The Council of State, with the recent decision no. 10455 of December 4, 2023, reaffirmed that the state-owned maritime concessions shall be subject to public bids for tenders, as established by EU law and by the predominant EU Court of Justice’s case-law. This principle is also enshrined under article 12 of Directive 2006/123/CE (the so-called “Bolkestein Directive”).
The definition of state-owned property is included in article 822 of the Italian Civil Code, which states that the seashore, beaches, harbors, rivers, lakes and other public waters are state property. Consequentially, they are non-transferable, but they may be the object of concessions in exchange of the payment of a rent fee.
Article 37 of the Italian Code of Navigation states that, in case of multiple applications regarding a concession, the applicant, who offers better guarantee of the profitable use of the concession and proposes to use the concession for a more relevant public interest, shall be preferred. In addition, article 18 of the Implementing Regulation of the Italian Code of Navigation provides that the applications related to the granting of a concession shall be published.
EU law generally provides for the principle of free competition. Since state-owned maritime concessions are economically contended on the market, they shall be granted at the end of a public bid for tenders. Therefore, the entrustment of the relevant contract shall comply with the principles of economy, efficiency, impartiality, equal treatment, transparency, proportionality, publicity, environmental protection and energy efficiency.
The EU Court of Justice has several times ruled that, pursuant to the principle of free circulation of services in the EU internal market, the granting of state-owned maritime concessions shall be subject to a public bid for tenders in all EU Member States, although article 37 of the Italian Code of Navigation does not provide for a specific obligation in such sense. Such concessions shall be granted for a reasonable and determined amount of time and they cannot be automatically renewed (inter alia, EU Court of Justice, Section III, decision no. 348 of April 20, 2023). The aim is to guarantee the free access to such concessions and the equal treatment among all participants. In fact, the Italian Council of State, with the previous decisions no. 17 and 18 of November 9, 2021, ruled that the national or regional provisions that establish the automatic renewal of state-owned maritime concessions are in contrast with EU law and, for this reason, they shall be disapplied.
The Italian Supreme Court, with a very recent decision of January 9, 2024, has stated that the abovementioned rules, in compliance with article 2, paragraph 2, letter d of the Bolkestein Directive, do not apply to marinas, however, the matter shall be referred again to the Council of State.