Lastly, the Court of Justice, in recent days, having been specifically requested to do so by the Council of State for the specific purpose of clarifying whether the national reference law could constitute a restriction on the freedom of establishment referred to in Article 49 of the Treaty on the Functioning of the European Union, expressed itself negatively by declaring the legitimacy of article 49 of the Navigation Code, according to which, precisely, the non-removable works carried out from time to time by the concessionaire in the area included in the state property remain acquired by the State when the concession comes to an end, as they are potentially productive of future benefits following the discretionary technical evaluation of the specifically established Commission.
Put differently, and translating it into practice, no compensation would seem to be possible for the "outgoing" dealers who had committed their investments and expectations to the area over the years. There does not appear to be any possibility for any automatic renewal and/or for any extension, as such regulations do not comply with European legislation to protect competition. Although, over the past few years, successive Governments have attempted to find an alternative way, through the regime of automatic renewals and extensions, to postpone, so to speak, the full application of the contents of the Bolkestein Directive, however , the question seems to arise again in all its consistency. Even more so when the effects of a Directive cannot be eliminated on a national level, having to, for this purpose, if anything, find a solid majority in Europe that intends to pursue the same result. And even more so when failure to comply with the obligations imposed by a Directive, such as the one in question, may give rise to infringement procedures against the reference State which finds itself contradicting, so to speak, the contents of the same.
That the issue of the expiring beach concessions would continue to interest the political and administrative sphere, therefore, seemed to be evident, just as the need to find a solution as feasible as possible in order to resolve the critical issues attributable to the consequences of the economic consequences resulting from the impossibility of proceeding with the extension and/or renewal of expiring concessions. Both the Council of State already in the year 2021, and the European Court of Justice in the year 2023, had in fact expressed their opinion declaring the illegitimacy of the extensions to translate, the latter, in essence, into automatic renewals of authorizations on public goods in favor of the same owners.
And then, given that the decisions referred to are of such consistency, and without prejudice to the primary need for the essential protection of the principle of competition, it would be possible to find a line of action on the part of the Government in order to overcome, where possible, and if possible, the difficulties emerging from the question of economic compensations, currently excluded? Whether there is a solution compatible with both Italian and European legislation remains to be verified. At least when it is considered that it is necessary to intervene in a context in which respect for the principle of inalienability would presuppose, as in fact presupposes, on the one hand, that public property must remain the property of the State and, on the other hand, that any authorization aimed at the occupation of state property would have, as in fact it has, a fixed duration over time and could be revoked.
The European Bolkestein Directive, operational in the reference sector, implemented in Italy by virtue of Legislative Decree number 59 of the year 2010, and under which it will be necessary to proceed, has been introduced as necessary, in order to protect the principle of competition , a tender procedure aimed at identifying the concessionaire according to the methods of public tenders. The method of renewal and/or extension of public state concessions appears no longer practicable as it is in conflict with the aforementioned European legislation which must be respected to protect the interests of those who wish to participate in the tender procedures. Therefore, only through the announcement of a selection procedure that can be considered impartial and transparent will it be possible to proceed with future concessions.
In terms of the letter of the law, article 49 of the Navigation Code contains, among other things, the following wording: "Unless otherwise established in the concession deed, when the concession ceases, the non-removable works, built on state-owned land, remain acquired by the State, without any compensation or reimbursement...", leaving a glimmer (so it would seem) to the possibility that the substantial content of the concession documents, at least future ones, may contain a different provision perhaps also on the aspects of specific interest to the sector.
In this sense, the relations between the Italian Government and the European Union will be decisive also in view of the positioning of the country, in the supranational context, so that any initiative "undertaken" by the National Government, unless previously agreed with the European Union, will not would have no useful effect.
Giuseppina Di Salvatore
(Lawyer – Nuoro)
