The legal framework governing the construction and modernisation of sports facilities — presently set out in Legislative Decree No 38/2021, in Decree-Law No 96/2025 (as converted by Law No 119/2025) and in Bill S. 1312, currently before the Senate — does not expressly regulate the phase of dialogue between the proponent and the public administration which precedes the formal submission of the Feasibility Study of Project Alternatives (DOCFAP). Nonetheless, established practice — from the Ferraris stadium in Genoa to San Siro and to the Roma project at Tor di Valle — demonstrates that this informal phase is not an exception, but a structural constant of stadium operations.
The reason is as straightforward as it is unavoidable: a public-private partnership initiative entailing investments in the order of hundreds of millions of euros cannot be undertaken ‘in the dark’. The proponent must ascertain the position of the administration on town-planning, property, environmental sustainability and local-programming compatibility profiles; the administration, for its part, must assess in advance the seriousness and the consistency of the proposal with its own strategic objectives.
Reasons supporting the necessity of the informal phase.
The need for a pre-procedural phase of contacts between the proponent and the administration rests on several distinct grounds.
In the first place, the intrinsic complexity of such operations calls for a preliminary alignment which the formal procedure, with its strict time-limits, is not in a position to ensure. Article 4 of Legislative Decree No 38/2021 provides that the preliminary services conference shall be convened within 7 days of the submission of the application and shall be held within the following 15 days, with a declaration of public interest to be issued within 60 days. Those time-limits are designed to expedite the procedure but presuppose — in order to be realistically complied with — that the DOCFAP submitted is already the result of shared preparatory work. A proposal which is wholly ‘new’ to the administration, raising town-planning, landscape and property issues never previously addressed, will hardly be capable of being processed within the statutory time-limits in the absence of a prior phase of dialogue.
In the second place, the multidimensional nature of the stadium as an infrastructure — engaging construction, town-planning, environmental, cultural, transport and public-security profiles — renders indispensable a preliminary survey of the constraints and critical issues that the proponent will be required to address. The submission of a DOCFAP that disregarded, by way of example, the existence of a landscape-protection constraint or of an incompatible provision of the general town plan would entail not only the rejection of the proposal, but also the loss of the investments incurred for its preparation — investments which, in operations of this scale, may be very considerable.
In the third place, the political and institutional dimension of the operation — affecting the urban fabric, mobility, the identity of neighbourhoods and the relationship between public ownership and private management — calls for a dialogue which cannot be wholly confined within the technical and administrative setting of the services conference. The case of Genoa is, in this respect, emblematic: replying in the City Council on 24 February 2026 to the questions for immediate answer tabled by the opposition concerning the state of progress of the redevelopment project, Mayor Salis stated: “Following several months of dialogue with the companies and requests for additional information from the administration, the preliminary services conference was concluded on 12 February, recognising the public interest in the redevelopment project for the stadium and the adjacent Villa Piantelli, in line with the objectives of urban regeneration, functional improvement and enhancement of the sports infrastructure and of the neighbouring publicly-owned areas” (Municipality of Genoa, press release on the City Council session of 24 February 2026, published on smart.comune.genova.it), il tutto nell’ambito di un procedimento in cui il riconoscimento del pubblico interesse ha costituito non un punto di partenza, ma il frutto di un confronto tecnico già maturo.
The legal foundations.
The absence of express regulation in the sectoral legislation does not, however, mean that the informal phase is devoid of a legal basis. On the contrary, it finds its foundation in at least two normative spheres.
The first lies in the general regime governing administrative procedure. Article 14, paragraph 3, of Law No 241/1990 lays down the preliminary services conference as an instrument for verifying the conditions for the issue of consent measures, and recourse to that conference does not preclude — but rather presupposes — that the parties have engaged with one another on the essential contents of the proposal prior to its formal convening. By the same token, Article 11 of Law No 241/1990, in regulating agreements between the public administration and private parties, implicitly legitimises a pre-procedural negotiating phase.
The second lies in the linkage with the Public Contracts Code effected by Article 4, paragraph 11, of Legislative Decree No 38/2021, which refers to the project-financing regime in respect of any matter not otherwise regulated. That referral, characterised by case-law and legal scholarship as a ‘dynamic renvoi’ to Legislative Decree No 36/2023, renders applicable Article 193 of the Code, in the version resulting from the corrective decree (Legislative Decree No 209/2024), which expressly provides for a moment of contradictory exchange between the proponent and the contracting authority within the proposal-evaluation phase — including the possibility for the proponent to put forward ‘alternative solutions’ to the modifications requested by the administration. The rationale underlying that contradictory exchange — namely, the avoidance of the rejection of proposals capable of being amended — applies a fortiori in the phase preceding formal submission.
A risk to be governed: information asymmetry.
The lawfulness of the informal phase must not, however, lead to underestimation of the risk it entails on the level of par condicio competitorum, namely the risk of information asymmetry. The proponent who has engaged in dialogue with the administration prior to the formal submission of the DOCFAP enjoys, in fact, a competitive advantage — at once informational and substantive — vis-à-vis any competing proponents who have not had access to the same dialogue. Such an advantage is not exhausted in the mere temporal anticipation of knowledge but extends to the possibility of shaping from the outset the technical, economic and project-related contents of the proposal in the light of the indications received, thereby orienting in fact the very parameters on the basis of which the subsequent comparative evaluation will be conducted.
That risk is, however, not insurmountable. A first safeguard is already to be found, by virtue of the dynamic renvoi effected by Article 4, paragraph 11, of Legislative Decree No 38/2021, in Article 193, paragraph 2, of the Code, pursuant to which “an economic operator may submit to the contracting authority a preliminary expression of interest, accompanied by a request for the information and data necessary for the preparation of the proposal”: where the contracting authority identifies a preliminary public interest in the elaboration of the proposal, it shall transmit the data and information requested to that operator and shall, at the same time, make them available to all interested parties through publication in the ‘Transparent Administration’ section of its institutional website. That provision, however, addresses only one segment of the pre-procedural phase — namely the segment, already partially formalised, opening with the expression of interest — and leaves uncovered the genuinely exploratory dialogue which, in the practice of stadium operations, precedes it and frequently constitutes its very precondition. It is in that unregulated space that the risk of information asymmetry lies in its most insidious forms, and it is in that space that the legislator of the reform is called upon to intervene.
Prospects de iure condendo.
Bill S. 1312, currently in the hearing phase before the joint 7th and 8th Committees of the Senate, represents the opportunity to fill the regulatory gap herein described. As matters stand, the text does not expressly regulate a pre-procedural phase.
The introduction of a qualified preliminary consultation mechanism would make it possible to formalise the pre-procedural phase, ensuring at the same time transparency, par condicio among potential proponents and the traceability of the dialogue. Such a provision could, moreover, enable the administration to discharge more readily its obligation to carry out a preliminary assessment of the convenience and feasibility of the initiative.
Should this lacuna in Bill S. 1312 not be filled, practice will continue to operate within the framework of the general principles of administrative law, with the resulting limits of opacity and legal uncertainty. The challenge for the legislator of the reform is to bring the dialogue within procedural rules without rendering it bureaucratic — recognising that, in major sports infrastructure operations, the dialogue between public and private parties does not begin with the services conference, but well before.
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This note has been authored by avv. Fabio Todarello and avv. Giuseppe Fuda. For further information or clarifications on the topics addressed in this article, please contact avv. Giuseppe Fuda:
Todarello & Partners provides legal assistance on all matters relating to the topics addressed in this article. The firm’s lawyers possess significant experience in the field and across all areas of Administrative Law, sports facility law and public-private partnerships, regularly assisting some of the leading operators active in the market and representing them in proceedings before all competent courts.
