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") 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").
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:
- must have been established to specifically satisfy needs of general interest, not having an industrial or commercial purpose;
- must have legal personality;
- 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  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  .
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.
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.
 TAR Liguria, 19 June 2019
 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
 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.