With the Ministerial Decree n. 104/2013 the Italian Ministry of
Transport entrusted a private company based in Verona - Valerio
Catullo S.p.a. – with the full management of Brescia
Montichiari Airport. SACBO S.p.a., a private company already
managing the civil airport of Bergamo, appealed the decree before
the Lombardia Regional Administrative Court, demanding the
cancellation of the decree. The Regional Court upheld SACBO's
appeal. The matter was brought before the Court of second instance,
the Council of State.
The Council of State raised doubts concerning the legitimacy of
the Italian provisions before the European Court of Justice,
pursuant to art. 267, par. 1, of the Treaty on the Functioning of
the European Union. The doubts concerned art. 3 of law decree n.
96/2005, on the awarding procedures of State owned airports, which
provides that the concession is issued by the Italian Civil
Aviation Authority (ENAC) for a maximum period of 40 years
following a public call for tender properly advertised according to
European law. However the same law provision provides that no call
for tender is necessary for the concessions already issued by ENAC
before the entry into force of law decree n. 96/2005.
The Council of State was concerned about the compliance of the
aforesaid law provision with the European law principles of
non-discrimination and transparency, according to which such a
concession has to be awarded following a public call for tender
According to Italian law, a company which has been entrusted
with a total or partial management concession of an airport before
the 8th of June 2005 (the date of entry into force of the law
decree n. 96/2005) benefits of the direct awarding of the
management concession without a tendering procedure. Such a
provision may imply a breach of general principles of EU law, such
as equal treatment, non-discrimination and proportionality, as:
a) it prevents other companies, which may offer a better bid and
service, from being awarded the concession;
b) it prevents the public administration from gaining an
expenditure saving and to find the best service operator.
The above mentioned provision may imply a breach of the
principle of fair competition (art. 101 TFEU) as such a long direct
award of concession may result in a monopolistic management of a
public service. Indeed the concession is not granted for
substantive reasons, such as a better service or a competitive
price, but it is granted for companies which have two requirements:
(i) already being an airport service manager of a State owned
airport, (ii) being one of the first companies requesting the
Furthermore the concerned law provisions seem to be contrary to
art. 49 TFEU, which prohibits restrictions on the freedom of
establishment of nationals of a Member State in the territory of
another Member State, and art. 56 TFEU, which prohibits
restrictions on freedom to provide services within the Union in
respect of nationals of a third country who provides services and
who is established within the Union.
Given the above, a correct interpretation and application of EU
principles should require that all the private economic operators
established in EU would be granted equal chances to be awarded a
concession issued by a public entity of a Member State.
In September 2015 The European Court of Justice received the
documents of the proceedings in order to issue the preliminary
ruling. Therefore we will soon find out whether the Italian Law
complies with EU principles.
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.
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