La distinzione tra concessione e appalto pubblico di servizi nel prisma del diritto europeo

[Autom. eng. transl.] The annotated sentence confirmed the orientation expressed by Cass., Sect. VI, ord. 6 May 2015, n. 9139 and stated that the distinction between the public service contract and the concession lies in the assumption of business risk by the economic operator; this risk is absent in the contract due to the consideration paid in full by the administration. The supporting arguments are based on the evolution of the European Union discipline in recent years and on the national one, which constitutes its transposition in our legal system (legislative decree April 16th 2006 n. 163 and legislative decree April 18th 2016 n 50, the so-called contract code). The qualification of the contract in terms of the contract implies, according to the judgment, that the dispute concerning the revision of the fee, which is not based on a specific contractual clause, is up to the administrative judge by reason of the art. 6, 19th paragraph, l. December 24th 1993 n. 537 (replaced by art. 44 l. December 23, 1994 n. 724), applicable ratione temporis, which states that "disputes arising from the application of this article shall be devolved to the exclusive jurisdiction of the administrative judge". These disputes also include those deriving from the application of the 4th paragraph, pursuant to which "all contracts with periodic or continuous execution must bear a periodic price review clause". Both the initial assertion, and the consequence that according to the Cassation derives from it, are the object of analysis and deepening of the contribution.