Italy: Aeroporto di Genova S.p.A.: to tender or not to tender? "That is the question"

Last Updated: 11 September 2019
Article by Ekaterina Aksenova
Most Read Contributor in Italy, September 2019

Let's go back to the subject of the legal nature of the granting entities and the consequent obligation or otherwise to carry out a public tender procedure in the awarding of concessions and / or sub-concessions in order to preserve competition.

In the last issue of the Shipping Bulletin we have examined – for the case law – that the Port System Authorities have the nature of an undertaking when it comes to granting concessions and therefore the rules of competition apply to the same. Let us now analyze a recent judgment of the Regional Administrative Court of Liguria ("TAR")[6] which examined the legal nature of Aeroporto di Genova S.p.A. ("AdG") and the need or otherwise for it to carry out a public tender procedure before granting a concession (always in order to preserve competition).

With the abovementioned decision, the Regional Administrative Court ruled that the AdG was not obliged to carry out a public tender procedure when it decided to grant in sub-concession an area belonging to the airport State property to a company that deals with container storage and maintenance ("Company").

The facts

First of all, it is important to understand the facts of the case, which could be summarized as follows:

– the Company was looking for an area where it could temporarily transfer its activities, given that in the areas in which it operated a construction site was opened for public works to be performed;

– a "Memorandum of Understanding" was therefore stipulated between ENAC, Region of Liguria, the Municipality of Genoa, the Extraordinary Commissioner and AdG, which – given the circumstances – identified areas belonging to the airport State property currently in concession to AdG, to be granted in sub-concession to the Company on a temporary basis;

– AdG and the Company have therefore entered into a sub-concession agreement to grant an area to the Company so that the latter could continue to carry out its activity of storage and maintenance of containers.

Having become aware of the above, a competitor of the Company has brought a claim before the TAR complaining that this granting of areas has been performed without any public tender procedure and, therefore, in violation of the general principles of transparency, free competition, equal treatment and non-discrimination.

The decision of the TAR

The TAR – as mentioned – rejected the claim, considering that in the case in question the AdG was not required to carry out a public tender procedure.

The TAR has, in fact, carried out the following reasoning:

– before examining the nature of the private entity, i.e. the AdG, it considered that it was necessary to understand the category or type of the contract for the sub-concession of state-owned areas;

– in the specific case, it found that it was a "mere sub-concession of state-owned areas" since the activity carried out by the Company (container storage and maintenance) was completely unconnected with respect to airport activities.

The granting of state property on its own would fall within the hypotheses that are subsumed under the applicability of the art. 4 of Italian Legislative Decree 50 of 2016 ("Code of Public Contracts"), which requires the "granting entities" to choose the concessionaire in a competitive manner.

The necessary condition for which the granting entity is obliged to respect said obligation is if the latter is a subject that, due to its subjective and / or objective characteristics, according to the same Code of Public Contracts, is explicitly obliged to respect the principles indicated by the art. 4 of the Code.

To this end, the requirements – established by the art. 3, lett. d) of the Code of Public Contracts – necessary for the recognition of the status of an entity of public law, which must exist cumulatively, provide that the subject:

  1. must have been established to specifically satisfy needs of general interest, not having an industrial or commercial purpose;
  2. must have legal personality;
  3. must carry out an activity financed majorly by the State, by local public entities or by other entities of public law or its management must be subject to the control of the latter or the administrative, management or supervisory bodies must be made up of members of whom more than half are designated by the State, by local public entities or by other entities of public law

The AdG does not respect either the first or the third requirement as:

– the AdG is an undertaking that pursues a commercial purpose and has therefore not been set up specifically to meet needs of general interest, not having an industrial or commercial purpose;

– the AdG does not appear to have benefited from public aid measures such as to preserve it from business risk.

However, there are undertakings who, pursuant to art. 3, lett. e) of the Code of Public Contracts, although not granting entities or public companies, carry out one or more activities among those referred to in articles 115 to 121 of the Code of Public Contracts [7] and operate by virtue of special or exclusive rights granted to them by the competent authorities. These undertakings are required to apply the rules of the Code of Public Contracts only if the activities for which the concession is granted are in some way connected to the relevant special sector.

Therefore, to verify the applicability of the aforementioned principles it is necessary:

a) to verify if AdG carries out an activity falling within the special sectors and

b) to verify the instrumentality of the activities carried out by the Company with respect to those performed by the AdG. Moreover, according to a consolidated jurisprudence both at national and European level, the notion of instrumentality must be understood in a restrictive sense [8] .

The AdG operates in the special sector pursuant to art. 119 of the Code of Public Contracts concerning the activities relating to the exploitation of a geographical area for the provision of airports and therefore all the activities necessary to meet the needs of air traffic must be considered, as well as those immediately and directly related to the performance of the transport service, covering goods and passengers.

The Company instead carries out activities – the storage and maintenance of containers – which have nothing to do with the aforementioned airport activities.

For all of the above, since the AdG cannot be considered a contracting entity (neither pursuant to Article 3, letter d), nor pursuant to art. 3, lett. e) of the Code of Public Contracts), art. 4 of the aforementioned Code of Public Contracts cannot be applied and, therefore, the failure to call the tender and the direct signing of the sub-concession with the Company cannot be censored.

Conclusions

This ruling is extremely important in that it underlines how there are exceptional cases in which the general principles of transparency, free competition and equal treatment do not apply to the awarding of concessions and / or sub-concessions, even to state-owned areas. and non-discrimination. The private subjects who intend to entrust sub-concession areas and who may in theory fall under the applicability of the Code of Public Contracts must carefully examine the specific cases in order to understand whether it is necessary or not to go through a public tender procedure. This, of course, to avoid being exposed to subsequent claims.

 

[6] TAR Liguria, 19 June 2019 n. 545.
[7] Art. 115 – Gas and thermal energy; Art. 116 – Electricity; Art. 117 – Water; Art. 118 – Transportation services; Article 119 – Ports and airports; Art. 120 – Postal services; Art. 121 – Extraction of gas and prospecting or extraction of coal or other solid fuels
[8] See State Council, A.P. 1 August 2011, n. 16; State Council, Sec. V, 26 May 2015, n. 2639; CJEU, 10 April 2008, C-393/06.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions