Prepared by Guido Ajello, Claudio Costantino and Arianna Mariani
With the judgment of February 3, 2021 (joined cases C-155/19 and C-156/19), the Court of Justice of the European Union (“CJEU” or “Court”) addressed the question relating to the formal qualification of the Federazione Italiana Giuoco Calcio (“FIGC” or “Federation”) and the consequent obligation to apply the rules on public evidence contained in Legislative Decree 18 April 2016, n. 50 (“Procurement Code”).
The Court’s intervention was solicited by the Council of State (see the referring decision of 12 February 2019, no. 1006), called to rule on the appeal filed by the Federation and the Consorzio Ge.Se.Av. S.c. a r.l. for the reform of the judgment of April 13, 2018 n. 4101, with which the Regional Administrative Court of Lazio accepted the complaints raised by the company De Vellis Servizi Globali S.r.l. in relation to the negotiated procedure organized by the FIGC for the award of a contract for porterage services for national football teams.
In order to rule on the existence of the FIGC’s obligation to apply the rules of the Procurement Code, the Council of State noted, inter alia, that if, on the one hand, the FIGC is a private law entity with legal personality and that its non-public activities fall within its capacity under private law, on the other hand, it is subject to the supervisory powers of the Italian National Olympic Committee (“CONI”) like any other national sport federation.
Specifically, the Federation is required by law to pursue the public interest purposes exhaustively listed in Article 23 of the CONI statute, as approved in its latest version with resolution of May 4, 2016, no. 1549 (“Statute”), as well as to comply with the guidelines and controls carried out by the latter.
Therefore, in view of these peculiarities, the referring Italian judge remitted the following questions to the Court:
- “whether Article 2(1)(4)(a) of Directive 2014/24 must be interpreted as meaning that an entity entrusted with tasks of a public nature exhaustively defined by national law may be regarded as having been established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, within the meaning of that provision, even though it was established not in the form of a public authority but of an association governed by private law and some of its activities, for which it enjoys a self-financing capacity, are not public in nature”;
- “whether the second part of the alternative referred to in Article 2(1)(4)(c) of Directive 2014/24 must be interpreted as meaning that a national sports federation must be regarded as being subject to management supervision by a public authority having regard, first, to the powers conferred on that authority with regard to such a federation and, secondly, to the fact that the key bodies of that authority are composed for the most part of representatives of all the national sports federations”.
In order to answer question (i), the Court analyzed Article 2, paragraph 1, point 4, letter a) of Directive 2014/24/EU (transposed by Article 3, paragraph 1, letter d), point 1, Procurement Code), according to which an entity must be established to meet needs in the general interest, with no an industrial or commercial nature, in order to be identified as a body governed by public law.
With reference to this requirement, the CJEU has clarified that “in Italy, the activity of general interest comprised by sport is pursued by each of the national sports federations within the framework of tasks of a public nature expressly assigned to those federations by Article 15(1) of Legislative Decree No 242[1] and exhaustively listed in Article 23(1) of the CONI Statute[2]”.
According to the European Court, the requirement set out in Article 2, paragraph 1, point 4, letter a) of Directive 2014/24/EU is satisfied by a national sport federation if this effectively ensures the fulfillment of the tasks listed in the Article 23, paragraph 1, Statute, regardless of whether it has the legal form of an private law association and whether its creation does not result from a formal act instituting a public administration.
In fact, according to the CJEU, “the wording of Article 2(1)(4) of Directive 2014/24 does not contain either a reference to the rules for establishing the entity or to its legal form. Secondly, it must be borne in mind that the concept of a ‘body governed by public law’ must be interpreted in functional terms independent of the formal rules for its application, with the result that, in view of that requirement, no distinction should be drawn by reference to the legal form and rules which govern the entity concerned under national law or to the legal form of the provisions establishing that entity”.
With reference to the further activities carried out by the Federation, other than those exhaustively listed in Article 23, paragraph 1, of the Statute, the Court held “it is immaterial whether, in addition to its duty to meet needs in the general interest, an entity carries out other activities, and the fact that meeting needs in the general interest constitutes only a relatively small proportion of the activities actually pursued by that entity is also irrelevant, provided that it continues to attend to the needs which it is specifically required to meet”.
In other words, by accepting what has been pointed out by the Advocate General, the CJEU has considered that the FIGC being endowed with the capacity of self-financing is irrelevant, since this has no influence on the attribution of its public prerogatives. Therefore, the Court, by recalling the settled case-law on this matter, has confirmed that the teleological requirement can be satisfied regardless of its formally private role.
With reference to question (ii), the Court analyzed Article 2, paragraph 1, point 4, letter c) of Directive 2014/24/EU (transposed by Article 3, paragraph 1, letter d), point 3), Procurement Code), according to which bodies governed by public law must alternatively be:
– “financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law (…)”;
– subject to “management supervision by those authorities or bodies”;
– have “an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law”.
With respect to the case in question, the European judges have analyzed the role of CONI, verifying whether it exercises an outright control over the FIGC or rather a directive and coordinated role over sports activities, which would be irrelevant for the purposes of the internal management of the Federation.
Specifically, in order to verify whether CONI can exert an influence on the decisions of the national sports federations, also with regard to public contracts, the Court has reiterated the need to verify the existence of an “active control over the management of the body concerned such as to give rise to the dependency of that body on the public authorities equivalent to that which exists where one of the two other alternative criteria is fulfilled, which is likely to enable those authorities to influence that body’s decisions with regard to public contracts”.
In this regard, the national sports federations, though being required to carry out their sports activities and the related promotional actions in accordance with the deliberations and addresses of the IOC and CONI, benefit under the supervision of the latter from a technical, organizational and management autonomy within the sport system, notwithstanding that CONI exercises control over the final budgets and the balance of the budget of the national sports federations.
Therefore, it would not appear that CONI is hierarchically superior to the federations, capable of controlling and directing their management, even if, in this regard, the CJEU has referred the task of verifying whether “a national sports federation has management autonomy under national law” and whether “that federation may be regarded as being subject to management supervision by a public authority”; this, considering that “only if it emerges from an overall analysis of the powers which that authority has in relation to that federation that there is active management control which, in practice, calls into question that autonomy to such an extent as to allow the authority to influence the federation’s decisions with regard to public contracts”.
Finally, in relation to the majority participation of the federations in CONI’s administrative bodies, the Court has also clarified that this circumstance “is relevant only if it can be established that each federation, considered individually, is in a position to exert a significant influence over the public supervision exercised by that authority over it with the result that that supervision would be offset and such a national sports federation would thus regain control over its management, notwithstanding the influence of the other national sports federations in a similar situation”.
Therefore, with this pronouncement, as it referred the question to the Council of State, which should take a decision in the next public hearing on June 17, 2021, the European judges have declared that the criterion of dominant public influence can be satisfied by CONI only if it exercises an active management control over the sports federations, such as to influence the decisions also in matters of public contracts. In other words, the national judge – in line with European decisions – will have to verify the actual existence of the conditions that allow the FIGC to be qualified as a body governed by public law.
[1] Article 15, paragraph 1, Legislative Decree 23 July 1999, n. 242: “The national sports federations and associated sports disciplines shall pursue sports activities in accordance with the decisions and guidelines of the IOC, international federations and the CONI, and with due regard for the public dimension of certain types of activity which are set out in the CONI Statute. Sports societies and associations shall participate in those activities, as shall individual members solely in the cases provided for in the statutes of national sports federations and associated sports disciplines concerning that particular activity”.
[2] Article 23, paragraph 1, CONI Statue: “In accordance with Legislative Decree No 242, as subsequently amended and supplemented, in addition to the activities the public nature of which is expressly provided for by law, the only national sports federation activities to have a public dimension shall be those which concern the following: the admission and membership of sports societies, associations, and individuals; revocation on any ground; the amendment of admission or membership decisions; scrutiny as to the proper running of professional sports competitions and championships; the use of public subsidies; the prevention and punishment of doping; high-level activities connected with preparations for the Olympics; the training of coaches; and the use and management of public sports facilities”.
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