Lby ruling of the Council of State no. 7874/2019 of 18.11.2019, therefore of
highest administrative justice body, is decisive on the issue of concessions
state-owned for tourist and recreational purposes not only because it rejects the extension without appeal
generalized 15-year period provided for by the 2019 Budget Law, but above all for the
authoritativeness of the legal reasoning on the following issues:
a) reference to the principles consolidated by the judgment of the CJEU of 14 July 2016,
on free competition, non-discrimination, freedom of establishment and public
evidence for concession assignment procedures and continuity in
in accordance with the constitutional, administrative and ordinary jurisprudence of the legal system
national, previous subsequent to such sentence;
b) granite affirmation that any automatic renewal of the legislator, in addition to
not to overcome the obstacle of opposition to the European single system and to the principles
constitutional of the national legal system, cannot be considered by the
local administrations as an act that produces automatic effects without the
need for an administrative provision that integrates it, nor does it enable it
the territorial body to adopt autonomous measures in this regard. This means
that any provision of the PA regarding extensions, if issued, has
merely declaratory nature of the consequences foreseen by the law that is
will produce only if and to the extent that they are compatible with the law
of European Union.
In light of this evidence, the application of the provisions on the extension, as well as
recently re-proposed by law no. 145/2018, could create quite a few problems
to local administrations, when the provisions are challenged
before the judicial authorities: what is established by this latest sentence can
hardly be ignored by managers and officials of Regions and Municipalities without
risk personal, criminal and treasury liabilities. The following is clear on this point
passage of the sentence: "It is then necessary to remember, in particular with reference
in the case under examination here, which is now a consolidated principle in jurisprudence that
according to which the non-application (rectius, non-application) of the norm
national law in conflict with European Union law, even more so if such conflict
has been established by the Court of Justice of the EU, constitutes an obligation for the State
member in all its articulations and, therefore, also for the administrative apparatus and
for its officials, when called upon to apply the internal rule
conflicting with European Union law”.
On the other hand, some regions had already moved in the direction of caution but the
pressure from the seaside resort trade associations is really strong and has
led to sudden changes in ordinances as in the case of Calabria which
after having issued a very harsh circular on the point, he has changed again
idea inviting to do the reconnaissance.
National politics can no longer adopt the ostrich strategy as
contiguously to its own inertia, on the other hand, there exists an administrative judiciary
(together with the ordinary and constitutional one) which continues to produce sentences
oriented towards the principles indicated by the European Union and constitutionally oriented.
citizens and entrepreneurs who are interested in investing with procedures
competitive, open and environmentally friendly approaches to seaside tourism must have
certainties and ways out that only politics can direct.
At the same time since the “good of life” at the center of attention is the
maritime state property, therefore a heritage of the community and not a domain of
privilege of a few, the compass that must guide the government debate and
parliamentarian can only be the public utility and the fair and rational
exploitation of the asset itself in order to reconcile the needs of entrepreneurship
with those of the inalienable rights of citizens to freely enjoy the beaches and the
sea. This is why we ask to be legitimized to sit at the table of
“politics” with the same dignity as other associations and social formations that
they have at heart the interests of the environment and common goods with the same dignity and
authority of those who claim concession rights on the maritime state property,
good of all. (National Board of Directors of the Free Sea Coordination)
Article published on November 26, 2019 - 08:23
