Service Contracts: Ruling No. 23155 of 2024 on Concessions and Jurisdiction
The recent ruling by the United Sections of the Court of Cassation, No. 23155 of August 27, 2024, offers important insights for understanding the distinction between public service contracts and service concessions. This order clarifies that when the consideration for a service is paid directly by the administration to the provider, it constitutes a public service contract, thereby excluding management risk for the provider itself.
The Distinction Between Service Contracts and Concessions
The ruling in question focuses on a case concerning school catering services and auxiliary services for municipal nursery schools. The Court reiterated that in the case of a public service contract, the provider receives the consideration directly from the Administration, whereas in the case of a concession, the concessionaire is remunerated through revenue derived from users. This distinction is fundamental for determining the competent jurisdiction for disputes that may arise in these areas.
- Public service contract: the consideration is paid by the administration.
- Service concession: the concessionaire profits from user fees.
- Jurisdiction of the ordinary judge for disputes related to public contracts.
Jurisdiction and Application of Regulations
The Court affirmed the jurisdiction of the ordinary judge over the dispute relating to the contract in question, emphasizing the relevance of this decision in the context of administrative law and European regulations. Indeed, European directives on public procurement establish clear criteria that Member States must follow, contributing to ensuring transparency and competition in the public sector.
In general. A public service contract is established, also under Union law, when the consideration is paid directly by the Administration to the service provider, who consequently does not bear the management risk, unlike a service concessionaire, who derives their remuneration from revenue obtained from users.
Conclusions
In summary, ruling No. 23155 of 2024 represents a significant step forward in clarifying the rules relating to public contracts and concessions. The distinction between these two legal instruments, as highlighted by the Court, not only has practical implications in the public sector but also offers a clearer legal framework for the parties involved, ensuring greater legal certainty and correct application of the rules. Operators in the sector must pay particular attention to these differences to avoid problems during contract execution and to be aware of the rights and duties to which they are subject.
