Let us briefly analyse two recent rulings by the Italian Regional Administrative Courts, namely, of Puglia and Piemonte, which set out two important principles: the former on maritime State concessions for tourist and recreational activities and the latter on the management of a freight terminal.
TAR Lecce (Puglia), case No. 1865/2016, First Chamber, 13 December 2016
As is known, EC infringement procedure No. 4098/20081 as well as the decisions of the European Court of Justice and of the Italian Consiglio di Stato2, following Directive EC/123/2006, have further highlighted the importance of granting concessions for tourist and recreational activities by means of public bidding procedures3.
The Regional Administrative Court of Puglia (hereinafter «TAR Puglia») has recently set out a further important principle to discipline the exercise of administrative discretion in the concession-granting process.
The case concerned an appeal against the dismissal of an application for a maritime State concession. The applicant alleged that the Administration had unlawfully refused to grant a concession without specific grounds.
The Regional Administrative Court of Puglia made it clear that: «there is no indication of any unlawfulness in the conduct of the Public Administration, who, instead of assessing the receivability of applications for maritime state concessions on a case-by-case basis, issued general guidelines for individual administrative measures to be taken, thus opting for a typical method of exercising administrative discretion, i.e. not on a day-to-day basis depending on the concrete case, but rather according to general guidelines previously set out by the Administration».
Moreover, the Court stated that there was no illegality in the Administration’s conduct, since «the Administration may at any time act to protect the public interest for which it is responsible by issuing abstract and general instruments, binding itself upstream of its discretion».
Therefore, it follows from the above ruling that a granting Administration is allowed to predetermine the general principles to be followed at the time of resolving upon the grant of concessions, even if this substantially results in a self-limitation of its actions prior the commencement of the procedure.
TAR Torino (Piemonte), case No. 1505/2016, First Chamber, 9 December 2016
The Regional Administrative Court of Piemonte (hereinafter, «TAR Piemonte») examined a case about the nature of the management of a freight terminal for the purpose of the applicability of the provisions of Law. No. 163/2006 (hereinafter also referred to as "Italian Public Procurement Code").
In the case at hand, CIM - Centro Interportuale Merci S.p.A.4, in its capacity as a contracting authority, alleged not being subject to the Italian Public Procurement Code on the ground that, in its capacity as a freight terminal, its activity was unrelated to the “special sectors”5 regulated by the Code for not involving the performance of transport or port- and airport- related services.
According to a well-established line of precedents of administrative courts, «the applicability of the regulation on special sectors to a service awarded must be established on the basis of two criteria, the former of a subjective nature, relating the circumstance that a contract is awarded by an institution operating in special sectors, and the latter of an objective nature, relating to the traceability of the special sector activity»6.
As far as the subjective criterion is concerned, it is important to understand the nature of the management of a freight terminal and whether or not it falls within the special sectors. As mentioned above, Articles 210 and 213 of Legislative Decree No. 163/2006 make no express mention of freight terminal management among the activities related to special sectors.
However, according to Article 1 of Law No. 240/1990 of 4 August 1990, a freight terminal is «an organic complex of structures and integrated services aimed at exchanging goods using multiple modes of transportation, in any event including a railway yard suitable for forming and receiving complete trains and connected with ports, airports and major highways».
Reading Article 210 of Law No.163/2006 in conjunction of the statutory definition of «freight terminal» leads to the conclusion that «freight terminal management is strictly pertaining to the transport system and to the pursuit of general public interests, since freight terminals are, as a whole, one of the basic infrastructures for the national transport system and, in particular, needed to give it the required flexibility through the connection of the various transport systems and the intermodal nature that the whole system is supposed to have»7.
As to the objective criterion, it is fundamental to note that, in the case at hand, the contract concerned services which were functional to rail transportation, including loading, transportation, disposal and recovery of rubble derived from railway ballast at Novara Boschetto railway yard. This led the court to deem the criterion of «service instrumentality» crucial for considering the contract to fall under special sector discipline8.
In light of the above, the Regional Administrative Court of Piemonte found that the management of an intermodal freight port, being closely connected to transport, should be included among the activities of the special sectors, thus falling within the scope of the Italian Public Procurement Code, with all the ensuing consequences in terms of the obligation to comply with the principles of free competition, equal treatment, non-discrimination, transparency, proportionality and - last but not least - publicity9.