Sentence no. 843 of 19 July 2024, filed on 5 December last by the Regional Administrative Court of Liguria, accepted the appeal brought by JE Srl, a company active in the musical publishing sector as well as in the production and realization of musical events and works, declaring the ‘illegitimacy of the assignment live broadcast of the Sanremo Festival on the RAI television broadcaster. The appellant’s objections arise from the lack of response from the Municipality of Sanremo to its expression of interest made in March 2023, formulated in view of the expiry – set for 31 December 2023 – of the Agreement stipulated between the Municipality and RAI , which regulated the organization and realization of the 72nd and 73rd edition of the Festival. Based on this assumption, JE argued that the municipal administration, for the 74th edition scheduled for 2024, should have launched a public tender procedure, allowing a competitive comparison between multiple operators, in which JE itself was interested in participating.
From a strictly technical point of view, the notion of “direct assignment” refers to the attribution of contracts for works, services or supplies to a specific economic operator without prior activation of a competitive comparison. There contracting stationin other words, Not questions the generality of the market through the calling of a tender, simply assigning the contract to a subject considered suitable based on experience and ability criteria. This is a procedure specifically distinct from the open, restricted or negotiated ones, contemplated by the Public Contracts Code (Legislative Decree 36/2023), and is characterized precisely by the absence of a comparison between a plurality of bidders.
This method is still admissible, albeit exceptionally, even for contracts with a value higher than the thresholds of European relevance, and constitutes an awarding tool removed from the competitive dynamics that characterize the market. However, it should be remembered that, with the new public contracts code of 2023, the legislator has provided, in art. 50, direct assignment as “general rule” for works contracts within the threshold of 150,000 euros and for services and supplies up to 140,000 euros. This choice, dictated by the result principle, aims to simplify and streamline the procedures for contracts of limited amounts, while still allowing contracting authorities the possibility of consulting the market.
For contracts with a value higher than these thresholds, which also includes the Sanremo Festival, the rigor of the previous legislation, established by Legislative Decree 50/2016, in art. 63, which allowed direct awarding only in mandatory cases, such as an unsuccessful tender (or with unsuitable offers), the need to create or acquire a work of art, the absence of competition for technical reasons or the protection of rights exclusive, including those of intellectual property. Furthermore, the contracting authority is required to evaluate the factual situation and the particularities of the markets concerned, in compliance with the principles of result, trust and market access.
In light of these regulatory coordinates, JE Srl complained about both the violation of the law and the excess of power by the Municipality of Sanremo, attributing to the latter the failure to activate a public evidence procedure, as required by European law and national regulations regarding public contracts.
In particular, the company recalled i principles of economy, effectiveness, impartiality, equal treatment, transparency, proportionality and publicity which must inform administrative action. The issue of greatest importance for the European Union and national legislation concerns free and effective competition, which the tender procedures are called upon to guarantee. The underlying objective is to encourage maximum participation, also from a cross-border perspective, in order to obtain an increase in the quality of offers and a reduction in costs. These principles, well rooted in the EU Treaties (TEU and TFEU) and recalled by the 2014 Directives (nos. 24-25-26), aim in fact to broaden competitiveness through the simplification of procedures, the division of contracts into lots, the facilitating access for micro, small and medium-sized enterprises, maximizing transparency in the assignment phase, evaluating the best quality-price ratio and adopting innovative procedures, such as the competitive dialogue.
These conceptual coordinates clearly lend themselves to the case of the Sanremo Festival, whose production and broadcast constitute a publicly owned asset, therefore susceptible to economic exploitation and consequent profit opportunities. The appellant’s complaint it does not concern the Convention Already stipulated between RAI and the Municipality of Sanremoconfigurable as an “active contract” and therefore excluded from the scope of application of the Public Contracts Code pursuant to art. 13, paragraph 2. The illegitimacy instead focuses on the previous phase of awarding the contract, potentially favorable to a private operator, which should have been subject to the principles of competition, impartiality, non-discrimination, transparency, publicity and proportionality. In this perspective, the Administration should have consulted the market, evaluate the proposals of any competitors and identify the most suitable offer from a technical, organizational and economic point of view.
The jurisprudence, while recognizing the Administration a certain margin of discretion in direct assignment procedures, does not exclude that the administrative judge can review the actions of the entity if evident profiles of illogicality or arbitrariness appear, in violation of the key principles of the indeed cited. In the present case, the failure to consider the expression of interest presented by JE in 2023 raises doubts about the impartiality of the Municipality’s action, which did not establish any competitive comparison.
This caused damage not only to the potentially interested companies but also to the administration itself, deprived of the possibility of identifying and selecting the most convenient offer. The TARconsequentiallydeclared illegitimacy of direct assignmentestablishing the need for announce, for future editions of the Sanremo Festival, a public competitionas required by the Public contracts code. At the same time, the administrative judge recognized the difficulty of holding a regular procedure in view of the already imminent edition of February 2025, therefore accepting that it will take place under the original conditions.
The effect of the ruling is to reaffirm the centrality of competitive principles and transparency in the public procurement sector, in a context – that of the Sanremo Festival – with indisputable media, cultural and economic relevance.