Competition bill, Mattarella signs the law but writes to the presidents of the Chambers and to Meloni

“Excessive and disproportionate extension of concessions for trade, conflict with EU law and jurisprudence, Government and Parliament must intervene”

The President of the Republic, Sergio Mattarella, promulgated the annual law for the market and competition on 30 December 2023, but at the same time wrote to the presidents of the Senate Ignazio La Russa and of the Chamber Lorenzo Fontana, and of the Council Giorgia Meloni. Article 11 of the annual law for the market and competition 2022 “on the subject of the assignment of concessions for trading in public areas, in addition to regulating the methods for issuing new concessions, introduces yet another automatic extension of existing concessions, for an extremely long period, so that it appears incompatible with the principles repeatedly reiterated by the Court of Justice, the Constitutional Court, administrative jurisprudence and the Competition and Market Authority regarding opening up to the services market. the general criteria for the granting of new concessions, as also stated by the Competition and Market Authority, appear restrictive of incoming competition and favor, in contrast with European rules, outgoing concessionaires”, writes Mattarella.

The legislator’s intervention, explains the Head of State, presents “obvious analogies with that of maritime state concessions, introduced with the conversion law” of the Milleproroghe decree law of 2022, “the subject of a previous letter of mine dated 24 February 2023”, always sent to the leaders of the Chambers and to the Prime Minister, “where I highlighted the profiles of conflict of that discipline with European law and, therefore, with the constitutional provisions. The provisions that intervene in the law now under consideration give rise to similar, significant doubts of a constitutional nature on existing concessions and provide for extensions for various reasons”.

“The twelve-year extension provided for by the law in question for existing concessions appears”, in light of the jurisprudential guidelines referred to by the Head of State, “excessive and disproportionate. Furthermore, the inconsistency of providing for an automatic extension of a longer duration should be noted ( 12 years) to that of the new concessions (10 years). The context that is thus created has very similar characteristics to that which was the subject of my letter of 24 February. The aspects of conflict with European law and with definitive jurisdictional decisions they increase the uncertainty of the regulatory framework, determining the need to guarantee legal certainty and the uniform interpretation of the law by all the subjects involved. As I observed regarding the issue of state concessions, this – concludes Mattarella – makes it essential further initiatives from the Government and Parliament will be forthcoming”.

Mattarella first of all recalls how the 2022 annual law for the market and competition promulgated “represents one of the goals of the national recovery and resilience plan to be achieved by the fourth quarter of 2023 and therefore, in order to fulfill the commitment undertaken at European level , it is necessary to proceed promptly with the promulgation”. However, he believes it is “duty” to clarify his findings on the extension of the concessions, listing the legal assumptions underlying his observations.

“It is expected that not only – as is logical – the concessions assigned with selective procedures, but also the concessions already reassigned pursuant to article 181, paragraphs 4-bis and 4, will continue to be effective until the term set out in the relevant title -ter, of the legislative decree of 19 May 2020, no. 34, converted, with amendments, by law of 17 July 2020, no. 77. The aforementioned paragraph 4-bis provided for, in due course, the renewal for the duration of twelve years for concessions expiring on 31 December 2020, while paragraph 4-ter provided for the Regions’ power to provide that the Municipalities can assign, upon request of those entitled, as a priority and in derogation of any other criteria, concessions for free, vacant or newly established stands, where necessary, to operators, in possession of the prescribed requirements, who have been excluded from the selection procedures provided for by current legislation or who, following the outcome of the procedures themselves, have not achieved the reassignment of the concession “.

“Article 11 of the law in question provides, for the procedures for the renewal of the concession titles identified by paragraph 4-bis not yet concluded also due to the inertia of the Municipalities, a further term of six months, with application, upon renewal, of the twelve-year term provided for in paragraph 4-bis. If the administration does not conclude the procedure within this additional six-month term, the concession title is automatically renewed, subject to the waiver of the person entitled. Finally, with a provision of where the rationale and impact are not clear, the concessions not affected by the renewal procedures pursuant to the aforementioned art. 181 are automatically extended until 31 December 2025, without prejudice to any longer duration provided for in the title”.

“The regulation of trade in public areas, as also stated by the Constitutional Court, with ruling no. 291 of 2012, falls – Mattarella writes – within the scope of application of Directive 2006/123/EC, relating to services in the internal market ( so-called ‘services directive’). natural resources or usable technical capabilities’, excluding automatic renewal procedures. The need to disapply internal rules in conflict with this obligation was recently reiterated, with reference to the regulation of maritime state concessions, by the Lazio Regional Administrative Court, with sentence no. 19051 of 15 December 2023, and by the Court of Justice, with sentence of 20 April 2023”.

“With specific reference to concessions for trade in public areas, the Competition and Market Authority, with respect to the extension provided for by Legislative Decree no. 34 of 2020, had already noted, in the opinion of 15 February 2021, the incompatibility with the services directive, inviting the Municipalities to disapply the provisions of the law. The case of the Municipality of Rome which therefore proceeded to disapply the aforementioned paragraph 4-bis and initiated the procedures to the tendering of concessions. The Council of State affirmed the legitimacy of the non-application by the Municipality of Rome of this internal provision, as it is incompatible with the services directive (Council of State, section VII, sentence no. 9104 of 19 October 2023).

“The Council of State thus confirmed the first instance sentence which had also indicated for the concessions of parking spaces for commerce in public areas, as well as for the concessions of state maritime property, the maximum limit of 31 December 2023, reached which the concessions will cease to produce effects, ‘despite any possible further legislative extension that may intervene in the meantime, which should be considered ineffective because it is in conflict with the rules of EU law and without prejudice to the fact that, in the meantime, the ‘the administration has the power/duty to initiate the procedures aimed at assigning the concession’ (Lazio Regional Administrative Court, ruling no. 530/2022). Similarly – Mattarella highlights again – the Lazio Regional Administrative Court has ruled in other proceedings with rulings no. 539/2022; 8136/2022, not contested and, therefore, finalized”.