\u2693 TOURIST PORTS AND IN-HOUSE: LIMITS ON \u201cBRIDGE\u201d MANAGEMENT PENDING THE TENDER<\/p>\n\n\n\n
The Council of State, 5th Section, intervenes on the in-house award of the management of the tourist port of Porto San Giorgio, ordered following the forfeiture of the previous concessionaire and pending the public tender procedure.<\/p>\n\n\n\n
The judgment first clarifies that the concession of state-owned land and water basins intended for the management of a tourist port falls among those with tourist-recreational purposes.<\/p>\n\n\n\n
Recalling Council of State, Plenary Assembly nos. 17 and 18\/2021, the panel reiterates that the concession confers the right to exclusively exploit a limited natural resource, with economically significant advantages capable of impacting competition.<\/p>\n\n\n\n
This is also supported by Article 1, paragraph 18, of Decree-Law No. 194\/2009, converted into Law No. 25\/2010, as amended by Article 1, paragraph 547, of Law No. 228\/2012, which expressly includes tourist ports, moorings and docking points dedicated to recreational boating.<\/p>\n\n\n\n
However, the central issue concerns in-house provision.<\/p>\n\n\n\n
The Council of State refers to Article 192, paragraph 2, of Legislative Decree 50\/2016, Article 7, paragraph 2, of Legislative Decree 36\/2023, and Articles 14 and 17 of Legislative Decree 201\/2022.<\/p>\n\n\n\n
Pursuant to Article 17, paragraph 2, the choice of the in-house option requires a qualified justification regarding the reasons for not resorting to the market and the benefits for the community, with regard to investments, service quality and costs, public finance, universality, social aspects, environmental protection and accessibility.<\/p>\n\n\n\n
Preconditions that must also be met for a temporary award. It is not enough, therefore, to invoke the need to manage the port pending the tender procedure.<\/p>\n\n\n\n
Furthermore, the regulation of local public services does not contain a provision that allows for in-house provision pending the identification of the new concessionaire.<\/p>\n\n\n\n
Nor is Article 120, paragraph 11 of Legislative Decree 36\/2023 applicable by analogy: citing the judgments of the CJEU of 14 July 2016 in Cases C-458\/14 and C-67\/15, the Panel points out that concessions relating to the exploitation of state-owned property or resources do not constitute service concessions within the meaning of Directive 2014\/23\/EU.<\/p>\n\n\n\n
The resulting principle is clear: temporariness does not constitute an independent basis for derogating from the market and does not lessen the prerequisites and motivational obligations of in-house providing.<\/p>\n\n\n\n
The Administration will therefore have to choose whether to confirm the in-house provision in compliance with these conditions or to award the tourist port through a public procurement procedure.<\/p>\n\n\n\n
#PortiTuristici #ConcessioniDemaniali #DemanioMarittimo #InHouse #Concorrenza #NauticaDaDiporto #DirittoAmministrativo<\/p>\n\n\n\n