Urban waste management has undergone significant changes in recent years, which have considerably altered its structure, especially in relation to the regulatory sphere. Since 2018, waste management has come under the remit of ARERA (Regulatory Authority for Energy, Networks and the Environment). With Law no. 205 of 27 December 2017, ARERA was assigned regulatory and oversight functions for the waste cycle, to be exercised through “the same powers and within the framework of the principles, aims and powers, including sanctioning powers” established by its founding law, Law no. 481 of 14 November 1995, and already exercised in the other sectors of its competence.
As early as 2019, significant changes were introduced in the determination of waste cycle costs, marking the first radical transformation of the economic-financial plan determination system. This was Delibera 443/2019, which introduced the so-called ’waste tariff method“, also known as MTR. Numerous modifications were initiated in the following years, leading up to the significant change introduced with MTR-2, approved by Delibera 363/2021, which radically modified the characterisation of the PEF, no longer biennial but quinquennial. Other important innovations concern the changeover between operators, with the takeover value and the factor of sharing, which is the breakdown of revenue from energy and material sales to the free market or national tenders. Alongside the innovations introduced by the tariff method, ARERA has also intervened on waste service quality. With Resolution no. 15/2022 and the annex called TQRIF, meaning “Consolidated Text for the Regulation of Urban Waste Management Service Quality”.
ARERA's Objectives
Among the objectives ARERA sets in relation to quality is certainly the identification of a list of contractual and technical quality service obligations for the urban waste management service, which are minimal and uniform for all management operations in the country. These are to be accompanied by indicators and related general standards, differentiated according to the actual starting quality level defined based on the performance envisaged in the Service Contracts and/or the current Quality Charters. Such mechanisms are being implemented within the programming activities of the 2022-2025 PEF.
The territorially competent bodies, generally Municipalities or Area Authorities, are obliged to choose one of the four regulatory schemes provided for, based on the level of the actual service provided, identifying any costs connected to the adaptation to obligations within the PEF.
The aim is to improve waste management services and bring different territorial dimensions together towards standard national and uniform standards. Among the main contractual quality obligations, tools for monitoring requests for service activation, variation and termination, complaints, information requests, and rectification of billed amounts are introduced. In addition, new standard also for the methods and frequency of payment, for the instalment payments and refunds of amounts not due, for the collection of waste on call or the replacement of collection equipment.
Competencies in public procurement
However, from 2023 onwards, ARERA's activities have increasingly focused on the nature of awarding contracts. With Resolution 385/2023, ARERA issued a standard service contract template for the management of urban waste, characterised by essential minimum content that must be incorporated into both existing and new contracts, with the aim of regulating the allocation of responsibilities and risks between the contracting authority and the service provider. The standard service contract template represents the framework within which all previously introduced requirements must be properly placed: this includes the determination of efficient costs (with MTR and MTR-2), technical and contractual quality through the adoption of transparency rules (TQRIF).
Energy and environmental service companies (ETCs) are obliged to adapt their contracts to the standard contract template and send them to ARERA within 30 days of the adoption of the relevant tariff update determinations for the 2024-2025 biennium, or from the deadline established by the relevant state legislation for the approval of TARI (waste tax) for the year 2024.
The typical call for tenders
The changes also concern 2025: with Resolution 596/2024, ARERA has defined the model tender scheme for awarding integrated urban waste management services, which must be applied to tender procedures initiated from 2026. Numerous and significant innovations are introduced with this Resolution: from the definition of the management perimeter to the duration of the contract, from the take-over value to the contract fee. However, the most important innovations lie in the determination of the economic offer, with the possibility provided by paragraph 9.4 of the Resolution to submit upward bids, an absolute novelty for the sector. Starting from 2026, all award procedures must comply with this new tender scheme. With this latest Resolution, ARERA somewhat closes the circle of its regulatory framework, also addressing the tender procedure phase for selecting operators. The contract scheme defines the mandatory minimum content that tenders must have.
The most significant change, although already somewhat anticipated by the contract's structure, concerns remuneration: this must be determined using the tariff method in force at the time. The reduction, while not specified, will evidently need to be applied as a reduction within the MTR, for example by deducting it from the MTR, understood therefore as a “maximum value”, pursuant to art. 4.6 of Resolution 363/2021, in order to determine a PEF that complies with the tender rules. As with the MTR and MTR-2 and the contract draft, the implementation phase of these important regulatory changes will be very delicate within tender procedures drafted according to ARERA's new notice. Regarding tariff determinations and issues related to the adaptation of contracts to the ARERA method, there are numerous appeals to various TARs and to the TAR Lombardia, the only court with undisputed functional jurisdiction over ARERA's decisions. It is certain that, with the new methods for launching tender procedures, the courts will play an important role in defining the rules. This is particularly true in the context of environmental hygiene, where the selection of competitors, even today, is often concluded only after rulings by TARs or the Council of State.
Curated by Andrea Cappello – Head of ARS Ambiente Design and IFEL Consultant
