Result principle and partnerships: the case of sports facilities

Abstract

According to the most recent reports, the national situation of sports facilities (without any distinction between facility sizing and disciplines practiced) has three critical profiles: the first one is the age of the facilities, which need to be renovated pursuant to more modern safety standards and forms of use; the second one consists in the shortage of public resources allocated to the modernization and new construction of sports facilities; and, in the end, the third one is represented by the difficulty of concluding the operations addressed for sports building interventions.

For the first time, in the broader design of the reform of the sports system (Law No. 86/2019), one of the five implementing decrees aims to overcome the highlighted problematic knots with a discipline endowed with its own organic nature (Decree No. 38/2021, “Measures on the reorganization and reform of safety regulations for the construction and operation of sports facilities and regulations on the modernization or construction of sports facilities”).

Then, in the absence of punctual analysis of the legislation, it proceeded to describe the procedural steps and institutions of Decree No. 38/2021 as well as the connections, on the subject of public-private partnership (and project finance in particular), with the new Contract Code No. 36/2023.

Two major reconstructive lines emerged from this study. The first one is understood in the dynamic between the Decree and the Code in terms of convergence and divergence. There are, in fact, references to disciplines external to the Decree (such as the tender for the awarding of works or for the management of the facility) alongside specific provisions of procedural stages (of evaluation of the public interest and approval of the public utility project).

As we tried to explain, this dynamic overlapping and intertwining between disciplines does not seem to be channeled into a choice of simplification of procedures nor in a low quality mechanism of summary derogation from the ordinary in force disciplines (like in recent legislative interventions). On the contrary, it represents a “unicum” of a sector regulation that configures a special model of weighting between interests and administrative decisions-making.

The second reconstructive line is inscribed in the positioning of the result principle, which, as is well known, is made explicit as the first conceptual cornerstone in the new Public Contracts Code.

So, even in the absence of its express mention, the Decree is a sharp projection of this principle since towards the result all its provisions are aimed, through an application that reiterates the absolute instrumentality to its pursuit. In other words, an arrangement of convergences is outlined in the direction of a precise (and “special”) procedural model that does not originate from the theoretical concern about the functioning of the mechanisms that will have to lead to a decision, but rises from the material realizable public interest to configure the appropriate characteristics of institutions and the necessary procedural mechanics to ensure its effective achievement.