STATE-OWNED MARITIME CONCESSIONS: THE CONSTITUTIONAL COURT'S RULING NO. 109/2024 AND THE ILLEGALITY OF AUTOMATIC EXTENSIONS ARRANGED BY REGIONAL LEGISLATION

The Constitutional Court, in Judgment No. 109 of June 24, 2024, ruled that the automatic extensions of state-owned maritime concessions endorsed by regional regulations are in conflict with the constraints arising from the European Union system and, therefore, are found to be unconstitutional because they are detrimental to the principle set forth in Article 117, paragraph 1, of the Constitution.  Specifically, the Court sanctioned the constitutional illegitimacy of Art. 36 of Sicily Regional Law No. 2 of February 22, 2023, which had extended to April 30, 2023 the deadline for the submission of applications for the renewal of state-owned maritime concessions for tourism purposes and the extension of the deadline for the confirmation of interest in the use of the maritime state property.

The Presidency of the Council of Ministers, in challenging the act declared illegitimate, had raised criticisms regarding the fact that the regional legislature, in regulating the issue underlying the approved legislation, had breached the limits set by Articles 14 and 17 of the Regional Statute with regard to the powers reserved to it and, as a result, had also violated the provisions of Article 117, paragraph 1, of the Constitution, which binds regional legislators to slavishly comply with the obligations assumed by Italy in deference to directives from the European Union. In particular, in the judgment of constitutional legitimacy, the Executive complained of the primary violation of the precept set forth in Article 12 of Directive No. 2006/123/EC (so-called "Bolkestein"), which requires EU member states to submit to public tender expired and to be renewed state-owned concessions, thus inhibiting the experiment of automatic extensions. According to the argumentative theses proposed by the government, the postponement to April 30, 2023, of the deadline for the submission of renewal applications "corroborates the extension of state-owned maritime concessions until December 31, 2033," even by virtue of the intervening repeal for incompatibility with the EU regulations, carried out by Law No. 118/2022, of paragraphs 682 and 683 of Art. 1 of Law No. 145/2018 and despite the pronouncements of the Plenary Assembly of the Council of State No. 17 and No. 18 of 2021, as well as that of the Court of Justice of the European Union C-348/22 of March 20, 2023, in the context of which the principle had been crystallized that automatic renewals inherent in state-owned maritime concessions were contrary to EU law. The same Constitutional Court already in the past, in declaring the illegitimacy of an extension granted by the Liguria Region, in its judgment No. 1/2019, had stated that the "criteria and procedures for the granting of concessions on maritime state property [...] must be established in compliance with the principles of free competition and freedom of establishment, provided for by Community and national legislation, and corresponding to areas reserved to the exclusive competence of the state under Article 117, second paragraph, letter e), Cost."

The government also recalled that Art. 1, paragraph 1, of Sicily Regional Law of December 14, 2019, No. 24, on "Extension of the validity of state-owned maritime concessions," had previously provided for the ex lege extension, until December 31, 2033, of state-owned maritime concessions in existence as of December 31, 2018, provided that the concessionary parties had expressed their interest through the submission of an application prepared for that purpose. Such extension, moreover, appeared to be in accordance with the state matrix provisions established by Art. 1, paragraphs 682 and 683, L. of December 30, 2018, No. 145, which had provided, as of the date of their entry into force, a time duration for the then existing state-owned maritime concessions of fifteen years, that is, precisely until 2033.

The Constitutional Court, in clarifying that the postponement of the terms set in the contested regulations by the Presidency of the Council of Ministers does not refer to the original extension of state-owned maritime concessions, which precisely finds its origin in Regional Law no. 24/2019, but exclusively to the deadline inherent to the submission of extension applications. The judges of the Constitutional Court also noted, in accordance with the exceptions raised by the Executive, that the renewal of such terms in order to the submission of extension applications "ends up affecting the regime of duration of the ongoing relationships, perpetuating their maintenance and thus reinforces, contrary to the principles of EU law on competition, the entry barrier for new economic operators potentially interested in the use, for entrepreneurial purposes, of the areas of the maritime state property."

Authors: Avv. Daniela Di Palma e Dott. Antonino Guarino