Competition, State property fees, Amendment to the Competition Bill
A European entrepreneur will be able to compete with an Italian one, but not vice versa
Pleasure ports and landings
Principle of legitimate expectations of art. 1375 of the Civil Code
Confindustria Nautica at the hearing in the Senate: serious concern about the impact on ports and landings of the nautical sector of the amendment filed by the Government to the “Competition” Bill.
Confindustria Nautica yesterday expressed its concern in the Senate hearing about the impact of the amendment filed by the Government to the “Competition” Bill (AS 2469), the text of which also intervenes on the concessions of goods, including ports and landings for recreational boating .
The new system of assignment of the aforementioned goods does not provide for a reciprocity regime with other EU countries, which do not apply the Bolkestein Directive written for tenders for public services such as school canteens and transport. A European entrepreneur will be able to compete with an Italian one, but not vice versa.
“The extension of these rules to nautical ports and landings also takes place contrary to the provisions of European law itself, because the Bolkestein Directive expressly excludes application to ports and the EU Court of Justice has also ruled that the latter they must be <equated to the leasing of assets> ”- comments the President of Confindustria Nautica, Saverio Cecchi.
“We are not opposed to new rules, but we strongly ask not to apply the rules designed for tenders for the award of public services directly to the concession of goods”, concludes Cecchi.
The distinction between the two categories is fundamental and must be taken into account: the negative outcome of a tender, in the case of public services means the loss of a single customer, in the case of a concession of a state property, it means losing all ‘company, all investments, all built real estate, all trained staff and all customers, at the same time.
In addition, the Government amendment, while recognizing the specificity of recreational ports and landings, directly applies the rules laid down for beaches, such as:
the provision of ensuring the constant presence of passages to reach bathing, which in a landing place is prohibited for obvious safety reasons;
the subdivision of port concessions into small lots, or the preference that must be ensured for completely removable equipment, which obviously cannot be applied to ports;
the favored regime guaranteed to applicants who are small family businesses or non-profit organizations, the outcome of which, given the economic values of the investments involved, would be only the bankruptcy of the company;
the reward for the expertise of the outgoing concessionaire, which is ensured only for the tourist one and which would see a hotelier always preferred to a landing manager on equal terms.
The other crucial issue is undoubtedly the economic recognition due to the outgoing concessionaire which, since these are assets built by him, must absolutely be commensurate with the commercial value of the company and not mere goodwill, otherwise the confiscation of the assets by the State. it turns into a real expropriation.
Finally, the distinction must be established, affirmed by the EU Court of Justice and the Council of State (most recently sentence 15 January 2022, Section VI), between the concessions granted before the entry into force of the Services Directive and those approved subsequently, in application of the principle of legitimate expectations pursuant to art. 1375 of the Civil Code.
09 March 2022
Confindustria Nautica
