at BakerMcKenzie
Milan
francesco.goisis@bakermckenzie.com
Miriam Allena
Senior Associate at BakerMcKenzie
Milan
miriam.allena@bakermckenzie.com

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