Le cause di esclusione di cui all’art. 80 D.Lgs. n. 50/2016 tra Linee guida dell’ANAC e principi di tassatività e legalità

This paper, concerning the Guidelines adopted by the ANAC on the subject of "Indication adequate means of proof and deficiencies in the performance of a previous procurement contract which may be considered significant for demonstrating the circumstances of exclusion pursuant to art. 80 paragraph 5, lett. c) of the code”, aims to highlight on the one hand how, the alleged optional nature of the same, recognizing to the individual contracting stations the right to decide on the applicability of the Lines themselves, could, on the one hand, lead to situations potentially harmful to the constitutional principles pursuant to articles 3, 41 and 117, paragraph 2, lett. e) of the Constitution, to the detriment of the prerogatives of the economic operators, moreover, the parts of the Lines considered which imply a possible trespassing of the legislative parameter pursuant to art. 80, paragraph 13, Code. To this end, the contribution consists of two parts: in the first, starting from the classification of the ANAC Guidelines, the reasons why the considered Guidelines must - in contrast with what was stated by the Council of State with opinion no. 2286/2016 - have nature cogent; in the second one, however, a logical legal analysis is carried out aimed at identifying the parts of the Lines that could cross the legislative parameter - art. 80, paragraph 13, cit. -, resulting in violation of the principle of substantive legality, i.e. of the so-called procedural legality, if yes found in the art. 213, paragraph 2 the legal basis of the regulatory power of the ANAC, with contextual configuration of a c.d. implicit administrative power of the Authority itself.