With a recent ruling [1], the Council of State has provided interesting clarifications regarding the control of the satisfaction of the concessionaire's requirements in case of concessions for the use of real estate in a maritime state property.
In particular, the decision originated from the appeal brought by a concessionary company which had been denied by the Port Authority the renewal of the concession for a real estate located within the port area because of the lack of the subjective requirements provided for by Article 38 of Legislative Decree No. 163/2006 (i.e. former Public Procurement and Concession Contracts Code), now transposed into Article 80 of Legislative Decree No. 50/2016 (current Public Procurement and Concession Contracts Code).
Indeed, the Port Authority, given the presence of elements negatively affecting the fiduciary relationship with the Administration, such as irrevocable judicial measures, alleged criminal offences and contributory irregularities relating to the D.U.R.C. (tax compliance certificate) concerning the concessionaire, had denied the renewal of the concession, regarding the concession as subject to the application of Article 38 of Legislative Decree No. 163 of 2006.
This is an interesting case since, with the ruling at issue, the Council of State made it clear that, on the contrary, the award of a concession for the use of real estate in a maritime state property area is subject only to the application of the general principles on public contracts and not also to the specific discipline on the requirements laid down (ratione temporis) by Article 38 of Legislative Decree No. 163/2006.
The Council of State also reiterated that the provisions of Article 30, paragraph 1, of Legislative Decree No. 163/2006 cannot be applied to concessions of goods and services (and even more so to a concession of goods) because, in fact, said rule refers to the different hypothesis of award of public works or supplies.
The Council of State has reminded that said approach is confirmed at European level, where according to the EU Court of Justice concessions of public goods are to be considered in the same way as real estate leases [2], hence expressly excluding them from the scope of applicability of concessions of services [3], except for the application of the general principles on public contracts.
Also, the European Commission [4], while excluding the existence of a EU secondary legislation on concessions of services in the port sector, has made it clear that this does not mean excluding concessions from the rules and principles of the Treaty, but only that the sole obligation incumbent on Member States is to ensure a degree of publicity that allows the concession to be actually contended by all parties concerned.
The concessions in question, which are expressly excluded also at EU level from the scope of service concessions, are therefore subject - in any case - to compliance with the general principles of transparency, adequate publicity, non-discrimination, equal treatment, mutual recognition and proportionality.
Therefore, as clarified by the Council of State, in the case of concession for the use of real estate in a maritime state property area, the administration in charge of evaluating the moral and professional reliability of the concessionaire in the presence of unlawful acts - such as crimes or contributory irregularities - will certainly be required to carry out an analytical and motivated investigation, subject to prior notification and with the consultation of the party concerned, but will not be able to invoke the "automatic" applicability of the grounds for exclusion provided for by the Public Procurement and Concession Contracts Code.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Franco Rossi and Simona Ferrari.
[1] Italian Council of State, VI Division, 9 July 2019, No. 4795
[2] See EU Court of Justice, 25 October 2007, in case C-174/06
[3] Recital No. 15 of EU Directive 2014/23/EU on the award of concession contracts
[4] Communication 2007/616 of 18 October 2007, based on Article 18 of Directive 2004/17/EC and Article 17 of Directive 2004/18/EC
