Planning public investments for recovery

by Michela Passalacqua, Benedetta Celati and Maria Teresa Carballeira Rivera

Abstract: It is widely believed that, as a result of the Covid-19 crisis, we are experiencing a revival of Global Nationalism, which appears destined to revive the old inefficiencies of the past; moreover, the new statism is still interpreted according to the classic, old-fashioned State vs. Market dichotomy. Starting from this assumption, the aim of this paper is to challenge these mainstream views, offering a different interpretation of the possible role of public intervention in the context of the current crisis. In particular, it will be discussed the possibility of establishing a circular dialogue between national and European institutions.

First of all, the crisis is analyzed as a possible instrument of European integration law, thus determining the opportunity for the European legal system to generate a “crisis” law. Then, in the following sections, state-owned companies, the national promotional institutions, and public planning are analyzed as a mean to achieve the aforementioned “circular action” aimed at generating greater European integration. In particular, the role of public intervention in achieving the EU policy objectives relating to the green and digital transition of national economies will be investigated.

Summary: 1. The crisis as an instrument of European integration. – 2. The contribution of State-owned companies in overcoming the crisis. – 3. Promotional institutions for economic development. – 4. Planning public investment and Recovery Package. – 5. The Italian promotional institution: “Cassa Depositi e Prestiti” (CdP). – 6. Cdp and the financing of the economy. – 7. Public intervention for “ecological market-shaping”. – 8. Conclusion.

1. The crisis as an instrument of European integration

If by “crisis” we mean distress, then its opposite is well-being. If, instead, starting from its etymological meaning, we interpret it as the act of separating, the antinomic word is “union”. Therefore, it is not surprising that the European Union originated from the maximum expression of a crisis, namely the war, nor that its history is marked by a progressive process of overcoming the crisis, to allow the single market to maximize well-being in the Pareto sense [[1]].

Nonetheless, in the last decade, there has been an increasing focus of economic and legal science on the crisis phenomenon. The crisis, in fact, from being subject to regulations, seems to become a source of law.

In other words, we are witnessing a change of perspective in evaluating the legal relevance of the critical phenomenon. From the examination of specific events, limited to definite matters and characterized by established underlying assumptions, there is a shift to studying the occurrence of specific triggering causes that are capable of impacting the markets for two essential reasons: they affect multiple economic operators simultaneously or they paralyze the functioning mechanisms of the market, that is trust in the 2007-2008 crisis and, in the current crisis, the free movement of goods and people.

We have already argued that, rather than the law “in” economic crises [[2]], we should begin to consider a law “of” economic crises [[3]]. The current crisis [[4]] could be an opportunity for the European legal system to generate a “crisis” law, aimed at avoiding punctual, disorganized and heterogeneous interventions against a complex, integrated and supranational phenomenon, capable of fragmenting and probably denying the single market itself for a long period of time.

In these terms, the law “of” economic crises would become an instrument for preserving the single market, ensuring a system that guarantees not only economic freedoms but also social rights, which the conditionality mechanisms experienced by the Member States under Articles 122 and 136 Tfeu have not always ensured.

The following example, which concerns a typical institution of European law, i.e. state aid, should make this statement clearer. In the first phase, this viral crisis, in a similar way to what happened in 2007-2008, saw the European Commission as the “solo protagonist”. However, the latter proved unable to resolve the dilemma between preserving the single market, homogeneously exposed to the exogenous shock [[5]], by authorizing public financial support to ensure its liquidity, or abandoning it at the risk of being heterogeneously fragmented by State subsidies, inevitably diversified by the unequal spending capacity of individual Member States. State aid, in the form of lump-sum transfers, is equivalent and uniform only in national perimeters, while it generates a non-level playing field in the internal market.

Actually, the Union soon grasped the emergency to intervene with concrete actions to avoid that, in the midst of such a violent pandemic crisis, the different starting positions of the Member States, characterized by different public finance scenarios, could become amplifiers of inequalities, thus harbingers of diversified protections of the same European fundamental rights.

Therefore, the current health and economic emergency seems likely to increase institutional integration in a deeper and more extensive way, generating a qualitative leap in the circularity of the European action. In particular, the latter should no longer be restricted to economic and financial “external” governance.

Also in the context of the so-called Recovery package [[6]], the EU is in fact engaged in the development of a European industrial policy, capable of entering into national economic policies, within a system of open and competitive markets. In fact, the Treaties expressly declare that the competences of the European Union (Article 173 Tfeu), while being able to foster better exploitation of the industrial potential of policies of innovation, research and technological development, cannot lead to the introduction of any measure leading to distortions of competition.

Therefore, the regulatory interventions in favor of the green and digital “twin” transition, which have been in the attention of the European institutions long before the Recovery Plan, do not seem to be justified only by technological complexity, but rather by the attempt to ensure the single market the benefits of such innovations. In other words, there is an effort, on the one hand, to drive these innovations, and on the other, to transform them into an instrument of European integration. The pandemic crisis and the measures set up to overcome it seem to be factors capable of accelerating this process.

Thus, the law “of” economic crises should be based on common principles capable of re-establishing the relationship between European and national institutions with a view to preserving the single market. If it proves effective in generating a homogeneous body of rules, it could also become a means of allowing European law to penetrate national legal systems, bringing the multiple national interventions back to the service of the EU market.

In other words, if state aid represents public interventions for the differentiated protection of companies in individual States, the new season of European funding lends itself to introducing a market-shaping that, without necessarily becoming conditionality, could act as a tool for the Europeanisation of certain national institutions.

In the following sections of this paper, we shall discuss the possibility of using certain institutions of domestic law that are indirectly contemplated both in the Temporary Framework on state aid [[7]] and in the Recovery Package (such as state-owned companies, national promotional institutions, and public planning) as a means to achieve the aforementioned “circular action” aimed at generating greater European integration.

2. The contribution of State-owned companies in overcoming the crisis

The EU’s financing of a resilient recovery, formally established with a recent European regulation [[8]], is based on horizontal coordination for accessing the resources of the European budget, outside a bilateral Member State-Commission logic.

It thus seems aimed at restoring the European market’s usual integration. In this context, the state-owned company could represent a legal instrument with the potential to be configured as an anti-crisis measure. The public enterprise could assume this function proving to be capable of acquiring a transnational and European role, in order to pool European financial resources with those of the Member States and private companies. The proper functioning should be ensured by Corporate Law’s typical structural control tools, which are verifiable by the European authorities themselves.

The current massive health crisis requires a reflection on how the public hand should intervene to promote economic activity, without dispersing into support actions that lack the potential to affect the restoration of the growth so abruptly arrested. But above all, the actions taken must be capable of increasing employment in the future with some multiplier effect [[9]].

Furthermore, the desire to support strategic companies seems to emerge from European law.

In fact, the European Commission has been fostering public-private R&D partnerships at least since 2005 to boost Europe’s industrial Competitiveness, thus encouraging the setting up of Joint Technology Initiatives [[10]], under the legal form of joint ventures. The latter were established to implement European research and technological development programs in specific sectors, according to art. 187 Tfeu. Moreover, they have been conferred legal personality, in which the Commission itself often participates for the public part, as well as Member States and universities [[11]].

Joint ventures adopt their own research agenda and allocate funding from financial programming related to the Structural Funds [[12]], mostly through open calls for proposals. However, in addition to being an implementation tool of budgetary policy also in terms of coordination, they directly carry out productive activities: in fact, they have often been able to acquire an active role in the creation of value chains [[13]].

This type of collaboration allows for the integration of EU industrial policy with research and innovation policy.

This new context includes the Action Plan on Critical Raw Materials (that is, those that present a high supply risk) for strategic technologies and sectors, with an outlook to 2030 and 2050 [[14]]. The plan aims to reduce Europe’s dependence on third countries, diversifying supply from both primary and secondary sources, and improving resource efficiency and circularity while promoting responsible sourcing worldwide.

The growing role of the so-called “Important Projects of Common European Interest” (IPCEI) [[15]] is set in the same perspective. In fact, six key strategic value chains of specific importance for EU’s industries and competitiveness have recently been identified [[16]]: clean, connected and autonomous vehicles; smart health; low CO₂ emissions industry; hydrogen technologies and systems; industrial internet of things (IOT); cybersecurity.

Public intervention, therefore, no longer manifests itself in restructuring the company to bring it back to profitability, nor simply in orienting it towards strategic sectors. Instead, it is embodied in the ability of the public initiative to insert itself, even if only to promote its best start, in the governance of the «authority and power relationships that determine how financial, material, and human resources are allocated and flow within a chain» [[17]].

The aim is not only to gain a competitive advantage for the European industry, but above all to secure and increase the quality of life of citizens. Public interventions in the field of innovative health care, which is largely entrusted to public systems, and the digital and green transitions, seem to be emblematic in this sense.

The following sections will make it clear how this public intervention, which is aimed at strengthening the investment choices of private companies, can cause the revival of state-owned companies, albeit with a limited duration, also thanks to the aid for their capitalization introduced in the aforementioned Temporary Framework.

On the one hand, the Union allows State participation in the capital increases of companies in financial distress due to the pandemic, including through the direct purchase of hybrid instruments. On the other hand, after a predetermined period of time, the compulsory exit of the same public investor from the capital of the supported companies is envisaged.

Divestment is also encouraged through the repurchase of public capital contributions, within four [[18]] or six years [[19]] (which can become five and seven years, in the case of listed companies), increasing the remuneration of public capital by at least 10%. In any case, if six years after recapitalization [[20]]State participation does not fall below 15% of the beneficiary’s own capital [[21]], a restructuring plan must be submitted to the Commission following the relevant European guidelines.

As will be discussed in Section 6, the Italian legislator decided to expand this recourse to the public enterprise [[22]] beyond the times dictated by the European Commission in the Temporary Framework, using the lever of the State as an investor under the conditions of any market economy operator [[23]].

3. Promotional institutions for economic development

It is well known that the public entity distinguishes itself from the private one for its ability to dispose of “patient capital” [[24]]. This difference is expressed in the willingness to invest in sectors that are characterized by wide margins of uncertainty, assuming greater risks than subjects who are guided by different institutional purposes. In the crisis, State intervention takes place primarily in a “restorative” function, to be implemented through the provision of direct and indirect support tools for companies negatively affected by the events. There is therefore a constant fear that this anti-cyclical action carried out by the “public hand” could prelude to a new form of statism, interpreted as a dangerous involution.

In the past, public intervention in the economy has often been used as a rescue remedy of last resort, through the purchase of shareholdings and the passage under public responsibility of private bankrupt companies. This is the model of an “inefficient” public enterprise which, in addition to being anachronistic, does not necessarily correspond to reality. In fact, the entrepreneurial State may well prove to be efficient and produce at minimal costs, with long-term investments.

According to the OECD definition [[25]] long-term investments consist of patient, engaged and productive capital through which societal long-term needs can be met. Long-term investments, in particular, are supposed to have an impact in terms of financial stability, economic resilience, innovation and sustainability challenges.

A prominent role in this regard is played by promotional institutions, also known as development banks, specific long-term investors variously linked to the public sphere, whose mission is to promote pre-defined socioeconomic goals.

Indeed, as highlighted in the Addis Ababa Action Agenda, well-functioning national development banks can be crucial in financing sustainable development, aside from having a countercyclical role, especially during crises [[26]].

With some differences, the Italian “Cassa Depositi e Prestiti” (Cdp) [[27]], the French “Caisse des dépôts et consignations” (Cdc), the German “Kreditanstalt für Wiederaufbau” (KfW), as well as other European and extra-European financial institution, fall under this category.

However, despite having some characteristics which seem to be in contrast with the European regulation, such as the possibility to purchase shareholdings, those public investors are the centrepiece of a significant recent evolution of the European Economic and Monetary Union (EMU).  In fact, the European Commission, on the occasion of the creation, in 2015, of the European fund for strategic investments (EFSI), has positively recognised the institutional role of European promotional institutions framing them as «National Promotional Banks and Institutions». These special institutions are called upon to collaborate with the EFSI (currently replaced by the InvestEU programme) by implementing specific investments plans in support to the European Investment Bank (EIB).

Such a classification is relevant for several reasons. Firstly, because it creates a link between national and European level since the National promotional banks represent the hub around which a multilevel investment policy infrastructure has been built. Secondly, even if promotional banks are supposed to intervene in order to address market failures [[28]], this recognition allows for the enhancement of the social purposes pursued with them. Lastly, while acknowledging the soundness of the explanation based on their counter-cyclical function [[29]], we believe that the importance of these institutions lies elsewhere. In fact, promotional banks seem to fulfil a critical role in the European integration process, representing the backbone of an “investment State” which is able to support specific sectors in the economy through direct spending or by mobilizing other public or private funds [[30]].

This type of public intervention is grounded on the assumption that investments and growth are critically linked and, more importantly, that society has long-term needs which must be met.

Promotional institutions, with their interventions, not only the counter-cyclical ones but especially those oriented towards long-term, sustainability-related challenges, can therefore contribute to fill an important gap in the European Union architecture.

As is well known, in the light of state-aid regulations and budgetary constraints, Member States cannot take clear economic policy measures expanding their public sphere. In parallel, there is a lack of European instruments of direct intervention in the economy [[31]]. Hence, the loss of sovereignty is not compensated by equivalent EU means of economic policy making designed to achieve economic development in Europe [[32]].

This leads to an inconsistency between economic and political space which makes the European single market more vulnerable than the markets of other extra-European States. It is against this background that in February 2019 the German Federal Minister for Economic Affairs and Energy, Peter Altmaier, presented a draft of Germany’s new industrial strategy, called The Industrial Strategy 2030, aimed at promoting State intervention to support innovation and industrial development in “relevant sectors”, as matters of European common interest, paving the way for a debate on possible adjustments to the European competition law.

Indeed, the German promotional institution KfW has always served as a long-term public planning tool for implementing industrial and economic policies in the country. Specifically, KfW has been the main instrument of the German green and energy transition (Energiewende). This support to environmental and climate policies, provided through mission-oriented public investments, by combining environmental interests with economic development needs, can be interpreted as an evolution of the German Soziale Marktwirtschaft [[33]].

Thanks to these interventions, based on the public financial promotion of green transition and digital innovation, Germany seems to have anticipated the holistic approach to industrial policies recently adopted by the European Union. This approach aims at digitalising enterprises while at the same time reinforcing European leadership in ecological production and clean energy technologies [[34]]. The German “investment State” implemented through the active role of KfW therefore shows similarities with the path drawn for the production processes in Europe by the new von der Leyen Commission, namely the twin transition, a strategy which requires to achieve a new balance between industrial strategies and competition rules.

Within this framework, national development banks, fulfilling promotional public missions in line with European long-term objectives, appear to fill the aforementioned gap, pursuing a real public economic policy, although respecting the limits of an incomplete infrastructure where the “economic” component of the EMU is less advanced than the monetary one [[35]].

Hence, the active role undertaken by the Commission in encouraging investments in Europe through the EFSI could be interpreted as the beginning of a European economic development policy. Nevertheless, it is just a first step, given that the infrastructure thus created is mainly based on the provision of guarantees to leverage significant additional funding from other private and public investors rather than on direct spending.

The EU’s new investment support scheme, InvestEu programme, which has replaced the EFSI, does not essentially differ in this regard, as well as the European Green Deal’s Investment Plan (the Sustainable Europe Investment Plan) [[36]], both aiming at the multiplier effect of private investments.

However, such an interstitial institutional development [[37]] is highly significant in terms of reducing economic and fiscal imbalances between the Member States in Europe. At a national level, it is worth noting the role fulfilled by promotional institutions in sustaining the twin transition strategy, by offering important financial support to green recovery and transition of the economy, as tools that, going beyond the rationale of fixing market failures [[38]], can accomplish a more general “ecological market-shaping task” (see Section 7).

Indeed, the testing ground to assess the level of performance of this new “European investment infrastructure” seems to be that of the climate sustainability of the economic system. Green and sustainable finance is, in fact, at the core of the financial European system with the Sustainable Europe Investment Plan and the EIB, which is to become the “Climate Bank” of the European Union. The latter, together with national promotional banks, is the key player of the InvestEu fund for the implementation of sustainable infrastructure projects, for the support of the Green Deal Investment plan and the co-funding of the Just Transition Mechanism.

4. Planning public investment and Recovery Package

The institutional framework described in the previous section lays the foundation for a progressive developing evolution which is forged by the solutions adopted for the crises that recurrently affect Europe.

If the financial crisis of 2008 created the conditions for the implementation of an investment plan based on a European investment infrastructure having a counter-cyclical function and a key importance in terms of advances of the European integration process, the recent pandemic-climate related crisis has other important consequences in this respect.

As outlined with reference to promotional institutions, European long-term objectives appear to orient the European market toward targets of green and digital transition giving rise to shared economic policy making in the EU, grounded on the European Commission’s common orientations. Those targets are shaped by the need to provide an effective answer to the challenges raised by the critical situation that is now affecting Europe, resulting from the combination between the health crisis [[39]] and climate change consequences. 

Indeed, the pandemic of 2020, the “first economic crisis of the Anthropocene” [[40]] has pushed the European project forward, with the development of different solutions adapted to the new context, characterised by the passage from an economic recession to an ecological one [[41]] in which systemic vulnerabilities emerge more clearly than ever before. 

The adoption of the recovery plan in July 2020 [[42]] marks a turning point in this regard, introducing an important and unprecedent redistribution element in the European legal order.

The recovery plan is a stimulus package based on the multiannual financing framework 2021-2027 coupled with an extraordinary €750 billion recovery fund, named Next Generation EU (NGEU) [[43]], focused on supporting the countries most severely affected by the pandemic but also on the enhancement of common priorities like the European Green Deal and digitalization.

This package, in addition to being the main instrument to tackle the socio-economic consequences of the crisis, is also the driving force of a transformation of the European Union grounded on the ecological imperative, since 30% of its total expenditure is granted to target climate-related projects.

The most important part of the Recovery package is the Recovery and Resilience Facility, a financial support scheme entirely funded by Next Generation EU [[44]], designed to fund public investment and reforms consistent with European priorities.  

The governance of the fund is integrated in the European semester, a cycle for economic policy coordination which, under the ongoing transition, seems to become a fundamental tool for conveying the new green common orientations of the European Commission [[45]] within member States. Indeed, the latter receive support from the facility by submitting national recovery and resilience plans in which they have to present a coherent package of reforms and public investment projects, covering six specific policy areas: green transition; digital transformation; smart, sustainable and inclusive growth and jobs; social and territorial cohesion; health, and economic, social and institutional resilience; policies for the next generation, children and youth, including education and skills. This support is also linked to country-specific recommendations under the European Semester.

The achievement of EU green and digital objectives is ensured by imposing that at least 37% of each plan’s allocation is dedicated to the green transition [[46]] and at least 20% to digital transformation [[47]].

Through this mechanism, unlike structural funds provisions which are limited to strengthening economic, social, and territorial cohesion, we assist to the introduction of real European political goals that narrows the sphere of discretion for member States.

It appears that long-term strategies and funding for the reduction of CO₂ emissions are the European guidelines for a recovery policy which is based on an ecological orientation capable of triggering other important institutional changes, such as a redefinition of the relationship between industrial policy and competition law (see Sections 2 and 3) and new developments of the European integration process. This outcome is obtained thanks to the combined action of the European Green Deal and Next Generation EU, which are profoundly intertwined in terms of objectives, since they are both aimed at supporting the green transition.

Besides, the loans and grants comprised within the NGEU are funded by borrowing resources from the financial markets and by taking out European debt [[48]], a decision that marks a first step toward European financial and political unification by attempting, for the first time, to mutualise economic responsibilities in the EU.

This innovation is significant because it also engenders the creation of a European tax system in order to repay the common debt. For this reason, the evocative expression “Hamiltonian moment” for the European Union has been used [[49]]. The strategic implication of a similar initiative is the fact that it constitutes an efficient manner to protect the European project by reinforcing the Union and the single market through a mechanism which tries to achieve uniform levels of growth in member States.

5. The Italian promotional institution: “Cassa Depositi e Prestiti”

In Italy, the main promotional institution for economic development through long-term investments is “Cassa Depositi e Prestiti” (Cdp) [[50]]. This role was reinforced in 2009, when Cdp partnered with Caisse des dépôts et consignations (Cdc), the European Investment Bank (EIB), and Kreditanstalt für Wiederaufbau (kfW), for the creation of the Long-Term Investors Club (LTIC), aimed to foster the right conditions for long-term investments in promoting growth. In 2015, as stated above, Cdp has been recognized as a National Promotional Bank by the Italian Government [[51]] and the European Union [[52]]. Therefore, it further expanded the scope of its activity and its current explicit mandate is to carry out development or promotion activities.

In line with this evolution, art. 27 of the aforementioned “Relaunch decree” authorizes Cdp to establish the “Relaunch Fund” [[53]], which is aimed at tackling the Covid-19 emergency by implementing measures in order to support and revitalize the Italian economic system. This fund, which is quite similar to the German Gesetz zur Errichtung eines Wirtschaftsstabilisierungsfonds [[54]], may intervene at market conditions or, alternatively, under the EU state aid law, towards joint-stock companies (SpA) and cooperatives with offices in Italy and an annual turnover exceeding 50 million euros.

At least two aspects deserve to be pointed out. The first is the duration of the operation, i.e. 12 years (extendable or even reducible) [[55]] from the establishment of the Relaunch Fund. The second is the intention to guide the interventions. In fact, certain sectors are privileged, namely the key production chains (with the exclusion of the banking, financial, and insurance sectors), including among them activities that are essential to achieve national sustainability objectives.

In particular, the following goals are mentioned [[56]]:energy transition; circular economy; supporting young and women’s entrepreneurship; reduction of plastic usage and its replacement with alternative materials; urban regeneration; sustainable tourism; adaptation and mitigation of climate change risks and, in general, investment programs for high social and environmental sustainability.

Specifically, priorities are established on the basis of sectors, supply chains, and industrial policy objectives which are indicated in the National Reform Plan (NRP) [[57]], in a specific chapter dedicated to economic planning. There is therefore an explicit functionalization of the Relaunch Fund’s activities to achieve the purposes of the Recovery Plan, which Italy must submit to the European Commission in order to activate the Next Generation EU package. The essential lines of the Recovery Plan are defined by the NRP: thus, we are witnessing the affirmation of a certain instrumentality of the public undertaking to economic planning, which is clearly foreseen, in the case of the Cdp, by the law. The latter anchors Cdp’s interventions, through the Relaunch Fund, to the NRP, so establishing an explicit directionality.

The Ministry of Economy and Finance (MEF) plays a central role in determining the operations that will be carried out through the Relaunch Fund. In fact, although the fund is separate and autonomous, at least initially [[58]] the MEF provides assets and legal relationships collected through the issue of government bonds.

The law establishes that the Relaunch Fund may become a shareholder of companies, including listed companies, by participating in capital increases and by subscribing, preferably, convertible bonds or newly issued shares. In the case of strategic transactions [[59]], it could also buy shares.

Through this scheme, the function of the Cdp that seems to emerge is that of a warranty agency for the activation and implementation of the government’s industrial policy guidelines [[60]].

Indeed, the pandemic seems to have represented an opportunity to give life to a tool with which the government, under the control of parliamentary assemblies, is going to participate in strategic sectors of the economy and to promote medium and long-term investments in them.

The fund, by way of exception to its priority function as well as the statutory provisions of Cdp (which normally prevent interventions of this type), can also intervene, as a last resort, in the restructuring of companies which, despite temporary financial or capital imbalances, are characterized by adequate prospects of profitability [[61]].

This specification seems likely to avoid drifts generated by the opening to bailouts of companies that have already gone bankrupt.

The pandemic crisis seems to have highlighted the need to assess the ability of state-owned enterprise to act beyond short-term emergencies, orienting economic activities towards the achievement of fundamental objectives. These include the development of strategic production chains [[62]], critical infrastructures, logistics and supply networks, as well as their compatibility with high environmental sustainability.

The finalization of the Relaunch Fund’s resources to achieve the objectives established by the strategic missions of the European Union is guaranteed by the fact that the Fund is bound to respect the priorities set by the National Reform Plan. This seems to represent the first sign of the reactivation of a virtuous relationship between economic policy (of action) [[63]] and public enterprises.

It appears that the Fund could play a significant role regarding the transition processes that characterize particularly critical industrial sectors, such as the steel industry: its strategic importance for the national interest remains unquestioned, albeit strongly conditioned by the essential need to operate in an environmentally sustainable manner.

In this case, public participation through the Relaunch Fund would have the function of accompanying the green transformation of steel production mechanisms, thus helping to preserve the competitiveness of the European steel industry, in the wake of that right “of” the crisis that we evoked as a guarantee of the single market.

In fact, through the interventions in the field of EU state aid law and, as pointed out in the previous section, through the Recovery and Resilience facility, the pandemic seems to have clearly outlined some common guidelines of industrial policy centered on the green and digital transitions. These guidelines are bound to persist well beyond the “buffer phase” of the emergency. It is within these orientations that the aforementioned interventions would find their specific place.

6. Cdp and the financing of the economy

The Relaunch Fund managed by Cdp, as described in the previous Section, definitively marks the attempt by the national State to restructure the economy and to increase the pro-competitiveness of businesses through innovation.

It is not certain that the means used, namely the Cdp, will prove to be up to the task. Certainly, however, the legislator had for a long time been foreshadowing such a “swerve” in Cdp’s institutional mission, in order to redesign the value chains.

In fact, since 2011, Cdp has acquired the power to purchase shares in strategic companies of national interest, as long as they are in financial equilibrium [[64]]. Since 2015, it can undertake initiatives for the relaunch of companies based in Italy which, despite temporary capital or financial imbalances, are characterized by adequate industrial and market prospects. The aim is to promote and carry out restructuring, support, and rebalancing operations of the companies’ financial and capital structure. At the same time, the intention is to encourage industrial and employment consolidation processes, also through development and investment plans [[65]]. It is therefore a sort of unlimited delegation to an industrial policy, which the legislator will remedy in the wake of European guidelines.

In the emergency, Cdp has indeed been used to make State investments [[66]]. In addition to the temporary ownership of a company’s capital component, it has obtained an intervention in its governance, which varies according to the private shareholding [[67]] and the similarity of the capital allocation conditions with those practiced by private investors.

The implementing decree of the reform evokes the classic bipartition of the new Cdp as reformed in 2003 [[68]]. In fact, the government has distinguished the interventions carried out by the Relaunch Fund under the Temporary Framework [[69]], therefore through state aid, from those carried out under the market regime.

In the first case, the Fund’s support is aimed at strengthening, thanks to the public aid, the net assets of the beneficiary companies through its direct intervention for six years [[70]], preferably through [[71]] participation in capital increases (including the purchase of hybrid capital instruments) and the subscription of convertible bonds.

In the second case, in the presence of third-party private co-investors to the extent of at least 30% and in compliance with the aforementioned Oem criterion, the Relaunch Fund can also carry out transactions at market conditions. These include purchases of listed shares on the secondary market in the event of strategic transactions [[72]] and also the traditional restructuring of companies that are characterized by adequate prospects of profitability despite temporary capital or financial imbalances (the so-called turnaround) [[73]].

As stated in the Explanatory Report of the implementing decree, the access requirements for this operation are more restrictive; moreover, they intend to identify as beneficiaries those who are characterized by the best credit quality.

In both cases, in continuity with the European framework, Italy has decided to use its development promotion institution to grant support measures, or at least to provide financing at market conditions, to large companies that make it possible to achieve the EU policy objectives relating to the green and digital transitions of national economies [[74]]. The aim is to enable more sustainable long-term growth and promote transformation towards the goal of climate neutrality.

With a much more rigorous intervention than the exceptional exemptions introduced to face the financial crisis of 2007-2008 [[75]], provisions are introduced to conform the governance of the recapitalized companies.

For the entire duration of the recapitalization intervention, beneficiaries other than SMEs have an obligation to publish information, every 12 months, on the use of the aid received. In particular, they must indicate how the subsidy supports their activities in line with the European objectives and the national obligations linked to the green and digital transformations mentioned above.

Finally, the State that does not leave the company within six/seven years from the moment of the recapitalization gives rise to an “anomalous” restructuring of the company, because it is assessed in the light of the twin green and digital transition: the actions provided by the plan must guarantee the profitability of the beneficiary also considering these objectives and the national obligations related to them.

It would therefore seem necessary to combine restructuring with the redesign of value chains to achieve the Union’s goals in terms of climate [[76]], sustainable growth, and the preservation of energy security.

Therefore, the peculiarity of this type of public intervention is not that the measure is an object of public policy, but the fact that, in order to achieve it, state aid is intertwined with corporate governance.

This had never happened, not even in the context of the all-Italian system of State shareholdings. The power of directive, headed by the competent ministry, certainly did not participate in corporate governance, being exercised completely ab externo [[77]].

The expenditure for recapitalization, therefore, seems to be able to mark the passage to the State as an investor because it can also be aimed at «supporting the initial stages of development of particularly innovative technologies» [[78]] or to undertake sustainable investments in economic activities that can contribute substantially to one or more of the environmental objectives: climate change mitigation; climate change adaptation; the sustainable use and protection of water and marine resources; the transition to a circular economy; pollution prevention and control; and the protection and restoration of biodiversity and ecosystems [[79]].

The powers described here confirm the qualification of Cdp as a national development/promotional bank, a task that now tends to stand out from its vocation as a state-owned holding company. It is not the private law ownership of the former national champions that revives its public law mission, but the call, in a neo-Keynesian logic, to finance the economy according to the values of innovation so as to trigger dynamic competition.

7. Public intervention for “ecological market-shaping”

The scenario described in the previous sections seems to entail a public intervention which is centred not only on the need to stimulate aggregate demand but also on the possibility to foster an innovation-led development process. 

Indeed, the new multiannual financial framework 2021-2027 and the economic planning related to European recovery could represent the test bench for a new institutional arrangement based on a common macroeconomic policy in which green transition has a key position.

As has been mentioned, the need to allocate financial capital on long term investments and on sustainable challenges has long been growing in importance in Europe. The Juncker Commission started to promote the possibility to commit financial resources to support not just cyclical actions but also interventions with structural effects. The European investment infrastructure based on national promotional institutions thus created is now characterised by a strong commitment to contribute to efforts in making Europe carbon neutral.

In Italy, the activity that will be conducted by the promotional institution, “Cassa depositi e prestiti”, through the Relaunch Fund seems to be consistent with this approach. In fact, the Fund, devoting its resources to the achievement of specific goals set by the strategic missions of the European Union, can be interpreted as a tool for the implementation of a public policy which actively shapes markets dynamics. In addition, Cdp, which is a partner of the 2020 European Fund for Energy, Climate Change, and Infrastructure (Marguerite Fund), has also developed a set of initiatives to support green and energy transitions in recent years, making sustainability a founding pillar in its strategic business choices [[80]].

Orienting actions to the achievement of environmental sustainability goals stands out as the distinguishing feature of the “European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy” [[81]], a Communication that paved the way for the subsequent adoption of the European Green Deal. In the Communication, in fact, the Commission explicitly states the need to «mobilise and orient sustainable finance and investment and attract support from “patient” capital» but also to «invest in green infrastructure and minimise stranded assets as well as fully exploit the potential of the Single Market». 

On the basis of these statements and of the change of perspective created by the pandemic, which finds expression in the suspension of the Stability and Growth Pact, in the great flexibility of the state aid rules and above all in the establishment of the Recovery and Resilience Facility, we can affirm that we are witnessing a new centrality of economic planning as a way to coordinate strategic decisions influenced and forged by environmental considerations. 

Economic planning under the influence of the recovery package, indeed, appears to be characterised by a specific mission-oriented approach, by which public decision makers have to orient the process behind economic growth in order to make economic activities capable of addressing societal challenges. To tackle those challenges, it appears necessary to adopt a systemic approach based on the ecological principle of circularity, as circular economy is the model that the European Commission has placed at the centre of the European Green Deal.

More specifically, circularity is intended as a principle through which sustainability shall be addressed not just as a matter of resources conservation but rather as a matter of resources regeneration, enhancing the role of environmental protection as a driving force for economic development [[82]]. In this sense, economic planning is key since it can coordinate economic activities in the light of environment protection and ecological product design as determining factors for selection in the market. Such coordination is also required to fully exploit the potential of network-based organizations which apply the principle of circularity as well as of the good practices of industrial symbiosis, where one’s refuse becomes another’s nourishment.

In this regard, public intervention is needed to integrate, in addition to cost factors, the parameter of ecological suitability in decision-making processes. The possibility to realize such an ecological shaping of the market has its legal basis in article 3 TEU, whose provisions establish the principle of free competition as a means to an end, not an end in itself. Aiming for «a highly competitive social market economy» that seeks to achieve «full employment and social progress», the article also allows to introduce specific climate sustainability purposes for orienting economic activities toward carbon neutrality, using the internal market as a tool to make European social goals, including environmental protection, more effective.

We argue that in this case public intervention can go beyond a market fixing approach through the inversion of the perspective according to which the relationship between market and law is usually interpreted, by enabling the law to «instil ecological considerations in everyday exchange processes» [[83]]. In this way it seems possible to penetrate and influence individual decisions and preferences in order to protect the ecosystem.

Hence, ecological considerations could be the way in which economic policy action determines growth. Indeed, the recent transformation, in the Italian legal order, of the Interministerial Committee for Economic Planning (Cipe) in Interministerial Committee for Economic Planning and Sustainable development (Cipess) [[84]] is to be considered as an example of such an evolution. This transformation shows the intention to pay special attention to the environmental implications of public investment decisions. Furthermore, it is a demonstration of the importance of considering the link between the change of the economic structure and the consequent social changes. The ecological shaping of the market indeed entails a capacity to deal with complex situations making choices after having considered and analysed all the variables involved.

In fact, a just transition demands the adoption of a programmatic logic that ensures the coexistence of the ecological conversion of the economy and cohesion policies, moving from an approach of “policy without politics” to one of “politics with policy” [[85]], enhanced by the emergence of sustainability as the enabling element of this paradigm shift.

More generally, we can affirm that sustainability is becoming a key concept for the progressive development of a European “public sphere” and a trigger for embarking on a reform of the Treaties, surmounting the approach that has generated the characterization of the European Union as an “entirely robotized entity” [[86]]. 

8. Conclusion

It is widely believed that, as a result of the Covid-19 crisis, we are experiencing a revival of Global Nationalism [[87]], which appears destined to revive the old inefficiencies of the past; moreover, the new statism is still interpreted according to the classic, old-fashioned State vs. Market dichotomy, so it is claimed that we are witnessing «the death of neoliberalism» [[88]]. In this paper, we challenged these mainstream views, offering a different interpretation of the possible role of public intervention in the context of the current crisis.

In particular, we argued that government action, when placed in a perspective of European integration, no longer manifests itself as a rescue remedy of last resort: instead, the “Driving State” is aimed to promote innovation through long-term investments of patient, engaged and productive capital, dedicated to increasing the pro-competitiveness of businesses. A new definition of the relationship between industrial policy and competition law is now emerging, giving life to a new intertwining among economic and social aims. In full harmony with the European Treaties, the attempt is to make markets instrumental to the pursuit of social objectives, first of all those underlying the green and digital transitions. In particular, if the market cannot be assigned the task of preventing the outcomes of future pandemic crises, it can certainly be oriented towards competitiveness instrumental to the achievement of social ends, marking the definitive success of the Lisbon strategy, which seems to have gained the upper hand just when it was about to be abandoned.

At the same time, European funding has a function of conformation not only towards the markets but also towards national interventions, leading the latter to favour European integration. We have seen that a prominent role in this regard is played by Promotional institutions for economic development, like the Italian Cdp, which seem to allow the State to become an investor in the economy.

The law’s approach to the crisis changes, as well as its intervention tools, with a view to greater European integration which imposes the need to enhance the common elements between the Member States.

The equilibrium point between the national perspective and the European one, as well as among economic and social purposes, seems to be represented by the public enterprise, which manifests the potential to be configured not only as an anti-crisis measure but also, and more prominently, as a tool for European integration.

The public enterprise can then find a new function by assuming a primary role, which consists in becoming an instrument for promoting innovation, similarly to what happened in the experience of European public enterprises, which arose on the side-lines of the EU financial planning.

A new meaning of the restructuring State then emerges. The change is not so much about the type of intervention, but about its context and purpose. The public enterprise no longer seems to be comparable to an antidote against market failure, but becomes a tool for structuring and orienting the market for purposes dictated by political power, in its needs for economic planning.

Traditionally (at least in Italy), governmental planning has always been characterized by specific and isolated interventions. This led to a lack of coordination with complementary activities that might have been suitable for increasing the potential for economic development and value creation. Now, the pandemic crisis makes it urgent to identify ways of renewing State planning from a holistic perspective.

The intervention of the State as an investor does not manifest itself as the effect of an impromptu, exceptional action. Instead, it should materialize in the creation of public fixed-term companies, which open up to private individuals, once their institutional mission is over, instead of remaining in the form of a centre of power.

In short, they are participations in projects, and, even where reconstituted or extended, they are conceived as instrumental to increasing the ambitiousness of the program, susceptible to subsequent implementation. This is a very different logic from the one that characterized the Italian experience, where the system of subsidiaries was conceived for rescue purposes and then ended up mimicking the private company, thus representing the well-known model of the mixed economy, where the crossroads between public and private is played on a ground of perfect neutrality, differing only in the nature of the invested capital.

In conclusion, the ongoing process does not seem to be limited to mere exceptional crisis management arrangements. Instead, it reveals itself as a manifestation still in progress of constructive turning points aimed at ensuring that the law “of” crisis contributes to the evolution of the European construction, reinterpreting the role of public enterprise.

Authors

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The contribution arose from a common reflection. In any case, Sections 1., 2. and 6. were written by Michela Passalacqua; Sections 3., 4., 5. and 7. have been written by Benedetta Celati and Section 8. by Maria Teresa Carballeira Rivera.

Michela Passalacqua is Full Professor of Public Law of Economics at Department of Law – University of Pisa – michela.passalacqua@unipi.it

Benedetta Celati is research fellow in Public Law of Economics at Department of Law – University of Pisa – benedetta.celati@jus.unipi.it

Maria Teresa Carballeira Rivera is profesora of Derecho Administrativo at Departament of Derecho Publico y Teoria del Estado – Universidade de Santiago de Compostela – teresa.carballeira@usc.es

[1] This is the so-called allocative (or external) efficiency, usually generated by the market in competition and linked to the intensity and quality of commercial exchanges. It must be kept distinct from the so-called productive (or internal) efficiency, which concerns the production cycle of the single company and is functional to identify the correlation between production and costs. In any case, allocative efficiency presupposes that companies operate in conditions of maximum results. When the latter condition is achieved through economies of scale attained on increasingly large markets, allocative efficiency can be compromised to the point that antitrust intervention is necessary. See Baldwin, J.R., Caves, R.E. (2002). International competition and industrial performance. Allocative efficiency, productive efficiency and turbulence. In G. Cook (Ed.), The Economics and Politics of International Trade: Freedom and Trade (pp. 57-84): vol. II. New York: Routledge; Reiter, S. (2008). Efficient allocation. In J. Eatwell, M. Milgate and P. Newman (Eds.), The New Palgrave Dictionary of Economics: vol. II. London: Palgrave Macmillan, 2008; Denozza, F. (1988). Antitrust. Leggi antimonopolistiche e tutela dei consumatori nella Cee e negli Usa. Bologna: Il Mulino.

[2] Merusi, F. (2013). Il sogno di Diocleziano. Il diritto nelle crisi economiche. Torino: Giappichelli.

[3] Passalacqua, M., Celati, B. (2019/2020). Stato che innova e Stato che ristruttura. Prospettive dell’impresa pubblica dopo la pandemia. Concorrenza e mercato, I, 96-129.

[4] For further reflections on the characteristics and peculiarities of the current crisis, see in particular: Capriglione, F. (2020). Covid-19. What solidarity, what cohesion in the EU? Uncertainties and fears. Law And Economics Yearly Review, 9(1), 4-60; Id. (2020). Il Covid 19 e la faticosa ricerca di nuovi paradigmi operativi. Rivista di Diritto Bancario, 13-64; Id. (2020). Covid-19. Incertezze domestiche e speranze europee. Rivista Trimestrale di Diritto dell’Economia, 4, 631-662; Id. (2020). La finanza UE al tempo del coronavirus. Rivista Trimestrale di Diritto dell’Economia, 1, 1-39; Rossano, D. (2020). Covid-19 emergenza sanitaria ed economica. Rimedi e prospettive. Bari: Cacucci; Masera, S. (2020). For a resilient, sustainable, and inclusive recovery in Europe: challenges and proposals in response to the pandemic crisis. Law and Economics Yearly Review, 9(1), 61-80; Troisi, A. (2020). Covid 19. Towards a turning point in the eu integration process. Open Review of Management, Banking and Finance. Retrieved from: https://wp.me/p5r4Oe-kD; Uricchio, A.F., Giambrone, F.L. (2020). The EU budget powering the recovery plan for Europe. Open Review of Management, Banking and Finance. Retrieved from: https://wp.me/p5r4Oe-k1. With specific reference to the Italian crisis management, see in particular: Rossano, D. (2020). Reflections on the Italian emergency regulation in support of businesses. Law and Economics Yearly Review, 9(1), 112-121; Malvagna, U., Sciarrone Alibrandi, A. (Eds.). (2021). Sistema produttivo e finanziario post Covid-19: dall’efficienza alla sostenibilità. Voci dal diritto dell’economia. Pisa: Pacini Giuridica; Sepe, M. (Ed). (2020). La finanza ai tempi del coronavirus. Rivista elettronica di Diritto Economia Management.

[5] For a widespread discussion, Passalacqua, M., Celati, B. (2019/2020). Stato che innova e Stato che ristruttura. Prospettive dell’impresa pubblica dopo la pandemia. Concorrenza e mercato, I, 96-129 and in particular 100 ss.

[6] Analyzed in more detail in Section 7.

[7] Communication from the Commission Temporary Framework for State aid measures to support the economy in the current COVID-19, 20.3.2020, (2020/C 91 I/01). At the moment, five changes have followed: C/2020/2215, 4.4.2020; C/2020/3156, 8.05.2020; C/2020/4509, 29.062020; C/2020/7127, 13.10.2020; and finally, C/2021/564, 28.01.2021, which extends the aid scheme to 31 December 2021, with an extension of the scope, increasing the ceilings and allowing the conversion into non-repayable grants of some loans initially to be repaid, in order to incentivize the States to resort to the latter, reserving the possibility of subsequent modification to take into account the supervening need for greater public compensation.

[8] Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021, establishing the Recovery and Resilience Facility.

[9] It is necessary to evaluate the so-called impact multiplier, which provides the measure of the impact of the supply chain on the added value of the economy in the area concerned. This indicator, for example, is very high in the pharmaceutical sector due to long supply chains, including foreign ones.

[10] Commission Staff Working Document, Report on European Technology Platforms and Joint Technology Initiatives: Fostering Public-Private R&D Partnerships to Boost Europe’s Industrial Competitiveness, 10.6.2005, Sec(2005) 800.

[11] In 2014, all the Joint Undertakings set up under the 7^th Framework Program (2007-2013) were extended for another 10 years (i.e. until 2024), merging into the Horizon 2020 program. There are currently 10 Joint Undertakings: worthy of mention are Imi2, Artemis for the implementation of the Joint Technology Initiative (JTI) on Embedded Computing Systems, the Bio-Based Industries Joint Undertaking (Bbi), Fusion for Energy (F4E), Fuel Cells and Hydrogen (Fch).

[12] All members contribute to the financing of the joint ventures’ research and innovation activities. On the one hand, the Commission provides liquidity funds from the 7^th Framework Program and Horizon 2020. In particular, in the last multiannual financial framework, the joint ventures managed around 10% (€7.2 billion) of the overall financial envelope of Horizon 2020. For the activities of the Joint Undertakings related to the 7^th Framework Program, the number of contributions in kind to be provided by the sector partners had to be equal to the amount of EU co-financing of research and innovation projects. For the activities of joint ventures relating to Horizon 2020, the funding regulations of each joint venture define the amount of EU cash contributions and in-kind contributions of private members for Horizon 2020 research and innovation projects.

[13] An example is represented by Fch, which has managed to create an EU value chain for fuel cells with better performance and lower costs. Another case is that of Bbi, which supports the creation of sustainable bio-value chains, culminating in the production of a range of innovative bio-products, in view of building a new bio-community.

[14] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Critical Raw Materials Resilience: Charting a Path Towards greater Security and Sustainability, 3.09.2020, COM/2020/474 final.

[15] As per art. 107, paragraph 3, letter b), Tfeu. For 15 years there has been a specific framework that allows the creation of Ipcei, originally only in the fields of research, development and innovation and environmental protection. However, only four of these projects have so far been notified and assessed by the Commission. The first two, in the infrastructure sector, were partially annulled by the Court of Justice. Two others have been approved in the areas of batteries and microelectronics. Source: European Parliament.

[16] Strategic Forum for Important Projects of Common European Interest, 29^th January, 2019.

[17] Gereffi, G., Fernandez-Stark, F. (2019). Global value chain analysis: a primer. In S. Ponte et al. (Eds.), Handbook on Global Value Chains, 2 ed. (pp. 54-76). Cheltenham: EdwardElgar.

[18] If the State has not sold at least 40% of the resulting shareholding in the capital, the mechanism for the gradual increase in remuneration will be activated.

[19] If the State has not sold the resulting shareholding in full, the mechanism for the progressive increase in remuneration will be activated again.

[20] That is seven years for a listed company or SME.

[21] However, the State may at any time sell its shareholding at market prices in compliance with the provisions of paragraphs 64, 64 bis, and 64 ter. The exit of the State from the capital of the companies of which it was already shareholder before recapitalization takes place under conditions that are equivalent to those applicable to private companies, in accordance with the principle of neutrality with respect to the public or private nature of the property (Article 345, Tfeu). Nonetheless, even in the event of early divestment, the governance conformation of the beneficiary company remains for up to four years after the granting of the recapitalization measure.

[22] On the (pre-Covid) signs of a turnaround and the progressive return of the public hand in the economy, see Minervini, V. (2020). Il nuovo azionariato di Stato. Lineamenti delle ricapitalizzazioni emergenziali, Torino: Giappichelli, in particular page 34 and following.

[23] The so-called “market economy operator criterion” (“MEO criterion”). For the distinction between measures granted by the State as public authority and those as a market operator, see the recent Grand Chamber case of the Court of Justice, Commission v FIH Holding and FIH Erhversbank ((C-579/16 P) EU:C:2018:159), retrieved from curia.europa.eu. In this judgment, it was recognized that the General Court had wrongly required the Commission to assess the economic rationality of financing measures from the point of view of a private operator in a comparable situation. Instead, the Commission correctly assessed this public funding from the point of view of the State in its capacity as public authority, which had previously granted State aid whose financial consequences it intended to limit. In the context of the same dispute, the Advocate General had rightly observed that the best declination of the principle of neutrality does not determine any risk of discrimination between the public and private sectors, but simply delimits the scope of the Operator criterion in a market economy in relation to the consequences of the acts carried out by the State in its capacity as public authority. In particular, the aim was to avoid unreasonably limiting the power of the State to minimize the financial risks to its balance sheet resulting from a previous bank rescue operation and to avoid additional expenses for taxpayers. For more details, see the Opinion of Advocate General Szpunar delivered on 28 November 2017.

[24] M. Mazzucato. (2016). From market fixing to market-creating: a new framework for innovation policy. Industry and Innovation, 23(2), 140-156.

[25] Bassanini, F., Reviglio, E. (2014). Gli investimenti di lungo periodo in Europa. La nascita del tema e le prospettive future. Astrid Rassegna, (10) 1-17. See also https://search.oecd.org/g20/topics/financing-for-investment/institutionalinvestorsandlong-terminvestment.htm. 

[26] Addis Ababa Action Agenda, the final text of the outcome document adopted at the Third International Conference on Financing for Development (Addis Ababa, Ethiopia, 13–16 July 2015) and endorsed by the General Assembly in its resolution 69/313 of 27 July 2015, 15-16, point 33: «We note the role that well-functioning national and regional development banks can play in financing sustainable development».

[27] De Cecco, M., Toniolo, G. (2013). Storia della Cassa depositi e prestiti. Bari: Cacucci; Della Cananea, G. (1999). Il riordino della Cassa depositi e prestiti. Giornale di diritto amministrativo; Id. (2004). La società per azioni Cassa depositi e prestiti. Giornale di diritto amministrativo.

[28] See the Communication from the Commission Working together for jobs and growth: The role of National Promotional Banks (NPBs) in supporting the Investment Plan for Europe, 22.7.2015 COM(2015) 361 final, which states:      «The principal economic rationale for a promotional bank is that market failures may lead to less investment and, thus, slower future growth than would be economically efficient, and that an institution with a public mandate is better placed than private operators to overcome these market failures».

[29] Griffith-Jones, S., Cozzi, G. (2016). Investment-led growth: a solution to the European crisis. In M. Mazzucato and M. Jacobs (Eds), Rethinking Capitalism: Economic Policy for Sustainable and Equitable Growth, Hoboken: Wiley-Blackwell, 119-133.

[30] Mertens, D., Thiemann, M. (2019). Building a hidden investment State? The European Investment Bank, national development banks and European economic governance. Journal of European Public Policy, 26(1), 23-43.

[31]  Rossi, G. (2015). Pubblico e privato nello squilibrio fra economia e istituzioni. Rivista Italiana di Diritto Pubblico Comunitario, (2), 387-402.

[32] For this reflection see Guarino, G. (2015). The “truth” about Europe and the Euro: II. Firenze: Polistampa.

[33] Böhm, F., Eucken, W. and Grossmann-Doerth, H. (1936). The Ordo Manifesto of 1936. In A. PeaCock and H. Willgerodt (Eds) (1989) Germany’s Social Market Economy: Origins and Evolution. Trade Policy Research Centre, London: Palgrave Macmillan. 

[34] See the Communication from the Commission Investing in a smart, innovative and sustainable Industry. A renewed EU Industrial Policy Strategy, 13.09.2017, COM(2017) 479 final.

[35] While monetary policy for the Member States whose currency is the euro is an exclusive competence of the Union (art. 3, para. 1, TFEU), economic policy remains a national competence subjected to coordination procedures within the Union (art. 5, para 1, TFEU). According to art. 120 TFEU: «Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Union, as defined in Article 3 of the Treaty on European Union, and in the context of the broad guidelines referred to in Article 121(2). The Member States and the Union shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 119».

[36] Communication from the Commission Sustainable Europe Investment Plan European Green Deal Investment Plan, 14.1.2020 COM(2020) 21 final.

[37] For the concept of interstitial institutional change see Farrell, H., Héritier, A. (2007). Introduction: Contested Competences in Europe: Incomplete Contracts and Interstitial Institutional Change. West European Politics, 30(2), 227 -243.

[38] See Mazzucato, M., Penna C.C.R. (2016). Beyond Market Failures: The Market Creating and Shaping Roles of State Investment Banks. Journal of Economic Policy Reform, 19 (4), 305-326.

[39] Capriglione, F. (2020). Il Covid 19 e la faticosa ricerca di nuovi paradigmi operativi. Rivista di Diritto Bancario, 13-64

[40] Tooze, A. We are living through the first economic crisis of the Anthropocene, The Guardian, May 7, 2020. 

[41] See Monteduro, M. (2018). Le decisioni amministrative nell’era della recessione ecologica. Rivista AIC, (2), 1-74.

[42] See European Council Special meeting of the European Council (17, 18, 19, 20 and 21 July 2020), Conclusions, 21.07.2020, EUCO 10/20.

[43] According to the agreement reached on 21 July 2020, NGEU is channelled through seven programmes in the form of loans (€ 360 billion) and grants (€ 390 billion): Recovery and Resilience Facility: € 672.5 billion; ReactEU: € 47.5 billion Horizon Europe: € 5 billion; InvestEU: € 5.6 billion; Rural Development: € 7.5 billion; Just Transition Fund: € 10 billion; RescEU: € 1.9 billion.

[44] The Recovery and Resilience Fund will involve €312.5 billion in grants and €360 billion in low-interest loans for the years 2021-2023. See Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021, establishing the Recovery and Resilience Facility.

[45] The Annual Sustainable Growth Strategy, presented within the Autumn 2019 Semester Package is based on the concept of competitive sustainability which is composed by four dimensions: stability, fairness, environmental sustainability, and competitiveness.

[46] National plans must also respect the so called “do no significant harm” principle, in order to protect the EU’s environmental goals.

[47] National plans are assessed by the Commission within two months of the submission based on a set of criteria among which there is also the consistency with the country-specific recommendations of the European Semester. The assessment is then approved by the Council, by qualified majority on a Commission proposal.

[48] The European Commission is authorised to borrow funds on behalf of the Union up to the amount of €750 billion on the capital markets.

[49] Lionello, L. (2020). Next Generation EU: has the Hamiltonian moment come for Europe?. rivista.eurojus.it, (4), 22-42.

[50] Bani, E. (2012). La Cassa depositi e prestiti S.p.a. di diritto singolare. In AA.VV., Scritti in onore di Francesco Capriglione: vol. I. Padova: Cedam; Brescia Morra, C. (2011). La Cassa Depositi e Prestiti: una nuova banca d’affari pubblica? Retrieved from: http://www.nelmerito.com; Cardi, M. (2012). Cassa Depositi e Prestiti e Bancoposta: identità giuridiche in evoluzione. Bari: Cacucci.

[51]  Law 28 December 2015, n. 208, “Provisions for the preparation of the annual and multi-year state budget” (2016 stability law), article 1, paragraph 826.

[52] Regulation (EU) 2015/1017 of the European Parliament and of the Council of 25 June 2015 on the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013 — the European Fund for Strategic Investments.

[53] That is to say, the so-called “Patrimonio Rilancio”.

[54] This fund was established by the so-called Corona-Krisenpaket on March 27, 2020. It was awarded 100 billion euros for the direct acquisition of shares of large companies interested in strengthening its capital position.

[55] By resolution of the Board of Directors of Cdp at the request of the Ministry of Economy and Finance.

[56] Since they are expressly listed in art. 1, paragraph 86 of law no. 169 of 2019, to which art. 27, par. 5, refers.

[57] As provided by art. 27, co. 4, decree law n. 34/2020 as converted by law no. 77/2020.

[58] The initially planned contribution is 44 billion euros. In exchange, the MEF will receive participatory financial instruments, correlated to the economic results of the fund. It was proposed to create a link with the Social Bond issue by the CDP, or with the Covid-19 Social Response Bond, which is issued according to the Debt issuance program (Dip), i.e. the medium-long term of Cdp in the amount of 10 billion euros: see Marucci, M. (2020). The State entrepreneur. A new impulse to the CoP and sustainable finance. Menabò di Etica ed Economia, 129. With the conversion of decree law n. 34/2020, the Parliament has however provided, with the addition of paragraph 18-ter, that the fund can also flow the liquidity of taxpayers who intend to invest their savings in support of the growth of the real economy, strengthening popular capitalization of businesses.

[59] These interventions fall within the category of “Leviathan as a minority investor”, as described by Musacchio, A., Lazzarini, S.B. (2014). Reinventing State Capitalism. Leviathan in Business, Brazil and beyond, Cambridge, Harvard University Press.

[60] This function was gradually determined to strengthen the role of public holding of Cdp and its subsidiaries (an example is that of the functions that were attributed to Sace by decree law no. 23/2020).

[61] On the restructuring front, Cdp participates in a single specialized fund, called “Quattro R”, which currently benefits from 700 million euros and is involved in three transactions.

[62] According to the European Commission’s new industrial strategy for Europe, certain critical supplies must be guaranteed such as: technologies, food, infrastructure, robotics, 5G communication networks, microelectronics, nanotechnologies, biomedicine, quantum technologies, pharmaceuticals, biomedicine and biotechnologies.

[63] Reference is made to the well-known definition of economic policy as «the general body of principles of governmental action or inaction – the agenda or non-agenda of the state as Bentham called them – in regard to economic activity» offered by the economist Robbins, L. (1952). The Theory of Economic Policy in English Classical Political Economy. London: Macmillan, p. 2.

[64] Art. 7, decree law 31 March 2011, no. 34, converted into law no. 75/2011, according to which CdP S.p.A. may also acquire shareholdings in companies of significant national interest in terms of strategic nature of the operating sector, employment levels, amount of turnover or repercussions for the economic-productive system of the country, and which result in a stable situation of financial, capital, and economic equilibrium, and are characterized by adequate prospects of profitability.

[65] Art. 15, decree law 12 September 2014, no. 133, converted into law no. 164/2014, as replaced by decree law 24 January 2015, no. 3, converted into law no. 33/2015.

[66] According to the definition provided by the Ministry of the Economy, public investments are the sum of capital expenditure of the State and other public administrations, aimed at increasing the stock of physical or technological capital available to the territory and the production system whose utility does not end over the course of a financial year.

[67] In particular, the private participation is considered significant, and justifies the “loosening” of the governance structure, if it corresponds to at least 30% of the new capital contributed.

[68] Enriques, L., Mucciarelli, F.M. (2019). Governance pubblica e privata delle politiche pubbliche per obiettivi: una proposta di riforma della governance della Cassa Depositi e Prestiti. Giurisprudenza Commerciale, 45(6), 1014-1029.

[69] See the Title II of the draft implementing decree referred to Government Act no. 222/2020.

[70] After which the “anomalous” restructuring obligation is triggered, unless it concerns interventions carried out by the Relaunch Fund in companies with listed shares in which there is already a public participation, in the presence of simultaneous co-investment by other investors carried out under the same conditions as the Relaunch Fund and to an extent equal to at least 30% of the total intervention (art. 13, paragraph 5, of the draft implementing decree referred to Government Act no. 222/2020).

[71] Article 27, paragraph 5, decree law no. 34/2020.

[72] Article 27, paragraph 5, decree law no. 34/2020.

[73] The restructuring takes place directly and mainly through the subscription of capital increases, in the presence of a co-investment by one or more private co-investors, including the existing shareholders of the applicant company, who invest new cash resources for an overall amount not less than that of the intervention of the Relaunch Fund.

[74] Montedoro, G. (2019/2020). Aiuti di stato e digitalizzazione. Concorrenza e mercato, 168, points out that the Commission’s vision confirms the macro-economic objectives.

[75] It should be remembered that these types of aid were already reviewed in the “Temporary Framework” of 2008-2009. The aim was not only to increase financing for businesses, but also to «to encourage companies to continue investing in the future, in particular in sustainable growth».

[76] Reference is made to the climate objectives for 2030 established in art. 2, point 11, of the Regulation (EU) 2018/1999, as well as the climate neutrality goal to be achieved in Europe by 2050.

[77] Merusi, F. (1965). Le direttive governative nei confronti degli enti di gestione. Milano: Giuffrè.

[78] Visco, I. (2018). Investimenti pubblici per lo sviluppo dell’economia. In Aa.Vv., Sviluppo economico, vincoli finanziari e qualità dei servizi: strumenti e garanzie, Atti del 64° Convegno di Studi Amministrativi. Milano: Giuffrè, 2018.

[79] Pursuant to the provisions of the Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088.

[80] D’Agnese, L. (2020). Sustaining the Energy Transition in Italy: Financing, Policies and the Role of Cassa Depositi e Prestiti. In A. Gilardoni (Eds), The Italian Utilities Industry. Cham: Springer.

[81] Communication from the Commission A Clean Planet for all. A European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy,28.11.2018, COM(2018) 773 final.

[82] See Rossi, G. (2020). Dallo sviluppo sostenibile all’ambiente per lo sviluppo. RQDA, (1), 4-14; Antoniazzi, S. (2021). Transition to the Circular Economy and Services of Economic General Interest. http://www.federalismi.it, (7), 1-21.

[83] Cafagno, M. (2019). Analisi economica del diritto e ambiente. Tra metanarrazioni e pragmatismo. Il diritto dell’economia, (2), 155-178.

[84] See art. 1-bis, decree law no. 111/2019.

[85] Schmidt, V. A. (2020). Theorizing Institutional Change and Governance in European Responses to the Covid-19 Pandemic. Journal of European Integration, 42 (8), 1177-1193.

[86] Guarino, G. (2014). Cittadini europei e crisi dell’euro. Napoli: Editoriale Scientifica, in particular page 31 and following.

[87] Bieber, F. (2020). Global Nationalism in Times of the COVID-19 Pandemic. Nationalities Papers, 1-13.

[88] Šumonja, M. (2020). Neoliberalism is not dead – On political implications of Covid-19. Capital & Class, 1-13.