With sentence no. 4067/2022, published on 23 May 2022, the Council of State rejected the complaint lodged by the municipality of Castel Volturno against a judgment of Campania TAR, which had confirmed to a concessionaire company the existence of extraordinary events of particular seriousness, f .ex. admit it the benefits of the 50% reduction of the rent provided for in Act 494/1993, as amended by Act No. 296.
The judges of the Supreme Administrative Forum reiterated the legislative development of competences in the issue of state-owned maritime concessions in order to confirm the jurisdiction of the administrative judge, stating that “the granting of goods is an expansive measure whereby an asset that can be used by society is made available to a private individual who engages his business organization to enable optimal exploitation, for a consideration that constitutes consideration. It is therefore a goal that expresses the typical comparative moment between public interest and private interest, fallen in such a way that the satisfaction of the second becomes the tool to achieve the first. In particular, the provision to reduce the fee, as formulated by the legislation envisaging it, plastically represents the coordination of the two elements and therefore undoubtedly participates in the public-authoritative element representing the legal core of all concession profiles. Competent to issue it is in accordance with current legislation The municipality, which is responsible for the concession functions with reference to the maritime state’s property.“.
The judges then proceeded in relation to the substance of the case and highlighted how the contested provision, which had rejected the request for a reduction of the state-owned maritime charges owed by the appellant’s concessionaire, and which had formulated the related request under Article 3 of Law 494/1993 due to the strong storms that at the turn of the year 2007, 2008, 2009 and 2010 had affected the Domitian coast, which the said concession insisted on, were illegitimate. In support of the refusal, the municipality of Castel Volturno had, in addition to attributing the complexity and objective operational difficulties of the subject, alleged the lack of intervention in the procedure for the Campania region and the State Real Estate Agency.
“The said provision – informed the Government – according to the panel that shares what the judgment under appeal holds on the point is illegitimate, as well as the prospect of the appellant proposed here, because the order of jurisdiction over the issue of concessions of maritime state property is violated for that purpose. recreational tourism, has incurred the burdens of lack of exploration and motivation. Indeed, by paragraph 1 of Article 105 of Legislative Decree 112/98, “all the functions not expressly provided for in the articles of this Chapter and not assigned to the port authorities by the law of 28 January were transferred to the regions and local authorities 1994, n. 84, and subsequent amendments and additions. “With para. 2 includes the functions referred to in para. 1, in particular those relating to the regions: “… omission … l) the granting of concessions of State property in inland navigation, of maritime State property and territories of the territorial sea for purposes other than the supply of energy sources; […]. The subsequent Article 42 of Legislative Decree No 96 of 1999 has again transferred some of these functions to the municipalities. Ultimately, under current legislation, it is up to the Regions to issue concessions of maritime state property, while the detailed planning of the use of the beaches or coasts, the release, management and renewal of the concessions is currently carried out by the municipalities, without prejudice to the regional governance and planning authority over the use of the coast. Since the concessionaire had contacted Castel Volturno municipality to initiate the practice of reducing the fee, in accordance with Article 3 of Law 494 mentioned, the latter, as the case processing authority, had the burden of initiating the associated procedure by making use of the simplification options in Act no. 241 of 1990 for obtaining opinions, possibly also of a service conference in accordance with §§ 14 ff. of that law. On the other hand, in response to the request, the body limited itself, as can be seen, to citing operational difficulties and organizational complexity, recalling a statement from the Danish Property Agency on the occasion of a service conference held before the presentation of the related application by Lenzi, which therefore relates to another procedure. These are the reasons for configuring the shortcomings of the preliminary investigation and motivation, already found by the judge at first instance“.
This victory leads to final case law on the question of the application of 494/1993, which puts an end to the obstructionism created in recent years by the bodies on the reduction due to the concessionaires.
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