IL PARTENARIATO PUBBLICO-PRIVATO E L¿ENERGY PERFORMANCE CONTRACT NEL PROCESSO DI TRANSIZIONE ENERGETICA

The legal analysis undertaken begins by exploring the precise placement of energy efficiency within the broader objectives of environmental sustainability as identified by the supranational framework. It specifically focuses on the complex scenario resulting from the intersection between environmental and energy dimensions. Chapter I addresses the complexities inherent in the legal regulation of the energy sector, emerging from an examination of public law sources (both European and national), the division of competencies, regulatory instruments, and the forms through which public authorities intervene in the market. The analysis reveals how the interplay of public and private interests, which governs the energy transition process, reflects the inherent complexity of regulating and governing – by means of traditional administrative law instruments – new models of development aimed at harmonising environmental protection goals with economic systems. Within this framework, having outlined the boundaries of public intervention in the productive system, the analysis particularly investigates what may spontaneously arise from the market and what degree of freedom should be reserved to private autonomy for achieving energy-related objectives. The focus is placed on the regulatory function that could, at least in theory, be transferred to the new actors active in the energy market, and on the legal implications stemming from attributing “public relevance” to these operators in pursuing objectives related to energy efficiency. In examining the public-private dialectic in depth, negotiated and consensual measures are analysed as legal tools capable of aligning individual interests of private operators with the broader public interest in energy efficiency, thus facilitating the emergence of innovative solutions from the market. The collaborative phenomenon, which revolves around the concepts of “negotiability of power” and “contractualism”, serves, on the one hand, as a means of guiding private-sector activities without imposing market rules excessively restrictive of individual legal autonomy. On the other hand, it provides a way to harness private autonomy (alongside resources such as know-how or economic capital), thus aligning the market’s goal of economic development with the pursuit of sustainable development. Chapter II then analyses the collaborative frameworks identifiable within the paradigm of public-private partnership (PPP). It begins by conceptually and legally framing PPP through an analysis of definitional profiles at both European and national levels, and by exploring the reasons underlying the development and implementation of this institution. Following reflections on the current economic role assigned to public contracts – and specifically to public-private collaboration – in light of objectives outlined in Italy’s National Recovery and Resilience Plan (PNRR) and the revised legal framework introduced by Legislative Decree No. 36 of 31 March 2023 (Procurement Code), the analysis highlights critical issues that must be overcome to enable PPP to fulfill the “strategic” role envisioned by new European and national policy frameworks. The analysis subsequently provides a detailed examination of the new PPP regulation (with specific attention given to the planning phase, operational risk, economic-financial equilibrium, and accounting aspects), carefully considering the role assigned to the private partner. This serves to assess whether the rationale underlying effective collaboration necessitates a deeper integration of public and private functions. In this context, the suitability of the new regulatory framework – emerging from innovations introduced by the new Procurement Code – is evaluated with respect to its ability to encourage PPP as an effective tool for addressing the challenges of the energy transition. The chapter concludes with an analysis of project financing, focusing particularly on the most debated contemporary issues. Among the procedural aspects considered are the promoter’s role, the central position of the private partner, and the safeguarding of competition. Finally, considering that PPP instruments are fundamental for achieving goals related to the energy transition (both in terms of promoting new-generation renewable energy sources and accelerating the energy efficiency of public infrastructures), Chapter III explores the potential benefits derived from the appropriate implementation of Energy Performance Contracts (EPCs) through the PPP model. After presenting the legal framework governing EPCs, the analysis investigates, on the one hand, the potential of this contractual instrument to establish a robust energy efficiency system while simultaneously meeting environmental protection requirements. On the other hand, it identifies and discusses critical aspects currently hindering the wider implementation of this model. In conclusion, the effectiveness of PPPs and EPCs depends decisively on the degree of active and strategic involvement of the private sector, as well as on the precise intersection of tasks and clear delineation of responsibilities among the parties involved. Only through fruitful interaction of the respective roles within these limits and a balanced consideration of competing interests can synergistic cooperation be fostered, thus optimising the distribution not only of risks but, above all, of benefits. This way, it becomes possible to ensure the compatibility of energy efficiency projects with energy transition objectives, while simultaneously safeguarding both private economic interests and the collective interests in environmental sustainability. It is, therefore, evident that the strategic use of the EPC, by pursuing an interest worthy of protection such as energy efficiency, ensures not merely a reconciliation of opposing interests between contracting parties, but proves itself to be an instrument aligned with the broader and more complex interests underlying sustainable development.