Administrative law in a Multilevel Legal System: the Interplay between European, National and Regional Norms and the Strategic Role of Public Procurement

The economies of European countries are undergoing a phase of gradual recovery following the profound disruptions caused by the pandemic crisis and the subsequent energy crisis. However, this recovery is taking place in a context still characterized by high macroeconomic uncertainty

and persistent geopolitical tensions. Economic growth is increasingly linked to the ability of institutional and economic systems to effectively address a number of common structural challenges, including the transition towards a green and digital economy, demographic changes, and the structural vulnerabilities that characterize the European productive system. From this perspective, increasing productivity plays a central role in ensuring sustainable and long-term development.

In this context, the issue of the competitiveness of European economies occupies a central position in both institutional and academic debate. Strengthening competitiveness requires, in fact, public policies capable of supporting the development of knowledge and skills necessary to create value through technological innovation and scientific advancement. At the same time, such policies must contribute to building an economic system that is increasingly autonomous, resilient, and capable of responding to the systemic crises that characterize the contemporary global context.

The technological, economic, and geopolitical challenges facing the European Union can be effectively addressed only through the consolidation and strengthening of the single market. In this perspective, particular importance must be given to the need to balance a renewed European industrial policy with the proper functioning of an open, integrated, and competitive market. The existence of a truly integrated single market is, in fact, an indispensable condition for enabling European companies to grow and to strengthen their competitiveness at the global level.

A modern industrial policy cannot be oriented toward the mere protection of individual firms or specific economic operators, but must instead be aimed at the organic development of strategic sectors in which clear market failures occur or in which it is necessary to safeguard interests of European relevance. In this sense, strengthening competitive dynamics represents an essential tool for supporting productivity and economic growth, as it promotes allocative efficiency, allows the reallocation of resources toward more productive firms, and stimulates technological innovation.

In this context, boosting productivity constitutes a strategic priority for European economies. This objective can be pursued through policies aimed at encouraging investment in technology, reducing barriers to market entry, and improving the efficiency of the public sector and the judicial system, as well as simplifying the regulatory and legal framework governing goods and services markets. In particular, while certain manufacturing sectors more exposed to international competition recorded moderate growth in labour productivity in the years preceding the pandemic, service markets continue to display relatively low levels of productivity, thus representing a priority area for intervention. This is particularly significant considering that the service sector employs approximately 70% of the workforce in advanced economies, a share that is expected to increase further in the coming years.

Numerous empirical studies show that improvements in productivity can be promoted through reforms aimed at reducing restrictive regulation in goods and services markets and fostering a more competition-oriented environment. In particular, reducing barriers to market entry can encourage entrepreneurship, stimulate innovation, and enable a more efficient allocation of economic resources. Liberalization measures implemented over the past decades have already produced positive effects. Several empirical studies have in fact highlighted that the liberalization reforms carried out in Italy in the services markets between 2005 and 2019 contributed to a significant increase in labour productivity, both through improved performance by firms already operating in the market and through the entry of new economic operators.

Despite the progress achieved, however, the overall level of regulation in Italian markets still presents certain critical issues. Although the indicators developed by the Organization for Economic Co-operation and Development (OECD) show an improvement in the Italian regulatory framework in a pro-competitive direction in recent years, international comparisons reveal that

Italy has slightly worsened its relative position compared to other advanced countries. In particular, significant regulatory rigidities persist in some service markets, where the level of restrictions on competition remains among the highest at the international level.

In light of these considerations, it becomes evident that strengthening competitive dynamics and improving the efficiency of service markets represent fundamental elements for supporting economic growth and the competitiveness of the productive system. In this context, the legal framework governing public intervention in the economy assumes particular importance, and especially the set of administrative law rules that regulate the allocation of public resources and the organisation of services of general economic interest.

In the contemporary European legal system, this discipline is situated within a multilevel regulatory framework in which European, national, and regional norms interact. The coordination between these different levels of regulation assumes crucial importance in ensuring the proper functioning of markets and in promoting balanced territorial development. In this context, public tender procedures and, more broadly, the regulation of public procurement and concession contracts represent one of the main instruments through which transparency, competition, and market openness can be ensured.

This contribution therefore aims to analyse the role of administrative law within the European multilevel system, with particular reference to the interaction between European, national, and regional rules and to the strategic function of public tender procedures in the allocation of the management of economically significant infrastructures and services. In particular, the analysis will focus on certain infrastructure and service sectors characterized by a high strategic relevance for economic development, such as energy and port infrastructures, highlighting the role of competitive procedures in promoting economic efficiency, competition, and the entry of new operators into the markets.

Within the framework outlined above, the competitive procedures promoted by European Union law assume a significance that goes well beyond the strictly economic or regulatory dimension. They represent, in fact, a fundamental instrument for ensuring the openness of markets and facilitating the entry of new economic operators, thereby contributing to making the productive system more dynamic and innovative. The management of strategic infrastructures, such as those related to energy, transport, or public services, has historically been characterized by the presence of established operators and by market structures that are often scarcely contestable. The introduction of transparent and competitive tender procedures makes it possible to broaden the range of actors potentially involved in the management of such activities.

This opening of markets also takes on particular significance for the new generations of entrepreneurs and professionals. Public procurement procedures, in fact, create opportunities for participation by new economic actors, including small and medium-sized enterprises and emerging entrepreneurial ventures, enabling them to contribute to the management and development of the country’s infrastructure. In this sense, administrative law, through the interaction between European, national, and regional rules, does not merely regulate the action of public administrations, but also becomes an instrument for opening up and renewing the economic fabric.

Ensuring transparency, equal access to information, and genuine competitive comparison in concession award procedures therefore means not only safeguarding the fundamental principles of the European single market. It also creates the conditions under which new skills, new entrepreneurial ideas, and new energies can contribute to the modernization of infrastructure and the sustainable development of territories. In this sense, the rules of administrative law contribute to building a system in which the management of public resources and strategic infrastructures can also become a field of opportunity and responsibility for new generations.

Energy sector

In recent years, within the framework of European policies aimed at strengthening competitiveness and improving market efficiency, the energy sector has once again become central to the attention of administrative law. Among the strategic infrastructures that most clearly demonstrate the role of public law in the organization of the economy are large hydroelectric derivations: installations and systems for the exploitation of water resources which, thanks to their productive capacity, represent an essential component of the European energy mix and a fundamental element in the path toward the ecological transition.

Water, however, is a naturally limited resource belonging to the community. For this reason, its use for productive purposes cannot be left to free economic initiative, but requires the intervention of the public administration through the instrument of concession. In both European and national administrative law, a concession represents the mechanism through which a public authority allows an economic operator to use a resource or manage a public infrastructure for a certain period of time, while at the same time maintaining public ownership of the asset or service.

In the case of large hydroelectric derivations, the relevant regulatory framework in the Italian legal system is set out in Article 12 of Legislative Decree No. 79 of 1999, known as the Bersani Decree, which marked a turning point in the process of liberalization of the energy sector. The provision establishes the general principles governing the award of concessions and identifies different mechanisms through which the Regions, entrusted with administrative competence in the management of these resources, may assign the management of the installations.

In particular, the legislation provides for three possible models of allocation: the organization of regional tenders through public competitive procedures, the establishment of mixed public– private companies, and the use of public–private partnership arrangements regulated by the Public Contracts Code. The detailed rules concerning the procedures for awarding the concessions are entrusted to regional legislation, thus confirming the multilevel dimension of contemporary administrative law, in which European, national, and regional norms interact in the regulation of markets and in the management of strategic infrastructures.

It is precisely this interaction between different normative levels that represents one of the defining features of European administrative law. The fundamental principles governing the award of concessions, transparency, competition, non-discrimination, and equal treatment, originate in European Union law and have progressively been incorporated and developed through national legislation and regional regulations. The objective is to ensure that access to the management of public resources takes place through open and competitive procedures capable of attracting qualified economic operators and stimulating technological innovation.

In this context, Law No. 118 of 2022, the so-called Annual Law for the Market and Competition, introduced further amendments to Article 12 of the Bersani Decree, strengthening the principle that the procedures for awarding hydroelectric concessions must be conducted according to competitive, fair, and transparent criteria. The reform also introduced the possibility of resorting, for the award of concessions, to the instrument of project financing, a particular form of public– private partnership that makes it possible to mobilize private capital for the development and modernization of energy infrastructures.

The introduction of these instruments responds to a specific need: to promote technological innovation and foster the sustainability of energy infrastructures, in line with the European objectives of decarbonization and energy transition. However, the use of project financing also raises certain delicate issues from the perspective of competition.

In the model of project financing initiated by private parties, an economic operator may submit to the administration a project proposal for the management or construction of an infrastructure. If the administration considers the project to be consistent with the public interest, it is then used as the basis for a public tender procedure. The entity that submitted the proposal acquires the status of promoter and benefits from a specific competitive advantage: if it does not win the tender, it may exercise a right of pre-emption and still obtain the award of the concession by matching the offer of the successful bidder.

This mechanism, however, if not properly balanced, risks reducing the effectiveness of the competitive process among operators. For this reason, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) has emphasized the need to ensure that the administrative discretion exercised during the project selection phase does not lead to a weakening of competition or to the elimination of genuine competitive comparison.

This issue is particularly relevant in the sector of hydroelectric concessions, where historically many concessions have been granted directly or renewed through long-term extensions without the use of competitive procedures. Such a situation has often favoured operators already present in the market, limiting the entry of new actors and reducing incentives for innovation.

For this reason, one of the central issues concerns access to the information necessary to participate in tender procedures. In order to guarantee conditions of effective equality among operators, all potential competitors must have access to the same information base: technical documentation, data on the installations, and information concerning the management of the concession. If such information remains exclusively in the hands of the outgoing operator, the risk is that an unjustified competitive advantage may be created, discouraging the participation of new operators.

From this perspective, the introduction of specific information obligations on the outgoing concessionaire has been proposed, accompanied by the provision of sanctioning powers for the granting administration in cases where such obligations are not respected. The objective is to strengthen the transparency of the procedures and to ensure that competitive comparison among firms takes place on a genuinely level playing field.

The case of hydroelectric concessions clearly demonstrates how administrative law performs a central function in balancing public interest, economic efficiency, and market openness. Through the regulation of concessions and tender procedures, public administration does not merely regulate access to a scarce resource, but creates the conditions for competition capable of encouraging the entry of new operators, stimulating investment, and promoting technological innovation.

Within a multilevel legal system such as the European one, this function is carried out through the interaction between European rules, national legislation, and regional regulatory interventions. The establishment of transparent and competitive procedures for the allocation of concessions therefore represents not only a legal requirement, but also a fundamental instrument for supporting territorial development, strengthening competition, and making the energy system more efficient, resilient, and sustainable.

Port sector: concessions and substitute agreements

Within the framework of European policies aimed at strengthening competition in markets and ensuring the efficient management of strategic infrastructures, the port sector also represents an area in which administrative law plays a central role. Ports, in fact, constitute essential infrastructures for economic development and for the functioning of the European single market, as they represent fundamental nodes within international logistics and commercial chains. The management of port activities, however, takes place on assets belonging to the public domain, such as quays, port areas, and terminals, the use of which by economic operators requires the granting of specific administrative concessions.

The regulation of port concessions within the Italian legal system finds its main reference in Law No. 84 of 28 January 1994, which reformed the organization of Italian ports and entrusted the Port System Authorities (Autorità di Sistema Portuale – AdSP) with the task of planning the development of port infrastructures and granting concessions for the use of state-owned port areas. In particular, Article 18 of Law No. 84/1994 governs the award of concessions for the performance of port operations, such as the handling of goods and materials, on quays and port areas.

For a long time, however, the implementation of this provision was characterized by a significant regulatory gap. The law provided that specific criteria should be identified for the allocation of concessions and for defining their main characteristics, but such criteria had not been concretely established. This situation resulted in a high degree of administrative discretion and, in some cases, in procedures that lacked transparency in the award of port concessions.

In order to fill this regulatory gap, Ministerial Decree No. 202 of 2022 was adopted, accompanied by the Guidelines of 21 April 2023, which introduced clearer criteria for the award of concessions provided for under Article 18 of Law No. 84/1994. The decree establishes that these criteria apply not only to traditional concessions but also to substitute concession agreements, as provided for in Article 18, paragraph 6, of the same law.

One of the most significant elements introduced by the decree concerns the strengthening of the principle of public tender procedures. The measure provides that the award of port concessions must take place through competitive procedures both when the initiative is undertaken directly by the Port System Authority and when an application is submitted by an economic operator interested in obtaining the concession.

This aspect assumes particular importance within the framework of European administrative law, in which the principles of transparency, equal treatment, and competition represent fundamental elements for ensuring the openness of markets. Public tender procedures make it possible to select the economic operator that is most efficient and most capable of developing port infrastructure, while at the same time ensuring equal opportunities for participation for all potential competitors.

The decree also introduces an important mechanism aimed at strengthening competition in the sector: the Port System Authority is required to initiate the procedure for the award of a new concession at least twelve months before the expiry of the existing one. This provision is intended to prevent the outgoing concessionaire, the so-called incumbent, from benefiting from a competitive advantage derived from its established position.

When procedures are initiated by the administration, all potential operators can participate in the tender on the basis of the same information and with the same amount of time to prepare their bids. In this way, competition among firms takes place on a genuinely level playing field, and the administration can guide the selection of the concessionaire in a manner consistent with its port development objectives by assigning specific weights to the evaluation criteria established by the decree.

A different situation arises when the procedure is initiated at the request of the existing concessionaire. In such cases, the incumbent may find itself in a position of advantage compared to other economic operators, as it possesses detailed information regarding port activities, traffic

flows, and the operational conditions of the terminal. Potential competitors, by contrast, become aware of the procedure only at the moment of publication of the public notice and therefore have significantly less time to develop a credible project for the management and development of the infrastructure.

Further critical issues may arise when the procedure leads to the conclusion of substitute concession agreements. In these cases, the risk is that negotiations between the administration and the economic operator take place with a lower degree of transparency than that guaranteed by traditional tender procedures. Although such agreements are now subject to the same evaluation criteria as concessions, their negotiated nature may leave room for administrative discretion that risks reducing the intensity of competitive comparison.

In light of these considerations, it becomes evident that the systematic use of public tender procedures represents a fundamental instrument for ensuring the efficient use of port infrastructures and for promoting a genuine opening of markets. Competitive procedures make it possible to select the operators most capable of investing in the development of ports, improving the efficiency of logistics operations, and strengthening the competitiveness of the national economic system.

Once again, the port sector demonstrates how administrative law operates within a multilevel system, in which European principles of competition and transparency are translated into national rules and find concrete application through the action of territorial administrative authorities. In this context, public tender procedures do not merely represent a technical mechanism for selecting economic operators, but constitute an essential instrument for ensuring the proper management of public resources and for fostering the competitive development of the country’s strategic infrastructures.

In the legal system of the European Union, the obligation for Member States to award the management of public infrastructures and services of general economic interest through competitive procedures does not represent a merely organizational choice, but derives directly from the fundamental principles of the internal market and from a specific regulatory framework adopted at the European level. In this context, the administrative law of the Member States has progressively become one of the main instruments through which the Union ensures the opening of markets and guarantees conditions of effective competition in access to public resources.

The first relevant normative level is constituted by the Treaties on the Functioning of the European Union (TFEU), which establish the fundamental principles of the internal market. In particular, Article 49 TFEU, concerning the freedom of establishment, and Article 56 TFEU, which safeguards the freedom to provide services within the Union, are of particular relevance. These provisions prevent Member States from adopting measures that, directly or indirectly, hinder market access for economic operators originating from other Member States. In the application of these principles, the Court of Justice of the European Union has progressively developed a body of case law according to which the award of public concessions must take place in compliance with the principles of transparency, equal treatment, and non-discrimination, even in cases where European legislation does not explicitly provide for a formal tender procedure.

On this basis, European legislation on public procurement and concessions has developed. A fundamental step in this evolution is represented by the so-called European procurement package of 2014, which introduced a comprehensive system of directives aimed at strengthening competition and efficiency in the use of public resources. Among these, a central role is played by Directive 2014/23/EU on the award of concession contracts, which for the first time regulated the sector of public concessions in a comprehensive manner at the European level.

Directive 2014/23/EU establishes a uniform regulatory framework for the award of concessions relating to the management of public works and services. According to the definition contained in the directive, a concession consists of a contract through which a public administration entrusts an economic operator with the management of works or services, transferring to that operator the

operational risk associated with the economic exploitation of the infrastructure or service. The directive requires Member States to ensure that such concessions are awarded through procedures that guarantee transparency and openness to competition, avoiding the use of automatic renewals or direct awards that could favour specific economic operators.

Alongside the directive on concessions, the European regulatory framework is complemented by two other fundamental directives: **Directive 2014/24/EU on public procurement**, which governs the award of public contracts in the ordinary sectors, and **Directive 2014/25/EU**, relating to procurement in the so-called special sectors, including energy, water, transport, and postal services. Together, these directives now constitute the backbone of European public procurement law and aim to ensure that access to public markets takes place through open, competitive, and non-discriminatory procedures.

The objective pursued by the European legislator is twofold. On the one hand, it aims to promote efficiency in the use of public resources, ensuring that the administration selects the economic operator capable of offering the best technical and economic conditions for the management of the infrastructure or service. On the other hand, it seeks to guarantee the effective opening of national markets to European competition, allowing economic operators from different Member States to participate in tender procedures on an equal footing.

Despite the clarity of these principles, the concrete application of European rules has encountered significant resistance in several Member States. The Italian case represents a particularly significant example of this phenomenon. Although Italy has formally transposed the European directives through the Public Contracts Code, in practice many sectors characterized by the presence of public concessions, including energy infrastructures, local public services, and port infrastructures, have long been marked by a limited use of competitive procedures.

One of the main ways through which the Italian legal system has delayed the effective opening of these markets has been the frequent use of legislative extensions of existing concessions. In many cases, instead of launching new tenders upon the expiry of concessions, the legislature intervened by extending the duration of existing concessions, allowing incumbent operators to continue managing the infrastructures without facing a new competitive procedure. This phenomenon has affected several sectors, including state-owned concessions, energy infrastructures, and certain local public services.

A further critical element is represented by the use of mechanisms for the renewal or renegotiation of concessions which, while formally complying with the regulatory framework, have in practice limited the contestability of the market. In such situations, operators already present in the market have benefited from informational and operational advantages that have made the entry of new competitors particularly difficult.

For these reasons, the European Commission has initiated several infringement procedures against Italy in recent years, contesting the failure to comply with the principles of competition and transparency established by European Union law. In particular, the attention of European institutions has focused on sectors characterized by long-term concessions and by a limited opening of the market to new economic operators.

The Italian experience therefore demonstrates that the effective application of European rules on concessions requires not only the formal transposition of directives, but also a profound adaptation of administrative practices and public policies. In this context, the systematic use of public tender procedures represents the main instrument through which it is possible to ensure compliance with the European principles of competition, while at the same time guaranteeing an efficient use of public resources and encouraging the entry of new operators into the markets of strategic infrastructures.

In a multilevel legal system such as the European one, administrative law therefore assumes an essential function of coordination between the rules of the Union and the concrete action of national and territorial administrations. Through the regulation of concessions and tender procedures, the administrative legal framework becomes the place where the principles of the internal market find practical implementation, contributing to the construction of a more open and

competitive economic system capable of supporting the development of the Union’s strategic infrastructures.

In conclusion, the analysis of the regulatory framework concerning the management of strategic infrastructures clearly shows how administrative law today represents one of the main instruments through which the economic and institutional development of a country is achieved. Far from being merely a procedural discipline, administrative law constitutes the legal architecture that regulates the use of public resources, the allocation of infrastructures, and the functioning of markets in which businesses and citizens operate. Through tender procedures, concession systems, and mechanisms for the control of competition, public administration plays a central role in ensuring that access to public resources takes place in a transparent, efficient, and open manner, allowing the participation of new economic operators.

In this context, particular importance is assumed by the multilevel dimension of contemporary administrative law, characterized by the interaction between European rules, national legislation, and regional or local regulations. The fundamental principles developed by the European Union, particularly those of transparency, equal treatment, and competition, now constitute the framework within which the public policies of the Member States are developed. At the same time, these principles find concrete implementation through the action of national and territorial administrations, which are called upon to translate European rules into effective administrative procedures consistent with the development needs of their territories.

The experience of the sectors analysed shows how the European Union has progressively made available to Member States not only a clear regulatory framework, but also increasingly significant financial instruments and investment policies. The resources allocated to the energy transition, the modernization of infrastructures, and the strengthening of public services today represent a concrete opportunity to promote sustainable and competitive growth. However, the effective capacity to transform these resources into development largely depends on the quality of administrative institutions and on the ability of public administrations to correctly apply the rules of both European and national law.

In this sense, the issue is no longer the lack of regulatory or financial instruments. The rules exist, the procedures have been defined, and the funds allocated for strategic investments have been made available. The real challenge lies rather in the ability to effectively integrate the different regulatory levels and to translate these instruments into concrete public policies. This requires competent administrations, transparent procedures, and the full use of public tender mechanisms, which represent the main instrument through which it is possible to ensure competition, attract investments, and select the economic operators most capable of managing and developing the country’s infrastructures.

Ultimately, administrative law should not be considered merely as a set of procedural constraints, but rather as an enabling factor for economic and institutional development. The ability to coordinate European, national, and regional rules and to apply them effectively through the action of public administration now represents one of the essential conditions for building modern infrastructures, fostering innovation, and ensuring the efficient management of public resources. In an economic context that is increasingly interconnected and competitive, the proper functioning of administrative institutions therefore becomes one of the key elements for ensuring growth, competitiveness, and sustainable development.

Sources

• 1.⁠ ⁠European Union law

• Treaties

• Article 49 of the Treaty on the Functioning of the European Union (TFEU)

• Article 56 of the Treaty on the Functioning of the European Union (TFEU)

• Article 4(3) of the Treaty on European Union (TEU)

• European directives on public procurement and concessions

• Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts

• Directive 2014/24/EU of the European Parliament and of the Council on public procurement

• Directive 2014/25/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors

• 2.⁠ ⁠Italian national legislation

• Legislative Decree No. 36 of 31 March 2023 (Public Contracts Code)

• Legislative Decree No. 50 of 18 April 2016 (previous Public Contracts Code)

• Articles 179 and following of Legislative Decree No. 36/2023

• Article 183 of Legislative Decree No. 36/2023

• Legislative Decree No. 79 of 16 March 1999 (Bersani Decree), Article 12

• Law No. 118 of 5 August 2022 (Annual Law for the Market and Competition 2021)

• Law No. 84 of 28 January 1994 (Reform of the Italian port system), Article 18

• Law No. 241 of 7 August 1990 on administrative procedure

• 3.⁠ ⁠National secondary legislation and administrative acts

• Ministerial Decree No. 202 of 2022

• Guidelines of 21 April 2023 on the implementation of procedures for the award of port concessions.