SOURCE OF LIABILITY FOR PUBLICLY OWNED AIRPORT DIRECTORS: DOES MISCONDUCT IMPLY PUBLIC OR PRIVATE LAW?

Airport managers are generally publicly owned companies that perform activities for the benefit of both public and private entities, concurrently. The presence of public shareholders in airport management companies and the exercise of the functions of public bodies by them demonstrate that in the past the recognition of the private legal personality of such companies was doubtful. Scholars and case law superseded on the consequences — in terms of personal liability — that any mismanagement by the airport manager’s directors entailed. This article aims at examining the liability regime applicable to directors that cause damage or loss to the airport management company by way of their misconduct or mismanagement. Furthermore, it aims at establishing whether such a legal framework changes depending on whether the company was a public entity rather than private. As a matter of fact, any such person employed by a public entity or acting in the capacity of a public official is held liable under civil, criminal, administrative and also accounting law, if he breaches the law or commits a crime. Subsequently, in case any damage occurs, the person will be called upon to compensate for the losses suffered. According to the latest Italian law reform to public employment (Law n. 15/2009), the liability regime has been enhanced now with a new title of responsibility: the employee’s disciplinary responsibility. This responsibility originates from the lack of accomplishment of his/her tasks, as established under the contract with the employer. Two consequences arise from the court’s recognition of such type of liability: firstly, loss of income in terms of a lower wage; and secondly, in worst-case scenarios of breach of law, a nonrenewal/termination of the employment contract. The director’s responsibility is grounded on article 28 of the Italian Constitution which establishes that «Officials of the State or public agencies shall be directly responsible under criminal, civil, and administrative law for acts committed in violation of rights. In such cases, civil liability shall extend to the State and to such public agency». Further measures have been laid out by article 23 of Presidential decree n. 3/1957, which delimitates the cases of damage attributable to the agent to those where there is violation of third-party rights caused by the agent’s fraud or gross negligence. With specific reference to the director’s administrative responsibility, it should be differentiated from the so-called accounting responsibility; the former relates to the economic prejudice caused to the airport manager by an employee or public official, whereas the latter is triggered only in those cases where the person qualifies as an accounting agent. In order to better understand the discourse that follows hereunder, it is necessary to note that the economic prejudice suffered by the public administration and its entities («danno erariale») is evidenced by the deterioration and/or loss of goods or funds already suffered, or prospective losses. The definition of the losses recoverable by the public entity includes both the damage suffered and potential loss of profits or revenue. The article will address the issue related to the liability regime applicable in such cases — either of civil or administrative law — triggered by the misconduct of the airport manager’s directors, but leaving out the legal implications of such actions under criminal law. In the following paragraphs, we will address judgments related to Aéroports de Paris and Mitteldeutsche Flughafen AG, in which the relevant court of justice recognizes the entrepreneurial nature of the activity pursued by the airport management company. Such an interpretation is also endorsed by Italian law.