State-owned maritime concessions in Italy: indications are awaited from the Court of Justice for the reform of the principle of the free acquisition by the State of non-removable works at the end of the concession
By ASLA – Associazione degli Studi Legali Associatidi Marco Cottone
Milan – The Council of State refers, once again, to the Community judges the question of the conformity with Community law of some points on the regulation of the concessions of maritime state-owned areas.
This is the postponement that took place with order n. 8010 of 15 September 2022 with which the EU Court of Justice was called to rule on the compliance with European law of the national legislation on the assignment of state-owned concessions for tourist-recreational purposes and, among other things, on a specific profile relating to the application of the art. 49 of the Navigation Code.
The aforementioned article 49 of the cod. nav. provides that "Unless otherwise established in the concession deed, when the concession is terminated, the non-removable works, built on the state-owned area, remain acquired by the State, without any compensation or reimbursement, without prejudice to the right of the granting authority to order its demolition with the return of the state property to its pristine state".
On the scope of art. 49 code nav. Doctrine and jurisprudence have been questioning themselves for a long time as the transfer of ownership of the works from the private entity to the state assets at the time of termination of the concession relationship, as sanctioned by the aforementioned law, if on the one hand it is configured as a particular application of the institution of accession, pursuant to art. 934 of the Civil Code, on the other hand appears as a significant derogation from the general provision of the payment of an indemnity which, if the land owner intends not to opt for the demolition of the works, is equal to the value of the materials and the workmanship works or to the increase in value brought to the fund.
Among the most frequent questions that national jurisprudence has asked is the correct identification of the case that would legitimize, pursuant to art. 49 code nav., the devolution of the works to the State property at the time of termination of the concession. In particular, we wondered whether with the term "terminate" the legislator intended to refer - in addition to the "classic" hypotheses of termination of the relationship (expiration, revocation, forfeiture, waiver) - also to the mere renewal of the concession title to the same subject.
The jurisprudence has not yet provided a unanimous orientation and on the point there is still a contrast that sees opposing: a first interpretation of the rule according to which the free acquisition would also occur in the event of automatic renewal, if the extinction of the previous relationship is followed by the simultaneous release of a new concession, and a different orientation which favors the non-application of the provision in question in the case of automatic renewal without interruption of the concession title.
On this point, a decision by the Council of State seems decisive which clarified that "the principle of free access - strongly penalizing for the right of surface areas and for investments, which could contribute to the enhancement of maritime state property - should be considered an exceptional and strictly interpretation, with reference to the effective termination - and not the mere expiry - of the concession relationship, due to the understandable need to ensure, in this case, that the "non-removable" works destined to remain on the territory and to be removed with inevitable destruction, return fully available to the body that owns the land, for the purpose of correct management of the latter (when no longer in use by the concessionaire) for purposes of public interest. This requirement cannot evidently be recognized when the concession envisages, as in the present case, forms of automatic renewal or pre-arranged prior to the date of natural expiry of the concession, so as to configure the renewal itself - beyond the nomen iuris - as a real extension, continuing the same relationship without interruption" (cf. in this sense Cons. Stato, Section VI, 26.5.2010, n.3348).
To better understand the ratio underlying the art. 49 code nav., it is important to note that this provision is the product of a legal system where the concession of maritime public goods was characterized by a marked authoritative content without any consideration regarding the commercial effects deriving from free access which, however, today become decisive ( think of the seaside industry but also of the port industry).
For some time, in fact, there has been discussion about the need to modify this discipline which often represents an obstacle especially for those so-called loans in project in the port area, when the financed subject is the owner of an already existing state concession that does not contain contractual provisions contrary to the regulatory provisions.
The reform of the navigation code would also find its reasons in a contrast with the art. 42 of the Constitution, given that the provision in question would create a hypothesis of expropriation without compensation of the property compendium of the concessionaire in conflict with the Community principles on the right to property, which find internal application through the constitutional provision and which are contained in art .1 of the 1st additional protocol to the European Convention on Human Rights (ECHR) and to article 17 of the Charter of Fundamental Rights of the European Union (Charter of Nice).
The European Court of Human Rights itself, in affirming the principle of fair compensation in favor of private individuals in expropriation procedures for public utility (see decision of 29 March 2006, in the Scordino case against Italy), observed that the 'article 1 of the 1st additional protocol of the ECHR, in its propositions, refers with a clearly general provision to all assets (therefore also those that insist on state property), without making distinctions on the basis of qualitas rei.
We will therefore have to wait for the decision of the community judges, scheduled for mid-April, which will hopefully be pronounced: both on the scope of the internal provisions of art. 49 code nav., and on the potential conflicts with the above-mentioned Community regulations and art. 42 of the Constitution.
*Lawyer, Counsel – Department of Shipping and Transport Law – Legance Avvocati Associati
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