There appear to be three key points in the unprecedented (if one wanted to call it that) agreement between the Government and the European Union on the revised methods of implementing the Bolkestein Directive.

In the meantime, and despite everything, an extension is foreseen (not to really want to call it an extension, even if mutatis mutandis it would perhaps seem to be that much) of the concessions in force until the month of September of the year 2027, regardless of the recent and less recent rulings of the national and supranational Courts involved on the impossibility of proceeding in that direction. Therefore, the obligation to start the tenders as normatively provided for by the recalled Bolkestein Directive by the month of June of the same year 2027 with a forecast of duration of the new concessions from a minimum of five years to a maximum of twenty to allow the amortization of the investments made, and automatic hiring, by the incoming concessionaire, of workers employed in the previous concession, so as not to burden the latter with the burden of precariousness. Finally, the obligation for those who take over (probably questionable from the point of view of the burdened parties, and who will therefore be legitimate winners of a tender intended precisely to protect competition), to pay compensation to the outgoing concessionaires. To put it another way: if it has been highlighted from several quarters that the Bolkestein itself would inhibit the attribution of any economic advantage in favor of the so-called outgoing provider, what would be the founding regulatory basis of such a burden that could also contradict the very principle of competition that the directive seeks to protect?

One might ask: is such a provision for compensation to be paid by the incoming provider constitutionally legitimate in consideration of the rationale underlying the Bolkestein Directive? The doubt would probably not seem unfounded if one wanted to consider that such a provision, on the one hand, could discourage those who had in mind to undertake an activity in the specific sector from participating in the tender itself, and on the other hand, and consequently, could nullify the inspiring principles of the directive by making that burden of compensation appear as an unjustified advantage in favor of the outgoing concessionaires. It would also seem that the administrations that decide not to take advantage of the extension further granted will be burdened by a further obligation, that is, and nothing less, than that of motivating the reason why that same administration would have decided not to take advantage of the extension itself. Administrative discretion not otherwise subject to review even by those who do not agree with the failure to apply the extension of existing concessions? Is everything resolved then? One might ask. Maybe yes or maybe no: maybe it could simply depend. It could depend, probably and in particular, on the bureaucratic-regulatory angle from which one could choose to consider such an “adjustment” which, according to what is reported by the press, would seem to leave the current operators in the sector dissatisfied. Even more so when, the provision in question, in truth, is inserted into the body of a Decree-Law through which the Council of Ministers wanted to introduce urgent provisions for the resolution of pending infringement procedures against the Italian State.

So far, one might observe, no question. Perhaps indeed. But, probably, not too much. If only one wanted to consider, among other things, that among the evaluation criteria of the offers, the specific one of having been the holder, in the previous five years, of a beach concession as the main source of income for oneself and one's family could also be taken into account. In short, discontent would still seem to cross the sector of specific reference which, with good verisimilitude, would have preferred a radical exclusion of that same sector from the regulatory perimeter dictated by the Directive of "discord", so to speak. Time will tell, then.

Giuseppina Di Salvatore – Lawyer, Nuoro

© Riproduzione riservata