The verdict of the court was published yesterday Justice Court who thought compatible with the EU law there Italian legislation – in particular, theArticle 49 of the Navigation Code – which allows the State to acquire the property of the building works constructed by the dealer of a’State-owned area. The Court held that thefree acquisition of the non-removable works made on the public land does not conflict with European law, nor can it represent a limit to the freedom of establishment of economic operators.
The Court of Justice has answered the interpretative question raised by the State Council with order no. 8010 of 15 September 2022 following the appeal by a company owning a beach concessionof the municipal provision of free acquisition of the works built on the granted area. The granting body, having noted the difficulty of removing the works built for the exercise of the bathing activity, has qualified them as state-owned appurtenancesacquiring ownership of it upon expiry of the concession title by virtue of the civil law rule ofaccessionwithout recognizing any compensation to the dealer. The State Council he acknowledged that, in fact, the navigation code provides, in article 49, that non-removable works built on state-owned land are acquired by the State upon expiry of the concession without any compensation or reimbursement, unless the concession deed contains provisions to the contrary. The Administrative Appeal Judge recalled the consolidated case law according to which the acquisition free of charge of works classifiable as state-owned appurtenances it also applies in the case of renewal of the concession, implying the renewal – unlike the extension – a new concession in the strict sense, after the termination of the concession prior to the relative expiry: the acquisitive effect referred to in article 49 of the navigation code, therefore, operates automatically.
However, the Council of State doubted the compatibility of this provision with the European principle of freedom of establishment of economic operators, since the provision of automatic access to the maritime state property of the works built by the concessionaire would make the establishment in Italy less attractive for foreign companies interested in managing the state-owned property, imposing on them the future free transfer of what they have built at their own expense for the exercise of the bathing activity. At the same time, the principle of proportionalitysince such a restriction of the concessionaire’s rights would not correspond to any specific purpose of public interest. With the judgment of 11 July 2024 (case C‑598/22) the Court of Justice concluded that the national legislation was compatible with the European Union principle of proportionality of the restrictions of fundamental freedoms with respect to the achievement of the objectives of general interest pursued, observing how the provision of free access is intended to operate without distinction towards all operators carrying out seaside activities in Italy. Furthermore, the discipline contained in the navigation code does not have as its main objective that of regulating the conditions of establishment of the economic operators involved, but above all produces restrictive effects of the freedom of establishment which are only possible. In fact, Article 49 of the Navigation Code expressly provides for the possibility for the parties to derogate by contract, that is, by inserting specific clauses in the concession deed, from the principle of acquisition without any compensation or reimbursement of non-removable works. The parties can therefore establish by mutual consent a different legal regime of the state-owned appurtenances upon expiry of the concession and the rule of accession is applicable in the residual cases in which an alternative rule has not been provided: therefore, accession cannot be considered a method of forced transfer of the works built by the concessionaire. Finally, the European Judge took care to specify that the circumstance that it concerns the renewal of a concession is not relevant for the purposes of applying free accession, since through renewal a succession between two different concession titles occurs and not an extension of the duration of the original title, as happens in the case of prorogation. This is perfectly consistent with the dictates of European legislation on the awarding of concessions (including seaside ones) which can only take place following a competitive procedure that places all interested economic operators on an equal footing, according to clear rules and predetermined assignment criteria.