Last Wednesday 30 October 2024, the so-called “Save infringements Decree” (DL 131/2024) was approved, containing urgent provisions for the implementation of obligations deriving from acts of the European Union and from infringement and pre-infringement procedures pending in the comparisons with Italy. While waiting for it to be examined by the Senate, the provisional text contains some significant changes to the provisions relating to maritime state concessions (contained in Article 1), representing the most difficult issue to resolve. For some time, in fact, these concessions have been the subject of debates not only at the top of the Government, but also among trade associations, as well as at the center of negotiations with Brussels, given the urgent need to reorganize Italian legislation in accordance with the provisions of the Directive 2006/123/EC (Directive Bolkestein)which requires the launching of public procedures for the awarding of expired or expiring beach concessions.
The decree law was issued in response to the infringement procedures initiated by the European Commission against Italy for failure to apply the Bolkestein Directive, relating to services in the internal market. The provisions on maritime state concessions represent a crucial issue, considering the economic importance of the tourist-seaside sector in the country and the implications for existing operators.
The text thus approved provides for an extension to September 30, 2027 for state maritime, lake and river concessions in existence on the date of entry into force of the decree. It requires the Municipalities to use public tenders for the assignment of new concessionaires, to be concluded by June 30, 2027with the right for the Mayors to bring forward the calls for tenders subject to adequate justification. The possibility of extending this deadline is reserved March 2028 in the event of objective difficulties in carrying out the procedures or pending litigation.
The new concession titles will have a duration of between 5 And 20 years. The possibility of not dividing the concessions into lots is left to the discretion of the individual Municipalities (a choice which must be adequately justified), as well as the possible provision of award constraints.
The criteria for assigning the new concessions are aimed at:
- Protection of microenterprises and local realities.
- Enhancement of traditions and territorial specificitiesthrough the correspondence of the systems to local traditions and the offer of services that enhance the territory.
- Consideration of experience technical and professional previous experience in comparable activities.
- Recognition of ownership in the previous five years of a concession as the main source of personal income.
- Evaluation of the number of workers which the bidder undertakes to assume from the outgoing concessionaire.
- Penalization of the concentration of concessions held by a single entity, evaluating the number of concessions that the bidder already owns in the granting territory.
Although the forecast of compensation paid by the incoming concessionaire in favor of the outgoing onehowever, both the proposal relating to the recognition of a contract by the latter were rejected right of pre-emptionboth that time to increase the value of the benefits. In fact, the proposal to eliminate the limit of the last five years in the calculation of the compensation amount and to include, in the calculation, the corporate value of business (with reference to goodwill and tangible and intangible assets). These provisions were deemed incompatible with Community law, in particular with the principles of competition and equal treatment.
On the contrary, an amendment was approved which excludes from the scope application of Directive Bolkestein (and, therefore, from the obligation of public tenders) all state-owned maritime, lake and river concessions if the use concerns the carrying out of sporting activities on a stable and main basis by amateur sports clubs and associations registered in the National Register of Sports Activities, which pursue exclusively social and recreational purposes, provided that state property is not exploited for economic activities.
Finally, the text being examined by the Senate has also been amended in terms of prefabricated: outgoing owners are allowed to leave the installed removable artefacts—structures used for storage or work environments, as well as caravans, campers and boats—until the awarding of the tender, even during the period of seasonal suspension, without prejudice to any demolition measures adopted before the entry into force of the decree.
Despite the long and intense negotiations, however, the bill does not seem, overall, to resolve the issue. This is the main reason that led further 50 jurists And academics to appeal to the President of the Republic not to proceed with the promulgation of the conversion law. They highlight that the management of the public resource would once again be based on yet another scheme of extensions and renewals, contributing to creating further confusion in the administrations and hypothesizing, once again, a scheme that does not comply with European Union law. In particular, they highlight the possible violation of principles of competition, non-discrimination and transparencywith the risk of further infringement proceedings by the EU.
It is important to remember that the Court of Justice of the European Union has already expressed its opinion on the subject of state concessions, stating the incompatibility of automatic extensions with community law (rulings C-458/14 And C-67/15). These rulings underline the obligation for Member States to guarantee the assignment of concessions through transparent and non-discriminatory procedures, in compliance with the fundamental principles of Treaty on the Functioning of the European Union.