328 COMPETITION LAW IN TOURISM as mentioned with respect to the concessions of bathing establishments). In fact, the competition rules affect, with different features, the organisational structure of public policies as well. Even if this consideration is often underestimated, it is noteworthy to highlight its relevance emerging under two specific hypotheses. The first one is related to the establishment, by regions and local authorities, of companies with a public participation, which are called upon to perform the touristic promotion activity in the corresponding territories or activity thereto connected. Therefore, it is interesting not only noticing how private law means are used to perform those activities (which is already happening in other sectors such as those linked to economically relevant local public services) but also the degree to which principles and competition rules affect their relative features and organisational profiles. The constitution of publicly owned companies had to abide by the rules in favour of competition, in particular those deriving from the EU law, adapting to the model that the legislator and the case law, especially the administrative one, have outlined across time. Several regions, for instance, constituted publicly owned companies to manage the performance of such functions and instrumental activities, opting for the in house providing model or the joint enterprise one. As is commonly known, the in house providing model is made by a direct award to an entity, which is only formally different from the entity itself, but that substantially acts as its direct operative branch, with the requisites of having a total public participation, controlling a similar stake to that of the granting entity performing the services. The receiving company will also undertake the most relevant segment of its activity alongside the controlling entity or entities14. As far as the joint enterprise is concerned, and differently from the outsourcing of the service to economic operators not belonging to the public administration, a steady and long lasting cooperation between the public administration and the private operator is realised through the institution of a common organisation with the “mission” of ensuring specific services, functions and works for the local communities15. 14 See Art. 5 of Legislative Decree no. 50 dated 18 April 2016 and subsequent updates together with provisions set forth in Legislative Decree no. 175 dated 19 August 2016 and subsequent updates. 15 See Art. 5, para 9, of Legislative Decree no. 50 dated 18 April 2016 and subsequent updates together with provisions set forth in Legislative Decree no. 175 dated 19 August 2016 and subsequent updates.
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