The balneari case is a big mess
It also risks costing dearly not only to the 33,000 companies in the sector, but also to local administrators. And to embarrass the government of Giorgia Meloni. Indeed, the straight-leg entrance of the Council of State opens the door to a wave of disputes by companies and to the liability of local administrators for tax damages.
While, on the one hand, the Milleproroghe has lengthened the deadlines for tenders for the shores, on the other, the administrative judiciary has in fact invited “any organ of the State” to disapply “the automatic extension of existing maritime state concessions”. The reason? It is in contrast with the Community provisions. State against State with the judges expressing an opposing judgment to the government decisions one day after the entry into force of the Milleproroge and within a sentence concerning other issues. Just enough to reopen the clash. It is enough to retrace the stages of this story to understand the reasons.
The Milleproroghe extends the concessions to 2024
The decision came after a long tug of war. The provision established that the administrations will not be able to proceed with tenders to assign beach concessions until next July 27th. In fact, therefore, it has extended the life of the beach concessions by a year. There are two reasons behind this decision. The first is the establishment of a table between ministries and trade associations to define the contents of the concession reform. The second, far more important, is to allow the Treasury time to proceed with the mapping and thus verify “the existence of the scarcity of the available natural resource”.
This aspect is particularly relevant because the Bolkestein legislation provides that only beaches with these precise characteristics are banned. According to some interpretations, therefore, not all concessions should be reviewed. If this is true, however, it will be known only after the census. It is no coincidence that the Treasury must start the mapping operation. A division of the Mef is taking care of it, but at the moment everything is frozen. The change to the general management with the departure of Alessandro Rivera and the arrival of Riccardo Barbieri in fact, it generated a stalemate.
In this scenario came the beating of the Council of State
The Milleproroghe came into force on 28 February. But at the time of the promulgation, the President of the Republic, Sergio Mattarella, expressed reservations about the one-year extension. He highlighted the incompatibility of the postponement with the rules of European law and specified that “further government and parliamentary initiatives will become indispensable in the short term”. Not even 24 hours have passed since the Council of State entered the scene with an unusual speed with sentence no. 2192 of 1 March last (drafter Alessandro Maggio, president Sergio De Felice).
The provision does not directly concern the Milleproroghe and, moreover, it could not be otherwise. But it is a second instance judgment relating to a dispute between the Consortium Authority (Agcm) and the municipality of Manduria. The subject of the dispute is the institution’s decision to renew the beach concessions until 2033 through a resolution of the council in 2020. In settling the dispute, the Council of State agrees with the Antitrust and seizes the opportunity to reject the Milleproroghe as well in the part concerning the automatic renewal of the beach concessions, because it is contrary to the Community legislation. The automatic extension “must consequently be disapplied by any organ of the State”.
The result is staggering
Local administrators have on the one hand the Milleproroghe which postpones concessions by one year and a law on concessions which gives entities the power to proceed with tenders in 2024, on the other a Council of State which warns in advance those who do not proceed with the definition of tenders although the mapping of the Italian coasts has not yet been defined. With a lot of assumption of tax damage that could be challenged by the Court of Auditors. A paradoxical matter. As President Mattarella suggested, a further government initiative is urgently needed.