(Finance) – “Specific and relevant perplexities are raised, in particular, by the rules inserted, during the parliamentary conversion, on the subject of extensions of state concessions and management relationships for tourism-recreational and sporting purposes. This matter has been around for some time attention of the European Court of Justice which has deemed the extension of state-owned maritime concessions established by law incompatible with European law, in the absence of any selection procedure among potential candidates”. This is what the President of the Republic, Sergio Mattarella in the letter of observations sent to the President of the Senate of the Republic, Ignazio LaRussa, to the president of the Chamber of Deputies, Lorenzo Fontanaand to the President of the Council of Ministers, Giorgia Meloni, at the same time as today’s promulgation of the law converting the decree-law of 29 December 2022 n. 198, containing “Urgent provisions on legislative deadlines” (the so-called “Milleproroghe”).
In the letter the President of the Republic explains why he decided to sign the conversion law despite his misgivings. “However, I am aware,” he says Mattarella – 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: it would inevitably lead to the disappearance, with retroactive effects, in many cases in a irreversible, all the numerous other provisions that the decree-law contains, causing uncertainty and disorientation in the public administrations and in the addressees of the regulations. I also considered how the initiative taken by the Government that I mentioned earlier is aimed at bringing the emergency decree back within the constitutional limits and favoring a more rigorous evaluation of the amendments. I therefore decided to promulgate the conversion law in question”.
At the center of the observations there is, as expected, the seaside node. “Recently the Legislator, with the law of 5 August 2022, n. 118, taking into account the definitive sentences n. 17 and 18 of the plenary meeting of the Council of State, – underlines Mattarella – had extended the state-owned maritime, lake and river concessions for the exercise of tourist-recreational and sporting activities until 31 December 2023 and had also provided that, with a motivated provision by the competent authority, when there were objective reasons that prevent the conclusion of the selection procedure by 31 December 2023, the expiry date of the concessions could be deferred until 31 December 2024. The today’s changes, made to three articles of the decree-law and to article 1 of the conversion law, significantly modify the regulatory framework outlined above. In particular, the deadline relating to the effectiveness of the state concessions is deferred from 31 December 2023 to 31 December 2024 and the deadline within which the competent authority can further postpone the effectiveness of the concessions and existing relationships with a deed motivated by reasons objectives is deferred from 31 December 2024 to 31 December 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 – it is added – until the adoption of the legislative decrees implementing the delegation regarding the assignment of concessions (expiring on 27 February next) the granting bodies are in any case prohibited from proceeding with the issue of tenders for the assignment of concessions. With the effect of creating further uncertainty considering that the delegation in question will expire in three days. Furthermore, holders of state-owned maritime, lake and river concessions are allowed to maintain removable artefacts until 31 December 2023, with possible cases of interference even with judicial demolition orders in progress. For the reasons set out above, the aforesaid provisions of the decree-law and of the conversion law, in addition to conflicting with the recalled definitive sentences of the Council of State, are different from European Union law, also in consideration of the commitments in terms of openness to the market hired by Italy in the context of the National Recovery and Resilience Plan. A another problematic element is linked to the fact that, in the light of the pronouncements of the plenary meeting of the Council of State which deemed ‘ineffective because it is in contrast with the European Union legal system’ ‘any further possible extension that should intervene in the meantime’, the entities grantors could in any case consider themselves legitimated to disapply the rules in conflict with European law and to call tenders, while the counterparties could be induced to challenge any measures extending the concessions, further fueling the dispute. The examination of the law converting the decree-law in question has therefore revealed multiple critical profilesof which the most evident is represented by the mentioned ones amendments relating to state concessions, which could justify the exercise of the faculty attributed to me by article 74 of the Constitution. As for approved amendments regarding state concessions, it is clear that the incompatibility profiles with European law and with definitive jurisdictional decisions increase the uncertainty of the regulatory framework and make further government and parliamentary initiatives indispensable in the short term. Indeed, it will be necessary to ensure the application of the competition rules and the protection of the rights of all the entrepreneurs involved, in accordance with Union law, as well as guarantee legal certainty and the uniform application of the law vis-à-vis public entities and individuals working in this area. Finally, I note that article 1-bis, paragraphs 1-6, as can be seen from the quantifications of the same technical report, contains insufficient financial coverage in a time projection which, in order to ensure full compliance with art. 81 of the Constitution, must be integrated with the first useful legislative provision”.
Observing how the text of the decree-law contains, following parliamentary examination, “205 additional paragraphs compared to the original 149”, Mattarella also emphasized theabuse of the emergency decree and on the fact that decree-laws have long since become the by far the predominant instrument through which Governments exercise legislative initiative. The President of the Republic highlighted the evident “fragmentary, confused and precarious nature of the legislation produced through the amendments to the decree-laws” underlining “how this produces interpretative and application difficulties”. “All of this – pointed out the head of state – exacerbates the problems and lengthens the times of the administration’s activity, disorienting administrators, citizens and businesses”.