Art. 176. Termination, automatic revocation, termination for breach and subentry
1. Without prejudice to the exercise of the powers of self-protection, the concession can be terminated, specifically when:
a) the licensee should have been excluded in accordance with Article 80;
b) the contracting authority, with reference to the tender procedure, breached European Union law as ascertained by the European Union’s Court of Justice pursuant to Article 258 of the Treaty on the functioning of the European Union;
c) the concession has undergone a modification that requires a new tender procedure in accordance with Article 175, paragraph 8.
2. In the cases set forth in paragraph 1, the terms provided by Article 21-nonies of Law No. 241 of 7 August 1990 shall not apply.
3. Paragraph 4 shall apply if the automatic cancellation is due to a fault that is not attributable to the licensee.
4. If the concession is terminated due to the breach of the contracting authority or the latter revokes the concession for reasons of public interest, the licensee shall be entitled to:
a) the value of the works realized plus accessory costs, net of depreciation, or if the work has not yet passed the testing phase, the costs effectively incurred by the licensee;
b) the penalties and other costs incurred or to be incurred as a result of the termination, including costs deriving from the early termination of the contracts hedging the risk of fluctuation in the interest rate;
c) compensation for lost profits equal to 10 percent of the value of the works still to be carried out or, if the work has passed the testing phase, the current value of the revenue resulting from the financial-economic plan annexed to the concession for the residual years of operation.
5. The amounts set forth in paragraph 4 and paragraph 7 are primarily intended to pay the credits of the licensee’s lenders and holders of securities issued pursuant to Article 185, limited to bonds issued following the date of the entry into force of this provision and are unavailable to the latter until the complete payment of such credits.
5-bis. Without prejudice to the payment of the amounts set forth in paragraph 4, in all cases of the termination of the concession other than termination due to breach by the licensee, the licensee shall have the right to continue the ordinary operation of the work, collecting the revenue resulting therefrom, until the effective payment of the above amounts through the successor, except for any unpostponable investments determined by the licensor together with the arrangements for financing the related costs. paragraph introduced by legislative decree no. 50/2017 in force from 20-5-2017
6. The effectiveness of the revocation of the concession is subject to the condition of payment by the contracting authority or by the contracting entity of the amounts provided for in paragraph 4.
7. If the concession is terminated due to breach by the licensee, Article 1453 of the Italian Civil Code shall apply.
8. In cases involving the termination of a concession for causes attributable to the licensee, the contracting authority shall communicate in writing to the licensee and the financing institutions the intention to terminate the contract. The lender institutions, including the holders of bonds and similar securities issued by the licensee, within ninety days from receipt of the communication, can indicate an economic operator who shall succeed to the concession, who shall have the technical and financial characteristics corresponding or similar to those provided in the call for tender or in the acts pursuant to which the concession was awarded, with respect to the progress of the object of the object of the concession on the date of the subentry.
9. The successor economic operator must ensure the resumption of the execution of the concession and the precise compliance originally requested of the licensee it substitutes within the term indicated by the contracting authority. The subentry of the economic operator shall take force from the moment in which the contracting authority gives its consent.
10. The contracting authority shall provide in the tender documentation for the right of subentry granted to the lender institutions set forth in paragraph 8.
10-bis. This Article shall apply to concession contracts and public - private partnerships and to the economic operators holding such contracts. paragraph introduced by legislative decree no. 50/2017 in force from 20-5-2017
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