Legal Updates from some of our members
State-owned maritime concessions and protection of competition: the Plenary Assembly puts an end to the system of extensions
– Osvaldo Capitelli –
The judgments nos. 17 and 18 of 9 November 2021, by which the Plenary Assembly of the Council of State has resolved, at least for the time being, the deep and long-standing conflict between European and Italian rules on maritime State concessions, are certainly destined to play a decisive role on various sectors of the Italian economy.
The need to overcome the long-standing conflict between, on the one hand, the protection of competition, a key principle of EU law, and, on the other hand, the national provisions on maritime State concessions, had been apparent for some time: the persistent lack of organic nature of such rules has allowed, over the years, a succession of automatic and generalized extensions of concessions, which have thus hindered any opening of the sector to new and different economic operators.
Both national and international case law, as well as the European institutions themselves, have repeatedly attempted to find a solution to the problem, calling on the legislator, even expressly, to reform the sector complying with the fundamental pro-competitive principles underpinning the EU Treaties. One of the most important of these interventions was the one of the Court of Justice of the European Union, which, in its judgment in the Promoimpresa case, found out that the European legislation on services in the internal market is incompatible with national measures, such as the Italian one, which provide for the automatic extension of state maritime authorizations in the absence of any selection procedure among potential candidates.
The last straw, however, is to be found in the extension granted by the Italian legislator in 2018, which provided for an automatic renewal of the previous existing state-owned concessions for the next 15 years, i.e. even until 2033.
Starting from the current regulatory and case law framework, the Council of State, first of all, pointed out how competitive confrontation, besides being imposed by European law, is an extremely valuable element to ensure the citizens a more efficient management of the national coastal heritage and a related better quality offer of public services and safety, being able to contribute significantly to the economic growth and, above all, to the recovery of the investments that the country needs.
In the aforementioned rulings, the Plenary Assembly came to the conclusion that the indiscriminate extension regime is contrary to European law and therefore can no longer be practiced by the national legislature. In spite of the current legal provision on extensions to 2033, the Administrative Judges further stated that such rules must be considered devoid of any legal effect and, therefore, must be disapplied by both courts and public administration.
However, at the end of its examination, the Plenary Assembly stated that, in order to avoid the significant socio-economic impact that would result from an immediate revocation of all existing concessions, and in view of the technical time required for the administrations to prepare the new tender procedures, the state concessions for tourism and recreational purposes already granted will continue to be effective until 31 December 2023.
The Judges concluded that, after that date, such concessions will cease to have any effect, notwithstanding the absence of a legislative regulation as well as any further legislative extension that may take place in the meantime which shall be considered ineffective due to the contrast with the rules of the European Union system.
These examined rulings undoubtedly represent a turning point between the past, characterized by indefinite (sine die) state concessions, and the future, with the hope that, starting from 1 January 2024, thanks to the above mentioned intervention of the Plenary Assembly, the Italian legal system will – finally – conform to the pro-competitive principles set out in EU law too.
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