On the intuito personae in administrative concession

Abstract

The traditional assertion of the personal nature of the administrative concession is problematic in any of the areas in which it is normally stated. In terms of the formation of the contract, except in exceptional cases, the concessionaire is a fungible co-contractor, and there is therefore no legal basis to rule out the principle of public appeal to competition. Nor does the need for the administration to assess the technical and financial capacity of the candidates and to prove their suitability in any way justify the derogation from the competition rule. The fact that the award relates to a tender submitted by an operator who has satisfied the capacity profile generally defined by the Public Administration and who must prove that he is suitable before the contract is awarded will, however, give indirect importance in this context to the personal element. On the legal-contractual level, the rule of personal performance coexists with the general principle of conditional transferability of the legal position of the concessionaire by assignment of the contract or through subcontracting. The nature of the concession does not legitimize an unlimited discretionary power of authorization. Such an authorization must respect the applicable framework, including the provisions relating to fundamental rights and the normative principles of the Administration. The same applies to any authorisation required for a change in the ownership structure involving a change of control of the concessionaire company.