Italy: Source Of Liability For Publicly Owned Airport Directors: Does Misconduct Imply Public Or Private Law?

Article by Anna Masutti and Alessandro Liardo

Airport managers are generally publicly owned companies that perform activities for the benefit of both public and private entities, concurrently.

The presence of public shareholders in airport management companies and the exercise of the functions of public bodies by them demonstrate that in the past the recognition of the private legal personality of such companies was doubtful. Scholars and case law superseded on the consequences — in terms of personal liability — that any mismanagement by the airport manager's directors entailed.

This article aims at examining the liability regime applicable to directors that cause damage or loss to the airport management company by way of their misconduct or mismanagement. Furthermore, it aims at establishing whether such a legal framework changes depending on whether the company was a public entity rather than private.

As a matter of fact, any such person employed by a public entity or acting in the capacity of a public official is held liable under civil, criminal, administrative and also accounting law, if he breaches the law or commits a crime. Subsequently, in case any damage occurs, the person will be called upon to compensate for the losses suffered. According to the latest Italian law reform to public employment (Law n. 15/2009), the liability regime has been enhanced now with a new title of responsibility: the employee's disciplinary responsibility. This responsibility originates from the lack of accomplishment of his/her tasks, as established under the contract with the employer. Two consequences arise from the court's recognition of such type of liability: firstly, loss of income in terms of a lower wage; and secondly, in worst-case scenarios of breach of law, a nonrenewal/termination of the employment contract.

The director's responsibility is grounded on article 28 of the Italian Constitution which establishes that «Officials of the State or public agencies shall be directly responsible under criminal, civil, and administrative law for acts committed in violation of rights. In such cases, civil liability shall extend to the State and to such public agency». Further measures have been laid out by article 23 of Presidential decree n. 3/1957, which delimitates the cases of damage attributable to the agent to those where there is violation of third-party rights caused by the agent's fraud or gross negligence.

With specific reference to the director's administrative responsibility, it should be differentiated from the so-called accounting responsibility; the former relates to the economic prejudice caused to the airport manager by an employee or public official, whereas the latter is triggered only in those cases where the person qualifies as an accounting agent. In order to better understand the discourse that follows hereunder, it is necessary to note that the economic prejudice suffered by the public administration and its entities («danno erariale») is evidenced by the deterioration and/or loss of goods or funds already suffered, or prospective losses. The definition of the losses recoverable by the public entity includes both the damage suffered and potential loss of profits or revenue.

The article will address the issue related to the liability regime applicable in such cases — either of civil or administrative law — triggered by the misconduct of the airport manager's directors, but leaving out the legal implications of such actions under criminal law.

In the following paragraphs, we will address judgments related to Aéroports de Paris and Mitteldeutsche Flughafen AG, in which the relevant court of justice recognizes the entrepreneurial nature of the activity pursued by the airport management company. Such an interpretation is also endorsed by Italian law.

SUMMARY —

1. Introduction: public entity participation in airport management; historical background and current developments —

Scholars and case law dealing with the liability regime applicable to airport management companies often focuses on the relationship of such companies towards third parties (airlines, handling companies and passengers). However, responsibility stemming from mismanagement on the part of the directors (mala gestio episodes) has never stirred much interest.

The problem arises as public entities or companies owned by private or public entities share management responsibilities in almost every airport management company¹. The issue is at stake in cases where state-owned entities participate in airport management companies, which may appear, albeit formally, as private entities.

The participation of public entities in private companies is a phenomenon that has its origins in Germany and dates back to the second half of the Nineteenth Century. Later, it spread all over Europe. The innovation proved helpful in making municipalities and the Lander provide essential services to the general public — such as water and electric energy — which were originally being provided exclusively by private companies. Eventually, the system was adopted in Austria, Belgium and France. In Italy, companies with major public participation in their management reached their zenith with the industrial development of the sixties and seventies.

An examination of the historical evolution of this phenomenon leads us to the conclusion that states are inclined to provide services of general interest only by relying on the entrepreneurial and management skills of private legal entities, rather than providing it themselves².

In Italy, the number of private companies with public participation is particularly high. Over 5.000 Italian companies fall under this category, 400 of which are directly or indirectly participated in by the state.

All said and done, it must be recalled that in public participation, a public entity is entitled to a share in limited responsibility companies. These companies operate in different sectors also in which the public administration delegates the exercise of managerial functions or subjects which perform entrepreneurial activity³. It is noteworthy that these types of companies are particularly relevant to the national economy due to their high gross turnover. Some of them are publicly traded companies.

The publicly owned private companies can be classified along the lines of companies that have the direct participation of the state, regions or municipalities. Such companies are of paramount importance because they concurrently play functions relevant to both public and private entities.

The co-existence of the main features relevant to both entities creates a cloud of haze as to what the law applicable is, in cases of the directors' liability. At first glance, it seems that both the civil ordinary statutory regime (usually applicable to the limited liability companies) and the administrative law regime (usually applicable when the company operates using public economic resources and funds) apply.

All this having being taken into account, for purposes of investigating a director's responsibility regime, it is necessary to understand if the airport management company — as long as public entities such as the state or municipalities participate in it — can be considered a private or public entity.

That distinction is extremely relevant because the competent jurisdiction to the case emanates from it: the civil ordinary jurisdiction is that of the Italian Courts and Courts of Appeal while the administrative jurisdiction is that of the Italian Administrative Courts and Court of Auditors («Corte dei conti»)⁴ Hence, it follows that different rules, but specific to each procedure, should be taken into consideration to address the directors' liability. The issue will be better addressed in the following paragraphs.

2. The legal personality of airport management companies: private, public or a body governed by public law? —

Scholars and case law often questioned the legal personality of the airport management company. It is debated whether it is to be considered as private company or a public company or even, a body governed by public law («organismo di diritto pubblico»).

The qualification as to the legal personality of such companies determines, firstly, the jurisdiction, then the applicable law for the matters of competition, state-aid and public procurement. It also determines whether the airport charges can be considered as fees rather than as taxes.

2.1. The definition and qualification of the airport management company by the European Court of Justice —

EU case law defines a company as an entity that carries out an economic activity regardless of its legal personality, public or private ownerships or their funding sources. In fact, any activity that involves offering goods and services in a given market qualifies as an economic activity.

The EU Court of Justice repeatedly argued that the airport manager performs an entrepreneur's activity; thus, an economic activity. With the judgments of Aéroports de Paris and Flughafen Leipzig-Halle⁵, the Court held that the management of an airport necessarily implies the exercise of an economic activity. This was argued because the management of the airport infrastructure includes a wide array of airport services provided to airlines and to others.

The airport manager, in fact, provides services to operators that use the airport facility. However, since services are provided to users of the facility, it definitely comes off an economic activity⁶. In the case of airlines, these services are given in exchange for airport charges. Also, the services provided to other airport users represent a business activity: the airport management company usually provides other business services to airlines and to other users of the facility (such as those ancillary services to passengers, shippers or other service providers: this is the case, for example, with shops, restaurants and car parks and leased facilities).

In particular, case law held that «in the field of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed». The Court of Justice confirmed that «the provision of airport facilities to airlines and various service providers, in return for a fee at a rate independently fixed by the ADP, constitutes an economic activity. It is settled case law that any activity involving an offering of goods and services in a given market is an economic activity»⁷.

The same interpretation was confirmed later when the Court argued that the airport management company clearly engages in a wide array of economic activities. In fact, the management of the airport facility is an economic activity in the light of the fact that the company offers airport services in exchange for airport charges. With the above being said, as far as airport charges are concerned, the Court observed that these are indeed the main funds for carrying out the activities of the company and is a factor behind these activities being classified as economic activities⁸.

2.2. Relevance of the interpretation of the airport charges —

The fact that an airport management company performs a business activity is also supported by the special interpretation of the classification of airport charges. Within the European Union, Member States opined differently on the nature of these charges, thus opening up a debate about its being classified as fees rather than taxes⁹.

In Italy, however, the Court stated that airport charges are to be considered as fees¹⁰. A «fee» is defined as payment for a service provided to the user, while «tax» is defined as a compulsory levy on the funds given to finance part of the services provided by the public administration. Subsequently, on the grounds that case law rules that airport charges are indeed fees, the services provided by the airport management companies have to be considered as commercial services in all respects. This confirms that the management of the airport is a commercial activity which tends to produce profits, but that it does not qualify as public function (which would aim merely at recovering the costs).

However, at the beginning of the proceedings, case law argued that airport charges were to be treated as a type of tax¹¹, but it never addressed specifically the issue related to those charges payable in exchange for services provided by private companies. In that respect, it must be noted that these sums have to be considered for calculation of the value added tax. The VAT is a tax that is payable only on the fees levied on the supply of goods and services, and not on other taxes.

The legislator — with the rule of interpretation¹² — stated that from the services provided by the airport management companies «do not arise obligations of a fiscal nature». The Italian Supreme Court of Cassation, applying the rule into question, issued Order no. 379/2008 holding that «the obligation of the fee in question does not have a fiscal nature».

The majority of scholars agree with this interpretation for the following reasons. Firstly, the party that collects the airport fees is neither the state nor a public body with the power to impose tax, but a corporation, which is in fact, a private entity. Therefore, the obligatory relationship is between individuals, in the absence of a public entity with powers of taxation. Secondly, the airport management company has no obligation to repay it to the state. Instead, fees are part of revenues which flow into the financial statements of airport management companies and are not considered as any form of entry taxes levied in its name and on behalf of the entity levying.

In conclusion, the services given by the airport management companies are relevant for VAT purposes because for all intents and purposes, they are considered as services.

In the light of the above considerations, thanks to the EU case law which has established that the management of the airport necessarily implies the exercise of an economic activity and thanks to the nature of fees of the airport charges, it can be concluded that the airport management companies perform business activities.

Subsequently, with respect to directors' liability cases it appears that the Italian civil law regime («regime ordinario») could be the most suitable to them¹³. In fact, the same law regime applies to directors of companies subject to private law, and is thus deemed to have private legal personality.

On this matter, Italian case law has ruled in favor of civil ordinary jurisdiction¹⁴. As far as the liability regime is concerned, it has been observed that the airport management company must be treated in the same manner a private legal entity would be, regardless of the participation of public shareholders in its capital and the realization of state-owned facilities previously awarded in concession¹⁵.

Furthermore, case law established that the administrative jurisdiction has been set aside in all those cases where the public liability companies — besides being participated in by the state or stateowned entities — were characterized at the same time by entrepreneurial activities, and by the lack of elements qualifying in favor of public entity¹⁶.

2.3. The notion of body governed by public law —

When it comes to public procurement, it is necessary to understand if the company is public or private. For this reason, it is crucial to understand whether the company meets the criteria of a body governed by public law¹⁷.

Regardless of the presence of public shareholders, airport management companies are called upon to comply with competitive bidding requirements for award of public contracts of works, services and supplies relating to air transport.

In such cases, the provisions laid down in Directive 2004/17/EC and entered into the Italian law with the Public Contract Code¹⁸ will apply. According to those standards, «the provision of airports [...] to air carriers» is an activity to which the rules provided for in Title IV of Part III of the Act¹⁹ apply (as long as it emanates from activities comprised between the so-called «special sectors»).

EU law doesn't have a unitary concept of a public entity, but there is another well-defined notion applying exclusively to public contracts of works, services and supplies: that of a body governed by public law²⁰. This concept was developed in order to clearly define the type of entities that have to comply with the procedures for award of a public tender. In particular, the definition purports to identify the contracting authorities provided under the EU legal framework.

A body governed by public law is an entity that satisfies the following three conditions simultaneously²¹: (a) it has been established to meet specific needs of general interest and does not have any industrial or commercial purposes, (b) it is endowed with a legal personality, (c) it is financed majorly by the state, or public bodies or other bodies governed by public law, or its management is subject to control of the same entities mentioned above, or it has the administrative, management or supervisory body formed by a majority of members appointed by the parties mentioned above.

It is noteworthy that Directive 92/50 EEC had already provided that the procedure for awarding a public tender applies to all contracts concluded between a service provider and a contracting authority. The contracting authorities, as per the terms of the Directive, were the State, local authorities, the bodies governed by public law (as defined above) and the associations formed by such authorities or bodies governed by public law.

The above provisions were entered into the Italian legal framework with article 3 of the Public Contract Code: which is the same definition given by the EU legislator. Bodies governed by public law are considered equivalent to public administration bodies when it comes to award of contracts of works, services and supplies.

Also, case law established that such equivalence is effective exclusively for the purpose of applying the rules of public procurement to the body or to the company. In fact, the definition of a body governed by public law aims at establishing the circumstances in which a person has to comply with the EU rules on protection of competition and the market without taking into account its legal personality.

The airport management company does not qualify as a body governed by public law since it does not have the requirement of fulfillment of needs of general interest, which are unrelated to the above-mentioned industrial or commercial matters.

The general-interest needs that are not related to industrial or commercial matters are the ones satisfiable other than through the supply of goods or services in the market, and which, for reasons of public interest, the State chooses to provide itself with, or over which it maintains a strong influence. The existence of such needs of general interest should be assessed after taking into account all elements of law and determining factual circumstances on a caseby- case basis.

If the airport management company carries on its competitive business, then it satisfies a need of general interest related to industrial or commercial matters. In fact, if the entity makes profit or bears losses associated during the normal exercise of its activities, it is unlikely that the needs it aims to fulfill are of a non-industrial or non-commercial nature.

As a result, it can be argued that a company, such as an airport management company, even if it is majorly state-owned, is not a body governed by public law and therefore EU rules on public contracts are not applicable.

This conclusion is shared by the Authority for the Supervision of Public Contracts on works, services and supplies, which recently addressed the issue with respect to the Rome Airport SpA and the Verona Airport Villafranca - Valerio Catullo SpA. In these cases, the Authority confirmed that it is difficult to ascertain the existence of the «requirement of the corporate establishment of the entity in order to meet a general interest unrelated to industrial or commercial matters». It further stated that with «reference to institutions operating in the airport sector, case law [...] retains that it shares a nonunique orientation on this issue, given the peculiarities and the operative methods of each corporation»²².

The Authority also observed that «the industrial or commercial character of a particular interest cannot be determined therefore in a company that provides services that are not necessarily connected to public works [...] and that is not supported by public funding, except for the initial capitalization, and that is not connected in its activity to a planning policy related to social and economic development of the local community».

Therefore, in the case of Verona airport, the Authority concluded that «it can be assumed that the company in question carries out in public interest, activities devoid of any industrial or commercial character». This occurs when the company's activity pursues profits and bears the risk of losses. As for returns, article 28 of the articles of association provides that if these are due on ordinary shares of the company, they will be reinvested in the company, and if due on preferred shares, distributed to the respective holders.

In that respect, the Council of the Administrative Justice of Sicily also denied the granting of status of a «body governed by public law» to a corporation whose article of association establishes the distribution of its income in relation to the shares held²³.

In addition, from the legislation applying to national and EU airport management, it appears that these companies operate «to respond to the needs of an industrial or commercial character», as ruled by the Court of Justice in decisions handed down with respect to the differentiation between public companies and bodies governed by public law²⁴.

In such cases, reference must be made to article 10 of the abovementioned Ministerial Decree n. 521/1997 which identifies the criteria applicable to the airport management company and provides that the company «organizes and manages the airport manager, ensuring the optimization of resources available for the production of activities and services at the appropriate level of quality, in accordance with the principles of safety, efficiency, effectiveness and economy».

In a competitive market where the company pursues profits and bears risks, it is led by economic considerations in accordance with the laws of the market. This is also the approach endorsed by the Supreme Court of Cassation, which observes that it distinguished the commercial and industrial nature from the needs «which cannot be satisfied through production or exchange of goods or services, and characterized by entrepreneurship or profit»²⁵.

Opposing the view of the Authority, Italian case law adopted a rather wavering orientation with respect to bodies governed by public law. In one instance, the plaintiff was considered a contracting authority just because it qualified as a body governed by public law. It qualified as such due to the fact that it was under the complete control of a state-owned company/public body and also because it exercised its activities by employing public capital in the public interest without seeking any utilitarian scope (which usually characterizes the business activity). The Council of State also noted that the limited liability company — supporting the economic sectors or delivery of social utility — just because of its legal personality, is not automatically exclude it from conducting a business that satisfies needs of general interest that are devoid of any industrial or commercial character²⁶.

In another case, it was stated that a consortium of companies are private law entities even with a majority public capital or payment of public funds. In fact, the function, structure, activities and affairs of these companies are not enough to differentiate them from any other company or private enterprise that meets general interests having an industrial or commercial character²⁷.

With respect to the airport management company, case law on administrative matters held that the Brescia Airport management company fell within the category of bodies governed by public law, as long as the activity being carried out by it was general management. In fact, the facility benefits from a plurality of activities, and the non-industrial or non-commercial character cannot be excluded either because of the management method or due to the presence of other players in the market²⁸.

Instead, the rights of a body governed by public law were denied to Milan Airport Management Company on the grounds that it pursues entrepreneurial profit²⁹.The judges observed that the air transport field is part of the excluded sectors, and therefore the laws governing such entities should apply in the case. However, those would not apply to contracts entered into for different activities, other than those merely related to air transport. Therefore, as long as these are different commercial activities such as food service and catering, the airport management company is not bound by the rules of public law.

Hence it seems necessary to conclude that while performing those commercial activities, the airport management company should not be considered as a body governed by public law.

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Footnotes

(1) Major examples quotable from Italy are the Milan airport, the Verona airport (explained in further detail in this article) and the Venice airport. Examples from other countries include the Munich airport in Germany and the Paris Charles de Gaulle airport in France (also refer to Tribunal de Conflits du 15 mars 1999, Mme Pristupa c. Aéroport de Paris and Loi n. 2005-357 du 20 avril 2005 relative aux aéroports).

(2) With specific reference to the Italian cases, it must be said that the provisions enacted to regulate the activities of private companies that are partaken in by public entities are several. With respect to the aviation industry, it must be recalled here that the provision in favour of the Alitalia's small shareholders and bondholders under law n. 33 of 9 April 2009 and law n. 102 of 3 August 2009.

(3) Examples of Italian private companies publicly owned by the Ministry of Economics and performing managerial or entrepreneurial activities are: ANAS (Italian management entity of highways), Cassa depositi e prestiti (Italian public fund for loans and deposits), Enav (National entity for in-flight assistance), ENEL (National entity for electric energy), Ferrovie dello Stato (National railway company), Poste italiane (Italian postal service).

(4) Please note that Corte dei conti is defined under articles 100 and 103 of the Italian Constitution. It is responsible for checking the legitimacy of the activities of the Government and of the Public Administration. It is also responsible for checking the management of the accounts of the State, of the Public Administrations generally and of the bodies subsidized by the State.

(5) Respectively, Case T-128/98, Aéroports de Paris/Commission, confirmed in the case C-82/01, and case T-455/08 Flughafen Leipzig-Halle GmbH and Mitteldeutsche Flughafen AG v. Commission.

(6) The entity or group of entities performing the economic activity of providing airport services to airlines, (to ensure the handling of aircrafts from landing to takeoff) and passengers so as to enable airlines to provide air transport services are called «airport managers».

(7) Judgment Aéroports de Paris, para 75-79.

(8) Judgment Flughafen Leipzig-Halle, para 93-94.

(9) On this matter, it must be said that the airport manager provides many services in exchange for payment of airport charges. Moreover, it must be recalled that the labeling of charges as «fees» or «taxes» varies across the EU countries, and the provision of airport services to airlines in exchange for airport charges involves an economic activity.

(10) See the Italian Supreme Court of Cassation, Sec. Un., 11 January 2008, n. 379 which applied provision of article 39-bis of law decree of 1 October 2007, n. 159.

(11) The Italian Court of Cassation, Sec. Un., 17 October 2006, n. 22245.

(12) Art. 39-bis of law decree 1 October 2007, n. 159, included by the adapting law of 29 November 2007, n. 222.

(13) For instance, in the case of Aéroports de Paris, the Court of Justice with decision of 24 October 2002, case C-82/01 established that the services of ground handling provided by airport managers represent an economic activity independent of the fact that the manager exercises public powers.

(14) The decision of the Italian Supreme Court of Cassation n. 26806 of 19 December 2009, rebutting previous case law positions on the applicability of the administrative regime to these type of cases is noteworthy here. In fact, in the case just mentioned, the Court found in favor of the ordinary jurisdiction since the nature of activities performed by the entity under scrutiny were of an economic nature. In particular, it was found that the company (part of ENEL — National Energy Entity — group) performed entrepreneurial activities (i) in free and competitive markets, (ii) was pursuing profits and (iii) was without any public law scope. Thus, in this particular case, the challenge to the administrative jurisdiction of the Court of Auditors brought forth by the applicant was not found admissible and grounded.

(15) Under Italian case law, it has now been confirmed that ordinary jurisdiction applies also in cases where a decision has to be taken on claim of damages caused to the company that is owned in part or fully by the state. See cases Autovie venete SpA and Insiel SpA addressed with order of the Italian Supreme Court of Cassation, 5 July 2011, n. 14655 and of 12 October 2011 n. 20941.

(16) In that respect, see case of Court of Auditors, Friuli-Venezia Giulia, 21 September 2011, n. 169. In that instance, the judges found that the company was characterized by (i) a capital was not owned by state entities in the major part, (ii) clauses of explicit consent to allow new private shareholders, (iii) distribution of returns between the shareholders and (iv) entrepreneurial activities.

(17) The definition is given under art. 1, lett. b, dir. 92/50/CEE.

(18) Legislative Decree of 12 April 2006, n. 163.

(19) Same regulation as that of Directive 2004/17/CE.

(20) The concept of the body governed by public law was initially introduced into the Italian legal framework by law of 11 February 1994, n. 109 on public contracts of works, by legislative decree of March 17, 1995, n. 157 on services, and finally, by the legislative decree of April 12, 2006, n. 163 the Public Contracts Code. The sources of EU law on the criteria for the award of public tenders are enshrined in directives 2004/17/CE and 2004/18/CE.

(21) Art. 2 dir. 2004/18/CE.

(22) Opinion of the Authority of Supervision of public contracts on works, services and supply n. AG 3/2013 of 20 February 2013.

(23) Conc. Adm. Just. Sic. 06/11/1996 n. 323.

(24) Court of Justice CE, May 15, 2003, C-214/00, paragraph 44.

(25) Italian Supreme Court of Cassation Civ., on May 4, 2006, n. 10218; on February 8, 2006, n. 2637; on April 4, 2000, n. 97.

(26) Council of State, sec. VI, 7 June 2001, n. 3090.

(27) Italian Court of Cassation, sec. un., 2 March 1999, n. 107 and 6 May 1995, n. 4989.

(28) Administrative Regional Court of Lombardia, Brescia, 26 March 2004, n. 254. It confirmed the decision of the Administrative Regional Court of Veneto, sec. III, 26 May 2003, n. 3014 which established that the direct award of commercial areas of the airport to a corporation entirely controlled by the airport management company is illegitimate if, this being also a public limited company, it is a public law entity thus governed by public contracts law.

(29) Administrative Regional Court of Lombardia, Milano, sec. III, 15 February 2007, n. 266, which established that Sea Spa is not a body governed by public law as long as it has not been created to «satisfy public interest needs not having industrial or commercial character», for its intrinsic entrepreneurial and profitable character.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.