Public tenders are the only way of awarding concession for certain public services concerning port operations
The regional administrative court of Puglia (TAR Puglia) has uphold a decision of the Bari Port Authority (BPA) by which the latter had quashed its previous decision to award to a fully owned subsidiary, Bari Porto Mediterraneo (BPM) the concession for the management of the maritime terminal at the port of Bari and the provision of services to passengers (TAR Puglia, chamber of Bari, case 440/2009, Bari Porto Mediterraneo/Autorità Portuale di Bari),
The TAR Puglia rules that the decision to grant the concession for the provision of the above services directly, without any competitive procedure, to a company fully owned by the awarding public authority (PBA) violates the Act 84/1994, which lays down the general legal regimes for ports. More precisely, the management of maritime terminal and the provision of services to passengers entrusted to PBA through the concession at issue, can be regarded as services of general economic interest which fall within the scope of application of the article 6(5) of the Act 84/1994. Importantly, this provision stipulates that the only way of choosing the operator to be entrusted with the task of providing these services is by means of a public tender. Since BPA did not stage any public tender for the award of the controversial concession, the TAR Puglia concludes that the concession has been unlawfully granted by infringing not only the above provision but only the general principles of competition, non discrimination and transparency laid down by the EC Treaty.
Moreover, should article 6(5) of the Act 84/1994 not apply to the services considered by the concession, in the view of the TAR Puglia the concession is unlawful as neither the in-house or the mixed company model for the provision of public services can legitimately apply to the case for the following reasons:
• The requirement of the “similar control” for the ”in-house provision” is unmet by BPM. To this end, the awarded body must be fully owned by the awarding public authority throughout the whole length of the awarded contract. Yet, in this case a number of private individuals bought stakes of BPM after its incorporation;
• Neither the mixed company arrangement can be rightly invoked by BPA. In this regard, it is necessary that the private member of the company is an operative member and that the latter must be chosen through a public tender, namely upon the basis of the criterion of the capacity of carrying out the outsourced activity. As said above, the acting public authority did not carry out any public tender. It only circulated a simple notice advertising the sales of stakes in BPM, which was found to not be equivalent to a competitive procedure. Furthermore the BPA choice of the private member was grounded on ambiguous criteria, as a result of which it cannot be said that BPA, in screening the prospective private members, was seeking operative members able to perform the activities to be outsourced.
The TAR Puglia rules that the decision to grant the concession for the provision of the above services directly, without any competitive procedure, to a company fully owned by the awarding public authority (PBA) violates the Act 84/1994, which lays down the general legal regimes for ports. More precisely, the management of maritime terminal and the provision of services to passengers entrusted to PBA through the concession at issue, can be regarded as services of general economic interest which fall within the scope of application of the article 6(5) of the Act 84/1994. Importantly, this provision stipulates that the only way of choosing the operator to be entrusted with the task of providing these services is by means of a public tender. Since BPA did not stage any public tender for the award of the controversial concession, the TAR Puglia concludes that the concession has been unlawfully granted by infringing not only the above provision but only the general principles of competition, non discrimination and transparency laid down by the EC Treaty.
Moreover, should article 6(5) of the Act 84/1994 not apply to the services considered by the concession, in the view of the TAR Puglia the concession is unlawful as neither the in-house or the mixed company model for the provision of public services can legitimately apply to the case for the following reasons:
• The requirement of the “similar control” for the ”in-house provision” is unmet by BPM. To this end, the awarded body must be fully owned by the awarding public authority throughout the whole length of the awarded contract. Yet, in this case a number of private individuals bought stakes of BPM after its incorporation;
• Neither the mixed company arrangement can be rightly invoked by BPA. In this regard, it is necessary that the private member of the company is an operative member and that the latter must be chosen through a public tender, namely upon the basis of the criterion of the capacity of carrying out the outsourced activity. As said above, the acting public authority did not carry out any public tender. It only circulated a simple notice advertising the sales of stakes in BPM, which was found to not be equivalent to a competitive procedure. Furthermore the BPA choice of the private member was grounded on ambiguous criteria, as a result of which it cannot be said that BPA, in screening the prospective private members, was seeking operative members able to perform the activities to be outsourced.
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