Opinion of Advocate General Ćapeta delivered on 8 February 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:129
• Date: 08 February 2024
• Celex Number: 62022CC0598
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 8 February 2024 (1)

Case C‑598/22

Società Italiana Imprese Balneari Srl

v

Comune di Rosignano Marittimo,

Ministero dell’Economia e delle Finanze,

Agenzia del demanio – Direzione regionale Toscana e Umbria,

Regione Toscana

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling – Article 49 TFEU – Public contracts and freedom of establishment – Concessions for the occupation of State-owned maritime property – Expiry and renewal – National regulation providing, on expiry of the concession, for the transfer to the State, free of charge, of irremovable structures built on State-owned property – Other features of such a regulation – Concept of ‘restriction’)

I. Introduction

1. The Italian seafront, including its beaches, is public property. Running a business at an Italian beach, thus, requires a concession.

2. One national rule regulating such concessions provides that irremovable structures constructed on a public beach are automatically vested in the State after the expiry of the concession period, without any compensation being due to the concessionaire that constructed them.

3. Does such a rule constitute a restriction on freedom of establishment, as provided for by Article 49 TFEU?

II. The background to the dispute in the main proceedings, the question referred and the procedure before the Court

4. Since 1928, Società Italiana Imprese Balneari Srl (SIIB) has been managing the seaside resort ‘Bagni Ausonia’ in the Comune di Rosignano Marittimo (Municipality of Rosignano Marittimo, Italy; ‘the Municipality’). That resort is located mostly on land belonging to the State-owned maritime property, for which SIIB was granted consecutive concessions.

5. Over the years, that company has constructed various buildings on that State-owned land.

6. The last inventory of the structures incorporated on that property was conducted by the Municipality in 1958.

7. On 20 November 2007, during SIIB’s concession No 27/2003, which lasted from 2003 to the end of 2008, the Municipality adopted a decision by which it recalculated the fees payable for that concession. The increase in fees was the result of the reclassification of some of the structures under concession as difficult to remove, which meant that they now qualified as State-owned appurtenances. Those irremovable structures already existed on that State-owned domain on the date of expiry of the previous concession No 36/2002, which ran from 1 January 1999 to 31 December 2002 and which was granted to the same concessionaire, SIIB.

8. Decision No 31787 of 20 November 2007, is based on Article 49 of the Codice della navigazione (Shipping Code). The latter provides:

‘Unless otherwise established in the concession instrument, when the concession comes to an end, the non-removable works constructed on the State-owned area shall remain vested in the State, without any compensation or reimbursement, without prejudice to the granting authority’s right to order their demolition, with the State-owned asset thus to be returned to its original condition.’

9. In 2008, the Municipality initiated an administrative procedure with a view to vesting the appurtenances transferred to the State on maritime property after 1958. In response to written questions put by the Court, the referring court clarified that that procedure had never been completed. Nevertheless, the referring court explained in its response that an administrative statement concerning the transfer of property to the State would, in any event, be declaratory in nature only, as the acquisition of ownership by the State occurs ex lege on expiry of the period of concession, by virtue of Article 49 of the Shipping Code.

10. In May 2009, the Municipality issued SIIB a new concession (No 181/2009) (2) for the same location. During the procedure for the award of that concession, SIIB stated that all buildings on the domain were easy to remove. (3) Following an inspection of the site, the Municipality ultimately rejected such a characterisation by decision of 26 November 2014. It considered that the area of State-owned property under concession contained irremovable structures that had already been acquired by the State under Article 49 of the Shipping Code.

11. The Municipality reiterated that finding in a decision of 16 April 2015. (4) On that basis, it also increased the fees payable by SIIB with effect from 2009.

12. SIIB challenged the decisions of 26 November 2014 and of 16 April 2015 before the Tribunale amministrativo regionale per la Toscana (Regional Administrative Court, Tuscany, Italy). It claimed that, since the concession had been renewed, it was impossible for ownership to be vested in the State. That court joined those cases and dismissed all claims in their entirety by a judgment of 10 March 2021.

13. With regard to the classification of buildings as State-owned appurtenances under Article 49 of the Shipping Code, the Tribunale amministrativo regionale per la Toscana (Regional Administrative Court, Tuscany) considered that that transfer occurred as a result of an agreed acknowledgement in the concession instrument signed by both parties, rather than as a result of the unilateral decision of the Municipality. In that court’s view, the transfer of property without financial compensation is, according to Article 49 of the Shipping Code, the result of the lack of the parties’ stipulation to the contrary. Given that the parties had not expressly provided for a different legal regime for maritime State-owned appurtenances in the concession agreement, they were held to have consented to the dispositive regime provided for by Article 49 of the Shipping Code.

14. SIIB appealed against that judgment before the Consiglio di Stato (Council of State, Italy), the referring court in the present case.

15. In the appeal, SIIB argued inter alia that the effect of the transfer without compensation for structures that are difficult to remove is contrary to EU law and, in particular, to the principle of proportionality concerning restrictions on the market freedoms enshrined in Articles 49 and 56 TFEU, as set out by the Court in Laezza .(5)

16. Harbouring doubts as to whether Article 49 of the Shipping Code is compatible with EU law, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do Articles 49 and 56 TFEU and the principles arising from the Laezza judgment (C‑375/14), where applicable, preclude the interpretation of a national provision such as Article 49 [of the Shipping Code] as meaning that it results in the transfer without consideration and without compensation, by the concessionaire on expiry of the concession, when that concession has been renewed on an uninterrupted basis, where applicable by virtue of a new measure, of the building works constructed on the State-owned land forming part of the complex of assets organised for the operation of the resort enterprise, since that effect of immediate forfeiture could constitute a restriction that goes beyond what is necessary to achieve the objective actually pursued by the national legislature and is therefore disproportionate to the aim?’

17. Written observations were submitted to the Court by SIIB, the Municipality, the Italian Government and the European Commission.

18. The Court requested a number of additional clarifications from the referring court, to which that court replied on 8 September 2023.

III. Analysis

A. Admissibility

19. In their written submissions, the Commission and the Italian Government discussed the admissibility of the present request for a preliminary ruling.

20. The Commission pointed out that the situation in the present case is purely internal. An Italian concessionaire is challenging the Italian rules on concessions on State-owned maritime property. Nevertheless, the Commission considers the question to be admissible, citing Ullens de Schooten, which clarified that the Court can establish jurisdiction in purely internal cases if the national rules, the validity of which is at issue, may potentially affect citizens or companies from other Member States. (6)

21. I agree with that position. First, the Italian rules on concessions apply equally to any concessionaire, be they of Italian or other Member State nationality. Second, the economic attractiveness of setting up a business in Italian maritime (or lakeside) areas confirms the existence of a certain cross-border interest, as the Court has already confirmed in the judgment in Promoimpresa. (7) Moreover, such potential cross-border effect was confirmed by the referring court’s answer to the Court’s request for further clarification.

22. Therefore, even without any clear indication to that effect in the order for reference, (8) the Court can conclude in the present case that the national rule at issue is of cross-border interest. (9)

23. The argument raised by the Italian Government on the issue of admissibility is of a different nature. That government considers that the answer to the question referred for a preliminary ruling is not helpful in resolving the dispute before the referring court. In its view, even if the answer given by the Court were to result in the inapplicability of Article 49 of the Shipping Code, that would have no effect on the case before the referring court.

24. However, in its reply to the request for clarification, the Consiglio di Stato (Council of State) explained that SIIB has a personal, specific and current legal interest in challenging the validity of the transfer to State ownership of the irremovable structures which it had constructed. If those structures are validly vested in the State, this influences the cost of fees payable for occupying the public domain at issue.

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