“The occupation concessions of italian beaches cannot be automatically renewed but must be subjected to an impartial and transparent selection procedure. The national judjes and the administrative authorities are required to apply the relevant rules of European Union law, disapplying the provisions of national law wich do not comply with them”. In this way has ruled the Europen Court of Justice in the case C 348/2022 about the controversial issue of the automatic renewal of the bathing establishments concessions.

This judgment has, therefore, refocused the attention on an issue that, since several years, provokes intense debate in Italy, since it involves opposing interests; on one hand the concessionaires companies interest, that see their profit fading and their investments nullifying and on the other hand the free national end transnational competition interest in the use of the public lands,  by nature destined to the common enjoyment. This interest just mentioned is one of the European Union pilars and each Member State must comply with this. In fact, since the concession involves an exceptional use of public land, the occupation of the land by the sea attributes a surface right with a temporary duration; this is why becomes necesary to ensure an impartial and transparent succession of different users of the same good.

However, the basic approach of italian law is still partly carachterised by a favor for long-term concessions; favor that can be deduced from the now repealed second paragraph of art. 37 of the Navigation Code, wich provided for the so-called “right of insistence”, according to wich priority was given “to the previous concessions, already issued”, rather than the new applications, at the time of the renewal. The legisaltor has, in fact shown itself to be mostly inert in complying with the European law, intervening with a succession of regulations in order to extend the period of the automatic renewal of the concessions, pending an overall reorganization of the matter. The last conversion law of the so called “Milleproroghe” Decree” (Law n. 14/2023) postponed the effectiveness of the current concessions from the 31th December of 2023 to the 31th December of 2024 with the possibility of a further delay from the end of 2024 to the end of 2025 in case of “objective reasons”.

The lasting conflict between Italian and European legisaltion has led to uncertainties both among the judges and between the administrative authorities, especially about the direct effectiveness of the European directives and the consequent possibiilty of disapplying the internal laws.

The case that then led to the ruling of the European Court of Justice was brought out by this uncertanty. In particular, the municipality of Ginosa, in the district of Taranto, had extended with a resolution of the 24 th December 2020 the duration of the beach concessions in all the municipal territory. The Competition and Market Autorithy, after having sent a reasoned opinion not followed by the Municipality, challenged the mentioned resolution before the Puglia Tar, for violation of art. 12 of the well-known Bolkestein Directive (123/2006/CE), requesting its cancellation. That article provides that the differente member States must apply an impartial and transparent procedure to award a bathing establishment concession, when the number of permissions available for a given activity is limited due to the scarsity of natural resourches. In addition, the same provision lays down the principle that the authorisation must be granted for a limited period of time and cannot be automatically renewed, without the possibility of compensation for outgoing concessionaries.

The Apulian administrative judges, doubting the “self executing” nature of the Birkestain Directive, made a reference for a preliminary ruling to the Court of Justice of the European Union. The Court clearly established the direct effect of the provisions contained in the Directive and the corresponding obligation on national courts and administrative authorities, including the municipalities, to apply them and disapply the rules of national law that are in conflict with them.

Therefore, the Judges of Taranto will have to comply with the Courts ruling and its decision will bind the other national courts to whome the same matter will be submitted.

In light of the recent intervention of the European Court, the Government is at a crossroad: either comply with the Eu law by the end of the summer, or opt for a head-on-clash with Brussels. From the last meetings that the the Executive has had with members of the Commission, it seems that the Government is more inclined to the first of two options. The FDI leader has reassured on the will to anticipate the concessions deadline established in the “Milleproroghe”decree, thus meeting the Eu requests. In fact, it sounds like a forthcoming decree-law is arriving.

The hope is, therefore, that of a rapid legisaltive intervention that achivies the aim of an alignment of Italy with the other member States of the European Union in this important field.