Administrative, Administrative proceedings, Self-protection, Consortium of Industrial Development, Lazio Tar, Section Two Quater, 23/10/2019, Judgment n. 12198
Proceedings – Start-up notices – Contributions and loans – Industrial Development Consortium – Assets assigned to restore the production destination – Repurchase – Need for the participation phase.
The possibility of repurchasing a production asset assigned by the Industrial Development Consortium to private entrepreneurs in order to restore the production destination set forth in art. 63, l. December 23, 1998, n. 448, affecting legal relationships in progress, must take place in compliance with the procedural guarantees sanctioned by art. 7, l. n. 241 of 1990 (1).
(1) The TAR has clarified that the assignment in ownership or the granting in use of areas at prices lower than the market ones, constitute a tool of public intervention for the promotion of the entrepreneurial activities through abatement of costs (therefore with economically equivalent effect the granting of various types of financial incentives) for the construction of production plants (measures which are often accompanied by other forms of benefits, including the payment of “non-repayable” grants) precisely to promote, thanks to considerations of business convenience, the ‘establishment of productive activities in areas that otherwise would remain depressed, and support the development of local potential through the synergy between activities and their concentration in special equipped areas, according to the economic model underlying the l. 29 July 1957, n. 634 – on the basis of which the Consortium of Industrial Development of …… with d.P.R. 1383 of 27.9.1965 to promote industrialization and counter the depopulation of the Province – and at the base of the interventions for innovation and the development of small business of the so-called. industrial districts, planned starting from l. 5 October 1991, n. 317 (and in Lazio by Regional Law 13/97), to which Law n. 448 of 1998.
Given that the failure to use the areas and real estate complexes in question for the productive activities for which their sale in ownership or concession in use to private entrepreneurs is finalized implies the frustration of the aims pursued with this initiative, art. 63 of the law n. 448/98 provides for the “public recovery” of assets assigned to companies and left unproductive by them, as clarified by the relevant jurisprudence (see, most recently, TAR Lazio, Section II / Bis, 15 May 2018, No. 5410 , which, in this perspective, reiterated that the rationale of this rule “is, in fact, clearly that of favoring the concrete recovery of economic-productive activity in establishments where it has been abandoned for at least three years”) “.
The possibility of repurchasing a production asset assigned by the Industrial Development Consortium to private entrepreneurs in order to restore the production destination set forth in art. 63, l. December 23, 1998, n. 448, affecting legal relationships in progress, must take place in compliance with the procedural guarantees sanctioned by art. 7, l. n. 241 of 1990 in consideration both of the nature of the exercised power (which the legislator of 1998 configured not as a restricted activity, but as a “faculty”), and of the need to ensure adversarial defense in defense of the owner “expropriated” of the production asset (allowing him to clarify the causes of the non-use of the industrial compendium and the possible possibilities of reactivating the activity or reconversion of the same), and, finally, of the “collaborative” function of private participation according to the enrichment of the preliminary investigation and , above all, to the elaboration of the different “alternative measures” that can be undertaken (including those related to the resumption of activity or its conversion into a different activity or to the planning of further “accompanying initiatives”) which allow the Public Administration to recruit with complete knowledge of a choice of the public administration to recover aimed at the pursuit the institutional purpose of promoting / resuming the aforementioned economic activities.
Legitimately, therefore, the Industrial Development Consortium has ordered the cancellation in self-protection of a recovery order of an industrial complex adopted in violation of the art. 7, l. n. 241 of 1990 and, consequently, canceled its call for tender for the association with other companies.
Source Administrative Justice
