Criteria For Interpretation Concerning The Provisions Of Article. 38, Paragraph 2-Bis And Art. 46, Paragraph 1-Ter Of Legislative Decree 12Aprile 2006, N. 163, Concerning The Procurement Code. (Determinan. 1).

Original Language Title: Criteri interpretativi in ordine alle disposizioni dell'art. 38,comma 2-bis e dell'art. 46, comma 1-ter del decreto legislativo 12aprile 2006, n. 163, in materia di codice degli appalti. (Determinan. 1).

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Premise. Decree-Law 24 June 2014, n. 90 (Urgent measures for simplification and administrative transparency and efficiency of the courts), converted with amendments into law August 11, 2014, n. 114, it amended by art. 39, entitled 'Simplification of formal charges in participation in procedures for awarding public contracts ", Articles 38 and 46 of Legislative Decree of 12 April 2006, n. 163 (hereinafter the Act), which concern - respectively - the general requirements necessary for participation in the procedures for awarding public contracts and additional documents and information as well as 'the mandatory nature' of the causes of exclusion. The provision of Article. 39 and 'placed in Title IV of the decree-law n. 90/2014, which concerns the "Measures for the simplification of the administrative process and the implementation of electronic civil trial". This position has to be taken into account for exact identification of its expansive scope, in view of the administrative litigation deflation in public procurement, part of which very relevant concerns the stage of admission and exclusion from the race (often for purely formal issues) or disputes, by competitors, in order to admitting any. As a result of this legislative news, and 'it was inserted in Article. 38 of the Code, the new paragraph 2-bis, which provides that "the lack, incompleteness and any other irregularities' essential elements and of the affidavits referred to in paragraph 2 requires the competitor who has given you due to the payment, in favor of the contracting authority, the financial penalty set by the contract notice, for no less than one part per thousand and not more than one per cent of the tender value and an upper limit of 50,000 Euros, the payment of which and 'guaranteed the provisional deposit. In this case, the contracting authority assigns to the competitor a period of up to ten days, 'cause it is made available, supplemented or regularized the necessary declarations, indicating the content and the subjects that must make. In cases of irregularity 'non-essential or the lack or incompleteness of unnecessary statements, the contracting authority will not require regularization, it' charge any penalty. In case of expiration of the period referred to in the second period and the competitor 'excluded from the race. Any change to intervene, partly as a result of a judicial decision, following the admission phase, regularization or exclusion of tenders not relevant to the medium in the calculation procedure, it 'for the identification of the tender anomaly threshold. " Art. 46 of the Code and 'it was, however, added to paragraph 1-ter which provides that "the provisions of Article. 38, paragraph 2-bis, apply to every case of absence, incompleteness or irregularities' of the elements and statements, including third parties, to be produced by competitors according to the law, to the notice or the tender regulations. " These provisions, according to Art. 39 of the Decree-Law no. 90/2014, converted into Law no. 114/2014, shall apply only to procedures for awarding held after the date of entry into force of the decree. The rules listed above are designed to overcome the uncertainties in interpretation and implementation of the combined provisions of Articles 38 and 46 of the Code (the subject of legal guidelines not unique, as it will illustrate 'later) by proceduralisation the aid investigation (which becomes a duty for every hypothesis of omission or irregularities' of the elements and the statements made in the race) and the exclusion from the race setup as a sanction only legitimized from the omission of production, integration, regularization of the elements and inadequate statements, within the time allowed by the contracting (and no more 'originating deficiencies) (in this sense, Ad. Pl. Cons. St. n. 16 of 30 July 2014). However, the wording of these provisions needs to be clarified - with particular reference to the identification of the cases attributed to "lack, incompleteness and any other irregularities 'essential elements and affidavits' and to 'irregularities' non-essential or lack or incompleteness of unnecessary statements' in Article. 38, paragraph 2-bis - and regulatory coordination, having regard to the impact of legislation on novel exhaustive list of grounds exclusion, so 'as required by the legislation previously in force - not modified by the new norm - and specify the determination of the Authority' n. 4 of 10 October 2012, supplemented and amended by this for incompatible parts (in the light of the new rules on aid investigation and the recommendations in this regard provided by this Act). The difficulties 'exegetical connected with the qualifications as essential or not the irregularities' of the elements and of the affidavits as well as 'the identification of unnecessary statements, are reflected, in fact, is the correctness of the actions which the contracting authority must' take in the race , as to the possibility 'for the competitor to regularize the same well' to avoid or not the application of the penalty prescribed by art. 38, paragraph 2-bis, is on the correct identification of all those causes mandatory exclusion closely related to the content or the privacy of the same, under which, in accordance with the principle of equal 'treatment and decisiveness' of deadline for submitting tenders, no integration and / or regularization you think may not be admitted. This 'taking into account, however, that the new rules of the aid investigation in no case can' be used for the recovery of requirements not met at the time set by the lex specialis of the race, which final deadline for submission of offers or demand. In all respects mentioned above, it is therefore necessary - in the following terms - an intervention of the Authority 'aimed at resolving the doubts of interpretation of the provisions in question in order to provide guidance, in this context, the behavior of the industry . 1. Charges and new declarative paragraph 2-bis of art. 38 of the Code. As we know, Article. 38, paragraph 1, of the Code provides that they can not participate in the procedures for concessions and contracts for works, supplies and services, they 'can be foster subcontracting, and can not enter into such agreements, those who are in a situation referred to in letters a) to m-c) of the same provision. These requirements (as outlined by the Authority 'in determining n. 1/2010) must be satisfied by the economic operator in the competition at the time of expiry of the deadline for submission of tenders or an application to participate in the case of restricted procedures and must continue throughout the course of the award procedure until the signing of the contract. In the case of subcontracting, and salient moment 'that consent is given. The principle expressed by art. 38 of the Code, according to which the participation in public tenders requires, on the part of the participants, possession of mandatory morality 'requirements, is a general principle. It is, in fact, a fundamental principle of public economic order which satisfies the requirement that the person who contracts with the administration is reliable and, therefore, meet the general requirements and morality 'that typifies the norm (cf. . Cons. St., Sec. VI, 21 May 2013, n. 2725). For the purposes of demonstration of such mandatory participation requirements, paragraph 2 of art. 38, allows the economic operator to produce in the race a substitute declaration, given the provisions of art. 77-bis of the Decree of the President of the Republic n. 445/2000. Accordingly, contracting authorities, in accordance with art. 43 of the Decree of the President of the Republic n. 445/2000, carry out the verification of meeting requirements art. 38 and declared by economic operators in the self-certification, acquiring 'office related information, subject to the indication by the person concerned, the competent administration and the elements essential to the retrieval or the requested data. " Each economic operator participant, therefore, the burden of declaring all situations and / or potentially relevant circumstances for the purposes of the possession of the general requirements specifically provided for by law. In order to clarify the scope of that declarative burden intervened, with many pronunciations, both the Authority 'is the administrative jurisprudence himself' with no unique address. In particular - as regards the wording of Article. 38 previous regulatory changes under consideration - the Authority 'made it clear that in addition to the hypothesis of falsehood', also the omission or incompleteness of statements provided for in that legislative provision constituted a ground for excluding a public procedure, even in the absence of an express provision of the notice (most recently, those of the pre-litigation n. 144 of 20 June 2014). The Administrative Court, according substantialist interpretation of the provision at issue, which highlights a teleological reading of the same, the Court said that the first paragraph of art. 38 of the Code provides for the exclusion from the race in the presence of substantial given the failure to meet the prescribed requirements. Therefore, only the non-existence in practice of exclusion provided for by art. 38 cited, by operation of law would result in the expulsion predicted effect. Effect which, moreover, Article. 45 of Directive 2004/18 / EC covers only the assumption of severe guilt and misrepresentation in supplying information, do not arise if the competitor does not make any advantage in competitive terms, being in possession of all the requirements (on thesis substantialist, Cons. St., Sec. III, 6 February 2014, n. 583, sect. V, 9 December 2013, n. 5883). The administrative judge but 'also expressed notice to the contrary, as stating in public procedures completeness of the statements was already' in itself 'a value to be pursued in accordance' with the principle of sound administration and proportionality ' (which is the framework the needs of orderly conduct of the competition and transparency), as it allows the swift decision on the admission of the economic operator in the tender; Therefore, an unreliable statement ( 'cause false or incomplete) should be considered in itself detrimental to the interests protected by the standard, regardless of the fact that the company deserved' substantially 'to participate in the race (Cons. St., Sec. III , March 16, 2012 n. 1471, to do so even the most 'recently sent. Cons. St., Sec. III, 24 June 2014, n. 3198). In other words, even in the absence of express simultaneously warning the lex specialis for competition - given the eterointegrazione of the legal provision in question for the obvious nature of public policy that supports it - failure to comply with the obligation to make, at the time of submission of the application for participation, the necessary declarations provided for by art. 38 of the Code entailed the exclusion of the competitor, without being allowed the contracting authority to arrange for their regularization or integration, since it is not mere irregularities', purely formal defect or omission (cf.. Cons. St., Sec. III , December 14, 2011, n. 6569). This jurisprudential debate must be held partly overcome in the light of the new provision under paragraph 2-bis of art. 38 of the Code. The legislative news has, in fact, that in case of absence, incompleteness and any other irregularities 'essential elements and of the affidavits referred to in paragraph 2, the contestant' sanctioned by payment, in favor of the contracting authority, to a fine established by the tender notice, for no less than one part per thousand and not more than one per cent of the value of the race, but not exceeding 50,000 euro, the payment of which and 'guaranteed by the interim bail. In this case, the contracting authority assigns to the competitor a period of up to ten days, 'cause it is made available, supplemented or regularized the necessary declarations, indicating the content and the subjects that must make. The provision adds that, in cases of irregularities 'non-essential or the lack or incompleteness of unnecessary statements, the contracting authority does not require regularization, it' charge any penalty. The new forecast, therefore, only in cases of lack, incompleteness and any other irregularities' essential elements and of the affidavits referred to in paragraph 2, provides for the obligation of the competitor to pay in favor of the contracting authority, the financial penalty established by the tender notice, the payment of which and 'guaranteed by the provisional deposit, and this', and' to be considered, only in order to integrate and regulate its omissions and / or failures. The exclusion of the competitor from the race, however, will be 'prepared by the contracting authority only after the useless time limit assigned for the purpose of regularization (ie' without the competitor to supplement or rectify the deficient representation or irregular). The purpose 'of the provision and' surely to avoid exclusion from the competition for mere documentary deficiencies - including even the absolute lack of statements - to that end an investigation by imposing fast but preordained to acquire the completeness of the statements, prior to the assessment of eligibility 'supply or demand, and to authorize the sanction of expulsion as a result of one breach by its rival, the obligation to document integration within the agreed final deadline, to this end, the contracting authority (in this sense, Ad. Pl. Cons. St. n. 16/2014 cit.). On the basis of this provision, therefore, for the purposes of participation in the tender, it is relevant to the actual existence of the general qualifications of competitors and no formalities 'it' completeness of the contents of the possession of such a demonstration statement requirements. It thus confirms the case-law according to which you must give preference to the substantial data (that the requirements) than the formal (completeness of the self-declaration of competitors) and, therefore, the exclusion from the race potra 'be willing no longer 'in the presence of an incomplete declaration, or even omitted, but only if the contestant does not comply with the request of the contracting authority or does not have, indeed, the requirement. In this respect, the novel in question seems to be aimed, altresi ', to the deflation of litigation arising out of exclusion taken by tenders, for formal reasons - which is not matched by substantial interest in real reliability' of the competitor - the statements made by the participants, resulting in possible reduction in cases of cancellation and suspension of the award measures what ', however, be inferred from the location of the same art. 39, in Title IV of the decree-law n. 90/2014 converted into Law no. 114/2014, deals with the 'measures to streamline the administrative process and the implementation of electronic civil trial', as above already 'mentioned. 1.1. Irregularities' essential elements and of the affidavits referred to in paragraph 2-bis of art. 38 of the Code. The wording of Article. 38, paragraph 2-bis, of the Code, by not specifying anything or 'regarding the notion of essentiality' of the aforementioned irregularities', they 're not the INDISPENSABILITY' to poor returns, essentially leaves, to the individual contracting authorities, the identification of cases in which the production and 'permitted, integration and regularization of the items and statements in art. 38, paragraphs 1 and 2. Condition, this, which could result in inconsistent behavior, if one considers that the same case is treated differently from one administration to another. What 'it makes it essential to this regulatory intervention, in order to provide an interpretation of the rule that allows a uniform application of the same, by the contracting authorities and operators in the industry. To this end, the following is observed. And 'reasonable to assume that with the notion of irregularity' essential the legislature intended to refer to any irregularities' in the drafting of the declaration, in addition to the omission and incomplete, that does not allow the contracting authority to clearly identify the subject and content the declaration itself to the identification of the individual requirements of a general nature that must be owned by the competitor and, in some cases, for it by persons specifically designated by the same art. 38, paragraph 1, of the Code. This interpretation is clear, as well as from the rationale underlying the rule - which, however, in providing a specific fine, to achieve the target to avoid that in the face of the general possible to remedy 'shortcomings and omissions, operators are induced to produce statements from which he inferred the actual possession of the individual general requirements and the exact identification of the persons who should own them - even from a similar text-based data, which assumes greater significance from a systematic reading of the first two periods of the said paragraph 2-bis . In fact, in the second period of the rule just referred and 'expressly stated that in cases of irregularities' essential 'the contracting authority assigns to the competitor a period of up to ten days,' cause it is made available, supplemented or regularized the necessary declarations, stating the content and subjects that have to make. " The express reference to the content of statements and the subjects that must pay, makes clear the intention of the legislature to extend the application of the rule to all deficiencies - in terms of omissions, incompleteness and irregularities' - referring to the elements and to the statements in art. 38 as well as 'the aspects relating to the identification of centers of imputability' they were made. With regard to the content must be repeated that the impediments therein affect all necessarily on reliability 'professional enterprise and, therefore, any irregularities' in its statement to be considered as essential on identifying incidents of the requirement for the undertaking same (or to persons working within it). Similarly they are traced in the category of irregularities' essential, deficiencies of the declaration pertaining to the identification of the individuals responsible for the same. This applies, for example, failure to produce the document of identity 'in support of the declaration or the lack of signature of the declaration that the same lack of indication of the subjects referred to by the letters b) and c) of paragraph 1 of article . 38, where the contracting authority has specifically requested such information in the tender documents and related their statements. The substitute declaration constitutes a source of responsibility ', even criminal, as a result of any falsehood' of the act, therefore, the irregularities 'concerning the correct identification of the responsible for the declaration, must be surely brought back within the fold of essentiality'. In summary the essential deficiencies regarding the inability 'to determine whether the individual requirement contemplated by subsection 1 of art. 38 is owned or not and on what subjects (mentioned in the same article). Cio 'that occurs in cases where:
a) there is no statement regarding a specific letter of the paragraph 1 of article. 38 of the Code;
B) the declaration exists but not by one of the parties or by reference to one of the subjects that the rule identifies as holder of the requirement;
C) a statement there but by the same it is not clear whether the requirement is owned or not. This' as prescribed in the tender documents and in conformity 'to mode' in them specifically mentioned. The same Gathering Plenary Council of State, 30 July 2014, n. 16, must be substantially related to the possibility 'that the contracting legitimately requires the declaration on the possession of the requirements of Art. 38, paragraph 1, of the Code, in summary form, and by the only legal representative of the company (subject to the requirement of the statements referred to in paragraph 2 of art. 38 of the Code). If, however, the contracting authority requires, the lex specialis of the race, the individual whose statements Art. 38, and by all persons referred to therein, the same must be made as required in the tender documents. Moreover, the new discipline of aid investigation can 'be considered implicit admission regulations of the faculty' of contracting authorities to require analytically, and by all those concerned by the standard, the statements referred to in Article. 38, paragraph 1 of the Code. A special case and 'constituted from the omission of indication of convictions referred to in paragraph 1, letter c) of art. 38 of the Code, which must be explicitly declared, as prescribed by paragraph 2 of that Article. However, with regard to this specific case, it should be noted that the new discipline of aid investigation seeks to avoid the exclusion from the race for the facts and circumstances pertaining to the formal statements made. The non-disclosure of convictions reported by the subjects contained in the said letter c), however, if it takes place according to mode 'which integrate the details of a negative statement of the competitor (' cause expressly declares not to have reported, even possibly marking the form provided by the contracting authority regarding the absence of judgments box), when in fact the same there, the case integrates the extremes of false race with all the implications in terms of not possible to remedy 'of the statement (' cause the same it would not be simply missing or deficient but not corresponding to the truth), and the consequent exclusion of the competitor from the race as well as 'reporting of the case the Authority'. Otherwise, whether the declaration concerning the presence of convictions and ' completely omitted, or if you declare that you have reported no indicate, may 'be required respectively to produce it or to indicate individual reported judgments. The novel in question, in fact, does not affect the regulation of false statements in the race, which remains confirmed. Therefore, pursuant to art. 38, paragraph 1-ter of the Code, where the contracting authority determines that the competitor has made a false statement or false documentation, is to 'rise to the procedure defined in the said paragraph 1-ter art. 38 and to the communication of the case the Authority 'for the application of the disqualification and fines laid down in the relevant law (art. 38, paragraph 1-ter and art. 6, paragraph 11, of the Code). This provision then refers to another category of irregularities', namely the lack or incompleteness of unnecessary statements which - as in the case of irregularities' non-essential - do not follow it sanctions' regularization obligations by the competitor. Although there is no mention in the provision in question, it should be noted the possibility 'that are present irregularities' or deficiencies of the statement can not be considered essential but at the same sussumibili not even in the category of non-essential and non-essential, appalesandosi instead as representations or elements payable by the contracting authority for the purpose of swift and certain verification - in accordance with the principle of sound administrative action (art. 97 of the Constitution.) - self-declaration made by the candidate for admission to the race. In this sense, a third category is relevant that concern, mostly 'assumptions for completion or clarification of the statements and documents submitted, in respect of which must be considered possible for the contracting authority to activate the aid investigation, without imposing any financial penalty . It would in that case of irregularities 'not essential but which belong to essential elements when considered in terms of rapid and secure verification of the possession of the general requirements in chief competitors, in view of the good performance and cheapness' of 'administrative action, which tenderers must also participate, in accordance with the principles of loyal cooperation, fairness and good faith, and that the contracting authority may', in any case, request in accordance with art. 46, paragraph 1 of the Code, not modified by the new rules of the aid investigation. Consider, for example, to request indication of the position INPS, Inail, Building Fund, for the purpose of verification of the regularity 'contribution, or an indication of the extremes of the decree (and competent Court) for the conditions agreed with the continuity 'company; think also the exact address of the agency indicating the locally competent Revenue for verification of compliance with obligations relating to the payment of taxes, etc. This assumption, however, is confirmed by the provision of Article. 43 of the Decree of the President of the Republic n. 445/2000, mentioned above, according to which contracting authorities carry out the verification of meeting requirements art. 38 and declared by economic operators in the self-certification, acquiring 'office related information, subject to the indication by the person concerned, the competent administration and the elements essential to the retrieval or the requested data. " Based on these indications, therefore, contracting authorities will proceed - case by case - the evaluation of irregularities 'essential and indispensability' of the elements and the statements in art. 38, according to the procedure outlined in the new paragraph 2-bis of the same article, being able to claim, without any penalty, completion or integration of the statements made, by all the information necessary for the rapid definition of the verification process of same self-declaration. 1.2 Application of the sanction. Given the wording of the provision in art. 38, paragraph 2-bis, that the sanctions and 'fixed' for no less than one part per thousand and not more than one per cent of the tender value and an upper limit of 50,000 euro ", contracting authorities are required staring in the tender documents the amount of the fine (within the limits provided for by law), so autovincolare their conduct, to ensure fairness 'and equal' treatment of competing companies. With specific reference to contracts divided into lots, the penalty must be proportionate to the amount of the lot for which you compete. It does not cover, however, the possibility 'to graduate the sanction because of gravity' of fluctuations' contract or in relation to individual cases exclusionary contemplated in paragraph 1 of article. 38 (taking into account, however, that such cases affect all on reliability 'moral enterprise), on the grounds that, in any case, the sanction and' related to the only category of essentiality 'of the lack, incompleteness and irregularities'. The sanction identified in the tender documents will be 'imposed if the competitor wishes to take advantage of the new aid investigation; it is 'related to the amnesty of all irregularities' noted and should therefore be considered in all-encompassing manner. The sanction 'imposed also solely to the subject whose statements are lacking and must be integrated and / or regularized, even if the offer is submitted by RTI (which is not subject other than by the competitors) or whether it constitutes formed. The penalty should also be imposed to the company Auxiliary (in pooling) case if the same to produce a declaration pursuant to art. 38 deficient (declaration that must be produced in accordance with art. 49, paragraph 2, letter c) of the Code). What ', it is believed, because of the particular institute discipline, according to which: the competitor meets the requirements for participation by those possessed dall'ausiliaria, and the latter' jointly and severally liable with the first, the competitor and 'excluded from race for dell'ausiliaria false statements (art. 49, para 3 of the Code). As for the relationship between framework agreements and specific contracts is evident that the discipline of the aid investigation, including the imposition of sanctions, as the single tender procedure, therefore, if the framework agreement provides for a subsequent competitive relaunch, the sanction It should also be applied to the essential deficiencies in the statement of the specific contract. In case of non-regularization of lacking essential elements, however, the contracting authority will proceed 'to the exclusion of the competitor from the race. For this case the contracting authority must 'provide expressly in the notice that we proceed, altresi', forfeiture of the security in circumstances where the lack of integration depends on a lack of stated requirement. Escheat, in any case, do not you will have to 'go for the case where the competitor simply decides not to make use of the aid investigation. The Plenary Conference of State Council of 10 December 2014, n. 34, in fact, providing an evolutionary reading of Article. 75 of the Code, also in the light of the new discipline of the aid investigation, affirmed the legitimacy '(the forecast in the notices of the "penalty") dell'incameramento of provisional security in the event of faults on the general requirements of Article. 38, with reference to all the competitors and not for the sole contractor. For all other cases of non-integration, following the request of the contracting authority, which does not depend on a lack of the requirement, the contracting authority will provide 'a report made to the Authority' which will handle 'communication as useful information under art. 8, paragraph 2, letter dd) of the Decree of the President of the Republic October 5, 2010, n. 207. Having provided that the penalty is guaranteed by the provisional deposit, however, it poses a number of implementation problems. First, in the restricted procedure the initial pay is not presented together with the invitation request, this 'and' was read by some as a hindrance to the application of sanctions in the procedure in question. Here it would be appropriate to point out, first, that the provisional deposit a guarantee of payment of the penalty, not a precondition for its application. Moreover, Article. 38, paragraph 2-bis, expressly refers to the paragraph 2 of the same provision, which in turn refers to the affidavits produced by the applicant and by the competitor. A combination of these two provisions, therefore leads to confirm the applicability 'of the procedure referred to in art. 38, paragraph 2-bis - and therefore also of the penalty rules mentioned therein - restricted procedures. The penalty in fact and 'related to the omission or irregularity' in the elements or in the statements made on participation requirements and and 'scheduled for all procedures award contemplated in the Code, by not providing the standard exclusions or limitations of its application field. The penalty in question, therefore, in the cases provided above, potra 'also be imposed in the proceedings in which - at least initially - is no provision for the submission of the provisional guarantee. Another issue related to the guarantee function attributed to the temporary deposit and 'made up of the exact determination of the quantum of the deposit; in this regard, taking into account the need not to increase the economic burden associated with participating in the tendering procedure, it is believed that the above does not increase the amount of the bid bond as collateral. E 'without prejudice, however, the obligation to reinstate the event was partially enforced for payment of the penalty; what ', of course, on the assumption that the same competitor opts for such a mode' of payment in lieu of direct payment. It is understood that the non-reinstatement of the deposit constitutes grounds for exclusion of the competitor from the race. Contracting authorities shall indicate in the notice the requirement for reinstatement, under penalty of exclusion. In relation to the difficulties 'application related to the expected penalty by deposit guarantee system, the Authority' reserves the right to send a special report to the Government and Parliament. 2. New aid investigation pursuant to Art. 46, paragraph 1-ter of the Code. The new discipline described in order to demonstrate the general requirements in the race, has important repercussions on the aid investigation reported to elements and various statements and in addition to those covered by Article. 38 of the Code. As we know, Article. 46 of the Code provides that "within the limits provided for in Articles 38 to 45, contracting authorities invite, if necessary, the competitors to complete or provide clarification in relation to the content of the certificates, documents and statements" (paragraph 1). Consequently, "The contracting exclude candidates or tenderers for non-compliance with the requirements set out in (...) Code and Regulation and other applicable laws, as well as 'in cases of absolute uncertainty about the content or the origin of' offer for subscription defect or other essentials or in case of no integrity 'of the envelope containing the offer or request for participation or other irregularities' concerning the closure of the packages, such as to indicate, according to the concrete circumstances, which the principle of secrecy of tenders has been infringed; notices and letters of invitation may not contain additional requirements under penalty of exclusion. Those requirements are still void "(paragraph 1-bis). Finally, and 'it is speaking the new paragraph 1-ter, introduced in accordance with art. 39 of the Decree-Law no. 90/2014, converted into Law no. 114/2014, which provides that "The provisions of art. 38, paragraph 2-bis, apply to every case of absence, incompleteness or irregularities' of the elements and statements, including third parties, to be produced by competitors according to the law, to the notice or the tender regulations. " Under the regulatory framework previously in force, on the basis of the literal as art. 46, paragraph 1, therefore, within the limits provided for in Articles 38 to 45, the chance 'to resort to aid investigation was limited to cases where the documentation produced by a competitor was lacking in certain parts and therefore the contracting authority, in accordance the favor partecipationis, requiring the integration or clarifications on the contents. In addition, in order to delimit the scope of this institution, the legislature has provided for the paragraph 1-bis of the provision at issue, the exhaustive list of grounds for exclusion by limiting the situations in exclusionary:
1) failure to comply with the requirements laid the Code and the decree of the President of the Republic October 5, 2010, n. 207 (Regulations for the Implementation of the Code) or other applicable laws;
2) the absolute uncertainty on the content or source of supply, for the subscription defect or other essentials;
3) non-integrity 'of the envelope containing the offer or request for participation or other irregularities' concerning the closure of the packages, such as to indicate, according to the concrete circumstances, that the principle of secrecy of tenders has been violated . As evidenced by the Authority 'in determining n. 4/2012, the rationale of the provision in question and 'recover in order to obtain a real respect for the principles of Significant Community maximum participation, competition and proportionality 'in the tendering procedures, avoiding that exclusions can be arranged on account of the violation of purely formal requirements, compliance with which will not respond to any appreciable public interest. The standard identifies, in fact, constraints and criteria that the contracting authorities, as well as' the same Authority ', should be observed in identifying legitimate grounds for exclusion, WHERE' draw up, respectively, the tender documents and tender-type to Article. 64, paragraph 4-bis of the Code. The possible penalty of exclusion imposed requirements in the notices, other than those arising from the Code and the Regulations or other applicable laws or which are not attributable to the additional assumptions put forward by art. 46, paragraph 1-bis, are void by express provision of the same article. The nullity 'sanctions, in place of that dell'annullabilita', means that the tender terms and letters of invitation, where envisage exclusion not permitted, shall be automatically ineffective and shall be disapplied by the race seat, with no need 'to cancel judicial review. Based on the foregoing considerations, the Authority 'has adopted the aforementioned resolution no. 4/2012, in identifying the causes of exclusion legitimate according to the criteria established by art. 46, paragraph 1-bis, specifying that contracting authorities, in the decision to contract, are required to expressly in order to motivate any exceptions than laid down therein, meaning those predictions of further cases of exclusion. Also the administrative case law and 'stepped in, with many rulings, on the institution of the aid investigation - himself' with reference to the previous regime entrance into force of Decree-Law no. 90/2014, converted into Law no. 114/2014 - in order to identify the correct application context and its real expansive reach. It 'been clarified (ex multis Ad. Pl. No. 9/2014) as this institution will be resolved in a dutiful ordinary proceeds on to overcoming unnecessary bureaucracy in the name of the principle of favor partecipationis and simplification, albeit within strict limits. The rigorous exegesis of the standard rules, stemmed from well-founded concern that the enlargement of its scope could alter the playing field, violating the canon of fairness' and efficiency of administrative action, affect the prohibition of non-application of the lex specialis contained in the notice, elude decadenziale nature of the terms which 'subject to the procedure. Invoking, altresi ', the general principle of self-responsibility' competitors - whereby each of them shall bear the consequences of any errors in the offer formulation and presentation of the documentation - have been identified distinct document regularization concepts and document integration. It 'was, therefore, deemed ineffective the institution of the aid investigation, in cases in which they were raised procedural failures or omissions of documents requested under penalty of exclusion from the tender law (especially in the presence of the clause, to that effect, unique) . Therefore, the administrative court - on the basis of the wording of the incipit of paragraph 1 of article. 46 ( 'Within the limits laid down in Articles 38 to 45 ... ") - considered that the aid would allow the investigation to complete statements or already' submitted documents, only in relation to the subjective requirements of the enterprise participation, being, absolutely, foreclosed competitor to make up for supply shortages, after the due date set by the notice, subject to the correction of clerical errors or typos. Similarly, rescue and investigation 'was peacefully admitted in terms of opportunity' to request clarifications, explanations or updates in respect of words spoken and already 'submitted documents. This 'above, and' clear that the legislation introduced novel art. 39 of the Decree-Law no. 90/2014 converted into Law no. 114/2014, with reference to the provisions of art. 46 of the Code, lead to an overshoot of the above principles, leading to a reversal of the radical principle; Reverse according to which 'usually curable any deficiency, omission or irregularity', with only the intrinsic limit inalterability 'of the content of the tender, the certainty as to the origin of the same, the secrecy rule that governs the presentation of same and inalterability 'of conditions in which the competitors at the time of the deadline for participating in the tender. It must be emphasized here that 'paragraph 1 shall' paragraph 1-bis of art. 46 have been modified by the provision mentioned above and, therefore, it is deemed necessary to provide a reading of the new paragraph 1-ter, which takes into account the provisions in these legal provisions, according to the logical and coherent interpretation of the provisions in question. As indicated in the introduction, in fact, the paragraph 1-ter establishes that Article. 38, paragraph 2-bis, shall apply to any case of absence, incompleteness or irregularities' of the elements and statements, including third parties, to be produced by competitors according to the law, to the notice or the tender documents . From the literal meaning of the provision, it is clear that it is permitted in the competition proceed to the regularization of any omission or incomplete documents, exceeding the limit shown in the single integration and regularization of what already 'declared and produced in the race. In addition, the reference which is also to the elements and not only to the statements, the institute allows an extension of the aid investigation to all the documents to be in the race, with regard to the participation requirements but also to make up for supply shortages . The application widening investigation of the aid - such as to allow the completion or integration of the offer - in fact, would change the playing field, the free play of competition, would violate the canon of fairness' and good performance of administrative, circumventing the limitation period and that the nature of the terms' subject to the procedure (Ad. Pl. Cons. St. no. 9/2014 cit.), not least, imply the violation of the secrecy of tenders principle. The same principles mentioned above, lead altresi 'to affirm that the institution in question can not' in any case, be used instrumentally for the acquisition, in the race, a requirement or condition of participation, missing at the expiry of deadline for submitting tenders. It is understood, in essence, the principle that the participation requirements shall be met by the bidder - to be, altresi ', in compliance with all other conditions of equity - the deadline set in the notice for submission of offers or the request to participate, no chance 'to subsequently acquire them. 2.1. Impact of the "new" aid investigation on the regulation of the exhaustive list of grounds for exclusion. The real innovative scope of paragraph 1-ter art. 46 of the Code must be abuses which have occurred in the fact that the legislature has felt the need 'to invoke the provisions of paragraph 2-bis of art. 38 - that, in fact, introduce more 'wide possibility' of amnesty in order to documentary deficiencies (elements and statements) - within an article concerning "Additional documentation and information 'as well as' 'the obligatory nature' of grounds for exclusion ยป. But there is more'. Paragraph 1-ter art. 46, it believes applicable on the mechanism introduced by paragraph 2-bis of art. 38 to each hypothesis of incompleteness or irregularities' of the elements and statements, including third parties, which have to be produced by competitors according to the law, to ban or tender documents. Everything 'suggests that the provision in question introduces, inevitably, the important news' on the regulation of mandatory grounds for exclusion, referred to in paragraph 1-bis of the same provision. It is believed, in particular, that the novel in question has it 'confirmed the cases attributed to the category of mandatory grounds for exclusion (art. 39 of Decree-Law no. 90/2014 does not intervene, in fact, on paragraphs 1 and 1 bis art. 46) but, by operating the 'downstream' of that identification, permits, now, that they are made, completed or regularized (in the initial stage of the race) also the elements and statements (including third) prescribed by law, the notice or the tender documents, the absence or irregularities' under the previous legislation determined the exclusion from the race (this is speculation, of course, more than the statement in art. 38, para 1 of the Code ). Therefore, where there is a failure, incompleteness, irregularities 'of a declaration character of essentiality' - to be identified as such in application of the rules on the exhaustive list of grounds for exclusion - the contracting authority can not 'more' proceed directly the exclusion of the competitor but must 'start the procedure provided for in art. 38, paragraph 2-bis of the Code, aimed at the imposition of the penalty provided for therein and the amnesty of irregularities' detected. It is believed, in fact, that the irregularities' essential for the purpose of the provisions of art. 38, paragraph 2-bis, coincide with irregularities' which relate to statements and elements inherent in the exhaustive list of grounds for exclusion (as identified in the resolution no. 4/2012), provided for in the notice, in law or in the tender regulations, in order which is not 'more' allowed to proceed to the exclusion of the competitor before the request for regularization by the contracting authority - except for those that belong to the offer within the aforementioned date - as specified in the following paragraphs. 2.2 Deficiencies and irregularities' essential curable (or not). What 'circumstances, in view of the positions expressed by the Authority' in, more 'times, called determination n. 4/2012 - it being understood that the absence of the requirement and the violation of the provisions pertaining to the status and conditions in which they find themselves competing on the expiry, entail, in any case, the exclusion of the competitor from the race - should be established first of all, what are the elements, the lack of which, incompleteness and irregularities 'can not' be remedied, as the relevant declarations and obligations prescribed by law directly affect the bid or on its secrecy. In particular, with reference to the elements that affect the "absolute uncertainty on the content or source of supply, for the subscription defect or other essential elements' referred to in paragraph 1-bis of art. 46, is observed at the outset that, in accordance with Articles 73 and 74 of the Code:
requests to participate and tenders contain the information required by the notice and, in any case, the essential elements to identify the candidate and its address as well as' the procedure to which the application form relates; they are also accompanied by the documents required by the notice;
Bids contain the information required by the notice or invitation or by specifications and, in any case, the essential elements to identify the agent and its address as well as' the procedure to which they refer, the characteristics and the price of the service offered, together with the statements related to the subjective requirements for participation. With essentially identical wording, paragraph 3 of art. 73 and paragraph 5 of art. 74 stipulate that contracting authorities require the essential elements mentioned, as well as' other necessary items and documents or useful, in accordance with the proportionality 'principle in relation to the object of the contract and to the purposes' offer. E 'burden of contracting draw clearly the tender documentation, highlighting the places obligations on pain of exclusion. It follows that:
1) the signing of supply and demand on the part of the owner or legal representative or other duly representative powers, provided for in articles 73 and 74 of the Code is an essential element of both. The subscription offer is designed to bring to its author's commitment to carry out the contract to provide the required amount and ensure, at the same time, the origin, the seriousness 'and reliability' tendered for; By signing the application form and 'an essential element that relates specifically to the manifestation of will' to participate in the race. In both cases, the subscription is therefore essential; However, not impacting on the content and offer privacy, its possible shortage is deemed curable. In fact, notwithstanding the amenability 'offer to the competitor (excluding the absolute uncertainty on the origin), from Article. 38, paragraph 2-bis and 46-ter, paragraph 1 of the Code, is now curable each hypothesis lack, incompleteness or irregularities' (also) of the elements that have to be produced by competitors according to the law (to ban or regulate the race), including the element of subscription, payment of the penalty provided in the notice;
2) with reference to the presentation of the provisional deposit, provided for in Article. 75 of the Code, in support of the offer, it performs - as is known - in order to ensure the seriousness' of the offer and to establish a clearance preventive and lump of the damage, if not addivenga on signing the contract for reasons attributable to the successful tenderer. That security performs, however, also in order to ensure contracting for the payment of financial penalties imposed on their competitors in the event 'occurs in the race omission or irregularities' in the statements made by them, in the terms indicated above . The reference in the rule, the provisional deposit, must be interpreted as referring to the provision in Article. 75 of the Code and, therefore, the guarantee therein coincides with the guarantee provided by the competitor to supply kit. In relation to this guarantee, the Authority '(in the aforementioned determination no. 4/2012) has qualified as a cause of exclusion failure or irregular presentation (in the absence of the elements provided in art. 75) of the provisional deposit. Warning dissimilar administrative law according to which the vices which belong to the provisional deposit, pursuant to paragraph 1-bis of art. 46 of the Code, does not rise to exclusion from the race competitor undertaking, but to the same and 'allowed to proceed to its regularization or integration (ex multis Cons. St., Sec. III, 5 December 2013, n. 5781). On the issue affects the following new paragraph 1-ter art. 46 of the Code, which appears to accept the amnesty of omissions or irregularities' also in relation to the presentation of the guarantee in question, where the standard allows possible to remedy 'the lack of any hypothesis, incompleteness or irregularities' of the elements and the declarations, also the subject third. It 'clear that, in the light of the new rules set out on the subject of preliminary relief, the lack of provisional security brings with it' problematic implications as regards the application of the penalty referred to in paragraph 2-bis of art. 38 of the Code, although it should be noted, as already 'highlighted in paragraph 1.2, that the first is simply a guarantee concerning the payment of the second, and not even its prior clearance and lump; this feature, in fact, 'attributed to the provisional deposit exclusively in relation to the harm that is configured for the contracting authority with regard to the failure to sign the contract. Therefore, considering that the paragraph 1-ter art. 46 cit. now allows the amnesty also of elements that have to be produced according to the law, to ban or to tender documents (and security deposit and 'an element to be produced in the supply kit according to the law), given that the purpose of payment the sanction the deposit is only a guarantee, the novella legislation also applies in respect of any case of lack, incompleteness or irregularity 'referred to the provisional deposit provided that the latter was already' established the date for submitting tenders and respects the provisions of art. 75, paragraph 5 of the Code, that is reckoned from that date. Otherwise it would be altered parity 'of treatment between competitors;
3) with reference to the failure to carry out the inspection at works contracts, as per art. 106, paragraph 2 of the Regulation is considered that this case constitutes a reason for exclusion. It is, in fact, a performance that has to be made at a stage prior to the submission, 'cause the face to ensure that the competitor has full knowledge of the conditions of execution of the work. Otherwise, failure or irregular allegation of the declaration referred to in art. 106, paragraph 2 of the Regulation - where the competitor has actually provided for the survey - can 'be remedied. 2.2.1 Irregularities' regarding the formal requirements for participation in the competition. With reference to irregularities' concerning the formalities of participation in the tender, accidents on the secrecy of tenders, it should be noted that paragraph 1-bis of art. 46 provides for the possibility 'of excluding competitors from the race in all cases where it is in breach of the principle of secrecy of tenders. The provision refers in particular to cases of absolute uncertainty on the supply origin and no integrity 'of the envelope or other irregularities' concerning the closure of the packages, such as to indicate, according to the concrete circumstances, which have been violated the principle of secrecy of tenders. They must be brought back to the category in question in cases of violation of a series of cautionary measures in the tender documents, which are aimed at ensuring the integrity 'of the packages containing the offer or request to participate and, ultimately, the proper conduct of the tendering process. Submission of tenders and requests to participate, in fact, should be assisted from complying with some of the formal requirements, aimed at ensuring the enforcement of paramount principles such as secrecy and immutability 'of contract proposals, as well as' the principle of equal 'treatment. It is, for the most part ', the related hypothesis, essentially, to the category of the elements that must be present, according to what is prescribed by law, the notice or the tender documents, however, insofar as they constitute a direct and immediate application of the principle of secrecy of tenders, continue to be subject to the same legal regime already 'outlined in resolution no. 4/2012, except in specific cases that may be considered attracted to the new rules of the aid investigation. In particular:
1) with reference to the mode 'for submission of tenders, constitute grounds for exclusion on the following assumptions:
Failure to indicate on the main external envelope of the reference of the race where supply and 'revolt;
affixing of an indication on the main external envelope totally wrong or generic, to the point that it is not possible to identify the packet received as containing the offer for a particular race;
Failure to seal the envelope and inner envelopes with mode 'of sealing that ensure the integrity' and prevent its opening without leaving tampering;
failure to affix the inner envelopes to the appropriate envelope indication to identify the contents of the same; it should be noted that the exclusion would have been unlawful if, for example, the envelope containing the bid, even though they are 'devoid of the required words, were still distinguishable from the remaining envelopes bearing the correct word; in the light of the new discipline of the preliminary relief should also be considered remediable failure to indicate on the content of the envelopes if the same can be overcome with the invitation to the competitor without the need to mark them 'opening;
Economic failure and that technique in separate envelopes input supply, properly sealed, inside the outer envelope bearing all the documentation and more 'in general, their lack of physical separation. It notes that, in case of division into lots with possibility 'to bid for more' than one lot, the bid acquires its own autonomy in relation to each lot and, therefore, must be prepared separately for each lot. On the contrary, can not constitute legitimate grounds for exclusion, inter alia:
failure or misstatement, on one or more 'of the inner envelopes, the reference to the race where supply and' revolt, if that statement it is still present on the external main envelope duly closed and sealed;
Failing to give the reference of the race on one or more 'components of the offer document;
, Failure to affix the envelope indication of the day and time fixed for the completion of the race. Under Article. 46, paragraph 1-bis, it remains understood that the right 'of contracting authorities to detect, in the concrete case, additional circumstances, leading to believe violated the principle of secrecy of tenders, involving the exclusion of the competitor duly motivated;
2) Article. 79, paragraph 5-quinquies of the Code provides that "the notice or the notice of calling the race or in the invitation to tender procedures without securing the obligation of the candidate or competitor, either when the application was submitted or supply, the address for service for communications; the notice or the notice can altresi 'require the candidate or competitor to enter the e-mail address or fax number to the purpose of communications. " In this regard, it is noted that, even if there are the home as an element useful for identifying the competitor and, therefore, to ensure the supply source, it is still an element that, even essential, if omitted or incorrect can It is made, integrated or regularized; They must also be drawn into the category of collectible items, not on pain of penalty, by the contracting authority - and as such subject to the discipline of the classic aid investigation - the signs of the fax number and email address electronics, which detect, however, solely for the purpose of communications. 2.3 Other irregularities' concerning elements and declarations to be made under the law, to ban or regulate. As a result of the news brought by the aforementioned art. 39 of the Decree-Law no. 90/2014, and 'you must see what further elements and statements required by law, the notice or the tender regulations are likely to be made, completed or regularized (in the initial stage of the race), if omitted, poor or irregular, such as, continue to point out that the grounds for exclusion. Among the most important assumptions, which can be taken into account, were as follows:
1) in terms of pooling the integration or regularization can not affect the will 'statement of appeal all'avvalimento (Art. 49 , paragraph 2, letter a) of the Code). The availment declaration is, in fact, a constituent element of the requirements of possession, without exception, on the expiry of the deadline of the offer presentation. Even the pooling agreement, and 'obviously functional to satisfy the requirements specified in the notice. However, in the same order it is expected to operate the institution of the new aid investigation limited to the hypothesis of no allegation, for mere oversight, the contract which, in any case, was already 'signed at the date of bid submission . The new discipline of aid investigation unfolds, however, fully its expansive force on other obligations prescribed in all'avvalimento order;
2) the principle of correspondence between the shares of individual companies to a group and the implementing shares (and, therefore, the distribution of its capacity 'technical, economic and financial) resulting, for works contracts, from the provisions of paragraphs 3 and 13 of art. 37 of the Code, entailed the obligation to indicate the time of the investment, the equity interests in the group, from which to infer the proportion of the work that would be performed by each member. This indication constituted condition of eligibility to race. In the act of determining n. 4/2012, both for jobs and for the services and supplies, the violation of the stated requirement to specify the performance parts to be performed (in art. 37, para 4) - given the importance that such specification acquired in regarding the seriousness, 'reliability', determination and completeness, and then, on the essential elements of the offer, the lack thereof - on pain of breach of the principles of equal conditions and transparency, was not considered likely to posthumous regularization. Moreover, in the case of restricted procedures, negotiated or competitive dialogue or, more 'in general, in proceedings in which there and' a cd stage. "Prequalification" following which the contracting authority chooses the participants to be invited, it was still necessary, on pain of exclusion, indicate allowances already 'on the application form, in order to enable the contracting authority to verify the fulfillment of the prescribed requirements and resulting in drawing up the list of operators for submission of letters of invitation to tender. At present, taking into account both the changes made to paragraph 13 of Article. 37, by the Decree-Law of 6 July 2012, n. 95, converted with amendments by Law August 7, 2012, n. 135 - who had limited to work, the correspondence between the share of participation in the RTI and the share of performance - but especially dell'intervenuta repeal of the entire paragraph, by the Decree-Law of 28 March 2014, n. 47, converted with amendments by Law 23 May 2014, n. 80, the signs mentioned above are to be considered partly outdated. The obligation as to the declarative shares to RTI there is more 'for services and supplies, but remains exclusively for work, under the new article. 92 of the Decree of the President of the Republic n. 207/2010 (so 'as amended by art. 12, paragraph 9 of Law recently cited). Omission of this type of declaration or any deficiencies and / or incompleteness of the same it is believed that they can be remedied by paying the penalty provided. It remains, of course, confirmed the principle of correspondence between the possessed qualifications and the implementing shares, which must, however, be stated and if omitted will be healed the same way as shares Participation in the RTI;
3) with regard to the creation of subcontracting, Article. 118 of the Code imposes certain obligations on the part of the competitor. In particular, it provides, inter alia, an indication, by the competitor, the works or parts of works or of the supplies and services or parts of services and supplies which will be subcontracted at the time of submission of tender (paragraph 2 ). This requirement is a prerequisite for subsequent authorization of subcontracts by the contracting authority but not for the purpose of participation in the competition: from what 'follows that the incorrectness' and / or the lack of it can not' statement be, for if ', taken as the basis of a measure of exclusion, but only represents an impediment to the successful bidder to resort to subcontracting, so that the same should' make direct arrangements for the execution of the performance, where it fulfills the requisite requirements. Otherwise, breach of the obligation to indicate in the bid the share of the benefit that the candidate intends to subcontract potra 'constitute grounds for exclusion if this is necessary to document the possession of the requirements to individual competitors or gathered at the time of presentation of' offer, are required to perform in own performance. In particular, in the event that the notice provides, between the separable and subappaltabili categories, qualifying categories obligatory and the competitor is not in possession of relevant qualifications or, alternatively, has not indicated in the intention of proceeding their sub-contracting, the contracting authority should have excluded from the event because, at runtime, the same, if successful, may not 'directly execute the processes they' be authorized to sub-contract. The lack of such a statement is not expected to be remedied. Where, in fact, he was allowed to a competitor who does not have the necessary qualifications required by the lex specialis of the race, to then indicate the will 'to subcontract a share of the work, indicating the relative proportion, in order to prove possession of the required qualification, it would alter the principle of a level playing field among competitors. This statement, in fact, pertains directly to the possession of the requirement being an expression of self-determination of competing with regard to modalities' of acquisition. The above law does not entail the obligation to indicate the names of subcontractors during the offer but only the obligation to indicate the dimensions of activity 'that the tenderer wishes to subcontract, if not in possession of the qualification for the category unbundled, provided that the qualification "missing" must still be held in relation to the main category, since this 'protecting the contracting authority regarding the existence of capacity' viability by that undertaking;
4) with reference to the legality of 'protocols, in its resolution no. 4/2012, and 'was deemed legitimate to require, under penalty of exclusion, the acceptance of the contractual conditions contained in the tender documentation, including the acceptance of the obligations on enforcement of criminal infiltration in the procurement foreseen under protocols of legality '/ integrity pacts'. This' as such instruments are placed to protect the higher-level rank interests and obligations thus assumed arising from application of mandatory rules of public policy. It seems clear that the instruments in question do not relate to elements of the offer and, therefore, generally speaking, any shortcomings in the declaration of acceptance of the legality protocol clauses', must now be considered curable;
5) constitutes grounds for excluding the non-payment of the fee payable to the Authority 'in accordance with art. 1, paragraphs 65 and 67 of Law 23 December 2005 n. 266 (Provisions for the preparation of the annual and multiannual budget of the State). In contrast, a merely formal breach, consisting of having made the payment following mode 'other than those issued by the Authority' itself, or (in the light of the novel in question) in failing to attach to their application for the receipt of payment, can not 'be sanctioned by the contracting authority with the exclusion, not that it shall be upon verification of the actual fulfillment of the obligation in question within the period decadenziale of tenders. The allegation of failure payment provisions before the expiry of the deadline for submitting tenders may 'be the subject of preliminary relief on payment of the relevant penalty. Approved by the Council in the meeting of 8 January 2015.
Rome, January 8, 2015
The President: Canton