Luci e ombre del partenariato pubblico-privato: PNRR, finanza di progetto e strumenti alternativi per la digitalizzazione della pubblica amministrazione

This doctoral thesis examines the evolution, legal framework, and practical applications of public-private partnerships (PPPs) in Italy, with a particular focus on project finance as a tool for the digitalisation of public administration. The research is situated within the broader context of Italy's National Recovery and Resilience Plan (PNRR), which has placed digital transformation at the centre of post-pandemic recovery efforts. The first chapter traces the regulatory development of PPPs in Italy, focusing on the transfer of operational risk to the private partner—comprising construction, demand, and availability risk—as the essential boundary between PPPs and traditional public procurement. The second chapter examines project finance, tracing its regulatory evolution through successive Public Contracts Codes to the 2023 Code and its 2024 Corrective Decree. Particular attention is devoted to the promoter's right of first refusal (diritto di prelazione), analysing the Council of State's referral to the CJEU (Order No. 9449/2024) regarding its compatibility with EU principles, and the European Commission's ongoing infringement procedure INFR(2018)2273. The third chapter applies these principles to the digitalisation of Italian public administration, focusing on the National Strategic Pole (PSN) case study. The thesis reconstructs the PSN award procedure and the resulting litigation, analysing the Council of State's judgment (No. 9210/2023), which established that the promoter exercising the right of first refusal must replicate in absolutely identical terms all conditions offered by the successful bidder, excluding the principle of equivalence. The thesis critically reflects on how this interpretation risks rendering project finance impractical for technologically complex projects, where replicability of proprietary solutions may be objectively impossible within the statutory fifteen-day deadline. The concluding considerations underscore the current "crisis" affecting project finance in Italy, arguing that elimination of the right of first refusal would undermine the rationale of the instrument, as this right compensates promoters for their investment in project design and bankability analysis. The thesis advocates for functional equivalence—rather than material identity—to enable the right's exercise in technologically advanced projects, and calls for dialogue among European institutions, legislators, and courts to develop a pragmatic approach that allows PPPs to fulfil their potential as instruments for channelling private capital toward innovative public infrastructure.