The Plenary Meeting of the Italian Supreme Administrative Court in judgments no. 17-18 / 2021 published on 09.11.2021, addressed the problem of maritime state-owned concessions for tourist-recreational purposes, and in particular their subjecting to a public tender.
In this regard, the highest council of administrative justice highlighted that the concessions of state property for tourist-recreational purposes represent service authorizations pursuant to art. 12 of the services directive (Directive 2006/123 / EC), and as such are subject to the obligation to tender.
Consequently, the Plenary Meeting set a definitive deadline for the existing concessions, set for December 31, 2023.
Any legislative extensions of the deadline set at December 31, 2023, must be considered in contrast with the European Union law and, therefore, immediately not applicable by not only the Judge, but any administrative body, entitled to consider, from that moment onwards , the concessions in place as ineffective.
In this case, the national regulations that have provided for the automatic extension of state-owned maritime concessions for tourist-recreational purposes (including the moratorium introduced - in correlation with the epidemiological emergency from Covid-19 - by art.182, paragraph 2, legislative decree 34 / 2020, converted into law n.77 / 2020), are in contrast with the European Union law, in particular with the art. 49 TFEU and with art. 12 of directive 2006/123 / EC.
Therefore, the aforementioned national rules must not be applied either by the judges or by the public administration (P.A.).
Even though there have been extension deeds issued by the P.A. (and also in cases in which these documents have been issued following a favorable judgment or have in any case been the subject of a favorable judgment), the existence of a right to the continuation of the relationship in the head of the current concessionaires must be excluded.
In this regard, the powers of decision-making self-defense of the Public Administration are not highlighted, as the effect in question is directly provided for by the law, which essentially regulated the concession measures, extending the terms of duration.
The non-application of the law therefore implies that the effects produced by it on the concessions already issued must also be considered ineffective, without detecting the presence or absence of a declaration of the legal effect of extension adopted by the Public Administration. or the existence of a final decision.
Well, since a relationship of duration is highlighted, even the res judicata is in any case exposed to the incidence of contingencies, and does not attribute a right to the continuation of the relationship (cfr. Consiglio di Stato, Adunanza Plenaria of 09.11.2021, n. 17 e 18).
Avv. Alfredo Iadanza Lanzaro
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