Pesto Sea Group loses to Portofino Municipality over superyacht berthing.
According to the judges of the Ligurian Regional Administrative Court, tourist ports are a service of general interest and municipalities can manage them themselves.
The Municipality of Portofino's decision in late 2012 to self-award the maritime state concession for the waters, areas, and assets constituting Portofino's tourist harbor is legitimate. This was established by a detailed ruling in which the Liguria Regional Administrative Court, reiterating similar arguments expressed in a ruling a couple of months earlier regarding the same documents and further rejecting (or declaring inadmissible) specific additional grounds, rejected an appeal by the Genoese company Pesto Sea Group.
“The management of a tourist port – the judges wrote – can be classified as a local public service of economic importance and individual demand (…), since, although the tourist-recreational purpose satisfies the private interests of a limited group of users, there are nevertheless relevant public interests such as the tourist and economic development of the area, access to the marine communication route and the potential use by the entire community where there are exceptional public transport needs”.
Therefore, both in national and European law, "it is clear that there is currently no obligation for local authorities to outsource economically significant public services to third parties on the market, and they may opt for direct management." According to the Regional Administrative Court, this does not even require the municipality to justify its decision or subject it to a comparative assessment.
Pesto's challenge to several actions taken by the Municipality following the self-concession of the marina was also unsuccessful. These actions included the acquisition from the previous concessionaire (Portofino Servizi Turistici) of the right to use the port facility security plan for six months, the parallel assignment, also for six months, to a manager of the previous concessionaire (Giovanni Linari of Portofino Servizi Turistici) of the role of port facility security officer (subsequently, after adequate and certified training, a municipal employee was appointed to this role), and the assignment to Rina Consulting of developing the port facility security plan and the port facility security assessment.
Finally, the TAR considered the decision to use its own personnel or those employed through temporary work contracts for the most essential functions (mooring, unmooring, hauling, launching, etc.), as well as the decision to outsource to third parties (Rina Consulting, but also the in-house company Portofino Mare) "certain specialized or auxiliary services, which it could not provide within its own organization."
Pesto Sea Group was assisted by lawyers Francesco Munari and Andrea Bergamino (Deloitte Legal) and the Municipality of Portofino by lawyers Giuseppe Pericu and Daniela Adamo (Bettini Formigaro Pericu law firm).
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