Abbanoa, the Supreme Court rejects the adjustments

A truck driver has been reported for driving a semi-trailer on the Sassari-Olbia highway while drunk.

Avalanche risk

Abbanoa, in fact, precisely to try to avoid a precedent, had not given up and had challenged the first sentence of the Justice of the Peace which had rejected the adjustments. With the appeal, for the second level of judgment, to the Court of Nuoro he had tried to resist. The result was also catastrophic in that case. The ordinary judges of Nuoro ruled: equalizations outlawed. Obviously, what took away Abbanoa's sleep was not the compensation bill of a single citizen, recognized by the Judges as illicit, but the fear that that precedent could become final. In practice, essentially, the risk was to call into question all those 106 million euros of posthumous and previous withdrawals attempted and made from the pockets of Sardinian families. It is for that reason that the water company attempted the last possible route, that of the Supreme Court.

They spare no expense

For the final dispute, the one before the Supreme Court, they spare no expense: Abbanoa deploys what they consider in those parts to be a true prince of the court, Prof. Ernesto Stajano, the same lawyer put in place to counter the class action of the fifteen thousand Sardinians who in 2016 challenged those same adjustments before the Court of Cagliari. The judges of the Supreme Court, however, are not intimidated either by the principles of the forum, much less by the risk of the cascade effect of a decision which for the supreme officials is already engraved in the laws and even in the pre-laws, i.e. the ABC of the law. Abbanoa's defeat in the Supreme Court is divided into three steps, one clearer and clearer than the other. First of all, Abbanoa's lawyers argued "the violation of the limits of the jurisdiction of the ordinary judge". In practice, the water company believed that the issue should be dealt with by the administrative judges, those of the TAR and the Council of State. They were so convinced of the incompetence of the ordinary judges that they went so far as to state: «The dispute in question however falls outside the jurisdiction of the ordinary judge, as the opposing objections mainly concern the legitimacy of the discretionary technical choices of the administrative authorities (Aegsi today Arera and Egas) in relation to the identification and regulation of the cost of the integrated water service with particular reference to the determination of the amount of the so-called regulatory adjustments (also previous items) as a component of the tariff". In practice, according to Abbanoa, regardless of the laws, the administrative acts of Arera and Egas decided the adjustments.

The corner

For the Supreme Judges this is a real blunder: "The reason for the appeal - they write in the sentence - is unfounded". And with a layman-proof explanation they explain the reasons: «The controversy does not concern the legitimacy of the administrative act with which the tariff criteria are established, and therefore does not concern the exercise of public power, but the private credit for the water supply service. According to constant jurisprudence of this Court, the integrated water service tariff has the nature of consideration which finds its source in the user contract and the request with which the user of the public water supply service, contesting the amount claimed for the provided by the service manager on the basis of a certain tariff, requests its reduction, introduces a dispute relating to the individual user relationship and therefore falls under the jurisdiction of the ordinary judge".

The hardest defeat

It is the second reason for the appeal that marks the hardest defeat for Abbanoa. In the latest appeal, the water company tries and maintains: «the contested sentence (that of the Court of Nuoro ed.) is affected by an incorrect interpretation of the provisions that regulate the tariff system in the integrated water service, thus resulting in it being pronounced in violation and false application of the relevant legislation and regulatory acts. The definition of the so-called. previous batches by the competent administrative authorities (Arera, Egas) is entirely compliant with the fundamental principle which recognizes the full recovery of the investment and management costs of the service within the tariff dynamics".

Illegal imposition

The judges of the Supreme Court smile softly. Abbanoa's theories fall flat in the usual formula: "The reason for the appeal is unfounded." Rather than explain it, the Supreme Judges engrave it in the sentence: «As held by this Court, with an orientation which it intends to give continuity to, the imposition of an adjustment for previous items cannot be considered lawful, since due to the nature of the contract of supply, having a periodic nature, the provision of the water service involves a price which is paid at the time of the individual services and in proportion to each of them". The statement of the Magistrates of the Highest Court is very harsh: "the imposition of an adjustment for previous matches cannot be considered lawful". In practice, illicit adjustments, according to the Court of Cassation.

Retroactivity prohibited

A position that the Judges punctuate to the end: «The fee that is paid according to the deadlines for use is proportionate and finds its justification in the use of the water that is supplied; instead, the request for adjustments for previous items determines the amount of the fee at a later time than the disbursement made by the Aeegsi, on the sole basis of the ownership of active users at the entry into force of the new tariff regulations, for consumption that has already occurred, in absence of agreement between the parties and lack of taxing power, therefore violating the articles. 1561,1560, and 1563 cc and, to the extent that it is deemed to derive from regulatory obligations, it also violates art. 11 pre-elections". And it is precisely that reference to "article 11 of the pre-laws" that marks the precipice of previous adjustments: "The law only provides for the future: it has no retroactive effect." In practice, there can be no laws governing the past. Finally, the condemnation of Abbanoa.

Expenses to pay

He will have to pay all the legal costs, but not only that. The Supreme Judges add: "the sentence acknowledges the existence of the procedural conditions for the payment by the appellant (Abbanoa ed.) of the additional amount as a unified contribution equal to that foreseen for the appeal". In practice, a further sanction for a total defeat and a de facto reckless argument. A final sentence, without appeal.