by elisabettatati | Jul 24, 2023 | The Urban Media Lab
There are two objectives that the public administration can be called upon to reconcile and/or integrate in the field of innovation: on the one hand, the interest in developing the innovation ecosystem, territorial or otherwise (the enabling state)[1], also and above all with a view to sustainability (the innovative state)[2] and, on the other hand, the more “narrow” need to provide citizens with services, also and above innovative in themselves, through the market (the state as provider, promoter, or regulator)[3].
With regard to the goal of developing the innovation ecosystem, including the territorial ecosystem, through public administration, it can be said that the legal forms tested, particularly in the context of multi-stakeholder partnerships, are at the “meso” level, i.e. they relate to organic policy objectives. They take the form of “institutionalised” solutions (e.g., foundations) or, more simply, project-based solutions, such as lighter forms of cooperation. At the moment, experiments are and will be carried out across Italy, through specific projects, thanks to the upcoming opportunities for the start of the new 2021-2027 cycle of the European Structural and Investment Funds (ESIF) and the recent adoption of the Green Deal Industrial Plan for the Net-Zero Age, to those in progress, for the implementation of the NRRP, or past ones, such as the Industry 4.0 Plan or the Investment Plan for the deployment of ultra-broadband (Development and Cohesion Fund 2014-2020). One example is the Emerging Technology Houses (Case delle tecnologie emergenti, CTE), funded by the Ministry of Economic Development (now the Ministry of the Economy and Made in Italy) through the Emerging Technologies Support Programme in the context of 5G (Decree of the Ministry of Economic Development No. 110/2019), which is spread throughout the country and is currently in its second call for proposals. They are mainly based on atypical forms of multi-stakeholder public-private partnerships. The experiment of the City of Rome with the CTE Roma Open Lab project is one of these examples, particularly in terms of supporting the diffusion of technological innovation and in an “emergent” key in favour of the needs of the city and the population (SMEs, start-ups or new generations of potential entrepreneurs), involving institutional partners, technicians, big companies and universities. Another innovative experiment is that of the municipality of Reggio Emilia. Thanks in part to the project path initiated with the support of a European grant, EUARENAS.EU, in 2022 the city adopted a Municipal Regulation on Democracy and Urban and Climate Justice, which establishes the Partnership for Sustainable Development and Innovation as an example of an innovative public-private partnership, with a strong and active role for the community, inspired by the principles of sustainable development and fair and equitable transition[4].
These examples thus open the scenario to the more specific objective made explicit in the title: innovation inspired by public demand. In fact, it is the public procurement sector that should be most affected by the processes of adaptation and experimentation, with the aim of providing flexible solutions to innovation processes. In this sense, we can mention the actions carried out by the Agency for Digital Italy (AGID) through the “appaltinnovativi” platform and the SmartXItaly project. The processes mentioned here are at the “micro” level. In fact, individual administrations (even if their aggregation is desirable) use the interface provided to find innovative solutions to specific challenges, with the aim of subsequently initiating administrative processes to conclude contracts with companies. This is not to say that the tools of so-called innovation procurement cannot find a place in the framework of activities to support innovative entrepreneurship (think of the possibility for a start-up that is admitted to a public incubation and acceleration programme in one of the emerging technology houses to be able to win a public contract). In fact, it is through fair and sustainable innovation driven by public demand, and thus using the public procurement market, that the development of the business sector and the goals of sustainable development can be achieved.
However, the narrower the territorial scope of interest, the thinner the line with state aid rules. These elements of flexibility in the solutions tested at the “meso” level, which usually take the form of partnerships (assuming a public-private relationship), must therefore be duly taken into account in order to envisage their integration into the chain of public contracts for innovation within specific projects (the “micro” or “contractual” level), with its risks and opportunities.
There is an urgent need to consider the possibility of composing administrative procedures aimed at meeting complex objectives, such as the two purposes mentioned at the beginning, with the overall aim of promoting innovation through actions for and by public administration. The combination of “public procurement” and “innovation” is, not surprisingly, the subject of special attention by the European Commission in the Europe 2020 Strategy and in the Green Paper “Modernising EU Public Procurement Policy. Towards a more effective European procurement market”[5]. At the same time, it is the partnership dimension that needs to be particularly strengthened, as the European Commission has long since envisaged in the Green Paper “on public-private partnerships and Community law on public procurement and concessions”, which, not surprisingly, distinguishes between “institutionalised” and, more appropriately, “contractual” forms[6].
As is well known, the discipline of public procurement has been in the meantime profoundly revised by Directives 2014/24/EU (in the so-called “ordinary sectors”) and 2014/25/EU (in the so-called “special sectors”), which repealed the previous Directives 2004/18/EC and 2004/17/EC, respectively. One of the objectives of the Directive for the ordinary sectors is to use public procurement strategically to stimulate innovation. Under a new and more comprehensive definition, “innovation” would consist of the implementation of a new or significantly improved product, service, or process, including, but not limited to, production, building or construction processes, a new marketing or organizational method in business practices, workplace organization, or external relations, among other purposes in order to help address societal challenges or support the Europe 2020 strategy for smart, sustainable, and inclusive growth[7]. More recently, the European Commission has adopted new guidelines on Innovation Procurement[8].
As can be understood from the documents referred to above, there is no unambiguous definition of Innovation Procurement. For the European Commission it is possible to count two species, namely, pre-commercial procurement and innovation public procurement, remaining almost a tertius genus the Italian figure of the innovation partnership (partenariato per l’innovazione)[9].
A way forward for a more in-depth study of the subject, therefore, would consist, first of all, in reconstructing the legal framework around public contracts in the field of research and innovation in Italy, in order to delve into individual institutions (first and foremost, pre-commercial procurement and the innovation partnership), including through the analysis of some successful examples (the Municipality of Venice and its experimentation with the innovation partnership[10] or the Apulia Region and its experience with pre-commercial procurement[11]). Moreover, the analysis cannot disregard institutions that are nevertheless classic, such as the competitive procedure with negotiation, competitive dialogue or project financing, but employed in “innovative” ways for the purpose of equally “innovative” needs. The new Code of Public Procurement in Italy has also been approved, an element that is crucial to take into account for such a reconstruction of the regulatory framework. Second, they must be placed within a process (from market consultation to awarding and beyond), differentiating it according to the administration’s level of awareness of its need for innovation, including through “meso” projects already in place. At this level, in fact, the goal of innovative service delivery through the public procurement market is intertwined with the goal of supporting innovative entrepreneurship, precisely through projects (and their potential) such as those related to Emerging Technology Houses.
The challenge for future research in the field is therefore to understand whether and how it is possible for a territorial (or sectoral, such as a health care institution) public administration to include the use of innovation procurement tools, in compliance with the relevant regulatory framework updated to the latest developments, as part of multi-actor actions (and thus complex partnerships) aimed at supporting entrepreneurship, itself, “innovative”. The challenge is also to understand how these projects, both at the meso- and micro-level, can be financially sustainable, as well as legally viable.
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References
[1] On the notion of the enabling state, E. Chiti, La rigenerazione di spazi e beni pubblici: una nuova funzione amministrativa?, in F. Di Lascio, F. Giglioni (eds.), La rigenerazione di beni e spazi urbani. Contributo al diritto delle città, il Mulino, 15 ff.
[2] M. Mazzucato, Lo Stato innovatore, Laterza, 2018; cfr. C. Iaione, Urban sustainable development and innovation partnerships, in Italian Journal of Public Law, n. 2, 2022.
[3] Per una ricostruzione, in chiave evolutiva, F. Bassanini, G. Napolitano, L. Torchia (eds), Lo Stato promotore. Come cambia l’intervento pubblico nell’economia, il Mulino, 2021.
[4] Information available here: https://www.euarenas.eu/ (last access July 2023) and here: https://www.comune.re.it/documenti-e-dati/atti-normativi/regolamenti/regolamento-sulla-democrazia-e-la-giustizia-urbana-e-climatica-a-reggio-emilia (last access July 2023).
[5] COM(2011)15, par. 4.
[6] COM(2004) 327.
[7] Art. 2, Directive 2014/24/UE.
[8] COM(2021)4320.
[9] D. Del Prete, Gli appalti pubblici al servizio delle nuove esigenze. Il partenariato per l’innovazione, in Federalismi.it, n. 18, 2021.
[10] D. Del Prete, Gli appalti pubblici al servizio delle nuove esigenze. Il partenariato per l’innovazione, cit., p. 58.
[11] Regione Puglia, Appalti pubblici per l’innovazione. Capitolato tecnico, si veda qui.
by elisabettatati | Jun 18, 2023 | The Urban Media Lab
- Introduction
As observed recently by the Italian National Committee for Bioethics, it may be said that the concept of vulnerability has neither a clear linguistic definition nor a precise ethical or legal status. Perhaps it is also for this reason that, over time, the term has come to encompass a growing number of scenarios that have determined, for the widest variety of reasons: marginalisation, exploitation, hardship, or even social or existential oppression. It has, therefore, become an undeniably valuable tool for highlighting the limits of social development at a time of rapid technological change and ecological imbalance brought about by globalisation processes and the increasing inequalities between different areas of the world and even within the same country.
However, this short paper will try to provide some input on the process of defining vulnerable ‘communities’, narrowing down the meaning through a series of hypotheses. In attempting this task, philosophical reasoning, in particular, can steer lines of argument in other disciplines, such as in law (in particular, with regard to the EU legal order; on the role of legal reasoning in the vulnerability discourse, see Pastore, 2022, 8).
The Deep Dive event Sustainable investments in vulnerable communities, which took place on 4th May 2023 at Luiss University in Rome, focused on the topic of vulnerable communities from the specific perspective of the challenge of climate change, a significant external factor that needs to be explored in relation to its cause-effect relationship with vulnerability. However, according to a personal opinion, regarding the definition process (as explored during session 1, Defining vulnerable communities), the subject of climate change can be temporarily set aside. My reasoning will then move on to analyse the meaning of vulnerability, proposing some examples concerning law and public policy, further considering vulnerability from the perspective of “community” before coming around once again to the starting point: climate change.
- The multidimensionality of vulnerability
We might say that climate change gives rise to a ‘scale’ measuring how individuals, groups, and communities can be considered ‘vulnerable’. As vulnerability can arise from a multiplicity of causes (as remarked by Olajide & Lawanson, 2014), in some contexts, climate change “merely” exacerbates pre-existing factors of individual and/or community vulnerability. In others, it emerges as a new threat that can trigger vulnerability in communities for the first time and in different areas (e.g., previously non-existent problems of public order, unemployment, or poverty). The emergence of these scenarios will depend on the means/tools available to avoid even more dramatic consequences. In both situations, the ex-ante or ex-post instruments used to mitigate the effects of climate change can be considered a different matter from vulnerability itself (for a similar approach, see Pariotti, 2019, 156). For others, climate change is integral to all other main policy areas, with pronounced effects on the forms, level, and distribution of enterprises, and, for example, constitutes a major determinant of the degree of access to food and water (Clark, 2013, 63).
After settling the pressing issue of climate change in this way, it becomes possible to define vulnerability and vulnerable communities in a more general (ontological) sense. In fact, we need to be sure that any definition we adopt can apply to both environmental disasters and war scenarios, the problem thus being how to specify the instruments to be adopted ex-ante (prevention, e.g. a sound approach to urban planning) or ex-post (mitigation, e.g., through investment in infrastructures). It is not by chance that it has been observed that the experience of vulnerability “is greatly influenced by the quality and quantity of resources we possess or can command” (Fieneman, 2008).
Vulnerability is thus a composite of the ‘natural’ or physical world, acting alongside the social sphere, and it has been claimed that an ‘integrated view’, combining both these dimensions, is now the ‘current paradigm’ (Soares, Gagnon, and Doherty 2012, 10). Not casually, it was Rousseau who first referred to natural disasters in the ‘state of nature’ as the condition from which humankind starts to reflect on their being and the potential of human relationships (see infra for more details).
- Vulnerability as inequality and poverty
All this considered, I want to define vulnerability as a form of inequality, whose origin can be traced back to the left side of the poverty/richness dichotomy, as (again) Rousseau reminds us in his Discourse on Inequality. Compared with the strength/weakness descriptor, this binomial offers a more accurate description of an intermediate scenario (society) between the state of nature and the sophisticated political arrangements known as the State.
Not surprisingly, this reasoning is reflected in the ongoing debate on sustainable development, with the first global goal being ‘no poverty’. Vulnerability, like poverty, is, in fact, clearly linked to the lack of economic means to overcome internal limits (such as disease) and external constraints (such as natural disasters). For this reason, other sections of the Deep Dive event were dedicated to investment as a possible solution for mitigating vulnerability.
As recently noted by a prominent Italian legal scholar in a book on the public intervention of the State in the fight against poverty, the latter is not only a condition of difficulty and discomfort but also one of deprivation or the serious degradation of fundamental rights. From this point of view, poverty is an expression of inequality par excellence. Legal analysis cannot ignore these aspects, which, as regards administrative law, unlike what occurs in civil and criminal law, carry a double importance: they concern both individuals and society (Franchini, 2020, 47-49).
Thus, vulnerability can be considered in ‘ontological’ terms (as a philosophical concept), which helps, for example, understand the intergenerational perspective of sustainable development. Still, it can also be understood in ‘situational’ terms, including public policy choices, analysis of case law, and the case study approach.
- Vulnerable subjects vs vulnerable communities: a European scenario
Having proposed a way to define vulnerability based on philosophy, and being aware of its incompleteness, it is now necessary to isolate the meaning of vulnerable ‘communities’. The paradigm that can be adopted for describing vulnerability could be either ‘individualistic’ or ‘communitarian’. Again, solutions to concrete problems can highlight the differences between the two approaches. The rights of a vulnerable individual can be guaranteed and protected through the enforcement of law-making, policy-making, and rule-making, as well as, obviously, by the judicial system. Ultimately, they may become the ‘representatives’ of a better-specified vulnerable group or community, the latter enjoying varying degrees of legal autonomy.
At the EU level, some legal definitions of vulnerability are provided in Directives, such as Directive 2011/36/EU, on preventing and combating human trafficking and protecting its victims. Article 2 reads: “A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved”. Additionally, Directive 2012/29/EU establishes minimum standards on the rights, support, and protection of victims of crime. Recital 38 states that “persons who are particularly vulnerable or who find themselves in situations that expose them to a particularly high risk of harm, such as persons subjected to repeat violence in close relationships, victims of gender-based violence, or persons who fall victim to other types of crime in a Member State of which they are not nationals or residents, should be provided with specialist support and legal protection. Specialist support services should be based on an integrated and targeted approach […]”. We will see in the conclusions of this concept note that a clear normative definition of vulnerability linked to climate change is still lacking in the EU, and most notably in the Green Deal.
As for the EU judicial system, it tends to avoid a priori definitions of vulnerability[1], especially in the social sector, instead opting for a case-by-case evaluation[2]. The system recognises both negative and positive liberties, emphasising the importance of public policies and the provision of goods and services to combat inequality as manifested in issues of vulnerability and poverty. This approach values equal treatment and effective justice, often adopting comparative analysis techniques[3].
Many judgements are more easily linked to the enjoyment of rights in the health sphere, which is interesting, given the ontological and situational double-soul of vulnerability[4]. The case law relating to mental and psychological vulnerability and the fact that vulnerable individuals are considered as consumers have also been mentioned in the literature[5].
The cases mentioned above demonstrate the need to define vulnerability in both ontological and situational terms, as discussed in the previous section. The European Court of Human Rights plays a prominent role in this discussion, especially in cases involving asylum seekers and disabled people. The Court’s use of the term ‘vulnerable groups’ is no mere rhetorical flourish; indeed, “the term does something: it allows the Court to address different aspects of inequality in a more substantive manner” (Peroni and Timmer, 2013, 1057; Pastori, 2022, 10).
However, we also see judgments in the EU legal order in which the person protected as vulnerable is also a legal entity, such as an enterprise, as far as the implementation of State Aid discipline, abuse of dominant position, and the enforcement of antidumping measures are concerned[6]. This approach to vulnerability can be open to intense criticism unless the legal entity intrinsically resembles a vulnerable community, as in the case of small family businesses or, for example, those led by indigenous communities. It seems reasonable that vulnerability cannot be attributed to entities that are not, for the most part, linked to physical persons, groups, or communities. In this sense, judgments that indirectly consider communities vulnerable due to environmental conditions, such as soil or water contamination, are much more sensible than working on aggregated or legal persons that cannot be regarded as communities of people (see De Giuli, 14-16 for some examples).
5. The conceptual benefits of defining vulnerability under the communitarian paradigm
Recognising communities as vulnerable, ranging, for example, from single neighbourhoods or a rural village to entire cities, such as coastal ones, or clusters of rural areas, such as those threatened by desertification – provides a valuable basis for further discussion. This approach considers vulnerable communities rather than individuals or specific groups of individuals alone.
First of all, the communitarian scenario brings out the multi-dimensionality of vulnerability more clearly and directly.
Secondly, thinking in terms of communities and vulnerability as a common problem can open up potential alternative governance solutions. Although I defined vulnerability in terms of inequality, further reflection suggests that this paradigm makes much more sense for the individualistic rather than the communitarian one. To recognise a community as vulnerable means acknowledging that everyone is vulnerable; in other words, the equality of vulnerability. Does this not seem to resemble the state of nature, at least the idealised one that Rousseau nostalgically depicts in his famous Discourse?
Defining vulnerability through the communitarian method creates space for solutions found within the community itself, highlighting the potential for the original spirit of pietas or solidarity amongst its members (also in constitutional terms, as noted by Rodotà, 2014).
Thus, the community, naturally more heterogenous than a vulnerable group and less homogeneous than a single vulnerable individual, should foster and re-discover its inherent internal resilience while simultaneously receiving government support.
6. Conclusions: back to climate change and ordering priorities
The paper concludes with the assertion that society must clearly indicate what kinds of vulnerability it intends to address, and with what resources, while addressing both formal equality of rights and substantial equity in resource allocation. At least the Sustainable Development Goals provide a framework for this path, and, 4th of May, it is precisely one of these priorities that we discussed: vulnerable communities threatened by climate change.
The EU Green Deal mentions the noun ‘vulnerability’ (and its associated adjective) only twice in relation to the Just Transition Mechanism and Fund in the following terms: “The most vulnerable are the most exposed to the harmful effects of climate change and environmental degradation” and “Support will be linked to promoting a transition towards low-carbon and climate-resilient activities. It will also strive to protect the citizens and workers most vulnerable to the transition, providing access to re-skilling programmes, jobs in new economic sectors, or energy-efficient housing. The Commission will work with the Member States and regions to help them put in place territorial transition plans” (COM(2019) 640, par. 2.2.1). An interesting use of the term can be found in relation to rural areas: “European funds, including rural development, will help rural areas to harness opportunities in the circular and bioeconomy. The Commission will reflect this in its long-term vision for rural areas. It will pay particular attention to the role of outermost regions in the European Green Deal, taking into account their vulnerability to climate change and natural disasters and their unique assets: biodiversity and renewable energy sources” (COM(2019) 640, par. 4).
This quotation refers to the abovementioned approach to defining vulnerable communities through their territorial assets. However, the reference to vulnerable communities still lacks a clear definition.
Elisabetta Tatì
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[1] Notwithstanding some examples: CGUE, A and S v Staatssecretaris van Veiligheid en Justitie, 12 April 2018, C-550/16.
[2] CJEU, Health Service Executive v. S.C. and A.C., 26 April 2012, C‑92/12 PPU, regarding the vulnerability of people underage.
[3] For example, the CJEU: Florea Gusa v. Minister for Social Protection, Ireland and Attorney General, 20 December 2017, C-442/16, para. 43, when assimilating the condition of a vulnerable employee to that of a self-employee, to justify the recognition of the maintenance of the right of residence in the territory of a Member State. Or CJEU, Margaret Boyle and others v. Equal Opportunities Commission, 27 October 1998, C-411/96 about permissions due to temporary incapacity when compared to maternity leave, to justify different treatment and define vulnerability.
[4] As recalled by Anna De Giuli (2020), presenting some cases related to the condition of women after birthchild: CJEU, Margaret Boyle and others v. Equal Opportunities Commission, 27 October 1998, C-411/96, CJEU, C.D. v. S.T., 18 March 2014, C-167/12, CJEU, Elda Otero Ramos v. Servicio Galego de Saúde and Instituto Nacional de la Seguridad Social, 19 October 2017, C-531/15.
[5] Anna De Giuli (2020). For example, an important reference to vulnerable consumers and energy poverty in relation to the energy market, Commission Recommendation (EU) 2020/1563 of 14 October 2020 on energy poverty).
[6] For example CJEU, Exécutif Régional Wallon and SA Glaverbel v. Commission of the European Communities, 8 March 1988, C- 62 and 72/87).
Key references
- Olajide, O., & Lawanson, T. (2014), Climate change and livelihood vulnerabilities of low-income coastal communities in Lagos, Nigeria, in International Journal of Urban Sustainable Development, 6(1), 42–51
- Italian National Committee for Bioethics, Vulnerability and Care in community welfare. The role of the ethical space for a public debate, 2021
- De Giuli, Sul concetto di “vulnerabilità” secondo la Corte di Giustizia UE. La “vulnerabilità”, e la sua polisemia, in ambito sociale, economico ed ambientale nelle decisioni della CGUE, in Diritto penale e uomo, n. 10, 2020
- J. Rousseau, Scritti politici, especially Discorso sull’origine e i fondamenti della disuguaglianza, ed. Laterza, 1971, 119-206
- Noll, M. Tsagkari, Vulnerability and the Green New Deal: A Note of Caution, in Green European Journal, 12 April 2020, https://www.greeneuropeanjournal.eu/vulnerability-and-the-green-new-deal-a-note-of-caution/
- Franchini, L’intervento pubblico di contrasto alla povertà, Editoriale scientifica, 2022
- Pastore, Soggettività giuridica e vulnerabilità, in O. Giolo, B. Pastore (a cura di), Vulnerabilità: analisi multidisciplinare, Carocci, 2018
- Pastore, Vulnerabilità, diritto, ragionamento giuridico, in Teoria e storia del diritto privato – Rivista internazionale online, special number, 2022, 1-18
- Ippolito, La vulnerabilità quale principio emergente nel diritto internazionale dei diritti umani?, in Ars Interpretandi – Rivista di ermeneutica giuridica, 2, 2019
- Ian Clark, Climate change and the vulnerable, in , The Vulnerable in International Society, OUP, 2013
- Peroni, A. Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law, in I-con, vol. 11, n. 4, 2013, 1056–1085
- R. Soares, A. S. Cagnon, R. M. Doherty, Conceptual elements of climate change vulnerability assessments: A review, in International Journal of Climate Change Strategies and Management, vol. 4, n. 1, 2012, 6-35
- A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1, 9 (2008–2009)
- A. Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L.J. 251, 268 (2010).
- Rodotà, Solidarietà. Un’utopia necessaria, Laternza, 2014
- Pariotti, Vulnerabilità ontologica e linguaggio dei diritti, in Ars interpretandi, n. 2, 2019, 155-170
