\u2693 PORTO ERCOLE: FIRST SELF-CONCESSION, THEN ARTICLE 45-BIS. THAT IS THE WHOLE POINT.<\/p>\n\n\n\n
The Mayor replies: \u00abThe tenders have been carried out.\u00bb.<\/p>\n\n\n\n
Nobody is arguing the opposite. But this response skips the fundamental step: before the procedures pursuant to Article 45-bis of the Navigation Code, there was the self-concession of the port to the Municipality itself.<\/p>\n\n\n\n
\ud83d\udd0e First question: why did the Council have to grant the port to itself for 50 years?<\/p>\n\n\n\n
If it already had the administrative functions assigned by the Region and wanted to manage the port directly, why create a concession in which it becomes both grantor and concessionaire?<\/p>\n\n\n\n
AGCM case AS2190 points out that the management of a tourist port can be classified as a local public service of economic significance, with the application of Legislative Decree 201\/2022 and the obligation to justify the choice also from an economic-financial perspective.<\/p>\n\n\n\n
And they add that, in the case of direct administration, a \u201cself-award\u201d measure would even be superfluous.<\/p>\n\n\n\n
\ud83d\udcb6 Being a concessionaire also means taking on the associated financial obligations, starting with the state property fee, for fifty years.<\/p>\n\n\n\n
\u2696\ufe0f Then comes Section 45-bis.<\/p>\n\n\n\n
Once it became its own concessionaire, the Municipality used Article 45-bis of the Navigation Code to assign portions of the port to private operators through comparative procedures.<\/p>\n\n\n\n
So yes, the procedures were carried out.<\/p>\n\n\n\n
It's actually the tool being used that's the problem.<\/p>\n\n\n\n
The AGCM describes the self-providing Municipal authority + Article 45-bis scheme for assigning areas to third parties and defines it as \u201canomalous\u201d and inconsistent with the rationale of the provision.<\/p>\n\n\n\n
Indeed, Article 45-bis presupposes a necessary otherness between the grantor and the concessionaire. Here, however, they coincide.<\/p>\n\n\n\n
For economically contestable areas, the AGCM points to another path: \u201crather than resorting to Article 45-bis\u201d, a public tender respecting competitive principles.<\/p>\n\n\n\n
\u23f3 And then there is time.<\/p>\n\n\n\n
The provisional leases expire on 1st November 2026: the old pontoons should be removed and the new assignees should take over.<\/p>\n\n\n\n
The Tuscan TAR will instead discuss the matter in March 2027.<\/p>\n\n\n\n
By the time the decision arrives, the new set-up might already be in place.<\/p>\n\n\n\n
The TAR will naturally retain all its powers. But the question remains:<\/p>\n\n\n\n
\ud83d\udc49 why operationalise such a significant transformation before the judge rules?<\/p>\n\n\n\n
Especially now that standard AS2190 also expressly refers back to the previous standard AS2117 relating to Porto Ercole.<\/p>\n\n\n\n
The point, therefore, is not: \u00abDid you hold the competitions?\u00bb<\/p>\n\n\n\n
The point is:<\/p>\n\n\n\n
Was the self-grant necessary?
\nWas it correct to use Article 45-bis?
\nAnd why go to the TAR with the new structure potentially already in place?<\/p>\n\n\n\n
\u26a0\ufe0f Conducting a comparative procedure does not eliminate the potential criticality of the legal instrument on which it is built.<\/p>\n\n\n\n
Porto Ercole deserves answers.<\/p>\n\n\n\n
#PortoErcole #MonteArgentario #AGCM #Antitrust #Art45bis #PortiTuristici #TAR #Concorrenza #Trasparenza<\/p>\n\n\n\n