The President of the Republic Sergio Mattarella asks that government and Parliament intervene to change the law on beach concessions. She did it with one long official note with which he announces that he has signed the Milleproroghe decree (which contains the new rules on bathing establishments) but underlines that precisely that part of the decree is in contrast with European law and with judgments of the judiciary. The letter was addressed to the presidents of the two branches of Parliament, Lorenzo Fontana and Ignazio La Russa, and to Prime Minister Giorgia Meloni. Among the risks feared by the Head of State is also the one that the newly approved rules could give rise to lengthy and crippling legal disputes.
The majority parties had remained firm in extending the use of state-owned beaches to the current owners until 31 December 2024, one year after the deadline initially set. All this in spite of the Council of State had already established that the concessions had to be put out to tender and that the European Union had announced a infringement procedure against Italy because it believed that the rules on free competition were violated. «It is evident – here is the key passage of the note from the Quirinale — that the profiles of incompatibility with European law and with definitive judicial decisions increase the uncertainty of the regulatory framework and make further government and parliamentary initiatives are essential in the near future”.
The head of state in his communication raises a series of perplexities, not only on the issue of state concessions.
Perplexities about the added paragraphs
«I acknowledge – writes for example the head of state – the presence of rules that do not bring about extensions of terms in the strict sense but introduce or modify the substantive discipline in various matters, or are functional to have a mere financing or a refinancing of measures that have already expired». The text of the decree-law, reads the note signed by the President of the Republic, «contains, following parliamentary examination, 205 additional paragraphs compared to the original 149».
The limits identified by the Constitutional Court
Mattarella resorts to the limits on the Milleproroghe decrees already identified by the Constitutional Court in 2012: «It is quite clear how, in the case of provisions which, by their nature, pertain to “different and heterogeneous material areas”when the unifying ratio is lost, represented by the regulatory requirement of a temporal nature, they are transformed into completely inhomogeneous omnibus decree-laws, that is to say mere containers of the most disparate regulatory interventions». The president then recalls that the Court had declared “a provision in tax matters illegitimate as it was completely unrelated to the content and purpose of the original decree-law”. The dangerfor provisions of this kind, is to «become the instrument to nullify the constitutional limits the amendmentability of the decree-law upon conversion”.
The abuse of the emergency decree
Mattarella underlines his opposition to the method of emergency decree: «During the parliamentary examination of decree-laws, the tendency to satisfy heterogeneous regulatory requirements with respect to the original content of the individual provisions emerges very frequently. I appreciated the initiative that the President of the Council of Ministers has recently taken, in dialogue with the Presidents of the Chambers, emphasizing the abuse of the emergency decree and the circumstance that i decree-laws have long since become the predominant instrument through which governments exercise legislative initiative. As observed by the Prime Minister, a trend reversal could occur with the recovery of an adequate capacity for legislative planning on the part of the government and a corresponding attitude of Parliament to allow for the approval within a reasonable time of the ordinary bills . With respect to this government initiative, I hope for full institutional collaboration and I invite all political forces to evaluate it with a sense of responsibility”.
The beach concessions
We then arrive for President Mattarella at the point in question, the bathing concessions: for the Quirinale, the approved amendments change the regulatory framework «significantly. In particular, the term relating to the effectiveness of state concessions comes deferred from 31 December 2023 to 31 December 2024 and the deadline within which the competent authority can further postpone the effectiveness of the existing concessions and relationships with deed motivated by objective reasons is deferred from December 31, 2024 to December 31, 2025. Furthermore, the existing concessions and relationships continue in any case to be effective until the date of issue of the new concession provisions and – in addition – until the adoption of the legislative decrees implementing the delegation regarding the assignment of concessions (expiring on 27 February next) in any case, the granting bodies are prohibited from proceeding with the issuing of tenders of granting concessions. With the effect of creating further uncertainty considering that the delegation in question will fail in three days”.
Cases of interference
In addition to the times, the head of state also encountered problems on the fact that “the holders of state-owned maritime, lake and river concessions the maintenance of removable artifacts is allowed until 31 December 2023with possible cases of interference also with judicial demolition measures in progress”.
The conclusions
For Mattarella, therefore, the provisions contained in the approved text «in addition to contrasting with the aforementioned definitive sentences of the Council of State, are inconsistent with European Union law, also in consideration of the commitments in terms of openness to the market undertaken by Italy in the context of the National Recovery and Resilience Plan. A further problematic element is linked to the fact that, in the light of the rulings of the Council of State which he considered “without effect because in contrast with the order of the European Union” “any further possible extension that should intervene in the meantime”, the granting bodies could in any case consider themselves legitimate to disapply the rules in conflict with European law and to call tenders, while the counterparties could be induced to challenge any measures extension of the concessions, further fueling the dispute”.
critical profiles
Aware “of the delicacy, from a constitutional point of view, of the referral to the Chambers exercised in respect of a law converting a decree-law, a few days after its expiry” – which would, “inevitably, fail, with retroactive effects, in many cases in an irreversible manner, all the numerous other provisions that the decree-law contains, causing uncertainty and disorientation in public administrations and in the recipients of the rules» — Mattarella concludes with the decision to promulgate the decree, inviting however a correct the approved changes on state concessions.