Opinion of Advocate General Campos Sánchez-Bordona delivered on 1 October 2020.#Federazione Italiana Giuoco Calcio (FIGC) and Consorzio Ge.Se.Av. S. c. arl v De Vellis Servizi Globali Srl.#References for a preliminary ruling from the Consiglio di Stato.#Reference for a preliminary ruling – Public procurement – Public procurement procedure – Directive 2014/24/EU – Article 2(1)(4) – Contracting authority – Bodies governed by public law – Concept – National sports federation – Meeting of needs in the general interest – Supervision of the federation’s management by a body governed by public law.#Joined Cases C-155/19 and C-156/19.

1.

In the judgment of 11 September 2019, ( 2 ) the Court analysed whether a national Olympic committee (in that case, the Italian Olympic Committee) had exercised ‘public control’ over two sports federations in that country, ( 3 )‘with a view to classifying them either within the public authorities sector or within the sector of NPISHs [(non-profit institutions serving households)]’ under the European System of Accounts. ( 4 )

2.

The Consiglio di Stato (Council of State, Italy) has now submitted to the Court two substantively identical requests for a preliminary ruling relating to the same issue, from the point of view this time not of accounting but of public procurement. In the disputes in the main proceedings, it falls to be ascertained whether the Federazione Italiana Giuoco Calcio (Italian Football Federation; ‘the FIGC’) was established for the specific purpose of meeting needs in the general interest and, if so, whether the Comitato Olimpico Nazionale Italiano (Italian National Olympic Committee; ‘CONI’) controls its management.

3.

The answers to those questions may determine whether a contract concluded by the FIGC, which forms the subject of the disputes at issue, is subject to the procedures laid down in Directive 2014/24/EU ( 5 ) and in the national rules transposing that directive into domestic law. This will be the case only if the [Italian] national sports federations (‘NSFs’), when procuring works, supplies and services above a certain threshold, are capable of being classified as contracting authorities because they are bodies governed by public law within the meaning of Directive 2014/24.

4.

Article 2 reads:

‘1.   For the purposes of this Directive, the following definitions apply:

…

…’

5.

Article 3(1)(d) reproduces, in essence, the definition of ‘body governed by public law’ contained in Article 2(1)(4) of Directive 2014/24.

6.

Article 1 provides:

‘1.   The Republic recognises and promotes the autonomy of the national system of sports governance as an expression of the international system of sports governance deriving from the International Olympic Committee.

2.   The relationship between the system of sports governance and the Republic’s legal system shall be governed by the principle of autonomy, except in cases involving subjective situations linked to the system of sports governance which are relevant to the Republic’s legal system.’

7.

Article 1 states:

‘[CONI] shall have legal personality under public law … and shall be responsible to the Ministry of Heritage and Cultural Activities.’

8.

Article 2 provides:

‘1.   CONI … shall be responsible for the organisation and enhancement of national sport, in particular the preparation of athletes and the provision of adequate resources for the Olympic Games and for all other national or international sports events. It shall also be responsible, within the framework of the system of sports governance, for adopting measures to prevent and eliminate the use of substances that alter the natural physical performance of athletes in sports activities, as well as for promoting the practice of sports on the broadest possible scale, within the limits laid down in Decree of the President of the Republic No 616 of 24 July 1977.

…’

9.

According to Article 4(2) thereof:

‘Representatives of the [NSFs], selected from the Olympic sports, shall make up the majority of the votes on [CONI].’

10.

Article 5 provides:

‘1.   In accordance with the decisions and guidelines of the International Olympic Committee, the National Council shall work to promote the dissemination of the Olympic spirit and regulate and coordinate national sports activities, harmonising to this end the actions undertaken by NSFs and associated sports disciplines.

…

2.   The National Council shall have as its task to:

(a) adopt the statute and other normative measures falling within its competence, as well as guidelines on the interpretation and implementation of the rules in force;

(b) define the fundamental principles with which the statutes of [NSFs], associated sports disciplines, sports promotion bodies and sports associations and societies must be aligned in order to be recognised for sporting purposes;

(c) take decisions to recognise for sports purposes [NSFs], sports societies and associations, sports promotion bodies, charitable organisations and other sports disciplines associated with CONI and [national sports] federations, in accordance with the requirements laid down in the Statute …;

…

(e) establish criteria and conditions governing the exercise of controls by [NSFs], associated sports disciplines and recognised sports promotion bodies;

…

(e ter) adopt, on a proposal from the National Board, decisions to place [NSFs] or associated sports disciplines under guardianship in cases of serious management irregularities or serious infringements of sports law by the governing bodies, in cases of the proven inability of those bodies to function or where the lawfulness of the operation and running of sports competitions cannot be guaranteed;

…’

11.

In accordance with Article 15:

‘1.   [NSFs] … shall pursue sports activities in accordance with the decisions and guidelines of the [International Olympic Committee], international federations and CONI, and with due regard for the public dimension of certain types of activity which are set out in the CONI statutes. Membership [of NSFs] shall be made up of sports societies and associations and, only in the cases provided for by [NSF] statutes … in connection with certain activities, individuals too.

2.   [NSFs] … shall take the form of associations having legal personality under private law. They shall be non-profit-making and, to the extent that they are not provided for in this Decree, shall be governed by the provisions of the Civil Code and the relevant implementing provisions.

3.   The budgets of [NSFs] … shall be approved annually by the administrative body of each federation and shall be subject to the approval of the National Board of CONI. In the event of a negative opinion by a federation’s auditors … or in the event that a budget is not approved by the National Board of CONI, an assembly of societies and associations shall be convened in order to deliberate on approving the budget.

4.   The assembly competent to elect the management bodies shall approve the administrative body’s indicative budgetary programmes, which shall be submitted to the assembly for scrutiny at the end of each four-year period or at the end of the mandate for which they have been approved.

5.   [NSFs] … shall be recognised for sports purposes by the National Council.

6.   Recognition of [NSFs] … as having legal personality under private law shall be granted in accordance with the decreto del Presidente della Repubblica 10 febbraio 2000, n. 361 (Decree of the President of the Republic No 361 of 10 February 2000), subject to recognition for sports purposes by the National Council.

…’

12.

Article 1 (‘Definitions’) states:

‘1.   [CONI] shall be the confederation of [NSFs] and associated sports disciplines.

2.   CONI … shall be the authority responsible for disciplining, regulating and managing sports activities, regarded as being an essential component of the physical and mental development of the individual and an integral part of education and national culture. …’

13.

Article 6 (‘National Council’) states:

‘1.   The National Council, in its capacity as supreme representative body for Italian sport, shall be responsible for disseminating the Olympic ideal, ensuring that the actions necessary to prepare for the Olympic Games are taken, regulating and coordinating national sports activities and harmonising the action of [NSFs] and associated sports disciplines.

…

4.   The National Council shall:

…

…

…

…’

14.

Paragraph 5 of Article 7 (‘National Board’) reads:

‘The National Board shall:

…

…

…

…’

15.

Paragraph 4 of Article 20 (‘System of governance of [NSFs]’) provides:

‘[NSFs] shall engage in sports activities and the corresponding promotional activities in accordance with the decisions and guidelines of the [International Olympic Committee] and CONI and taking into account the public dimension of certain aspects of those activities. In the context of the system of sports governance, [NSFs] shall enjoy technical, organisational and managerial autonomy, subject to supervision by CONI.’

16.

In accordance with paragraph 3 of Article 21 (‘Requirements governing the recognitions of [NSFs]’):

‘If a recognised [NSF] fails to comply with the requirements laid down in paragraph 1 above, the National Council of CONI shall decide to revoke recognition granted at the time.’

17.

Article 23 (‘Guidelines and controls applicable to [NSFs]’) provides:

‘1.   In accordance with Legislative Decree No 242 of 23 July 1999, as subsequently amended and supplemented, in addition to the activities the public nature of which is expressly provided for by law, the only [NSF] activities to have a public dimension shall be those relating to the admission and membership of sports societies and associations, as well as individuals, revocation on any ground and the amendment of admission or membership decisions, scrutiny as to the proper running of professional sports competitions and championships, the use of public subsidies and the prevention and sanctioning of doping, as well as high-level activities connected with preparations for the Olympics, the training of coaches and the use and management of public sports facilities.

1 bis.   In pursuing the activities of a public nature to which paragraph 1 refers, [NSFs] shall comply with the guidelines and controls applied by CONI and operate in accordance with the principles of impartiality and transparency. The public nature of an activity shall not change the ordinary rules of private law to which their individual measures and the associated subjective legal situations are subject.

1 ter.   The National Board shall establish the criteria and procedures for ensuring that decisions taken by federations comply with CONI’s programmes in so far as concerns the competitiveness of national teams, the safeguarding of the national sports heritage and its specific identity and the need to ensure effective internal management.

2.   The National Board, acting on the basis of the criteria and procedures laid down by the National Council, shall approve [NSF] budgets and establish the financial contributions payable to them, determining, where appropriate, the purpose for which those contributions are to be used, with particular attention being paid to the promotion of youth sport, preparation for the Olympiads and high-level activities.

3.   The National Board shall supervise the proper functioning of [NSFs]. In the event of serious management irregularities or serious infringements of the sports regulations by [NSF bodies] and in the event that the organisation and proper running of sports competitions cannot be guaranteed or [NSF bodies] are found not to be capable of performing their functions, it shall propose that the National Council appoint a receiver.’

18.

The FIGC launched a procedure for the award of three-year contracts for the porterage services needed to accompany the national football squads when travelling and to support the Federation’s store in Rome. ( 9 ) It invited De Vellis Servizi Globali, s.r.l. (‘De Vellis’) and Consorzio Ge.Se.Av. S. c. arl (‘Consorzio’) to participate. The contract was ultimately awarded to Consorzio.

19.

De Vellis brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) challenging the way in which the tendering procedure had been conducted, inasmuch as the rules on disclosure laid down in the Code of Public Procedure had been infringed.

20.

The court of first instance (judgment No 4101/2018) upheld the action and annulled the award of the contract to Consorzio. In particular, it classified the FIGC as a body governed by public law, dismissed the plea of lack of jurisdiction and annulled the measures adopted in the context of the tendering procedure on the grounds which De Vellis had put forward.

21.

The FIGC and Consorzio have each lodged appeals against that judgment. They contest the finding that the FIGC is a body governed by public law and, consequently, the jurisdiction of the administrative courts to hear and determine the dispute.

22.

The Consiglio di Stato (Council of State) submits that, before it is determined whether the FIGC was obliged to apply the rules relating to the award of public contracts, and which court has jurisdiction, it falls to be ascertained whether the FIGC can be classified as a body governed by public law in accordance with Article 3(1)(d) of the Public Procurement Code, which transposes Article 2(1)(4) of Directive 2014/24.

23.

It is in those circumstances that the Consiglio di Stato (Council of State) has referred the following questions to the Court for preliminary ruling:

24.

The orders for reference were received at the Court on 22 February 2019.

25.

Written observations have been lodged by the FIGC, CONI, De Vellis, Consorzio, the Italian Government and the Commission.

26.

At the hearing held on 1 July 2020, which was attended via video conference by the FIGC, CONI, the Italian Government and, in an observer capacity, the Commission, the Court invited the parties to comment on the bearing on this case of the judgment in FIG and FISE.

27.

A comparison of situations across Europe shows that models for the relationship between NSFs and the public authorities vary substantially. To put it simply, some Member States have opted for ‘liberal’ approaches whereby NSFs are given maximum autonomy; ( 10 ) others have chosen more ‘interventionist’ formulas under which public supervision may in some cases be rigorous; ( 11 ) while certain others combine both models.

28.

In public law, it is common for the legal system to entrust certain private entities, set up in order to achieve objectives common to their members, with the task of achieving public aims, including by delegating to them functions which would typically be administrative. ( 12 )

29.

In Italy, NSFs follow this format: on the same strict membership basis as that on which the clubs operate as first-tier sports associations, NSFs are set up as second-tier private associations, ( 13 ) to which the government authorities entrust certain functions of a public nature.

30.

In that context, the referring court will of course be bound by the situation at issue and the specific features of the sports law in force in Italy. It will have to determine, in accordance with that law:

31.

As the judgment in FIG and FISE made clear, the Court itself cannot dispel those points of uncertainty, the resolution of which falls to the referring court as being alone able to interpret its own national law. ( 14 ) The submissions that follow are therefore geared exclusively towards providing the referring court with some guidance on the interpretation of the provisions of Directive 2014/24.

32.

Directive 2014/24 takes a very broad view of the concept of contracting authority, ( 15 ) which extends beyond the State and local authorities to bodies governed by public law, if they meet all of the three requirements laid down in Article 2(1)(4) thereof.

33.

In considering whether a particular body meets those requirements, the Court avoids formal methodologies and relies instead on a ‘functional interpretation’ whereby the scheme of law contained in that directive takes second place. ( 16 )

34.

The first of those requirements is that the body should have been established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character. It is with the interpretation of that wording that the first question referred is concerned. ( 17 )

35.

Although an analysis of the formal aspects of the entity’s establishment is not essential, the referring court will have to determine whether, for Italian NSFs, recognition by CONI ( 18 ) is a substantive condition or no more than a step in the process of acquiring legal personality. I shall look at this point later.

36.

From a material point of view, which is the one that matters most, the Consiglio di Stato (Council of State) must pay attention first and foremost to the content of the public functions performed by the FIGC. From this it will be able to infer whether that body was established for the specific purpose of meeting needs in the general interest not having an industrial or commercial character, or meets them objectively in practice. ( 19 )

37.

Classification as such a body, as I have said, is not precluded by the fact that needs in the general interest are met by a technically private entity, particularly if that entity forms part of an organisational system the structure and configuration of which are laid down by law and administrative in nature. ( 20 )

38.

Now, the referring court itself infers from Legislative Decree No 242/1999 (Article 15(1)) that Italian NSFs are entrusted with the performance of functions of a ‘public dimension’. ( 21 )

39.

It reaches that conclusion on the basis of an examination of Article 23 of the CONI Statute, in accordance with which NSF activities having a ‘public dimension’ are those relating to: (i) the admission and membership of sports societies and associations; (ii) the revocation and amendment of decisions on admission and membership; (iii) scrutiny as to the proper running of professional sports competitions and championships; (iv) the use of public subsidies; (v) the prevention and sanctioning of doping; (vi) high-level activities relating to Olympic preparations; (vii) the training of coaches; and (viii) the use and management of public sports facilities.

40.

The FIGC, for its part, recognises that it has entrusted to it, ‘under delegation from CONI …, certain pre-defined powers characterised by their public purpose’, although, in its opinion, ‘the public nature of the delegating [body] cannot be extended to the delegated [body] in such a way as to bind the latter beyond the predetermined limits of the delegation’. ( 22 )

41.

After noting that each NSF is responsible for a single sports discipline and for organising competitions relating to that discipline, the Consiglio di Stato (Council of State) submits that, according to the rules of sports law in Italy, ‘public-interest aims are achieved by bodies which are technically private, albeit that they operate within the framework of an organisational system the structure and configuration of which are laid down by law (rather than being an expression of private autonomy) and administrative in nature’. ( 23 )

42.

This assessment is consistent with that carried out by the Court when analysing the relationship between NSFs and CONI. In the judgment in FIG and FISE, it referred to ‘the public face of the sporting activity, that is to say, … in a formalised, official or representative context …’. It also took the view that the public dimension of the activities carried on by NSFs was apparent ‘in the proper organisation of competitions, Olympic preparations and high-level sporting activities’. ( 24 )

43.

The Consiglio di Stato (Council of State) emphasises, in short, that, in Italy, sport has the status of an ‘activity in the public interest which is for that reason organised, promoted, incentivised and financed by the State’. ( 25 )

44.

It is particularly significant that the referring court interprets the rules governing NSFs as meaning that the tasks having a public dimension which they perform seem to ‘exhaust the scope of their operations and [are] the very reason for their establishment. Any other activity, including portage services for the national football squads, at issue in this dispute, operates as an instrument in service to the tasks having a “public dimension” which are laid down in the CONI statutes’. ( 26 )

45.

If that is its interpretation of national law, the referring court may draw the inference that NSFs, the primary purpose of which is to meet needs in the general interest within the context of sport, satisfy the first condition laid down in Article 2(1)(4) of Directive 2014/24.

46.

Those needs in the general interest do not have an industrial or commercial character and are met by NSFs on the basis of a monopoly, ( 27 ) following the delegation to them of public functions by CONI. It makes no difference, for the purposes of this case, that NSFs also perform other, instrumental activities of an economic nature, as I shall go on to explain now.

47.

The foregoing having been established, the doubts expressed by the Consiglio di Stato (Council of State) have to do not so much with whether the FIGC has been entrusted with functions in the general interest not having an industrial or commercial character (which, as I have said, that federation expressly recognises), as with the extent to which its procurement activities are linked to those public functions.

48.

The referring court’s uncertainty would be prompted by the fact that, according to Article 23(1 bis) of the CONI Statute, the public nature of the activities carried on by NSFs does nothing to alter the ordinary rules of private law to which the individual measures they take and the subjective legal situations associated with those measures are subject.

49.

In my opinion, however, that provision is not decisive. The Court has held that ‘it [is] immaterial whether, in addition to its duty to meet needs in the general interest, an entity [is] free to carry out other activities. 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’. ( 28 )

50.

The Italian Government, ( 29 ) in common with the FIGC and CONI, ( 30 ) argues that the private activities carried on by NSFs, which are purely economic in nature, should be differentiated from those that serve a purpose in the general interest.

51.

However, that differentiation does not strike me as being suitable for determining whether, in their contractual relations, NSFs meet needs in the general interest. The Court has held in this regard that ‘[the provision equivalent to Article 2(1)(4) of Directive 2014/24] [does not make] a distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task’. ( 31 )

52.

The argument put forward by the Italian Government, the FIGC and CONI has already been put to the Court, which rejected it in its judgment of 15 January 1998, Mannesmann Anlagenbau Austria and Others. ( 32 ) It opted instead for the so-called ‘contagion theory’ argument, whereby it is ‘immaterial that such an entity is free to carry out other activities in addition to [functions in the general interest] …’, with the result that ‘the condition, laid down in [the provision equivalent to Article 2(1)(4)(a) of Directive 2014/24] …, does not mean that it should be entrusted only with meeting such needs’. ( 33 )

53.

That position would later be corroborated by the judgments in BFI Holding, ( 34 )Korhonen and Others ( 35 ) and Adolf Truley, ( 36 ) and definitively endorsed in the judgment in Ing. Aigner. ( 37 ) In the latter judgment, the Court, in the face of doubts expressed by the referring court with respect to the application of the case-law established in the judgment of 15 January 1998, Mannesmann Anlagenbau Austria and Others, ( 38 ) in a situation where the public and private activities of a single entity were clearly distinguishable, ( 39 ) confirmed that, ‘having regard to the reasons of legal certainty, transparency and predictability which govern the implementation of procedures for all public procurement, the case-law of the Court [set out in the judgments cited above] must be followed’. ( 40 )

54.

In any event, the Consiglio di Stato (Council of State) has stated that the contract forming the subject of the dispute (porterage services for the Italian football squad) was instrumental to the performance of the FIGC’s public functions, in particular those relating to the national teams in that sport.

55.

Nor is it decisive, for our purposes here, whether or not NSFs carry on commercial activities or aim to make a profit. ( 41 ) The line of case-law which I have just set out supports that conclusion.

56.

Finally, the fact that the FIGC is financially self-sufficient does not in any way prevent it from performing functions in the general interest under delegation from the public authorities. Its economic self-sufficiency sets the FIGC apart from other Italian NSFs whose subsistence depends to a large extent on public funds. As I have said, however, that fact is irrelevant for the purposes of determining whether it is entrusted with functions in the general interest. ( 42 )

57.

In short, unless it draws a different inference from its analysis of its domestic law, the referring court could interpret Article 2(1)(4) of Directive 2014/24 as meaning that the FIGC fulfils the first (point (a)) of the three conditions laid down in that provision.

58.

The third requirement (point (c)) laid down in Article 2(1)(4) of Directive 2014/24 itself breaks down into three conditions. ( 43 ) It is sufficient for any one of those conditions to be present in order for the requirement as a whole to be regarded as being fulfilled.

59.

Of those conditions, the only one at issue here is that of whether the FIGC ‘is subject to management supervision’ ( 44 ) by the State or other bodies governed by public law. The referring court has doubts as to whether the rules of Italian law governing the relationship between the FIGC and CONI support the assertion that the latter exerts a ‘decisive influence’ over the management of the latter.

60.

It is common ground that CONI is a body governed by public law. Legislative Decree No 242/1999 (Article 1) expressly confers on it the status of a body having ‘legal personality under public law’, which is responsible to the Ministry of Heritage and Cultural Activities. The judgment in FIG and FISE even classified it as a ‘public authority’. ( 45 )

61.

So far as concerns the relationship between CONI and NSFs, the Court summarised this in the judgment in FIG and FISE, ( 46 ) listing a number of powers exercised by the former that might give an indication of the extent of its supervision of the latter.

62.

That list included the powers of CONI:

63.

As I have already stated, the Consiglio di Stato (Council of State) asks whether, on the basis of that relationship between NSFs and CONI, the latter exerts a ‘decisive influence’ over the former. A potential obstacle to the existence of such an influence is the fact that the presidents and representatives of NSFs have a qualifying holding within the main bodies of CONI.

64.

I shall look first at the supervision exercised by CONI over NSFs and, later, at the composition of CONI itself.

65.

The Court classifies ‘management supervision’ as supervision which gives rise to ‘dependence on the public authorities equivalent to that which exists where one of the other alternative criteria is fulfilled, … enabling the public authorities to influence [the] decisions [of the body in question] in relation to public contracts’. ( 47 )

66.

The various indicators of control must be analysed by way of an ‘overall assessment’, since, ‘while a single indicator may be sufficient, in some cases, to establish control, the existence of such control will, in most cases, be evidenced by a set of indicators’. ( 48 )

67.

In the field of public procurement, the Court has taken into consideration as factors indicative of the exercise of control over entities capable of being classified as bodies governed by public law the fact, inter alia, that the public authority:

68.

In the judgment in FIG and FISE, the Court, after taking note of all of the powers which CONI enjoys in relation to NSFs, called upon the national court to assess whether the former was able to ‘exert an actual and substantial influence over the [latter’s] general policy or programme’, notwithstanding the ‘technical, organisational and management autonomy’ which NSFs enjoy. ( 53 )

69.

By the same token, the Consiglio di Stato (Council of State) will have to consider the various factors present in this case, not that this prevents the Court from providing it with some guidelines on the interpretation of Directive 2014/24.

70.

I shall set these out under four headings.

71.

One of the functions of CONI is to recognise NSFs for sports purposes. ( 54 ) The referring court will have to determine whether such recognition is purely formal or, as appears to be the case, a matter of substance, inasmuch as it is linked to an examination of NSF statutes.

72.

In order to approve the statutes of NSFs, ( 55 ) CONI has to assess their conformity with the law, with CONI’s own Statute and with the fundamental principles which it has itself laid down. ( 56 ) It may refuse to grant such approval, in which case it returns the statutes presented to it to the NSF concerned, with an indication of the criteria that must be observed, so that the relevant amendments can be incorporated. ( 57 ) Compliance with those indications is compulsory. ( 58 )

73.

The referring court takes the view that ‘recognition [of NSFs] for sports purposes may be regarded as comparable, from the point of view of the requirement relating to purpose, to the establishment of a body governed by public law’, ( 59 ) a position which is of a piece with its assertions to the effect that the public functions entrusted to NSFs are ‘the reason for their establishment’. ( 60 )

74.

If the public functions entrusted to NSFs are the reason why CONI plays such a decisive role in the recognition of the status of those federations, that role in itself reflects the influence which CONI, as a body governed by public law, exerts at the first stage in the existence of the NSFs.

75.

NSFs are required to carry on the sports activity for which they are responsible in harmony with the decisions and guidelines of CONI. ( 61 ) Although they enjoy technical, organisational and management autonomy, they exercise that autonomy under CONI’s supervision. ( 62 ) In performing their public activities, they must comply with the CONI guidelines and controls. ( 63 )

76.

Some of the parties to the dispute argue that those legislative provisions establish not control mechanisms but reciprocal cooperation. They go on to say that, because of their general and abstract nature, the aforementioned guidelines act as soft law and are not suitable for determining the management policies or strategies of NSFs. ( 64 )

77.

It is once again for the referring court to assess the extent of CONI’s powers in relation to NSFs. In so doing, it will have to determine, inter alia, whether the former issues to the latter binding instructions, which are capable of being coercively imposed.

78.

In the order for reference, the Consiglio di Stato (Council of State) takes the view that CONI exercises enhanced control over all of the activities carried on by NSFs, not just those of a public nature. It states that NSFs ‘seem to lack the freedom to attain at will the aim pursued by a collective body’, since ‘their nature is in fact one that is institutional and externally determined, either by law or by measures adopted by the authorities …, not only as regards matters relating to their essential structure but also as regards their principal spheres of activity and the ways in which that activity is to be carried on, a fact which leads in consequence to the elimination or reduction of the space and freedom of organisation inherent in private autonomy’. ( 65 )

79.

If that is the case, intervention by the public authorities (in particular, CONI) in the business of NSFs does not seem to stop at adopting statutory or regulatory rules with which those federations must comply, ( 66 ) since CONI is able, by way of guidelines or other types of measure, to mark out the main lines that the activities carried on by NSFs must follow. In that connection, the Commission notes that CONI could, for example, influence the FIGC’s decisions on the selection of which tenderers are to be awarded public contracts. ( 67 )

80.

Prominent among the powers conferred on CONI is its ability to place NSFs under its guardianship in the case where: (a) they commit serious management irregularities or serious infringements of sports law; (b) the managerial organs are found to be incapable of functioning; or (c) the proper operation or running of sports competitions cannot be guaranteed. In those circumstances, a receiver may be appointed. ( 68 )

81.

Those powers are consistent with the general mandate to the effect that CONI must ensure the proper functioning of NSFs and is even able to revoke their recognition as such. ( 69 )

82.

The case-law of the Court to which I have referred previously regards as a sign of control on the part of public authorities the fact that they can order an entity to be dissolved, appoint a liquidator or order the suspension of managerial staff in cases of serious irregularity. ( 70 )

83.

As the Commission notes, ( 71 ) the only way of telling the difference between a serious irregularity and one of lesser importance is the permanent and systematic control of an NSF’s activities: CONI is free to decide whether, in the first case, it must intervene and place the NSF in question under its guardianship.

84.

That same permanent supervisory link is in keeping with the task, also entrusted to CONI, of replacing an NSF in the case where the controls it applies to sports societies are shown to be unsuitable for ensuring the proper running of championships. ( 72 )

85.

A replacement measure of this kind goes to the core of a federation’s activities, since the very purpose of the FIGC is to organise football competitions. As the Commission notes, ( 73 ) in order to be able to ascertain whether controls are unsuitable, CONI must hold a position allowing it to determine on an ongoing basis whether NSFs are complying with the requirements imposed on sports societies with respect to the proper running of championships. Those requirements must be consistent with the criteria and conditions of control laid down by CONI.

86.

From the foregoing evidence, the referring court will be able to draw its own conclusions as to the extent of the supervision which CONI exercises over NSFs.

87.

In that same context, it will have to assess whether CONI’s general supervision of the activities carried on by NSFs extends to the way in which the latter draw up their public procurement policy, or at least to the precautions which have to be put in place so that the organisational autonomy of NSFs complies, in this field, with rules on disclosure, transparency, non-discrimination and respect for competition such as those laid down in Directive 2014/24. In that connection, CONI might exert an influence over the NSFs’ procurement policy.

88.

It is not inconceivable, moreover, that the irregularities forming the subject of supervision by CONI might arise under a procurement scheme operated by NSFs which is not governed by the rules on disclosure and transparency, in which case the risks of corruption would increase. ( 74 ) CONI’s supervisory powers appear to include not only responding to such irregularities but also preventing them.

89.

CONI also has the power to approve NSF budgets. ( 75 ) Unlike in the case of approval of NSF statutes, in connection with which CONI’s view is imposed in the manner already analysed, its disagreement with the budgets presented to it does not have the same effects. ( 76 )

90.

Once again, the Consiglio di Stato (Council of State) will have to gauge whether, even in cases where it rejects an NSF budget but is not able to replace it, ( 77 ) CONI exercises some control over NSFs, as the Commission maintains. ( 78 ) As the approval of budgets is based on the criteria and conditions laid down by CONI, ( 79 ) the latter may play an important role in their make-up.

91.

In assessing the instruments available to CONI for controlling the economic activities carried on by NSFs, it should not be forgotten, finally, that CONI can appoint auditors to act within NSFs. ( 80 )

92.

The Court has held that ‘auditors are not regarded as “officers” and are thus not in a position to determine an entity’s “general policy or programme”’. ( 81 ) They may nonetheless be regarded as an additional means of exercising permanent supervision over the financial activities of NSFs.

93.

According to the FIGC statutes, intervention by the auditors appointed by CONI is more significant than it might seem at first sight. Those auditors make up the majority (two thirds) of the FIGC’s College of Auditors ( 82 ) and are entitled to attend all meetings of the Federation’s organs.

94.

Depending on the extent of their powers, a permanent presence of CONI’s auditors within the decision-making bodies of the FIGC ( 83 ) might meet the conditions to which the judgment in Adolf Truley referred in connection with the financial supervision of entities by public authorities. ( 84 )

95.

If an NSF fails to fulfil the obligations to which its recognition was made subject, CONI may revoke that recognition. ( 85 ) Together with receivership and guardianship, revocation is the strongest measure by which Italian law confers effective powers of supervision on CONI.

96.

The fact that revocation is adopted only in situations of particular seriousness does nothing to alter its status as a mechanism by which CONI exercises supervision over NSFs. It would appear to be a power that may be likened to those which the Court examined in the judgment in Commission v France, ( 86 ) whereby the public authority was authorised to order the dissolution of an entity and to appoint a liquidator and a provisional administrator.

97.

According to the Court, ‘the exercise of the powers conferred on [the authority] by those provisions[, even though it] is in fact the exception, … nonetheless implies permanent supervision, which provides the only means of detecting gross mismanagement or failure to act on the part of the managerial organs’. ( 87 )

98.

Finally, in the case of the FIGC, its dissolution, even if voluntary, does not entail a distribution of its assets, which are transferred to CONI. ( 88 ) This fact confirms, to my mind, that the public component of the FIGC’s activities, which is subject to supervision by CONI, determines the entirety of the rules of law by which that federation is governed. ( 89 )

99.

Worthy of particular attention is the fact that those who argue that the NSFs are fully independent of CONI submit that it is in fact the NSFs which control CONI itself, given their participation in the latter’s supreme organs. ( 90 )

100.

The Court addressed that same argument in the judgment in FIG and FISE, emphasising that ‘[that fact] is relevant only if it can be established that each federation, considered individually, is able to exert a significant influence over the public control exercised by CONI in respect of it so as to neutralise that control’. ( 91 )

101.

Albeit from a different point of view, the Consiglio di Stato (Council of State), too, rejects such a proposition. It takes view, with which I concur, that:

102.

The point of reference for determining who controls whom cannot be anything other than the legal configuration of the relationship between CONI and the NSFs. A situation in which, notwithstanding that the law confers on CONI the power of supervision over NSFs, that relationship were to become effectively inverted, because the members of CONI did not act ‘without regard to where they have come from’ and overlooked the fact that they are performing public functions, would constitute an anomaly ( 93 ) which would have to be corrected.

103.

Consequently, in determining whether the FIGC is a body governed by public law within the meaning of Directive 2014/24, the referring court will have to take into account the legal conception of the relationship between CONI and the NSFs, regardless of any dysfunction which may in practice arise.

104.

In the light of the foregoing, I suggest that the Court’s answer to the Consiglio di Stato (Council of State, Italy) should be as follows: