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 procedure.

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 concession.

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.

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