Grant of Services and Public Procurement: Commentary on Ruling No. 9818 of 2024

The recent order of the Court of Cassation No. 9818, dated April 11, 2024, offers an important clarification regarding public contracts, particularly the distinction between a service concession and a public procurement contract. This distinction is fundamental not only for economic operators but also for public administration, which must navigate an increasingly complex regulatory landscape.

The distinction between service concession and public procurement

According to the ruling, a service concession is clearly differentiated from a public service procurement contract. Specifically, public procurement concerns services provided to the public administration, whereas a service concession is directed directly to the public users. This aspect is crucial as it affects the remuneration method and management risk.

Generally. A service concession differs from a public service procurement contract because the latter typically concerns services rendered to the public administration and not to the public users, does not involve the transfer of management rights as consideration, and, finally, does not result in the contractor assuming management risk due to the remuneration methods. (In this case, the Court of Cassation qualified the relationship between the Customs and Monopolies Agency and the certification bodies for the legality of gaming devices and equipment as a service concession, emphasizing that the activity carried out by these bodies, in addition to being directed towards all operators in the sector, is directly remunerated by those among them who have requested it).

This passage highlights how the Court recognized the nature of a service concession in the relationship between the Customs and Monopolies Agency and the certification entities, underscoring that these entities operate in a direct commercial context and not through the public administration.

Regulatory and jurisprudential references

The ruling is based on a solid regulatory foundation, referencing the Royal Decree of 1931 and Law No. 388 of 2000, which outline the legal boundaries of concessions and public procurement. Furthermore, the reference to previous jurisprudential maxims, such as rulings No. 9139 of 2015 and No. 8692 of 2022, confirms the continuity of the Court's orientation on the matter.

• Fundamental distinction between service concession and public procurement
• Management risk and remuneration methods
• Implications for public administration and sector operators

Conclusions

In conclusion, order No. 9818 of 2024 represents a significant step forward in understanding Italian administrative law, clarifying the differences between service concessions and public procurement. For sector operators, it is essential to understand these distinctions to effectively navigate the legislative and contractual landscape. The ruling not only offers practical guidance but also emphasizes the importance of correct interpretation of regulations, which is fundamental to avoiding future disputes and ensuring the proper functioning of public services.