Administrative law, Organism under public law, Contracts of Public Administration, Code of Public Contracts, Entrusting of Sub-Concession Areas, Dispute, Jurisdiction Administrative Judge, TAR Lazio, Section III, November 30th 2017 n. 11841
… .. of Roma spa, as a body governed by public law, is subject to the provisions of the Code of Public Contracts, with the consequence that it falls within the jurisdiction of the administrative court the dispute concerning the procedure by the same bidding for sub-concession of areas for the realization and management of premises for “……..” activities at the airports … .. of Fiumicino and … ….. of Ciampino.
He recalled the Tar that the art. 3, paragraph 1, lett. d), of the new Code of contracts have identified the characteristics of “bodies governed by public law”, of strict Community derivation (most recently, Article 6 of Directive 2014/23 / EU of 26 February 2014):
1) specific finalization of the relative institution, for the satisfaction of needs of general interest, having non-industrial or commercial character;
2) possession of legal personality (without distinction between public or private nature of the same);
3) activities financed in a majority way by the State, by local public bodies or by other bodies governed by public law, or whose management is subject to the control of the latter, or whose administrative, management or supervisory body is made up of members , of which more than half is designated by the State, by local public bodies or by other bodies governed by public law (on the cumulative nature of these requirements, except for the explicitly alternative nature of those referred to in point 3, see Cass., SS. UU., 7 April 2010, No. 8225).
The TAR attributed to … ..of Rome – concessionaire ex lege of the airport service of the Capital (law November 10, 1973, No. 755) – nature of public law body.
He clarified that it can not be questioned whether the management of structures, aimed at ensuring the mobility of citizens on the territory, in accordance with a constitutionally guaranteed right (Article 16 of the Constitution), as well as a real pillar of Community law, is a function proper of the State, or (according to the type of transport) of the minor local public body, with the possibility of managing this function also in corporate form or through a concession to private individuals; neither the privatistic nature of the manager, or the pursuit of economic benefits by the same, the result of entrepreneurial efficiency, can change the nature of the function, which remains intrinsically public (see pronunciation Mannesman cit.).
As for the other requirements, required to include the institution or the company, invested with the function, among the bodies governed by public law – or among the “subjects in any case, in the choice of the contractor, the application of Community legislation, as well as compliance with public procurement procedures, provided for by state or regional legislation “, pursuant to art. 133 c.p.a. – it is sufficient to underline that the company …. Of Rome, s.p.a. – after the privatization started in 1997 and the disposal, completed in 2000, of the holdings held by the State (only about 3% of the shares are currently in the hands of local authorities) – is a legal entity, but does not possess the requirement of priority public funding ; the majority of the board of statutory auditors (three out of five members), however, is composed of persons appointed by the Ministers of Economy and Finance, Infrastructures and Economic Development (article 5, paragraph 2, item 8 of the institutive law no. 755 of 1973), with further existence, as regards the activity carried out, of the controls of the National Civil Aviation Authority (ENAC).
The latter, which is a non-economic public body pursuant to art. 2, d.lgs. Institutivo n. 250 of 1997, has duties related to the definition of tariffs, taxes and airport fees, the definition of the quality of services (both on land and air transport, with relative supervision), as well as the examination and assessment of airport regulatory plans, programs intervention and airport investment plans, with possible participation in the management of airports of pre-eminent tourist interest; according to regulation n. 52 of 2014, moreover, the aforementioned body also performs functions of approval and supervision of sub-concessions, the commercial nature of which does not exclude the fact that it is linked to services necessary for the transit and stop of passengers, nor the subjection to particular controls and rules. safety.
In accordance with the art. 16 of the Articles of Association, finally, a member of the Board of Directors of the company in question is jointly appointed by the Municipalities of … .. and …, as well as by the Province of … and by the Region … , art. 2449 cc, while the Court of Auditors, pursuant to art. 1, paragraph 172, l. December 23, 2005, n. 266 (Finance Act 2006) in turn exercises control functions with regard to the economic management of state property, subject to concession for airport services.
Source Administrative Justice
