(Finance) – The European Court of Justice will be pronounced tomorrow at Luxembourg on a reference for a preliminary ruling of Tar of Puglia connected with the parallel dispute between the EU Commission and Italy on bathing concessions. The sentence that will be handed down tomorrow concerns case C-348/22, a dispute involving theCompetition and Market Guarantor Authority and the Municipality of Ginosa, in the province of Taranto. The reference for a preliminary ruling concerns the interpretation of national legislation which provides for the automatic extension of beach concessions, and in particular the validity, binding nature and direct effect of EU legislation relating to services in the internal market (Directive 2006/123/EC, better known as “Bolkestein Directive”).
According to EU law, to grant concessions of occupation of maritime public property, Member States must apply a selection procedure, with competition between potential candidates, when the number of permits available is limited due to the scarcity of natural resources. Furthermore, the concession must be of limited duration and not subject to the automatic renewal procedure.
Although the Bolkestein Directive has been transposed into the Italian legal system, a 2018 national law has indicated that the concessions in progress will be extended until 31 December 2033, to have the time necessary to carry out all the operations essential to the reform of the concession system. The municipality of Ginosa, applying the national law, decided on 24 December 2020 to automatically extend on its own territory the occupation concessions of the maritime public domain. But at this point the decision was the object of a dispute by the Italian competition and market authority (Agcom), which deemed it contrary to the EU principles of competition and freedom of establishment.
Agcom has therefore notified the municipality of Ginosa a reasoned opinion, reminding him of the need for one preliminary procedure of public procurement and noting that the national provisions which automatically extend the concessions must remain unenforced. Since the municipality of Ginosa did not comply with this reasoned opinion, Agcom filed an appeal with the Regional Administrative Court (TAR) of Puglia for the annulment of the decision on the extension of the concessions. In turn, the Puglia Tar, while deeming the national provisions incompatible with the Bolkestein directive, notified its doubts on the self-executing nature of the directive itself, with the effect of disapplying contrary national rules.
The Regional Administrative Court of Puglia therefore places various questions before the European Court of Justice preliminary questions, aimed at verifying the scope of the directive, its validity, its nature and the effects of its application. It should be remembered that in the law of the EU Court there are already several precedents of judgments according to which the application of Community law takes precedence over any contrary national rules. There European Commission Tomorrow, a verdict from the Luxembourg judges is expected in favor of its positions in the dispute with Italy over beach concessions, which would allow it to further increase pressure on the government of Rome to comply, finally applying the sentence of the Court of Justice of 2016 which confirmed the need to periodically tender concessions and not automatically extend them.
In the absence of an adequate response from the government, the Community executive, which has already opened an infringement procedure against Italy for a long time for non-execution of the 2016 sentence, could decide in the next few weeks a new appeal to the EU Court, with the request to impose daily fines to the country for each day of permanence in the default situation.