Confindustria Nautica: Technical roundtable on state-owned land concessions begins at Palazzo Chigi.

The Technical Table for State Property Concessions, as provided for by Legislative Decree no. 198 of December 29, 2022, has been convened for June 9th.

Confindustria Nautica announced this, explaining that the Technical Committee is chaired by the Head of the Department for Administrative Coordination of the Presidency of the Council of Ministers and involves the ministries of MIT, MEF, MIMIT, Environment, Tourism, Maritime Policies, Regional Affairs, and European Affairs.

Confindustria Nautica, with its associate Assomarinas and in coordination with Assonat-Confcommercio has set up a coordination representing the structures of the boating pleasure craft.

“The 'Competition Law 2021' (L. 5 August 2022, n. 118) has erroneously also included the structures of the boating recreational boating within the scope of the regulations established for beaches, which already present objective critical issues, elements of inapplicability and – in some cases – even profiles of incompatibility with the Bolkestein Directive itself.

The applicability of Article 37 of the Navigation Code, in conjunction with Article 18 of the Regulation for the implementation of the same Code (Presidential Decree No. 328/1952), or pursuant to Presidential Decree No. 509/1997, where applicable, must therefore be confirmed,” the association explains in a statement.

This is the comment of the president Saverio Cecchi: “Confindustria Nautica is daily engaged at national and international level in the defense and promotion of the entire supply chain boating The Technical Table on Concessions for recreational boats is an important step, and I thank Prime Minister Giorgia Meloni for this. We must remember that, unlike commercial ports, Italy has chosen to build recreational boating infrastructure through private investment, and it is clear that we must safeguard the legal certainties and profitability that underpin these investments.

Below is the reconstruction of the incident provided by Confindustria Nautica:

On the inapplicability of the Bolkestein to structures dedicated to boating, it should be noted that contrary to what is provided for by the Services Directive, the Competition Law 2021 (L. 5 August 2022, n. 118), erroneously included the concessions "for the construction and management of structures dedicated to  boating  for pleasure, including mooring points” (art. 3).

DIRECTIVE 2006/123/EC of the European Parliament and of the Council of 12 December 2006, known as the Bolkestein Directive, in Article 1 establishes that it regulates "the free movement of services"; in Article 2, paragraph 2, it establishes that "This Directive does not apply to: (…) (d) services in the transport sector, including port services”; Article 12 establishes that only “where the number of authorisations available for a given activity is limited due to the scarcity of natural resources or technical capacity that can be used, Member States shall apply a selection procedure among potential candidates”.

The ruling of the Court of Justice of the European Union of 20 October 2007, n. 174/06, established that the fundamental elements of the state concessions of the ports "lead to assimilate them to the leasing of real estate".

The ruling of the Court of Justice of the EU of 14 July 2016 then stated that the use of port goods are not included within the scope of Directive 2014/23 on the award of concession contracts, because “they should not be configured as service concessions” (point 48).

From the sentence of the Court of Justice of 14 July 2016 (Cd Promoimpresa case) it is clear that:

– the ban on extension does not apply in the case in which the original concession was issued on the basis of a public tender procedure (such as those issued on the basis of Presidential Decree no. 509/1997 for the construction and management of structures dedicated to boating for pleasure);

– a different treatment when determining theindemnification owed by the incoming manager to the outgoing concessionaire It is due for holders of concessions issued before the abolition of the right of insistence (31 December 2009)), as the concession holder could legitimately expect the renewal of his concession[1].

The very recent ruling of the Council of State, Section VI, of 15 January 2022, while adopting the previous decision of the Plenary Assembly of the same Council of State, has reiterated the distinction between concessions granted up to 31 December 2009 and those granted after that date, "hence the inapplicability of the Services Directive to concession relationships arising before the deadline for its transposition” (point 6.7).

Moreover, the principles and guidelines that the delegated legislator must adhere to (art. 4, paragraph 2) they are not applicable to ports and tourist landing places that is, if applied to the boatingIn particular, the following are not applicable to ports and tourist landing places:

let. a) first part, “ensuring an adequate balance between the state-owned areas under concession and the free or free equipped areas”: there are no free areas in the ports; 

let. a) second part, the need to ensure "the constant presence of access points for free and unrestricted access and transit to reach the shoreline": it is not possible, as well as dangerous, to allow free bathing in ports;

letter d), “division into small lots of state-owned areas to be granted in concession”: cannot find technical application with reference to concessions for the construction of infrastructures dedicated to boating recreational;

let. e), number 1), “identification of admission requirements that encourage the maximum participation of businesses, even small ones”: this criterion appears illogical with reference to the concessions of structures dedicated to boating for pleasure boats, which can be worth up to 80 million euros, without understanding what public interest is being protected;

letter e), number 4), first part, “accessibility also for people with disabilities”, the provision overlaps with the specific rules set out in the Code of boating recreational;

let. e), number 4), last part, "preference for completely removable equipment". This criterion cannot find technical application with reference to concessions for the construction and management of structures dedicated to boating recreational;

letter e), number 7), last part, "with an express prohibition on extensions and renewals, even automatic ones": this criterion, due to the absoluteness with which it is stated, conflicts with art. 10 of Presidential Decree no. 509/1997, but also with the principle derived from art. 168, paragraph 2 of Legislative Decree no. 50/2016, which allows for a time extension where the public administration has requested additional investments from the concessionaire beyond those originally envisaged.

Furthermore, Law 118/2022 does not incorporate the distinction between concessions granted before January 1, 2010, and those from January 1, 2010 onwards, nor does it identify the specificity of NON-FUNGIBLE CONCESSIONS, i.e. those subservient to another business activity that requires that and not any other concession in order to be able to operate.

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