Article 822 of the Italian Civil Code (ICC) states that: “… bays [and] ports (…) belong to the State and form part of the public domain”.
Such assets fall into the category of what is technically called "necessary" State property.
Article 823 ICC provides that assets belonging to the State are inalienable.
Nevertheless, it is far from unusual to come across areas of private property within the ports of our Republic.
How can this situation be reconciled with the legislative requirements?
The question is anything but trivial, suffice it to think that any potential deeds of sale and lease, that have such areas as their object, would be substantially null and void, for inability of the object, since it is impossible for an individual to dispose of a public property’s asset.
The Italian Supreme Court, with judgment no. 15846 of 19 July 2011, stated that the essential point of the investigation regarding the identification of the asset as belonging to the legal category of the State maritime property is focused onto its functional element (that is the suitability of the property to achieve the interests pertaining to the public uses of the sea).
Having recalled this principle, how is it possible to understand if a port asset at large could (should) be ascribed to the State property by reason of its nature of asset embedded in the geographic and operational context of a port?
We set forth below some elements that, according to a possible interpretative scheme, could be valuated to find out if a particular real asset should or should not be considered as part of the necessary (port) State property.
It is not necessary that all these elements are present, but surely their presence could increase the chances of a judgment declaring the asset at issue a State property.
In particular the State property character of a port area can be inferred from the following important elements:
the location of such area within the port’s perimeter and in the customs area;
the contiguity to another State property area;
the application to that area of the rules that normally apply in respect of operations or port services and that grant companies, agencies or terminal operators – respectively regulated by Articles 16, 17 and 18 of port legislation (law no. 84/1994) – the right to carry out there the activities which are typical and ancillary to port traffic;
the subjection of that area to the regime provided for by ISPS Code on Security.
What happens then if our area has the above mentioned characteristics?
The Port Master should enforce the provisions of Articles 32 and 33 of the Navigation Code, and then proceed to the delimitation or the expansion of the State property.
Without prejudice to the possibility – in the event of nullity of the purchase agreement – to obtain the reimbursement of the undue payment within the ten-‐year limitation period, is it possible to think of an indemnity in favour of a private citizen being deprived of his area?
We do not believe so, unless the private citizen can prove that his "purchase" occurred before the areas involved became geographically and functionally constrained to port operations and, more generally, became a useful instrument, to use the words of the Supreme Court, "to achieve the interests pertaining to the public uses of the sea."