this PDF file - Toulon Verona Conference

Conference Proceedings
15th Toulon-Verona Conference "Excellence in Services"
College of Management Academic Studies, Rishon
Lezion, Israel, 3-4 September 2014
pp. 268-280 - ISBN: 9788890432729
Sponsorship: a service that satisfies different stakeholders
By Paolo Pietro Biancone1 and Maura Mattalia2
Abstract
This work aims to briefly describe sponsorship, which is a useful communication tool for
businesses and for financing public administration.
Public sponsorship contracts represent an emerging model of private financing for public
work, supply and services. Sponsorship is a cash and/or in-kind fee paid for a public work, supply
or service in return for access to the exploitable commercial potential associated with the latter. This
agreement earns the sponsor popularity while the sponsee‘s activities are financed. The contracting
authority (sponsee) is thus compelled to behave in a way that promotes and improves the sponsor‘s
fame and brand. Although public sponsorship contracts fall outside the scope of EC directives
18/2004 and 17/2004 on public procurement, national legislation in Italy allows sponsorship
contracts to be used as an alternative to a public procurement contract in order to provide work,
supply or services for a public authority or on behalf of a public authority.
Therefore, from a ―business-administration‖ point of view, sponsorship becomes an
advertising medium, through which it is realized. In fact, the dissemination of promotional
messages is related to a product or a brand tied to the implementation of an event of prestige or of
popularity, in order to obtain a beneficial "feedback effect" on its corporate image.
The development of a cooperation between public and private sectors employs synergies as
the outcome of the integrated resources and expertise of both fields. A similar approach may favor
the growth of a new supply system of utilities ever more oriented to the employment of
sponsorship; it seems to be a useful solution to apply to a set of interconnected projects.
1. Introduction
―Sponsorship is a contract between two parties; one is the image of an organization or a
product, so that they become sponsors of an event, which could pertain to; sport, culture, shows,
social events. The other party is called the benefactor‖3.
Such coupling is made with a specific contract and is supported by relative communication,
the aim is to make the sponsorship an emotional element, benefitting of the values, the abilities and
the communicational potential of the pre chosen event.
The sponsorship, therefore, can be defined as an instrument of business communication with
which the enterprise decides to associate their name to activities determined through financial
support and/or other means, the aim is to allow the development of their activities and at the same
time to obtain a benefit, an ―effect of return‖, on their corporate image.
From this analysis the relation between the aid from the sponsor and the materials supplied for
the realization of the activity and the action of communication is clear evidence that value is derived
from such support.
The term sponsorship has been used over the course of time and within various economicbusiness disciplines and has varied definitions, which is why there is evidence of different aspects
and characteristics of the word.
1
University of Turin – Italy, par. 1-5.
University of Turin – Italy, par. 6-8.
3
E. Invernizzi, Manuale di relazioni pubbliche 2. Le competenze e i servizi specializzati, Mc-Graw Hill,
Milano, 2006.
2
The term sponsor, which has also thoroughly diffused into contemporary society, draws its
origin from the Latin word spondeo, which means to assume obligation. Like the term, sponsorship
also derives its roots from ancient Rome, when influential people organized gladiator fights in order
to earn the esteem and the favor of the Roman people4.
In roman times, sponsorship was seen as a favor to another; which made the sponsors a
guarantor of the games.
In the origins of the phenomenon the first forms of sponsorship were individualistic activities.
That is, big investments from wealthy individuals were contributed to artists to cultivate their own
natural dowries without the constant worry of a restricted worker‘s pay.
From such a definition, it can be seen that the financial scope of the support was not the search
for a counter benefit (that we see in today's sponsorships), but rather the pure promotion of art itself.
Originally sponsors did it for their own altruistic reasons without the need to gain economic return5.
Since the discovery of a document, to Pompei from Aulo Vettio, determined that ―to enter the
field in politics‖ needed consent between the fans of the square and those who sponsored them.
With this he declares the worth of being esteemed by the people who attended the games. The
games, therefore, were used for electoral propaganda with the standards and colors of the sponsors6.
Modern sponsorships also have regulated contracts, with which the sponsor acquires
obligations towards the benefactor and their sponsored company.
In the current meaning, the term is the result of its use in the Anglo-Saxon languages. The
sponsor is considered the witness, the supporter of an initiative and also the backer. That is until the
arrival of the benefactor, or the official supplier of a subject or a group7.
Modern sponsorship was born in the USA, when companies in personal hygiene began to
finance wireless comedies, today know as soap operas.
In Italy, one of the first forms of sponsorship was individualistic in the sporting world, when,
in the 1940s, the Borletti associated their name to Olympia Basket Milan. Today, sport sponsorship
is one of the most practiced, but sponsorship is also in other markets; cultural, social activities and
non-profit8.
Often, the choice is not made on rationale decisions, but often it is decided upon by the
passion of the entrepreneur; either for personal reasons, from occasional and emotional factors, and
not to forget that the sponsorship is often seen like a mere ―deductible‖ investment.
Currently, experts in the field agree in considering sponsorship a more valid form of
promotion than communication; so much so that it is believed that it will become the most common
mass media used in business.
In addition to other forms of communication, sponsorship has the potential to spread, to
increase, to upgrade or to revitalize the image of the sponsor and such benefits.
The reasons that companies choose to communicate through sponsorships are varied; either to
create or to consolidate relations with important products of the company, to enrich the company
and/or mark positive connections between the values of the event and those of the sponsor, to
acquire media coverage, to create a positive buzz towards the company and its products, to create a
specific communication method, in an effective way for all target groups.
In conclusion, sponsorship is a means to communicate the consolidation, creation, and/or the
development of an image and the notoriety of the company, its brand, and its products9.
4
E. Bianche, R. Bianchi ed O. Lelli, Dizionario Illustrato della lingua latina, Le Monnier, Firenze 1993.
P. Brochen, Sponsorizzazione e mecenatismo: vettori di comunicazione interni, Issec, Parigi, 1987.
6
F. Sangalli, Le organizzazioni del sistema turistico, Apogeo, Milano, 2007.
7
E. Invernizzi, Relazioni Pubbliche 1, le tecniche e i servizi di base, McGraw-Hill, Milano, 2005
8
F. Ascani F., Sport management, Sperling&Kupfer Editori, Milano, 1998.
9
R. P. Nelli, P. Bensi, La sponsorizzazione e la sua pianificazione strategica, Vita e Pensiero, Milano, 2005.
5
The private sectors sponsorship support of culture can, in fact, be beneficial for various
subjects, operate on various fields and can follow various modalities:
- Enterprises, credit institutions, foundations, private, associations or agencies can contribute
with their own financial resources with the support of cultural or artistic fields;
- The civil service, sometimes local, private agencies and associations, public or, not least, the
ecclesiastical patrimony;
- The financing methods can vary depending on the sponsorship - from donations from
individuals, amounts in cash or various performances;
- The participation for restoration and the maintenance of assets and monuments, the
organization of manifestations and events, contribution to concerts, support of activity and
operating agencies in cultural activities10.
2. Characteristics
Sponsorship has many similar characteristics with business communication and classic
publicity, however it also has many important differences.
If, on the theoretical scope, sponsorship and publicity work on various levels, then in the
practical scope they both can be classified as advertising phenomena in general terms. They
therefore become fundamental when the commercial message is spoken about sponsorship, since is
diffused through the employment of ―events with important image content‖.
In fact, the indicator that characterizes sponsorship is the ―return effect‖; while in publicity
communication is the main point of the contract. In sponsorship, advertising is the main point while
communication comes through alternative instruments. The message is diffused in indirect ways,
independently from the sponsorship agreement.
Sometimes, the counter performance supplied by the sponsorship is given by an effect derived
from the approach of the brand to the sponsored event11.
Therefore, this aspect is fundamental to the role, although if exposure of the brand through the
sponsor was limited to the event, then the advertising effect of the sponsorship would turn out to be
ineffective and bankrupt under various aspects.
The greater the impact, the greater is the return and the best return is with sportsmen, cultural
aspects or a high amount of spectators. Equally as immense is the spread of the sponsored brand
consequently resulting in more of a return effect12.
Therefore the sponsorship demonstrates an elevated ability to communicate and comes
inserted between business marketing plans, since it represents a particularly incisive and penetrating
form of branding13.
If analyzed, the sponsorship features are characterized as exclusive rights that can be
synthetized as follows:
- An exchange regulated by a principle performance in exchange for a counter performance;
- The support of an event composed of resources, financial institutions, and/or of assets or
services;
- The audience and the image of the sponsored subject, and the duration and the frequency of
the media exposure, also in correlation to the situation that is created during the event. For
10
Franceschelli, I contratti di sponsorizzazione, in Giurisprudenza Commerciale, Giuffrè Editore, Milano,
1987.
11
A. Barbiero, Sponsorizzazioni: uno strumento per acquisire risorse, in Azienditalia n.5/99, Ipsoa, Milano.
12
M. Bianca, «Cattivo» ritorno pubblicitario per lo sponsor: sfortuna o inadempimento del soggetto
sponsorizzato per negligente gestione dell’evento?, nota a Collegio Arbitrale Milano 17 luglio 1990, in
Giurisprudenza Italiana n.11/91, Utet, Torino.
13
S. Barni, La comunicazione d’impresa, Franco Angeli, Milano, 1998.
example, during a Formula 1 GP the branding of a sponsor on a car depends on various
factors such as the frequency of exposure, and therefore can be potentially negative. A road
escape, or stopping at the ―pit stop‖, can be rewarding in terms of visibility of the brand,
since they implicate more media attention;
- Reduced control of the message by the sponsor;
- Greater involvement by direct spectators of the sport, cultural event or other.
- Indirect identification of the source of the message;
- The possibility to reach specific target groups;
- Use of various types of communication;
- Discouragement of psychological barriers that would otherwise deter the public strongly
interested in the event14.
On the bases of these qualifications, the sponsorship can be considered effective if an
integration between the company‘s target group and the benefactor is established, between the
intended image and the image of the event, while maintaining the characteristics of the sponsor and
the credibility of the agency or organization15.
If the sponsored message does not acclaim the product or offered service through direct
propaganda promoting business activities or via indirect methods, but instead through the sponsor‘s
symbols, then it still drives the propagation of the message16.
3. Cultural Sponsorship
Collateral communication forms are chosen by companies in order to choose between the
most effective and efficient type of mass media. These instruments of communication might be
combined with other forms of communication, in order to increase their effectiveness, or can simply
be used independently with the purpose of supporting the ―near‖ principle form. Sponsorships in
general, such as sponsorships of sport activities, exhibitions, etc., publicized on Internet
advertisement/banners, and so on, are therefore forms of collateral communication17.
Analyzing the situation in Italy, it appears that enterprises particularly invest in cultural
sponsorships. In fact, during the year 2010, a study by the Association of ―Civita Astarea‖, The
Round Table and UNICAB, done in a cautious matter, found evidence of Italian enterprises having
spent between 2,500 and 3,000 million euros on cultural sponsorships.
Through cultural sponsorship, this phenomenon is characterized by virtue of which a subject
promises or confers money, or other useful matters, with the aim of realizing and valorizing the
work or a cultural event, in order to connect the sponsor‘s name to the relevant work or event18. The
first analytical problem is the distinction of cultural sponsorship and patronage, as they are often
used as synonyms.
Yet, the border-line is not always that clear. The definition evidences the peculiar
characteristics of the stock exchange market in comparison to performance, an aspect not present in
the definition of patronage19.
In cultural sponsorships, just like in other types of sponsorships, a return in the form of an
image is guaranteed through the link of the sponsors‘ name to the financed event 20.
14
P. Zagnoli , E. Radicchi, Sport Marketing: il nuovo ruolo della comunicazione, Franco Angeli, Milano,
2005.
15
M. Ceravolo, A. Bestini, Per sponsorizzare, Marketing Finanza Italia, Milano, 1990.
16
P. Girone, B. Zigoni, La logica dello sponsor, Lupetti&Co., Milano, 1989.
17
P. Girone, B. Zigoni, La logica dello sponsor, Lupetti&Co., Milano, 1989.
18
P. Zagnoli , E. Radicchi, Sport Marketing: il nuovo ruolo della comunicazione, Franco Angeli, Milano,
2005.
19
M. V. De Giorgi, Sponsorizzazione e mecenatismo, Cedam, Padova, 1988.
Fiscal norms push companies towards choosing a way of advertising expenses and
propaganda, rather than liberal donations, thus confirming the necessity of distinguishing cultural
sponsorship from any forms of patronage, in which liberality is an issue21.
It is therefore important to emphasize two types of participation concerning cultural events.
The first appears in the form of a contract corresponding to performances. For this reason,
every aspect concerning participations happening in the world of sports are similar22.
The second concerns liberal forms, which, unlike financing ones, are not obliged to spread
their sponsor‘s image. In this situation, the absence of advertising is stated. Therefore, the return of
the sponsor‘s image depends solely on the success and popularity of the event23.
Thus, it can safely support all those situations of cultural sponsorship, where there is a sponsor
lender associated with a recipient cultural work.
It is clear that the identification of one type of sponsorship over another is part of the complex
process of business strategies.
Normally, it would be usual to differentiate lovers of music, art and theatre from those having
their interests in sports. Yet this comparison is not totally correct, as there are companies that have
the image of a sports society who also finance cultural operations24.
An example of such is the ―Scavolini marchigiana‖ firm, leader in the production of kitchens,
who also sponsor the basketball team ―Scavolini Pesaro‖. They also sponsor other high cultural
events such as the restoration of ancient nineteenth-century mansions (which at this point has
become the company‘s main representation) and the supporting of the Rossini Opera festival,
which, owing to the Scavolini Foundation, was founded in 1984 with the purpose of promoting and
enhancing the local artistic and cultural heritage and to support initiatives that promote their
development and process. Another example that highlights the implementation of a cultural
sponsorship activity between the public and private sector, in which the intervention is made by
small businesses, is ―Adopt a museum‖; a project of significant interest started in Tuscany on the
initiative of the local authorities, and supported by the city of Florence.
The purpose of this project was the development of minor municipal museums, since they are
not part of the main tourist circuit.
Having joined the initial twenty-six Florentine hotels, members of the Florence Hotel
Consortium are associated with the hotel industry section of the Industrial Association of Florence,
as well as two hotel chains 25.
The project has been promoted through the printing of six information brochures in four
languages: one pamphlet describes the project, and the other five contain an explanation of
interventions made.
Consequently, the objectives pursued by this project can be identified as:
- Increasing the number of visitors to each of the five museums with the result of higher
revenues and visibility of the museum;
- Reducing the pressure on the big museums taking less traditional paths.
In turn, the participating firms, beyond having contributed to the city, get returns, such as the
ability to use an image of the museum throughout their further communications, the ability (if
granted), to use payment spaces inside museums for their own promotional initiatives, and the
20
M. Garuti, Valorizzare le potenzialità dell’ente con il merchandising, in Azienditalia n.6/99, Iposa, Milano,
1999.
21
E. Colombo, La sponsorizzazione – Come farsi pubblicità attraverso un evento, su www.diritto.it.
22
R. Gunn, How to Develop an Effective Sponsorship Programme, SportBusiness Group, 2001.
23
Vittorio Lodolo D‘Oria (a cura di), La sponsorizzazione: dagli enti locali alla sanità, Franco Angeli,
Milano, 2001.
24
C. Guarini, Sponsorizzazione e management sportivo, CONI, Roma, 1998.
25
P. Lattarulo, Sponsorizzazioni e liberalità nell’arte e nella cultura in Toscana, Irpet, 2002.
installation of a post plate inside the museum, commemorating the adoption of the museum itself
and the interventions made.
This initiative, taken by the city of Florence, has provided a level of involvement and
participation, leading the sponsor to identify itself with the structure benefitting from the support of
the group.
4. The problem lies between the sponsors and state
Sponsorship is a form of collaboration by which a private company combines its name and
brand to events, activities or organizations of social, cultural or entertainment background. The
company can support an initiative by transferring a determined monetary quantity, by offering free
goods or services, or by making cultural initiatives available (both technical and organizational) to
the cultural institution. The synergies between the institutions, responsible for the organization and
promotion of cultural activities and private entrepreneurship, is realized by contributions to general
expenses of the project, publication of brochures and catalogs, direct injection of resources or
services towards the concept, diffusion in the embodiment, the managerial experience in the
organizational capacity and the technological knowhow.
Companies therefore, through the funnel of sponsorships, have three major types of
objectives:
- The objective of a company as a whole; the creation and strengthening of its image;
- Specific marketing objectives; the promotion of the brand or product for the consumer and
the impact on sales;
- Objectives related to means of information; the cost of covering its medial and the selection
of specific targets.
To carry out each of these objectives, it is essential that they be defined according to
companies‘ policies.
The company makes itself available as a sponsor in order to gain more reputation with
customers and thereby potentially increase their profits26.
This instrument has highlighted the ability to increase a companies‘ reputation and to
strengthen and consolidate the brand and corporate image; Throughout the sponsorship, a company
cannot control the levers linked to the frequency and intensity of information spread and can only
then check the level of acceptance and impact of this information received from the public, since
this message transmitted from this mass media is not explicit, but rather must be grasped and
reprocessed during the duration of this event27.
As already mentioned above, the sponsorship involves a contract between the company and
the institution; a contract of exchange of performances with the obligation of the sponsor to pay a
sum of money, to provide certain services, or to provide certain products or technologies. In return,
the sponsee is obliged to reciprocate by spreading the name of the financing company28.
If the economics were analyzed, it would be determined that the main objective would be to
create value, i.e. the aim to increase its economic capital. Nowadays, any undertaking in order to be
competitive should address problems such as training, strengthening and growth of intangible
resources, in order to achieve a competitive advantage, resulting in an increase in revenues.
Inclusive in the resources that the sponsorship brings to the firm is trust and understanding as
a set of capabilities that generate and maintain, over time, a process of creation and strengthening of
relations between the company and its stakeholders. In the current corporate vision, resources are
26
L. Starola, La sponsorizzazione dei beni culturali: opportunità fiscali, Aedon, Il Mulino, Bologna, 2010.
27
T. Meenaghan, Understanding Sponsorship effects, in: Psychology & Marketing, Vol. 18 No. 2, 2001.
R. Caranta, I contratti pubblici, Giappuchwlli Editore, Torino, 2004.
28
fundamental, since businesses choose policies to raise the awareness of the customer, using longterm indicators, i.e. indications of satisfaction and customer loyalty29.
The economic problem that occurs when the instrument of cultural sponsorship is used is
detectable in the contract between the state and the company, which performs in a way in which the
state guarantees and accredits its compatibility with an external authority and also with the market;
this is the economic theme inherent in the sponsorship contract and correspondence of the cultural
event that extends to the objectives of the companies target market.
In fact, the company must provide a report with the cultural institution in terms of defining a
qualitative profile of the event with respect to the quality of their product: If the company offers a
mass product, then they might prefer to finance a cultural event with low quality and easy access to
the public, however if it offers a quality product, then the company might prefer to finance an event
of high quality. The company that does not know, or cannot predict, the priority or type of cultural
constitution, then faces the problem of selecting the counterpart contract offers30.
Furthermore, sponsorship has taken innovative tendencies: In the past, sponsorship was a tool
that, owing to the support of a team or event, allowed propagating the image and reputation of a
company. Today though, sponsorship is also considered a concrete opportunity for carrying out
promotions to customers and/or having public interiors carry out public relations and developing
commercial activities.
5. Sponsorships in public entities: overview on regulatory aspects
Sponsorship, seen as a reciprocal contract based on the obligation of consideration in the
course of these past years, has received increasing attention from the Public Administration as an
operational tool for gathering of financial resources for the organization of events 31.
The legislature has reacted to this matter with the law n. 449/1997 (Financial institution for
the year 1998). The law establishes purposes for which public entities may enter contracts of
sponsorship, namely:
- The development of administrative innovation;
- The implementation of major economies, to be understood as extensive, not only as cost
savings detectable to balance, but also as determination of availability beyond the budget;
- Improvement of the quality of services provided by assuming the activities or interventions
of sponsored elements such as generators of ―value added‖ compared to traditional activities
of the public entity32.
The initiatives, being the subject of sponsorship, must meet the requirements in the pursuit of
public interests.
It is therefore important to undertake a study on factors of flexibility and on procedures to
implement variations of the budget, in order to facilitate the acquisition of resources in times and
ways compatible with the implementation of the activities or projects sponsored33.
It highlights the need for the procedures to be compatible with the activity of the public entity
that benefits from the financing; that is, they should exclude any form of conflict of interest
between the public and private activity. An exception to these restrictions is the case of activities
29
R. P. Nelli, La gestione della sponsorizzazione nell’esperienza italiana, Vita e Pensiero, Milano, 2000.
V. Lodolo D‘Oria (a cura di), La sponsorizzazione: dagli enti locali alla sanità, Franco Angeli, Milano,
2001.
31
S. Mastropasqua, Le sponsorizzazioni culturali nel diritto pubblico, in Rivista Giuridica della Scuola,
n.2/93, Laruffa Editore, Reggio Calabria, 1993.
32
P. Lattarulo, Sponsorizzazioni e liberalità nell’arte e nella cultura in Toscana, Irpet, 2002.
33
M. Bianca, I contratti di sponsorizzazione, Maggioli, Rimini, 1990.
30
not included in the programs of ordinary spending. The resources brought by sponsorship are split
into two tasks:
- Supporting the implementation of the programs;
- Specific planning34.
Prior to the intervention forecast of the private sector by the legislature contained in L.
449/1997, the system of sponsorship was unknown to the public. In particular with regard to the
local authorities, which used it as a tool to rebalance trading relationships, which was not a planned
expenditure for the public sector. In fact, the majority of public bodies entrusted their treasury
service throughout ―the system of public evidence‖, to credit institutions, such as those running free
of charge, sometimes ensuring a fund for cultural events or initiatives aimed at the public, and
obtaining in return a considerable public image feedback response35.
Sponsorship, in regard to public administration, is an important instrument to capture the
public‘s interest in a manner qualitatively more effective than other typologies, and to tap valuable
quality resources to invest in the functional dynamics of public services36.
The definition of the contractual relationship begins by verifying the feasibility of the
government. This path can be outlined as follows:
- Analysis of the data design and determining the specific costs inherent in the initiative or the
particular activity that must sustain itself with the sponsorship;
- Study of content of peculiar actions and interventions to be sponsored, should be understood
as viable product sponsors and of the same "attractiveness";
- Identification of the instruments necessary to support the sponsor‘s initiatives and projects;
- Specification of the forms and the mode of information flows, by means of which the
sponsor secures adequate publicity for the distinctive sign or mark, related to the initiative or
project made by the government37.
The formalization of notices or public notices designed to solicit expressions of interest to
private individuals for the awarding of sponsorship contracts is characterized as a particular
procedure, guided not by the provisions of the law, but by the demands and rules of each individual
public administration. It is therefore necessary that the public notice is set in such a manner, as to
emphasize the importance of the initiative or the relevance of the project for which the sponsorship
requests38.
In many cases, the conditions of the formalization of the report are generated by spontaneous
initiatives by the same sponsors, in the face of potential commercial attractiveness of initiatives or
projects undertaken by public entities39.
34
C. Barbati, Pubblico e privato per i beni culturali, ovvero delle “difficili sussidiarietà‖, Aedon, Il Mulino,
Bologna, 2001.
35
G. Trupiano (a cura di), Assetto istituzionale, disciplina fiscale e finanziamento della cultura, Franco
Angeli, Milano, 1999.
36
IRES, La sponsorizzazione culturale: il caso del Piemonte negli anni ’90, Rosenberg & Sellier, Torino,
1997.
37
P. Lattarulo, Sponsorizzazioni e liberalità nell’arte e nella cultura in Toscana, Irpet, 2002.
38
I. Pedrazzoli, Il contratto di sponsorizzazione, in Diritto dell‘Economia n.1/95, Fondazione G. Capriglione
Onlus, Roma, 1995.
39
M. Trimarchi, Economia e Cultura, Franco Angeli, Milano, 1993.
6. Sponsorships in the public sector: notions and general requirements.
Sponsorship is a contract by which one party, which is called sponsee, undertakes to link
someone else‘s (i.e. the sponsor) name or distinctive sign to one of its activities, thus enhancing the
sponsor‘s image among people40.
No typical contractual scheme of sponsorship is to be found in the Italian Civil Code;
therefore sponsorship is to be considered an atypical contract, for pecuniary interest and with
corresponding performances 41.
The possibility for the parties to enter contracts which are not listed as typical in the Civil
Code is allowed under Art. 1322; the only limit consists of the need for those contracts not to
conflict with ordre public and prevailing moral attitudes (to be worthy of consideration according
to the national legal system). According to Art. 1174 of the Code, the obligation assumed has to be
linked to the creditor‘s interest; it has to be capable of economic evaluation, even if this is not
necessarily monetary.
In the light of the social and economic evolution of the relationships between producing
companies and the consumers in the past century, the economic use of the name or image of a
specific person or company, or even public administration, is considered valid under Art. 1174 of
the Code42.
Both of the parties in the sponsorship contract receive specific consideration. On one hand, the
sponsor is having his name, activity and goods and services advertised; on the other hand, the
sponsee will usually undertake the obligation to convey the sponsor‘s image against a pecuniary or
other economic benefit. The sponsee contractually undertakes to be a means of communication for
increasing the sponsor‘s popularity. The contract consideration therefore involves using the
sponsor‘s activity, name or image for direct or indirect advertisement purposes, in return for
compensation, which may consist of a payment or of the supply of goods and services. Sponsorship
is usually considered one of the most evolved forms of advertisement propaganda43.
The characteristic element of sponsorship is the so called “return effect” by which the
message, indirectly spread through some media or during some events, is used as a way to increase
and improve the awareness among the public of the sponsor‘s product or company. The sponsee is
under a contractual duty to perform a service consisting of highlighting the sponsor‘s distinctive
signs according to the terms provided in the contract. Due to this, the sponsor is bound to pay the
price agreed upon even if the expected return of image has not been fully achieved. This kind of
40
Cass., sez. I, 11 ottobre 1997, n. 9880; Cass., sez. III, 21 maggio 1998, n. 508;. M. BIANCA,
Sponsorizzazione, in D. disc. priv., sez. comm., XV, Torino 1998, 134 ss.; ID., I contratti di
sponsorizzazione, Rimini, 1990, 20; G. Briante, G. Savorani, Il fenomeno «sponsorizzazione» nella dottrina,
nella giurisprudenza e nella contrattualistica, in Dir. inform., 1990, 636; Id., I contratti di sponsorizzazione,
in Giurisprudenza sistematica di diritto civile e commerciale diretta da W. Bigiavi, I contratti in generale, a
cura di G. Alpa e M. Bessone, II, t. 1, Torino 1991, 437 s
41
A. Ferretti, Le sponsorizzazioni pubbliche, Milano, 2009, 2, L. Starola, La sponsorizzazione dei beni
culturali: opportunità fiscali, in Aedon, 1/2010
42
R. Di Pace, Il contratto di sponsorizzazione e la sua utilizzazione da parte delle pubbliche
amministrazioni, in Foro amm. Tar, 2004, 3898; M. Baldi, I contratti di sponsorizzazione, in La disciplina
dei contratti pubblici — Commentario al Codice appalti, a cura di M. Baldi R. Tomei, Milano, 2007, 276; R.
Chieppa, I contratti di sponsorizzazione, in Trattato sui contratti pubblici, diretto da Sandulli—De
Nictolis—Garofoli, Milano, 2008, I, 460; Ferrari, Contratti di sponsorizzazione, in Garofoli-Ferrari, Codice
degli appalti pubblici, Roma, 3ª ed., 2009, I, 228.
43
A. Magliaro, Il contratto di sponsorizzazione sottoscritto a garanzia dallo sportivo. i primi orientamenti
giurisprudenziali, in Giustizia Tributaria, 2007, fasc. 1, 5.
contract usually entails do ut facias kind of performance duties, where any obligation to make is
mainly on the shoulders of the sponsee.
A major distinction between sponsorship contracts having public administrations as one party
is due to public budget considerations. This is linked to the distinction between ‗active‘ contracts,
which provide for an income for the public administration, and ‗passive‘ contracts which lead to an
expenditure from the public purse to provide goods and services. Public administration may
indifferently act either as a sponsee, thus subscribing to an ‗active‘ contract, or as a sponsor, by
stipulating a ‗passive‘ contract44.
7. Public administration as a sponsee.
The Italian Public Contracts Code (legislative decree n. 163 of April 2006, 12th implementing
the directives 18/2004/EC and 17/200/EC, where in particular arts. 26, 27, 53, 199 bis explain the
means of awarding of sponsorship contracts) expressly disciplines the sponsorship contract, placing
the provision in Title II, Part I, dedicated to the contracts fully or partially excluded from the sphere
of application of the Code. Article 26 of legislative decree n. 163/2006 concerns sponsorship
contracts and the like, in which the parties are the awarding administration or another awarding
body acting as a sponsee and a sponsor who is not an awarding administration or another awarding
body; contracts having as their main object public works, renovation and maintenance operations on
personal property and decorated surfaces of architectural goods protected by Legislative Decree n.
42/2004, or rather services or supplies45. For these kinds of contracts the provisions of the Code will
not be enforced, but anyway the principles of the Treaty (like the ones regarding competition and
non-discrimination) and provisions concerning the subjective requirements of planners and
executors of the contract will be applied as well; so there is the need to be consistent with the
European Court of Justice case-law, according to which it is not possible to give any economic
advantage to companies operating on the free market without respecting the principle of a public
call for tenders. For the tendering procedures of cultural goods and services Art. 26 refers to Art.
199 bis which the legislator identifies two types of sponsorship contract: funding sponsorship and
technical sponsorship. In funding sponsorship the sponsor gives the administration either just the
money or the sponsor pays for all the expenses of the tender instead of the administration. In
technical sponsorship the sponsor gives the administration goods, works or services. In both cases
the administration has to publish the notice of sponsorship on its website for at least 30 days and in
two national newspapers and in the Official Gazette. If the value of the contract is above the
community threshold, this notice shall be published in the Official Journal of the European Union to
enable the European enterprises to know about this tender. The administration shall then draw up a
classification and it can set up a subsequent phase to obtain further bids from competitors. The
administration will conclude the contract with the subject which has provided the most money (if it
is a funding sponsorship) or the best bid (if it is a technical sponsorship). If no bid is forthcoming,
or no bid is appropriate, in the following six months the administration will use its own initiative to
look for a sponsor. The sponsor cannot modify the conditions of the original notice.
Efficiency and good practices, objectives which have to be followed in every activity of the
public administration, are achieved through carrying out the institutional activities in the most
efficient, effective and economical way possible. Therefore it is essential to issue public evidence
44
M. Mattalia, Le sponsorizzazioni delle amministrazioni pubbliche: dalla liberalità alla concorrenza,
Lecce, 2012, 20; G. Vidiri, Società sportive e contratti di sponsorizzazione, in Giur. It., 1993, III, IV, 419.
45
D.Lgs. 12 aprile 2006 n. 163 Codice dei contratti pubblici relativi a lavori, servizi e forniture in attuazione
delle direttive 2004/17/CE e 2004/18/CE. Pubblicato nella Gazz. Uff. 2 maggio 2006, n. 100, S.O. Art. 26.
Contratti di sponsorizzazione.
procedures which are able to assure the choice of the most economically affordable subject. The
latter subject has to meet the specific requirements set out by the sponsorship requirements as it is
also important at the same time to safeguard the image of the public subject.
In those cases in which the public subject acts as a sponsee it is easy to understand the
functionality relationship of the public interest to obtain financial resources through sponsorship.
The advantage for public administrations is the possibility to find means to finance its activity,
while the private sponsor has a return in terms of image through publicity which links his
organization to the event or the public service provided. More generally, by means of a sponsorship
contract the private subject gains an advantage from the increased visibility as well as from the
returns on the investment coming from his management of works and services, while the public
administration can improve the management of the services it gives and realize events of great
importance without burdening its financial resources.
However, the mere recovery of investments is not the only significant element. On one hand
the administration has to choose the sponsor according to ways which will lead to the maximum
utility possible, and on the other hand the compatibility of the sponsor‘s activity with the public
aims pursued by the administration always has to be evaluated (for example, from the point of view
of conflict of interests or the opportunity to link the image of the administration to some particular
kinds of products).
Within these limitations the public administration‘s possibility to use sponsorships is really
broad. In the last two decades an examination of the practice of the public administration shows
that the public authorities which have efficiently and intelligently identified kinds of sponsorships
have been able to obtain significant benefits also thanks to the attentive approach that the majority
of the administrations have adopted towards this instrument.
There can be several types of sponsorship enterprises.
These can range from the headed paper of the Municipality, also used in issuing certificates
and official documents, to the insertion of advertising banners on public administration websites
dedicated to the services given to citizens; from the renovation of a historical or cultural building
with funds coming from private companies which are thus allowed to personalize the poster
designed to cover the scaffolding with their advertising messages, to the participation of public
companies in some manifestations and shows with stands and staff whose costs are picked up by the
sponsor; from the renovation of some parts of public pavements by a sponsor to the sponsorship of
official cars by automotive companies; from the sponsorship of social activities (for example,
libraries for young people) or cultural ones (for example, the notte bianca – an all-night festival - in
Rome) to that of events like the Global Forum on e-government.
Those examples are just an indication of sponsorship‘s potential.
In the health sector, where several public-private partnerships (PPP) have been developed
using sponsorship contracts, there is a particular need not only to refer to sponsors that are to some
extent linked to the health activity, but also the need to provide equal treatment to the potential
sponsors, and the use of clear messages for the users. The procedure by which the public
administration chooses its contractor shall be in the pursuit of public interests. The procedure
regulating the choice of contractor is regulated by Art. 199 bis only for the cultural sector. For the
other types of contract the administration uses Art. 27. This article provides for the general principle
which it makes binding for the administrations to be consistent with the rules of transparency, nondiscrimination and equal treatment of each competitor. This principle is the same as the principles
which the European Union indicates for every type of public contract. It is therefore applicable to
sponsorship contracts, even if it is afterwards necessary to verify the specific characteristics of the
relationship to identify the most appropriate procedure, granting the full respect of these principles.
An examination of the praxis reveals that the administrations often use sponsorship contracts
as an awarding criteria, giving an additional score to those bidders who are willing to stipulate a
sponsorship contract to pay for its costs. Also in this case, the case-law has stepped in with
interpretative statements, focusing on some principles specially referring to sponsorship contracts
related to the call for tenders for treasury services. Confirmed praxis points out that banks, usually
chosen as privileged contractors in this kind of contract, often offer funds and sponsorships to the
administration for the different institutional activities of the authority along with the performance of
the service itself that is often carried out for free. With this decition the Adunanza Plenaria of the
Italian Consiglio di Stato has established that the interest which prompts the administration to call
for tenders to award the treasury service mainly consists of the fact that the service will be delivered
by the operator who will better perform its obligations under a technical profile (ownership of
adequate organizational structures, information supports, etc.) in compliance with the quality
standards requested and for the most convenient economic conditions. Moreover, in calling for
tenders, the administration assigns an additional score to the operators that are willing to sign also
an ancillary contract of sponsorship.
8. Public administration as a sponsor.
The administration can also be a sponsor but it is limited. Since 2009 the public
administrations listed on the public administration consolidated statement of income, as identified
by the National Statistics Institute/Office, has not been allowed to spend more than 30% of their
2008 expenses on sponsorship46.
Likewise, since 2011 public administrations have been expressly forbidden to spend on
sponsorship47. The law has led to widespread apprehension, especially in the local communities
which fear that this will lead among other things to the end of the experience of village festivals and
similar events. Several pronouncements by the Corte dei Conti (Court of Audit) are clarifying what
expenses are still permitted as the expression of the principle of horizontal subsidiarity and what
expenses are now prohibited48.
The laws that regulate the active sponsorship contract are principally two. The first is
contained in the Public Contracts Code and the second is in the Cultural and Landscape Heritage
Code.
Sponsorship contracts are also regulated by the Cultural and Landscape Heritage Code49. The
law defines the ―sponsorship of cultural heritage‖ in the sphere of the protection and development
of the heritage, like every form of contribution in goods or services by private subjects, to the
planning and attribution of initiatives by the public administration and by private subjects. The term
―initiatives‖ includes the broad case law of the possible interventions which can be realised, from
exhibitions to more incisive work such as restoration of a building. The purpose of the contribution
is to promote the name, brand, image, activity or the product of the activity to the subjects
themselves, in so doing clarifying how this type of contribution is not a liberality (act of generosity)
and should therefore not be confused with donation. The way of associating the name, brand,
image, activity or the product of the activity of these subjects has to be done in terms that are
46
D.L. n. 112/2008, art 61 co. 6°, così come mod. dalla l. conv. n. 133/2008.
Ex art. 6, comma 9, del Dl n. 78 del 2010, conv. con modificazioni dalla l. n. 122 del 2010.
48
Corte dei Conti, SS. UU. deliberazione 04 ottobre 2011 n. 51; Corte dei conti, Sezione regionale di
controllo per il Piemonte, parere 21 ottobre 2011 n. 127; Corte dei Conti, Sezione regionale di controllo per
la Lombardia, delibera 20 dicembre 2010, n. 1075, Corte dei conti, sezione regionale di controllo per la
Lombardia, parere 16 marzo 2011 n. 137; Corte dei Conti, sez. controllo Piemonte, parere 14 luglio 2011 n.
108; Corte dei conti per la Puglia sulla stessa problematica, parere 15 dicembre 2010 n. 163. G. Arena, Di
quale sussidiarietà stiamo parlando?, in www.labsus.org 7 luglio 2008; ID., Cittadini attivi, Roma, 2006; G.
Arena, G. Cotturi, (a cura di) Il valore aggiunto. Come la sussidiarietà può salvare l’Italia, Roma, 2010.
49
Decreto Legislativo 22 gennaio 2004, n. 42, "Codice dei beni culturali e del paesaggio, ai sensi
dell'articolo 10 della legge 6 luglio 2002, n. 137" pubblicato nella Gazzetta Ufficiale n. 45 del 24 febbraio
2004 - Supplemento Ordinario n. 28. Art. 120 Sponsorizzazione di beni culturali.
47
compatible with the character of the cultural good to be protected or developed, whatever its nature
– artistic or historical – and with regard to its decorum or appearance50.
Today the new D.L. provides, among its transitory provisions, ―that the Minister for the
Cultural Heritage and Activities should approve, by means of a specific decree to be adopted within
sixty days of the entry into force of this Decree, technical provisions and application guidelines for
the provisions contained in article 199-bis of the Public Contracts Code, and of the provisions
contained in article 120 of the D.L. 22 January 2004 n. 42 and subsequent amendments, also
according to the coordination with regard to analogous cases or connected cases of the participation
of private organizations in the financing or in the realization of the conservation works on cultural
heritage, in particular by means of posting promotional messages on scaffolding and on other
temporary structures of the worksite and the sale or concession of such advertising spaces‖51.
In practice the tendency has always been to conclude such forms of contract under ―negotiated
procedure‖, sometimes incentivated by the legislator, for instance the legal provision for the
restoration work on Pompei52.
50
T. S. Musumeci, Il rapporto pubblico/privato e gli strumenti di intervento del “privato”, convegno Torino
4 novembre 2011, Una nuova fase strategica per la valorizzazione del patrimonio culturale.
51
A. Fantin, La sponsorizzazione dei beni culturali: nuovi orizzonti del partenariato pubblico privato, in il
Capitale culturale, 2, 2011, 122.
52
M. Renna, Le sponsorizzazioni, in La collaborazione pubblico-privato e l’ordinamento amministrativo.
Dinamiche e modelli di partenariato in base alle recenti riforme, a cura di F. Mastragostino, Torino, 2011,
540.