Bathing establishments: the Supreme Court upholds the anti-extension decision

The beach concessions that did not take part in the judgement cannot appeal against the decision with which the Adunanza Plenaria del Consiglio di Stato (n. 17/2021) rejected the regime of automatic extensions of State-owned bathing concessions until 2033, affirming, regardless of the position of individual municipalities, that beaches must go to tender. The Unified Sections of the Supreme Court, thus branded as inadmissible the appeals, against the Prime Minister's Office, Agcom and the Municipality of Rimini, of 22 Rimini bathing companies that had decided to challenge the administrative decision in the Supreme Court for lack of jurisdiction. The Supreme Court rejected the thesis of the establishments' managers, seeking to affirm their legitimacy to appeal. An obligatory recourse, according to the defence, in order to obtain judicial protection against measures, such as those adopted by the Municipality of Rimini, which apply the new rules created by the Council of State capable of disapplying the current legislative regulation of the sector, which provides for the indefinite duration of maritime state concessions. In the applicants' opinion, the Plenary Assembly, with sentence No. 17/2021, replaced the legislature, the Government, the territorial public administrations and the Constitutional Court, declaring illegitimate all the provisions of national law, even after the adoption of the contested sentence, which guarantee the continuity, first on 31 December 2033 and now indefinitely, of the use of the maritime property legitimately assigned to beach concessions. The specific and current interest in appealing therefore stems from the constant adaptation of administrative jurisprudence to the plenary ruling, whose "complete reform" was requested from the Court of Cassation because the Council of State would have invaded the field of the legislature.

The college of legitimacy retraces the stages of the case. Law No. 145/2018 (Budget 2019), in Article 1, paragraphs 682 and 683, had provided for the automatic extension until 31 December 2033 of maritime state concessions with tourist-recreational purposes. The Plenary Assembly of the Council of State, in Ruling Nos. 17 and 18 of 2021, affirmed the contrast of the extensions with Article 49 of the TFEU and with the Bolkestein directive, stating that national rules incompatible with EU law should not be applied either by judges or by the public administration. The plenary session had also set 31 December 2023 as the final effective date for active concessions.

The legislature then intervened with the annual Competition Law No. 118/2022, making the concessions that had already been extended effective until 31 December 2023, and delegated the Government to reorganise the matter and to define public tenders and compensation to outgoing concessionaires. A dead line that, the Milleproroghe 2022 decree, converted into Law no. 14/2023, postponed to 31 December 2024, with the possibility of a further extension to 31 December 2025 for objective reasons preventing the conclusion of the tenders.

For the United Sections, however, the declared extraneousness of the appellants with respect to the judgement defined by the contested judgement translates into an obvious reason for the inadmissibility of the appeal. And this is also because the reasons underlying the appeal do not concern the direct impact of the contested judgment on the legal position of the parties, but the prejudice "deriving from and persuasive capacity of the principles affirmed by the Plenary Assembly that would be capable of guiding the decisions of the administrative judges subsequently seised to resolve issues similar to those decided by the Council of State". A conclusi0on that overlooks an important element "the constraint of judicial precedent is only de facto, but does not preclude the possibility that in a different judgement it may be subject to reconsideration and that therefore the judge subsequently seised may depart from it".