La "demitizzazione" del principio di concorrenza nel nuovo codice dei contratti pubblici?

In this paper an attempt is made to highlight the downsizing process concerning the application of the principle of free competition in the new regulation of public contracts approved by the Italian legislature in 2023. The consequences brought about by the Covid-19 pandemic have urged the legislature to review the entire matter and develop a new and different approach between the Administration and the market, favoring a greater expansion of administrative discretion at the expense of the dogmatic application of the principle of competition. The primary objective for the public administration now is the pursuit of the best possible result, competition being a means and not an end. Thus, the Code provides a precise and delineated hierarchy of principles that must guide the activities of the public administration and the interpreter. In this direction are the novelties regarding the discipline of in-house providing and the exceptions to competition provided for Third Sector Entities (ETS), which allow the Administration to resort to self-provisioning mechanisms, exempting it from the obligation to turn to the market, and to “share” its function and activity with private entities operating within sectors “of marked social relevance.” The aim of the present reflections is to highlight the main peculiarities and novelties of the surveyed schemes and then to carry out concluding reflections about the actual scope of the reform that has affected also the application of competition in the field of public contracts.