La rilevanza di alcuni profili di diritto della proprietà intellettuale e della concorrenza nei Pre-Commercial Procurement Contracts (“PCP”)

The National Recovery and Resilience Plan (“PNRR”), adopted in mid-2021, is intended mainly to “resurrect” Italian economy after the tragedy of COVID-19 pandemic; among its specific goals, it provides central and local governments with unparalleled opportunity to modernize domestic tangible and intangible infrastructures and to provide the Italian public administration with new facilities and cutting edge technology, thus eventually overcoming Italian civil services proverbial inefficiencies. Private enterprises are to be deemed necessary players of this unprecedented “national project”, not only as products and services suppliers, but also as providers of R&D services for innovation concerned with public interests sectors. Against this backdrop, Pre-Commercial Procurement (“PCP”) holds itself as a very peculiar type of public procurement procedure which allows public agencies to acquire R&D services intended to match a specific public interest innovation goal as a result of a multi-phasis bid by and among competing private undertakings, while avoiding – by way of an express normative exception – the application of public procurement rules set forth in the “EU procurement directives”. The PNRR boosted the opportunities to use PCPs, thereby making such procurement procedure more widely used than in the past. Data provided by the EU statistics suggest a significant increase in the use of PCPs in other EU Member-States. As PCPs typically deal with innovation, Intellectual Property Rights (“IPRs”) allocation is often one of the main issues that public administrations need to regulate in advance. Within an incentive-driven approach to public procurement, IPRs shall be made available to the public buyer of R&D services for future uses, but they do not necessarily need to be “owned” by the public sector, as sometimes it will be more efficient for both procurement contract parties to let the private R&D contractor retain the IPRs, while allowing a free license to the public administration and possibly, in some circumstances (i.e., those in which lock-in or hold up problems may arise), even to competitors under the well-known F/RAND regime. This, in turn, often proves to be consistent with two main conditions imposed on the use of PCPs, i.e., the benefit-risk sharing between the procurement contract (private and public) parties and the payment of the R&S services at their market price, but, at the same time it may give way to illegitimate State aids, if either the balance of the R&S outcome risks would tip the scale against the public sector and/or the R&S services provided would, directly or indirectly, be worth less than the “price” paid to the private contractor(s) who delivered those services. The essay starts with a thorough illustration of the pre-commercial procurement procedure, that are described in its practical terms of use; and it also illustrates the reasons that may make PCPs the optimal procedure available to the public administrations seeking for innovative solutions vis-à-vis other alternatives; it then reviews the legal rules and conditions a PCP is subject to both under EU and Italian procurement laws; this, in turn, brings up the discussion on IPRs’ allocation and the legal question regarding the “fair market price” of the R&D services provided under a PCP. Lastly, the essay will discuss how both issues would relate to the State aids general prohibition and consider the scope of the R&D and innovation exception thereto as provided by the EU State-aids rules.