Alberto Massera, La concessione di servizi: una questione di regime sempre aperta, commento a Consiglio di Stato, sez. V, 22 luglio 2010, n. 4510

1. I termini della questione.
2. La distinzione della concessione di servizi dall’appalto.
3. I punti salienti della pronuncia.

The purpose of the decision n. 4510 of 13th July 2010 of the Italian Council of State has been the definition of the legal regime to be applied to service concessions. In particular, this decision concerned the application of Article 75 of the Code of public contracts about the requirements for bidders that provide a financial guarantee.The case dealt with a competitive procedure to award the public service for the collection of municipal tax on advertising.
The Council of State, overruling the decision of the first Court, did adopt a strict interpretation of Article 30 of the Code of public contracts, which establishes that the award of service concessions is not subject to the Code provisions, except for the European principles aiming to protect fair competition.The decision, however, has some critical elements: it did not take into account the specificity of the case and did not consider the rationale behind the system of the guarantees provided by the Code and the type of the legally protected interest.