Iniziativa economica privata e intervento pubblico nel mercato: il caso degli impianti a fune con finalità turistico-ricreativa.

The Constitutional Court dismissed the action brought by the Regional Administrative Court of Bolzano concerning the constitutional legitimacy of certain legal provisions of the Provincial Law of Bolzano no. 10 of 2018 that, qualifying as an authorisation the concession for the installation and operation of cableway installations for tourist-recreational use, exclude the possibility of tracing it back to the Public Procurement Code in breach of the principle of free competition. Contrary to what the referring Court asserted, the Constitutional Court held that the Autonomous Province of Bolzano, whereas it has certainly regarded as a local public service the operation of cable car installations integrated into the provincial transport network linking permanently inhabited places, has not made a similar choice with regard to the facilities of cable cars for sports or leisure tourism, not integrated into the provincial public transport system. It follows that, only in the first case, where it gives management to third parties, the Province should use a public tender, simulating a fully competitive market, in order to avoid discrimination between economic operators and ensure the impartiality of choices. On the contrary, in the case of cableways for tourist-recreational purposes it must be applied the framework of the free private economic initiative that takes place in a competitive market pursuant to article 41 of the Constitution and that, in compliance with this Constitutional provision, may require a measure of authorization to carry out the work and then to its subsequent exercise, in order to protect the public interests involved. The decision of the Constitutional Court in favour of the authorizing nature of the measure concerning the construction and exercise of cableways for touristrecreational use appears a clear and important field option in favour of a precise way of understanding the relationship between the State and the market within the legal system, which enhances the freedom of private economic initiative guaranteed by article 41 of the Constitution, without annihilating the reasons of the competition that in the market find their natural expression, neither those of the public interests on which the activity can impact.