The Regional Administrative Court of Tuscany has analyzed an interesting aspect related to concession grants.
With its decision No. 328 of 27 February 2015, the Administrative Court has highlighted that the Concessionaire is the holder of a surface tenure of the maritime State property.
The case in question dealt with a concession, granting the surface tenure of an area of maritime State property with the express order to maintain a brick building to be used as bar-restaurant.
At a certain point the Municipality requested the payment of fees for the concession at issue.
Following such request, the Concessionaire brought an action for annulment because - in its view – the request was based on a wrong assumption.
The Concessionaire argued that, taking into consideration the fact that the concession granted the surface tenure of State property with the purpose of maintaining a brick building and that said concession had been automatically renewed, there was the persistence of a surface tenure.
Consequently, «in regards to the building in question, the concession fee that must be applied is the one provided for in article 1, par. 251, 1, b1, of Law no. 296/2006 and not the fee that is commensurate with market values, pursuant to article 1, par. 251, 2.12, which is applicable to State owned appurtenances»
Moreover, one should reach the same conclusion for fees related to State owned property, free or temporarily occupied by easily removable artifacts.
The plaintiff concluded that «the contested measures were erroneously based on the assumption of a commercial use of State owned property».
The Administrative Court embraced the Concessionaire’s thesis stating that it is wrong to «qualify as appurtenances intended for commercial use, those artifacts that are indeed private property, and are held in surface tenure, thus belonging to the plaintiff».
Moreover, «the right to maintain a building on the land of others is precisely the object of the right to build» pursuant to Article 952 of the Italian Civil Code «with the result that we are here in the presence of an administrative act which grants the Concessionaire the right to build on the State owned property».
The assets in question therefore cannot be considered as state property having never left the sphere of ownership of the Concessionaire.
Moreover, to complicate the situation and perhaps mislead the Administration, an automatic renewal of the concession took place.
The Administration was mistakenly convinced that the simple automatic renewal was enough to turn the assets in question into State owned property.
However, the Council of State had already clarified in its previous judgment1 that «in regards to maritime concessions, the principle of free accession pursuant to art. 49 of the Italian Navigation Code, notwithstanding the other provisions of the concession, is not applicable when the concession grant provides for an automatic renewal, before the natural expiration date, thus constituting an extension of the grant without an interruption in continuance».
In this case the continuity of the grant was never interrupted, thus the assets never passed from the Concessionaire’s sphere of influence into the State owned property.
Hence the Administrative Court decided the case ruling that «the lack of State owned property excludes in principle the possibility that one can speak of appurtenances of the maritime State property, lacking the requirements of Article 29 of the Italian Navigation Code, which defines the maritime domain appurtenances as buildings and other works belonging to the State property, which are within the limits of the territorial sea and maritime property, and require the State ownership of said property».
This ruling is of considerable importance because many Port Authorities tend to include in the concession grants clauses providing, upon completion of the construction of a new building, an increase in the concession fee because of an increment of the granted volumes.
The Court decision analyzed above clearly shows that this practice is absolutely illegal.