On February 25, 2016, in the joined cases Promoimpresa srl v Consorzio dei Comuni della Sponda Bresciana del Lago di Garda e del Lago di Idro, Regione Lombardia, and Mario Melis, Tavolara Beach Sas, and Dionigi Piredda, Claudio Del Giudice v Comune di Loiri Porto San Paolo, Provincia di Olbia Tempio (hereinafter: Promoimpresa and others), Mr. Maciej Szpunar, an Advocate General at the EU Court of Justice of the European Union (the “ECJ”) since 2013, produced a nonbinding opinion for the ECJ stating that the European Union (the “EU”) law precludes national legislation under which the period of validity of authorizations relating to the commercial exploitation of publicly-owned maritime and lakeside property is automatically extended.
Namely, the outgoing concessionaires have challenged administrative decisions terminating instruments classified as concessions under Italian law, concerning the commercial exploitation of the state-owned maritime and lakeside areas. The competent courts asked for guidance in this matter, inquiring whether the relevant piece of Italian legislation, which allows for the extension of the exclusive rights for such exploitation, diverges from the Treaty on the Functioning of the European Union and the Directive 2006/123/EC (also called the “Bolkestein Directive”, after the former European Commissioner for the Internal Market, Frits Bolkestein). It seems that the answer is – yes.
Eight years ago, in 2008, the European Commission opened an infringement procedure against Italy, pertaining to the alleged noncompliance of its policy granting a preferential right to the state-owned maritime property concessionaires with the Bolkestein Directive. The Directive lays down the rule that, where the number of authorizations available for a service activity is limited because of the scarcity of available natural resources (being the case at hand), a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure, is to be applied, which, basically, entails a tender procedure. It also stipulates that such authorization shall be granted for an appropriate limited period and may not be open to automatic renewal. Following the opening of the infringement procedure, the preferential right of the concessionaires was abolished, so as to expire by 31 December 2012 at latest. The subsequent amendments extended this period until 31 December 2015 and eventually until 31 December 2020.
Relying on the said Italian policy, the seaside operators gathered in Rome in February to protest against the Directive and try to protect their investments by prompting the Italian government to address the issue. The Advocate General found, however, that “the concession holders (were able to) forecast the value of their investments on the basis on a pre-determined period in which to amortize the investment” as “the measures at issue…were expressly stated to expire in 2010“. The final stance taken is that extending the period of validity of existing authorizations constitutes a failure to fulfill the obligations under the Directive 2006/123.
As we await the decision of the ECJ in the Promoimpresa and others case, the questions remain open as to the impact of it on the European services market.
