In day-to-day operation, a port concessionaire must deal with all the issues involved with State property concession fees, namely, their amount, recalculation for update and, especially, payment.
A State property concession fee is the consideration payable by a private concessionaire, according to a typically private-law scheme of negotiation, but also – as to its calculation – the result of an authoritative determination by the granting authority – for port areas, Port System Authority (PSA) – directly linked to the public-law implications of the concession relationship, involving the power of authorities to impose the payment of a given fee for any special use or commercial exploitation of State-owned property.
Therefore, a State property concession fee is not only the consideration payable for exploitation and use of State-owned property granted under concession to private persons, but also an element that carries particular weight when calculating the cost effectiveness that a concession holder can expect from the whole deal (see Council of State, Section VI, 23 November 2017, No. 5469).
Pursuant to Article 39 of the Italian Navigation Code, the amount of the fee is set out in the concession deed and, if the use of maritime state property by a concessionaire is restricted by pre-existing third party rights, the concessionaire shall not be entitled to compensation, but an adequate fee reduction shall apply (Article 40 of the Italian Navigation Code).
The importance of State property concession fees in the “concession synallagma” is immediately clear from the fact that the non-payment of State property concession fees triggers the most significant of statutory sanctions, namely, the forfeiture of a State concession. Indeed, Article 47, paragraph 1, d) of the Italian Navigation Code provides for the forfeiture of state concessions in case of non-payment of fees for such number of instalments as set out to that effect in the concession deed. Non-payment of concession fees covers also the cases of incorrect or partial payment.
In this regard, the Law provides for a mechanism of protection against the situations and cases where the sanction turns out to be disproportionate, as Article 47, paragraph 1, d), of the Italian Navigation Code does not specify the number of instalments whose non-payment triggers the forfeiture of a concession, leaving the assessment of the seriousness of the breach to the Authority’s discretion at the time of setting out the terms of the concession (pursuant to Article 39 of the Italian Navigation Code). Consequently, by the concrete exercise of its own discretion, the Authority can adjust the statutory model to the actual structure of the relationship (see Administrative Court of Liguria, Second Division, 17 July 2015, No. 686).
But when does the right of a PSA to be paid past due and unclaimed concession fee instalments lapse? In other words, what is the time-limit within which authorities are entitled to claim the payment of fees, besides any forfeiture of the concession?
Since neither the Navigation Code nor Law No. 84 of 1994 (the so-called “Port Law”) make provision on the statute of limitations for the collection of concession fees, reference must be made, in accordance with Article 1 of the Navigation Code, to the principles of the Italian Civil Code.
The general rule of Article 2946 of the Civil Code, which provides for a standard limitation period of ten years, applies to annual maritime State property concessions renewed on a yearly basis, given the non-fee-periodicity involved with such concessions. “Annual payment must indeed be referred to each specific concession, such concessions being fully autonomous among each other, and, accordingly, the rules on limitation under Article 2948 of the Civil Code do not apply and the standard rules under Article 2946 of the Civil Code are more appropriately relevant to that effect” (i.e. ten years; see Administrative Court of Abruzzo, Second Division, 25 February 1999, No. 346).
On the other hand, Article 2948 of the Italian Civil Code provides for cases where a shorter limitation period applies. Paragraph 4 of said article indeed provides that a five-year limitation period shall apply to interest and, in general, to any charges payable periodically during one year or within shorter time limits.
Case law has recognised the applicability of “the short limitation under Article 2948.4 of the Civil Code in the event that a single legal relationship involves obligations subject to a periodical deadline not exceeding one year, without therefore applying to the case of autonomous administrative concessions having a one-year term and each of which involving a specific fee payable in a single instalment” (see Court of Appeal of Rome, First Division, 7 March 2011, No. 949).
The Supreme Court’s judgment No. 3162/2011 on public water concessions clarified that, “concerning a periodic service, the right to the relevant payment is subject to a five-year limitation period, pursuant to Article 2948.4 of the Italian Civil Code, running individually from each deadline of the fee-calculation period”.
Finally, the Supreme Court excluded the applicability of the three-year statute of limitations applying to licence tax to the collection of concession fees for use of State property (see Supreme Court, First Division, 16 December 1981, No. 6651).
To conclude, the answer to the question we started off with is, in case of a multi-year concession, the payment of the relevant fees for each year is subject to a five-year statute of limitations.