The Corte di Cassazione (the Italian Supreme Court) has delivered two recent and very important “twin” judgements on airport services, clarifying the circumstances in which it is necessary for airport management companies to apply the rules of public procedures for the allocation of airport land portions to commercial operators.
The matter may be summarized as follows: a company operating a baggage wrapping service using protective film contested the acts through which the Company Aeroporti di Roma had awarded the contract for the management of some airport spaces by sub-concession to a different company which provided the same service, without any comparative selection or public transparency procedure.
The TAR (Regional Administrative Court) granted the appeal and the decision was confirmed also by the Consiglio di Stato.
The latter judgment was, however, appealed before the Corte di Cassazione on the basis of an alleged lack of jurisdiction, since the losing party maintained that, in the case at hand, the assignment of the spaces fell within the scope of private law, and that the Administrative Judge did not have jurisdiction over it ‒not even under the exclusive jurisdiction set out in Art. 133, Para. 1, letters B or E of the Italian Code of Administrative Procedure‒ but, rather, the ordinary (civil) judge did.
The Corte di Cassazione, by means of ruling no. 7663 of 18 April 2016 (and no. 8058 on 21 April), accepted this thesis. In particular the Court held that the service in question, namely the baggage wrapping service, is totally optional, since it is requested and paid individually by the customer and not through a part of the transport price, as is the case with the handling and ground handling services set out in Italian Legislative Decree no. 18/1999. Therefore, it does not fall under the instrumentality relation that is necessary with flight or handling operations, which ‒according to the reasoning of the Court‒ if existing, would lead to the proper application of the principles of public procedures for its assignment and to the jurisdiction of the Administrative Judge on the acts of such assignment.
Since the mentioned requirement was not present, according to the Corte di Cassazione, the baggage wrapping with protective film is one of the commercial services whose assignment is not subject to the rules of public procedures. They are rather to be considered as private law agreements between the airport management company and the company interested in the sub-concession of airport areas.
Therefore, the Corte di Cassazione granted the appeals and remitted the parties before the Civil Judge for the possible continuation of proceedings.
(Bologna Office – Andrea Giardini – 0039(0)512750020)
