Which “Judge in Berlin” for agreements in lieu of port concessions?
In a democratic order, to ensure the legitimacy of decisions (and therefore their acceptability by the recipients), the administrative action cannot disregard the social consensus.
Therefore, with a view to develop Public Administration, in recent decades we have moved from the centrality of the administrative measure – an act exemplifying the administrative authority in a traditional perspective of unilateral management of power in relationships between administration and citizens – to an ever-increasing focus on consensual models for the management of the public interest.
The conventional model of administrative action was institutionalized with Article 11 of Law No. 241 of 1990, so as to seek the satisfaction of the public interest with the consent of private citizens in a reconciliation of the opposing positions at stake, also with the aim to reduce occasions of conflict. In particular, it is established that “the proceeding administration may conclude, without prejudice to third parties’ rights, and in any case in the pursuit of public interest, agreements with the interested parties with the aim to determine the discretionary content of the final measure or in place of the same”.
This new way of administering public affairs has subsequently fallen also “on the quay”. In fact, the so called “Port law” (Law No. 84/1994), which was approved a few years later, provides by means of Article 18, paragraph 4, that “for the most important initiatives, the president of the port authority can conclude (…) agreements in lieu of state concession pursuant to Article 11 of Law No. 241 of 7 August 1990”.
Thus, in the cases concerning the most important state-property areas, also involved in the construction of infrastructural works, the related granting in concession does not necessarily take place through the issuance of an administrative deed, but by means of an agreement in lieu of the same, signed by the Port System Authority and the private economic entity. The purpose of the legislator is clear: to regulate the concessionary relationship in all its aspects in a harmonious way, from the definition of any works to be carried out, to the determination of the state fee, passing through a precise planning of the activities to be developed on the relevant area and the issue of the authorizations to carry out port operations.
But when a controversy arises precisely regarding the agreement in lieu, which is the judge called to settle the issue? In other words, is it submitted to the Civil Court or to the Administrative Court?
The question stems from the most widely debated aspect in relation to said agreements, namely that concerning their, private or public, legal nature.
According to an initial guidance, the nature of such agreements pertains to private law. There are several arguments supporting this position: a) the “agreement” is an essential element of the contract (Article 1325 of the Italian Civil Code); b) Article 11 of Law No. 241/90 makes a general reference (although “as compatible” and “if not otherwise provided“) to the principles of the Italian Civil Code on obligations and contracts; c) the legislator has provided for the instrument of withdrawal, a private-law related instrument for the exercise of a right that is explicative of private protection.
On the contrary, the reconstruction of the agreements in question in public-law related terms – which is the prevalent trend – is based on a series of considerations that are more substantial from a legal point of view: a) first of all, Article 11 of Law No. 241/90 establishes the possibility for the administration to execute an agreement subject to the fact that it acts in the exercise of an administrative power aimed at the realization of the public interest, with the consequence that by deciding the conclusion of the agreement it would anyway take an administrative decision; b) in the case under examination, private law is only supplementary and additional to public law, since the defects that can be found in these agreements are those typical of the administrative measure; c) the relevant provision refers to an agreement and not to a contract, thereby proving the legislator’s intention not to consider such agreements as contracts under private law; d) the cross-reference made by Article 11 of Law No. 241/90 is addressed to the principles of civil law and not to the Italian Civil Code as a whole, so that the public connotation of the agreements must prevail (see, Council of State, Section V, 24 October 2000, No. 5710); e) the administration has the unilateral power to withdraw for reasons of public interest; f) the express reference made by Article 11 of Law No. 241/90 to the possibility of concluding such agreements “without prejudice to third parties“, would be superfluous due to the principle of relativity under Article 1372 of the Italian Civil Code should the contractual nature actually prevail; g) substitute agreements are subject to the same controls envisaged for the administrative measure.
In light of the aforementioned considerations, there is apparently no space left for the private nature thesis, which would bring substitute agreements within the category of contract (and therefore within the jurisdiction of the ordinary court).
Any strenuous contrary reconstruction must then definitively give way to the provision currently contained in Article 133 of the Italian Code of Administrative Procedure, according to which: “unless otherwise provided for by the law (…) disputes relating to (…) definition, conclusion and performance of agreements supplementary to or in lieu of administrative deeds are deferred to the exclusive jurisdiction of the administrative judge“.
Such conclusion must apply also to agreements in lieu of port concession contemplated in Article 18, paragraph 4 of Law No. 84 of 1994, given the mentioned express cross-reference to Article 11 of Law No. 241 of 1990. In fact, “pursuant to Article 133 paragraph 1, letter a), of the Code of Administrative Procedure, the administrative judge has exclusive jurisdiction on disputes concerning the performance of an agreement governed by Article 11 of Law No. 241 of 1990” (Regional Administrative Court of Lombardy, Section II, 18 March 2016, No. 542).
Therefore, in the event of disputes concerning these substitute agreements, the “Judge in Berlin” will be, in the first instance, the competent Regional Administrative Court.
This article is for information purposes only and is not intended as a professional opinion.
For further information, please contact Franco Rossi.