L'accesso al mercato delle concessioni delle aree demaniali delle coste marittime e lacustri tra tutela dell'investimento ed interesse transfrontaliero certo

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(2), 767-777 | European Forum Insight of 28 August 2017 | (Table of Contents) I. Introduzione. - II. Le norme di diritto derivato applicabili alle concessioni del demanio marittimo e lacustre. - III. La declinazione dei rapporti tra diritto primario e diritto derivato nel quadro dell'individuazione del parametro di legittimità delle normative nazionali. - IV. La durata delle concessioni tra le esigenze di tutela della con­correnza e quelle di tutela del legittimo affidamento. - V. Osservazioni conclusive. | (Abstract) The debate about the access to the Italian market of maritime (and lakeside) concessions has not ended yet. In 2008, the European Commission opened an infringement procedure against Italy, alleging that the regime of the preferential rights to the state-owned maritime property concessionaires was inconsistent with Art. 49 TFEU and with the Services Directive. Following the opening of the infringement procedure, the preferential right of the concessionaires was abolished by the Italian authorities, starting from 31 December 2012. However, subsequent amendments legislation extended the legal force of that regime until 31 December 2015 and, further, until 31 December 2020. The Court of Justice, in Promoimpresa (judgment of 14 July 2016, joined cases C-458/14 and C-67/15) ruled that the automatic extension of existing concessions of State-owned maritime and lakeside property for tourist and leisure-oriented business activities was inconsistent with European law. In consequence thereof, Italy must adopt transparent procedures to grant concessions of state property, contractually agreeing a limited lifetime, in order not to restrict or limit the free competition beyond what is necessary to ensure the amortization of the investments and make a fair return on the capital invested. Nevertheless, in force of a statute enacted some weeks after the Court's decision, the existing concessions remain in force, in order to protect legal certainty and the public interest, for an indefinite time; more precisely for the time necessary for the Italian authorities to revise Italian law and to bring it in accordance with the principles and rules of European law.

Keywords

• concessions of state-owned maritime, lakeside and waterway property of economic interest
• automatic extension of existing concessions
• public contracts and freedom of establishment
• art. 49 tfeu
• services directive
• lack of tender procedure