Pronunciation n. 5602 of 27 June 2025 issued by Fifth section of the Council of Statepublished with a device on May 29, 2025 and concerning the main gravors of Rai-RadioTelevisiona Italiana spaof Municipality of Sanremo and of Rai advertising spaas well as the incidental appeals proposed by the same parties and by Je srltoday constitutes the landing point – perhaps not definitive but certainly of poisoning importance – of a dispute that has been shaking the market of cultural events for over two yearsentertainment national, questioning the interpreters on the borders between concession of intangible asset, Service contract, Active contract and discipline ofpublic evidence After the entry into force of the Legislative Decree 31 March 2023, n. 36.
The Council of State, rejecting the appeals proposed against sentence no. 843/2024 of the TAR Liguria, confirmed theillegitimacy ofDirect assignment to the historical dealer Rai of the exploitation of the “Festival of Italian Song” brand brand and the related organization of the editions 2024 and 2025, reaffirming the need that, for future editions, the Municipality will resort to one comparative procedure consistent with i Principles of transparency, competition and proportionality referred to in Articles 1, 2 and 3 of the new code.
The heart of the decision lies first of all in the answer made to the preliminary question of the legitimacy to act Of Je srlrecord operator and Live Entertainment without radio and television authorization. Overcoming the exceptions of Rai and of the Commonthe judges recalled the consolidated jurisprudence on theConception of direct assignmentsaccording to which the “sector” operator is legitimized to be noted of the non -tender even without having participated in it, because the blatant competitive exclusion integrates ex se a vulnus immediate to his freedom of business. The lack of television broadcast license is not important, as the primary object of the contested convention does not coincide with the Broadcasting but with the management of the kermesse musical as such, an element that – in private perspective – gives economic substance to brand recorded by the Municipality.
The field from the procedural profile is clear, the Council of State reconstructs the legal nature of the controversial relationship, qualifying it which Active contract for the concession of use of an intangible asset of public ownership (the “Festival di Sanremo” brand) through which the Administration obtains an economic consideration in the face of the transfer to the dealer of the right of commercial exploitation of the event. It is therefore not a question of “Concession of services” Pursuant to articles 174 ss. of Legislative Decree no. 36/2023 – Category that presupposes the transfer to the dealer of operational risk referred to the provision of a public service in favor of third parties – nor of tenders excluded former art. 56, paragraph 1, lett. f)on the subject of audiovisual programs, since the television broadcast constitutes Mera utilitas accessory compared to the asset of the agreement, centered on the dismissal of the brand.
The consequence is twofold: on the one hand, the mandatory discipline of the code regarding typified procedures does not apply (Articles 50 or 187), on the other hand, the administration is not free to negotiate in private negotiationsince theart. 13, paragraph 5requires that i “Excluding contracts” – category in which active contracts fall – are in any case entrusted in compliance with the Craft principles of competition, impartiality and “market access”.
Strengthened by this reconstruction, the Council of State demolishes the argument – deemed opposing by the appellants – founded on the assiority “Inseparability” between the municipal brand e format television invented by Rai.
The Festivalclarifies the sentence, belongs to the legal sphere of the Municipality as a singing event; The format It is a creative product of the broadcaster, but it does not generate one communion of rights On the denomination, nor the transformation of the brand as an exclusive distinctive sign of the dealership. Any copyright or profiles of sortECONDARY MEANING of the brand, assuming that they have matured, do not legitimize ex se the elision of competitive comparisonbecause the national and union discipline in the field of intellectual property It is coordinated – does not overlap – with that onentrusting public goods. Hence the further reflection, of great systemic impact, so there are no reasons for infunity such as to justify the use of private negotiation former art. 41 RD 827/1924: the long partnership with Rai And the editorial success of the program do not integrate “special and exceptional” circumstances, nor are equivalent to a subjective right to renewal.
Equally significant is the part of the motivation dedicated to the relationship with theart. 50 of the new code. While moving on a only incidental level, the judges reiterate that this provision – which allows theDirect assignment of contracts of modest value within the threshold of 140,000 euros – does not extend automatically to Active contracts for granting assetsbecause the 2023 legislator traced a special perimeter for concessions (active or passive), focused onart. 187which prescribes at least one negotiated procedure after consultation of ten operators. The Municipality, having omitted any form of interlocution with the market and having rejected “for lack of subjective requirements“The only expression of interest received without motivating the existence of thepublic interest to the non -separation between organization and broadcast, it was therefore incurred in violation of general principles.
The TAR had considered a start of a conformative basis expression of interest open; The Council of State confirms this landing place, but points out that this does not equate to syndicate ex ante the opportunity of future contractual choices, left to municipal discretion as long as they are exercised within the perimeter of the competitive principles.
No less relevant is the outcome on claims for compensation Of Je: the Council of State, recalling the jurisprudence on the proof of the test of the “chance“excludes that the only illegitimacy of direct assignment is enough to found the Compensatio Lucri cum damnosince the recurrent company has not shown the concrete probability of being awarded in a hypothetical competitive procedure, especially in the absence of a grouping already set up with a Broadcaster qualified. There loss of chance It therefore remains without quantification and, consequently, not catering, if not possibly in a future judgment that follows the completion of the comparative procedure.
From a procedural point of view, the decision is also reported to rejected theintervention ad opponendum Of APS And Codaconsconsidered lacking in a qualified interestbecause the story does not involve the public radio and television service in itself, but a asset balance sheet completely distinct from the fulfillment of universal service obligations. The principle for which theAccess to the administrative judgment It remains conditioned to a “concrete, specific and direct interest, since the generic protection of undifferentiated categories of users or consumers is not sufficient.
As for the effects, the sentence confirms the plant modulated by Tar: annulment of the assignment measures and the presupposed resolutions, salvation of the conventions relating to the editions 2024 and 2025 for reasons of proportionality and of continuity of the administrative actionbut with the obligation – not textual, but logically descending from dictum – Of redeter according to the principles ofpublic evidence for subsequent editions.
It is a compromise balance that protects the consolidated economic-commercial interests and at the same time restores the competitive frame for the future, avoiding that the previous rooting of an operator crystals in a de facto monopoly on the exploitation of a Public intangible asset.