Exceptions to the ordinary rules for awarding public contracts: the volcanic risk paradigm

The issue of exceptions to the ordinary public contracts rules in the management of risks and emergencies resulting from volcanological phenomena allows for numerous considerations. This topic can be analysed through an interdisciplinary approach, focused on the relationship between technology and law. In order to verify the legitimacy of the application of derogatory rules (Article 140, d.lgs. n. 36/2023, Italian Public Contracts Code) it is essential to consider the three-phase structure of volcanic risk: risk assessment, hazard assessment and mitigation of the event. The centrality of the technical issues requires firstly an examination of the legal profiles involving the use of Article 140 in the case of volcanic phenomena. The first aspect concerns the delimitation of both the concept of “paramount urgency” - a prerequisite for derogating from the ordinary legislation - and which events (whether those that have already occurred or those that have not yet occurred) are susceptible to be included in the field of that provision. In this context, the investigation focuses on the practices of individual local authorities that make use of Article 140, from which a significant interpretative and methodological distance emerges. A further profile of interest is certainly the one concerning organisational issues: up to now, the legislation provides that not only Regions, but also metropolitan cities and municipalities can carry out emergency works under Article 140. This paper examines the benefits of centralizing these responsibilities at the regional level from two perspectives. First, centralization could help reduce potential corruption in areas where unforeseeable maintenance events frequently occur. Second, it would prevent disparities in decision-making, where one municipality might recognize conditions of paramount urgency while a neighboring one, exercising its own discretion, might not. Centralization would thus promote uniformity in decision-making. Two additional aspects require further analysis. The first concerns the necessity of effective ex-post control mechanisms, given the central role of assessing conditions of extreme urgency. However, the limited timeframes involved risk undermining the effectiveness of such controls. The second aspect examines whether the exception to procurement rules also extends to landscape authorizations and environmental impact assessments. If not, and if ex-ante approval remains necessary, the intended simplification of economic operators’ activities would be significantly hindered.