(Finance) – “In a historical period like ours in which the duration of state concessions is being debated, it is important to stick to the so-called pathological aspect of the concession relationship established between private individuals and the PA”. This is what thelawyer Claudio Vinci of Vinci&Partners.
“The relevant regulatory provision in this regard – explains Win – is undoubtedly Article 47 of the Navigation Code. The administration can declare the concessionaire’s forfeiture: for failure to carry out the works prescribed in the concession deed, or for failure to begin management within the assigned terms; for non-continued use during the period established for this purpose in the concession deed, or for misuse; for substantial unauthorized change in the purpose for which the concession was made; for failure to pay the fee for the number of installments established for this purpose in the concession deed; for abusive substitution of others in the enjoyment of the concession; for failure to fulfill the obligations deriving from the concession, or imposed by laws or regulations”.
“These are hypotheses, those contemplated by the law, which constitute serious breaches of the obligations assumed by the concessionaire with the release of the concession title and which legitimise (or rather oblige) the public body to adopt the forfeiture measure. It appears useful in this regard – he underlines Win – a comment on the article in question. The first two hypotheses (letters a and b) concern the concessionaire’s failure to comply with its obligations to perform, undertaken with the release of the concession title. These are cases in which the concessionaire has not carried out the works prescribed in the concession deed, has not begun management within the assigned terms, has not made continuous use of the areas granted or has made bad use of them. The third hypothesis (letter c) concerns the abuse of the areas granted in concession which entail a substantial and unauthorized change in the purpose for which the concession title was issued. The fourth hypothesis (letter d) concerns the concessionaire’s failure to pay the concession fee. The fifth hypothesis contemplated by the law (letter e) and which legitimises the Administration to pronounce the forfeiture of the concession title concerns the abusive substitution of others in the enjoyment of the concession, the concession deed being issued to an individual identified with specific characteristics (so-called intuitupersonae). Finally, the last hypothesis (letter f) contemplates all those cases in which the concessionaire fails to fulfill the obligations assumed with the concession act, or imposed by laws or regulations. Consider, for example, the concessionaire who has created an illegal discharge in the areas granted in concession or has built an illegal building. This is a closing provision that contemplates all the cases of serious non-fulfilment not included in the previous letters.
The provision in question attributes to the Administration a double scope of evaluation, concerning first of all the conditions for forfeiture and then the final choice. In this regard, it is emphasized that the latter would also maintain a discretionary nature, even in the presence of a complete assessment of the former and that therefore the final determination of forfeiture would be free from evaluation automatisms. An adequate weighting is therefore required between the primary public interest in the correct use of the state property and the opposing interest of the private concessionaire, supported by exhaustive motivation, in which the reasons underlying the breach of trust that must permeate the concession relationship are duly set out (in this regard, reference is made to the most recent administrative jurisprudence, and in particular the ruling of the Council of State of 2 May 2023, no. 4413). Consolidated case law, on the other hand, (ex multis Consiglio di Stato sez. VII, 05/04/2024, n.3146) on this point does not fail to highlight that the state property authority is entitled to exercise the power in the presence of the situations provided for in letters a) to f) of the same regulatory provision. For the purposes of the legitimacy of the provision, it is therefore sufficient that one of the situations in question is ascertained, without the need to provide further motivation to support the final determination. The correlation between the ascertained presupposition and the final determination makes it self-evident that the administration has lost confidence in its concessionaire, due to the abstract suitability of the hypotheses listed in the aforementioned letters a) to f) to affect the fiduciary bond that should preside over the performance of the concession relationship for its entire duration. In other words, the fiduciary judgment is legitimately expressed in the ascertainment of the typical presuppositions of forfeiture and in their relevance for the purposes of the termination of the relationship. Therefore, no further evaluation is necessary with respect to the connection between the concrete fact and the abstract hypothesis”.
“In conclusion, it can be stated – continues the lawyer – that in the presence of the hypotheses contemplated by the law, the Administration has a real power-duty to pronounce the forfeiture and, according to the jurisprudence, the motivation in support of the pronouncement of forfeiture is sufficiently expressed when one of the conditions (letters from a to f) occurs which cause the fiduciary bond underlying the concession title to cease to exist”.
“Finally – he concludes Win – it is worth noting that the concession relationship also ends, in its physiological hypothesis, upon expiration of the duration of the concession title. In this hypothesis, the private individual is required to return the areas to the granting PA, which must call for a public tender procedure to reassign the areas. Likewise, the PA is required to call for tenders, in the event that the forfeiture is pronounced for the hypotheses examined above”.