Premise. The Authority 'has received several reports concerning the application of legislation on late payments pursuant to Legislative Decree 9 October 2002, n. 231 (Decree 231) to public contracts for supplies and services. Given the particular relevance of the topic, the Authority 'has arranged a survey by hearing of several professional associations, in order to assess the magnitude of the phenomenon and its impact on the economy' of the administration and on the ' operability 'of service providers and supplies. The analysis of data collected in the base year 2009, and 'found that the timing of payment fluctuate in a range from a minimum of 92 days to a maximum of 664 days. And the delay ', mostly', attributed to the emission times of certificates of full performance (46.3%) and payment orders (29.6%) by the contracting authorities and, more 'in general, delays resulting from stickiness' internal bureaucratic public administration (32.5%). It was also detected significant differences in the spatial plan: delays exceeding two months are reported by 36.4% of the North-East companies, rising to 61.5% in the North West and to 63.3% in the South. The alleged debt exposure of the public administration, calculated on the basis of the estimate submitted by audite associations, would amount to about 37 billion euro (equal to 2.5 percent of GDP), of which a large part derives from the health system and the collection of solid urban waste. The problematic and 'particularly felt, especially in the current economic situation with difficult access to bank credit, small and medium-sized enterprises which are affected in a severe lack of liquidity'. With specific regard to the application of the above law, on the basis of conducted investigations, we were recognized authorities in the consistent practice of unilateral identification of terms of payment in excess of those provided by the decree 231 and the inclusion of the terms of payment in derogation of the elements the bid evaluation. Some special tender specifications provide, altresi ', the reduction of late payment interest rate provisions of the Decree. The assumption of the risk related to the deferral of payments creates problems both related to the efficient use of public resources is the 'sustainability' 'of participation in contracts by private entities. In the first case, it is observed that private contractors tend to include the financial burden that is assumed to incur for late payments under the price offered to the contracting authority; the latter will be found ', also in the position of having to pay the default interest resulting increase in resources initially estimated for the contract. On the second aspect, the need 'to bear the hidden costs associated with the non regularity' payments distorts the competitive comparison, discouraging the participation of economic operators, even though they are 'qualitatively competitive. Consider that the phenomenon produces exponential effects on the economic system of enterprises, since the delay in payments directly affects not only economic operators bidders, but, indirectly, produce cascading effects on the armature, ie on all the companies that perform activities' in the valley (in the form of subcontractors, suppliers, etc.). Given the economic importance of the phenomenon, the Authority 'resolved to adopt this determination in order to provide contracting authorities and economic operators to interpretive signs on the applicable regulations and operational suggestions for the preparation of tenders and entering into contracts. 1. The applicable legislation. The decree gave effect to Article 231. 26 of the Community law 1 March 2002 n. 39, which delegated the Government to implement the European Union Directive 2000/35 / EC on combating late payment in commercial transactions. The discipline, in order to stem the phenomenon of late payments, provides for: a) the automatic effect of default interest from the day following the expiry of the term of payment, and that 'established in the absence of other agreement, in thirty days commencing from the events under art. 4, paragraphs 2 and 3, no-need of an act of formal notice written (art. 4); b) the legal determination of default interest equal to the prime rate of interest tool ECB refinancing, applied to its more 'recent main refinancing operation, conducted on the first day of the semester calendar in question, increased by seven percentage points, unless otherwise agreed (art. 5); c) compensation for the costs incurred for the recovery of sums not paid promptly, save proof of greater damages (art. 6); d) the nullity 'of an agreement on the date for payment or on the consequences of late payment which is grossly unfair to the creditor (art. 7); e) the court's power to declare of its nullity 'of the Agreement and to modify the content of the contract by applying the legal terms or by linking it to equity', having regard to the interests of the creditor, the good commercial practice and the planned circumstances (art. 7); f) the procedural legitimacy of the associations of entrepreneurs in the National Council for Economy and Labour (CNEL) in order to ascertain the gross iniquities' of the general conditions concerning the payment (art. 8). Piu 'in particular, the right' to derogation and 'governed by art. 4, paragraph 4, where it states that 'the Parties, in its freedom' contract may agree on a longer period than the legal referred to in paragraph 3 provided that the various agreements are set out in writing and comply with the agreed limits in ' scope of the agreements signed at the Ministry of activity 'production, by the most representative organizations at national level of production, processing and distribution for specific categories of perishable products. " Article. 7 regulates the nullity 'of the agreement on the date for payment or on the consequences of late payment, stating that the agreement and' invalid 'if, having regard to fair trade practice and the nature of the goods or services covered by the contract, to the condition of contractors and commercial relations between them, as well as 'any other circumstance, it is grossly unfair disadvantage of the creditor'. Paragraph 2 of art. 7 covers certain legal cases of gross iniquity ', so' we consider, in particular, grossly unfair that the agreement, without being justified by objective reasons, has been the main aim of procuring the debtor liquidity 'to additional expense of the creditor, that is the agreement by which the contractor or the main sub-contractor imposes on his suppliers and subcontractors terms of payment unjustifiably more 'long with respect to payment terms granted to himself ". The illustrated rules concerning contracts between businesses and contracts between companies and public administration, meaning that "the authorities of the State, the regions, the autonomous provinces of Trento and Bolzano, local governments and their associations, public authorities do not economic, every other body with personality 'legal, established for the specific purposes' of general interest not having an industrial or commercial character, whose activities 'and' financed, for the most part, the regions, local authorities, other public bodies or public law, or subject to management and 'subject to their control or has an administrative, management or supervisory body are made up, at least for the goal', by members appointed by the same public entities "(art. 2). Objectively, the legislation refers to 'all payments made as remuneration for commercial transactions', with the exception of debts that are subject to insolvency proceedings instituted against the debtor, the claims for interest of less than five euro, the payments made by way of compensation of the damage, including payments made on that basis by an insurer (art. 1). For the purpose of default interest, the former late art. 1218 of the Civil Code must be attributable to the contracting authority. From what 'follows that they are unproductive of interests delays due to events that are contracting such as, for example, the hypothesis of force majeure or causes attributable to the fact of the same contractor. Unfailing necessary corollary of imputability 'of the delay to the contracting authority and' also that the burden of providing evidence of criminal responsibility 'of the cause of the delay falls on the same public administration. It should be noted, altresi ', that Article. 6 of the Decree 231 reaffirms the right to compensation for greater damage under Art. 1224, paragraph 2, of the Civil Code. The issue in question and ' It has been the subject of repeated national legislative developments (Law 28 January 2009, n. 2 conversion of Decree Law 29 November 2008, n. 185 and Law August 3, 2009, n. 102 converting Decree Law of 1 July 2009, n. 78), aimed at achieving greater efficiency in the programming of expenditure commitments by public administrations. In particular, Article. 9 Decree-Law no. 78/2009 introduced rules aimed at ensuring the prompt payment of the amount due from the government in order to prevent the formation of new debt situation as well as 'to detect residual liabilities and payables already' in existence at the date of entry into force of that decree. It was expected, by the public authorities listed in the list adopted annually by ISTAT, the adoption before 31 December 2009 of the appropriate organizational measures to ensure the timely payment of the amounts due for administration, supplies and contracts. Such measures would have to be given publicity 'on the website of the authorities concerned. Is, altresi ', sanctioned the responsibility' of a disciplinary and administrative official of the same government, called upon to take measures that entail expenditure commitments, in breach of the duty of prior verification of compatibility 'of the schedule of payments both with relevant budget appropriations and with the public finance rules. Then the rule states that, if for reasons arisen as the budget does not allow to meet the contractual obligation, the administration and 'call to take appropriate steps, including accounting, administrative or contractual, to avoid the formation of old debts. However, they are explicitly excluded from the application of the provisions outlined healthcare companies, hospitals, university hospitals, including university hospitals and the health institutes in public scientific, although transformed into foundations. Other relevant provisions are designed to allow disinvestment more 'fast of receivables due from the public administration. Article. 9, paragraph 3-bis of Legislative Decree no. 185/2008 (paragraph added by the law converting 28 January 2009, n. 2 and subsequently amended by art. 1, paragraph 16, Decree-Law 30 December 2009, n. 194, ratified with amendments by Law 26 February 2010, n. 25), for the years 2009 and 2010, allows, at the request of the sums owed to the creditor administration, supplies and procurement, to the regions and local authorities, within the limits imposed by the stability Pact 'internal, to certify, within a period of twenty days from the date on which the receipt "if the relevant claim is certain, liquid and payable, in order to allow the creditor to transfer without recourse to banks or financial intermediaries recognized by the legislation in force ». This sale is effective against the debtor, with effect from the aforesaid certification, which can 'be released for this purpose even if the supply or service contract in existence at the date of entry into force of the law converting the decree law excludes the transferability 'of the same claim. The Decree of the Minister of Economy and Finance of 19 May 2009 laid down the modalities' for implementation of the aforementioned Article. 9, paragraph 3-bis, stating that, before issuing the certification, for claims exceeding the amount of ten thousand euro, the head of the debtor administration Accounting Office must verify, pursuant to art. 48-bis of Presidential Decree of 29 September 1973, n. 602, if the beneficiary 'in default of payment obligation resulting from the notification of one or more' payment bills totaling at least equal to that amount. In the event of proven breach of the obligation of payment, certification potra 'be made net of amounts owing. Finally, and 'should be pointed out that' in the approval process, through the co-decision procedure, a proposal to amend Directive 2000/35 / EC, in order to contribute to the implementation of the 'Small Business Act' (COM (2008) 394) and in the context of the proposed measures by the European economic recovery plan (COM (2008) 800). The proposal for a directive (COM (2009) 0126) the provisions of Directive 2000/35 / EC remained essentially unchanged, but introduces specific provisions on payments by public administrations that go in the direction of a tightening measures in the event of failure to meet deadlines, with particular reference to the elevation of the default interest rate. 2. Practical Guidelines. Directive 2000/35 / EC cited and therefore the decree 231 of implementation, contain direct mandatory rules to rebalance the position of inequality between the parties, preventing an alteration of the contractual synallagma (cfr. On the point, the State Council, sect . V, judgment of 1 April 2010, n. 1885; Council of State, sect. IV, 2 February 2010, n. 469): participation in a tendering procedure can not 'then count as tacit acceptance of payment conditions different from those predetermined by law. Consequently, they must be considered unfair clauses of a contract notice with which the contracting authority unilaterally establish a payment deadline and a date from which default interest different from those established by art. 4 of the Decree 231, as well as' an essay of interest other than that provided for by art. 5. More 'specifically, the imposition of the deferral of the deadline for payment would introduce an unfair advantage for the administration, considered, by virtue of the authoritative powers available in the journalism phase of the attivita' of negotiations, like the other contracting party strong (cf.. State Council, sect. V, April 12, 2005, n. 1638 and September 28, 2007, n. 4996). The opposition 'to mandatory law determines, therefore, the nullity' of such clauses with legal integration of the Contract through automatic application of content clauses conform to those unlawfully departed (cfr. Articles 1339 and 1419 Civil Code). Such nullity 'may' be invoked by the party or be detected office in every state and degree of any judgment as well ', according to art. 8 of Decree 231, prejudiced by trade associations within the inhibitory action for the protection of collective interests. From what 'follows the illegitimacy' of a possible exclusion from tender procedures arranged by reason of lack of acceptance (expressed or not) of any contractual provision unfair. Equally illegitimate and 'the attribution of a score within the economically most' advantageous, in terms of payment dilated compared to the legal discipline. By express provision of law, in fact, the exception to the legal and business conditions 'only permissible by agreement between the parties and provided that the conditions so' agreed are not grossly unfair. The exposed interpretation - which links the grave iniquity 'the unilateral predetermination of the clauses and rules out the possibility' of agreement on the clauses contained in the contract notices - making it, in fact, mandatory terms and conditions set out in Decree 231 for the public administration, expected the identification of the contractual obligations following a public tender, in which are predetermined and known all the constituent parts of the contract, including those affecting payment terms. It can not 'therefore be considered sufficient if the SA, to waive the above detailed legislation, in the face of the tender notice a generic reference to the need' to respect the stability pact 'interior. Eventually, in very exceptional cases, the notice potra 'indicate those specifically identified objective conditions that prevent the SA to comply with the conditions for payment imposed by the rules, as long as' the same are due to breach of the general duty levied on public administrations check compatibility 'of the schedule of payments with their budget allocations and the public finance rules. In any case, in order to prevent incorrect behavior when payment can produce exponential effects on the business system operating downstream with subcontracting assignments, and 'appropriate that the contracts require the contractor who got a payment from a government (be it early or late) to meet their payment obligations to subcontractors or suppliers with the same value date, in order to prevent the successful transfer the inefficiency cost of contracting out of more businesses 'small and, therefore, more' fragile from the financial point of view. Based on the foregoing, the Council considers that: 1) contracting authorities must follow in drawing up the tender documents, as well as' the contractual documents, the provisions of Legislative Decree 9 October 2002, n. 231 with about the terms of payment, the date from which default interest and the interest rate applicable in case of delay. 2) contracting authorities may not make participation in tender procedures and signing the contract, the acceptance of terms of payment, the date from which default interest and extent of divergent interest from those envisaged by Legislative Decree 9 October 2002, n . 231, it 'provides for such acceptance as an element of a favorable evaluation of the technical bids in the context of the criterion of the economically most' advantageous. Rome, July 7, 2010 The rapporteur Acting President: Brienza Deposited with the Secretariat of the Council dated 19 July 2010