Ordinary Jurisdiction and Sub-concession Awards: Analysis of Judgment No. 23377 of 2024

On August 30, 2024, the Court of Cassation issued ordinance No. 23377, which addresses a matter of significant importance for the airport and commercial sector: the competent jurisdiction regarding the sub-concession award of airport spaces for "non-aviation" commercial activities, particularly in the food and beverage sector. This judgment offers significant insights for industry operators and lawyers dealing with disputes in this area.

Context of the Judgment

The dispute analyzed by the Court concerned the sub-concession award of commercial spaces within an airport. It is important to note that the judge established that such matters fall under ordinary jurisdiction, rather than administrative jurisdiction. This was motivated by two main considerations:

• Subjective Profile: The sub-conceder cannot be considered a public law body or a public enterprise, but rather a private entity with an exclusive right.
• Objective Profile: "Non-aviation" commercial activities do not fall among the instrumental services necessary for air transport, but are rather ancillary activities, managed at the customer's request and remunerated independently.

Legal Reference

Sub-concession award of airport spaces for "non-aviation" commercial activities (so-called "food and beverage") - Related dispute - Jurisdiction of the ordinary judge - Existence - Basis. The dispute relating to the sub-concession award of airport spaces for "non-aviation" commercial activities (so-called "food and beverage"), within the airport domain, falls under ordinary jurisdiction, as none of the prerequisites required by art. 133, paragraph 1, letter e), of the c.p.a. (Code of Administrative Procedure) for devolution to administrative jurisdiction are met; indeed, from a subjective perspective, the sub-conceder cannot be considered a public law body, nor a public enterprise, but rather a private entity holding an exclusive right, while, from an objective perspective, the sub-concession of spaces for "non-aviation" commercial activities falls outside the instrumental activities for the airport operator's operations in the so-called "special sectors" - not falling within the exhaustive list of ground handling services, preparatory to air transport, but constituting a merely incidental activity, provided only at the customer's request and independently remunerated by them - with the consequence that the award of this service, of a purely commercial nature, is not subject to public tendering rules and resolves into a private law contract.

Conclusions

Judgment No. 23377 of 2024 highlights an important legal principle regarding jurisdiction in commercial disputes related to airport spaces. It clarifies that, in the absence of a direct connection with air transport services, issues concerning sub-concession awards fall under ordinary jurisdiction and are resolved within the framework of private law. This approach may influence future legal decisions and offers a clearer framework for businesses operating in this sector, ensuring greater legal certainty in their commercial operations.