ANAC (Italian National Anti-Corruption Authority), by a resolution signed by its President Mr. Cantone, has established that airport concessions not only cover aviation or airside infrastructures, but also non-aviation or landside areas and premises, whose activities are therefore deemed to fall within the scope of concessions.
Accordingly, the sub-concession of premises and areas for commercial purposes in airport areas is to be deemed subject to a public tendering procedure, in accordance with rules and principles of Community law and national laws and regulations.
Furthermore, based on the resolution at issue, ANAC is led to consider itself entitled to exercise its supervisory powers also with respect to the methods of granting sub-concessions for airport commercial activities.
It is self-evident that the same reasoning used for airport areas may also apply, by analogy, to other types of concessions. In the resolution, reference is on the other hand made to certain peculiar aspects of concessions that are manifestly of a general nature.
More specifically, attention should be paid to the definition of sub-concession as “the expression of the public power underlying the concession that constitutes its necessary antecedent”. This means a grantor will be prevented from separating concessions from sub-concessions, these latter being strictly connected with the former and falling within the scope of public powers.
The intent of setting out a general principle extending beyond the context of airport concessions can be further inferred from certain references that, albeit not particularly detailed, cannot be disregarded when examining the resolution. We are thinking, in particular, of the reference (a sort of comparison) in Article 45 bis, which provides for sub-concessions in maritime State property; not less relevant is the reference to Directive 2014/23/EU (albeit focused to whereas clause 25, expressly concerning airport services … and yet, how can one not think that it comes immediately after whereas clause 24, which mentions numerous types of services granted in concession?).
Any extension or application by analogy of the provisions of the resolution at issue to other concessions will of course require more in depth examination, taking into account, from time to time, the specific regulations concerned. One cannot deny, however, that crucial for interpreting any other hypothesis is the clearly directory content of that part of the resolution stating that the entrepreneurial activities performed within the context of a concession, albeit autonomous, should be deemed connected with and related to the provision of the service and, therefore, all falling within the scope of the concession.
In other words, what is relevant is not the autonomy of the entrepreneurial activity, but its connection with the functionality and operation of the concession.
Particularly important also seems the impact that this stance can have on Italian port and airport systems, which, precisely to the contrary, have long been accustomed to regard the “ancillary” activities carried out in areas granted in concession to different private operators as autonomous.
This is expected to result in a notable increase of the cases falling within the scope of Article 45 bis of the Italian Navigation Code, which precisely provides that, if a grantor intends to assign part of its activities to third parties, a specific authorisation from the licensing Authority shall be required, to be issued only subject to verification of compliance with the public tendering procedure requirements to be met by the concession-holder in selecting its contractor.
The need for transparency is not in question. The only remark one can make is that any proliferation of the procedures (and, therefore, of the disputes) relating to the residual segments of the complex activities carried out in ports or airports might pose a further obstacle to traffic growth.