DEAD AND JUSTICE' DONE! DEFEAT OF THE ARROGANT ZITO! CANCELLED BY THE TAR OF REGGIO CALABRIA TO THE PORT MANAGEMENT COMPANY '"door of mercy" By decision of 11 March 2011, the TAR of Reggio Calabria has been expressed about the use of 296 in 2010 and annulled the decision of the Ministry of Transport on 8 March 2010 which was entrusted with the management services of the port society "Porto delle Grazie", thus welcome the actions of the Nautic Service, Camastra Oils and Gulli "putting the deal to the town of Roccella Jonica, which has competence to adjudicate." The following public
the entire sentence appear on the site of the TAR of Reggio Calabria entering year 2010 number 296.
N. 00170/2011 REG.PROV.COLL.
N. 00296/2010 REG.RIC.
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
The Regional Administrative Court of the Calabrian
a branch of Reggio Calabria
gives the following
Judgement on the appeal of general register number 296 of 2010 proposed by:
Nautic Service Mandarano Mauro, represented and defended by the lawyer. Clarizia Angelo, Vincenzo Colalillo, James Pope, with an address at Christmas Mr. Carbone in Reggio Calabria, via Possidonea, 46 / B; Camastra Petroli, Port Company "T. Gulli" Ltd.;
against
Ministry Transportation, Port Authority of Reggio Calabria, the Interior Ministry, State Property Office of Reggio Calabria, UTG - Prefecture of Reggio Calabria, represented and defended by the state district of Reggio Calabria, legally domiciled in Reggio Calabria, Via del plebiscite, 15;
Calabria Region, represented and defended dall'Benito Spanta, legally domiciled in Reggio Calabria, via D. Tripepi, 92;
City of Roccella Ionica, represented and defended by the lawyer. Joseph Barone Avv.Prof., With an address by Secretary TAR in Reggio Calabria, viale Amendola, 8 / B;
Province of Reggio Calabria in court.
against
of Porto Thanks Srl represented and defended by the lawyer. Nicola Adragna, Alessandro Zampone, with an address by Mr. Pasquale Melissari in Reggio Calabria, via Venezia, 4 / A;
for the annulment of the decision of the Ministry of Transport on 8 March 2010 by which it is provided to assent to the state concession for the management of port infrastructure and complementary services to Yachting Roccella Jonica the door of mercy Ltd and has rejected the application by the applicants, of all acts preordained, including the provision of 2.9. 2009, containing the reason to oppose the authorization was granted in favor of today's applicants, determinations and opinions made in conference services in the minutes of 6-7 August 2007, the note of the Harbour, 18.7.2007, prot. 06.07/13032, determinations and opinions made in the conference services in the minutes, 18.7.2006, determinations and opinions made in the conference services in the minutes of 20.4.2006, footnote 3146 8 March 1006 Advocacy District of the State of Reggio Calabria, the note of the Harbour fax prot. No 17107, 30.9.2005, with the grant award, as well as all acts of admission to the procedure for issue of the defendant company, all the acts of investigation, advice and technical reports.
viewed the application and its annexes;
In view of appearance in court of the Ministry of Transport, the Port Authority of Reggio Calabria, the State Property Office of Reggio Calabria, UTG - Prefecture of Reggio Calabria, region Calabria, Roccella Ionica City and Port of Grace Ltd ;
view of the briefs;
Taking all of the acts of the case;
Rapporteur during the public days of February 23, 2011 Dr. Giulio Veltri and the defenders heard the parties as specified in the minutes;
held and considered the facts and law as follows.
fact and law
The incident brought to the attention of the college is closely related to a dispute already decided by the Court sentence no 100/2009. The act is challenged, in particular, re-release the power already exercised and evaluated in the context of that litigation, so that both the administration in the provision, the parties in their pleadings, to make continuous references cited, indicate that the Point detention of each other.
E 'therefore necessary to start with the latter, the reconstruction of the facts reported in the same past, and final rulings on the legality of the proceedings in that case challenged to subsequently insert the evaluation of the new administrative action.
A) These are the past matters:
1.With notice in the Official Journal of the European Communities 30.9.2005, the Ministry of Infrastructure and Transport indicated an open procedure for granting state maritime term of thirty years (not in competition), on the management of port infrastructure and related services dedicated to pleasure boating of "Porto delle Grazie Roccella Ionica. He attended the
Nautic Service Ltd (now appellant), a private company that accompany the application for granting the affidavits made by the legal representatives of the T. Gulli Ltd and Camastra Oils Ltd (companies originally requesting the right to own), demonstrating the commitment, if expectations the concession, to form a special joint-stock companies to manage the structure and reliable service. In this context, the aforementioned legal representatives claimed that the instances presented above should be considered part of the application submitted by Nautic service.
have applied for participation, the Port of Grace Ltd, a company established by the town of Roccella and Italy Navigazione SpA, a company in turn consists of Development Italy spa, fully owned by the Ministry of Economy.
The investigation process and procedural - summarized in the minutes of the service 6-7.8-07 - was rather complex and highly structured characterized by the holding of conferences aimed at acquiring the services of the opinions of the various authorities concerned. During the procedure was provided to ensure, inter alia, the condition of the premises of the port of Roccella, having noted the differences between this and the cadastral data.
The Ministry, under the same process, an initial assessment of each application for the grant, rejecting all except the one of today's applicants (who had made a joint application) and the other party. Then proceed to a comparative assessment between the two competitors, finding the door of the store name the best candidate. By the same measure, In addition, notice of rejection communicated to the applicants today. The Nautic service made observations, but the same was rejected by decision of 30/11/2007, which was confirmed with the choice already made.
contested the final act hinges on the proceedings in which, among other things, the defendant, brought an appeal.
the Court by the ruling cited in the introduction, after examining the preliminary questions (on which can only be postponement), allowed for the reasonable use of both the main and cross-ruled:
a) As to the main application and particularly in relation to complaints concerning the lack of logic el'incongruenza of the reasons the Court found that the administration had conducted a comparative assessment of assuming such weights as indicated in the evaluation of conference service on 6 and 7 August 2007, namely: 1. the long duration of the concession period, 2. the absolute reliability of the dealer in terms of solvency, experience and management, 3. the more quantitative dimension of state-owned assets required in granting, 4. the ability of the dealer to make a tangible contribution to economic development and improving the quality of life area, under the most public interest - felt that the requirement of company assets total of three applicants - far more than the Port of Grace, Ltd., having submitted a formal commitment to form themselves into society, had not even been assessed, which have not been evaluated in relation to other parameters (the managerial capacity) , the requirements of partners Nautic Service srl unlike what has been done for the company Browsing Italy, a member of the defendant, which were not detailed the considerations of the Nautic service in order to not brilliant entrepreneurial achievements of the majority shareholder of the Port of Grace Ltd , which has not been evaluated in depth and the considerations of the Nautic service in order to workforce used in the scheme (in fact stronger than expected against the subject);
b) As to the appeal: deemed deficient
the investigation - and thus vitiated the reasoning - the measure of choice, did not analyze the implications the reliability of financial and investment plans resulting from the extension of the application to goods not included in the object of state concession.
He concluded by annulling the contested measures, and states that "since this evaluation is largely discretionary, the illegality is not detected can lead, as called for in the body of each application, to automatically determine rejection of the application of the party, but only to repeat the evaluation of applications, taking into account the profiles of illogic highlighted by the college while maintaining this precluded from considering the merits of administrative action. "
B) Following the publication of the sentence and the rejection of the request for an injunction given by the company srl Porto delle Grazie in the appeal, the administration, specifically noted the obligation of having to implement the ruling and, therefore, they have to start again the comparison between the Marine and Port Services Ltd delle Grazie, was reexamined for the investigations in the light of the principles and criteria set by the Court, coming back to the same conclusions as the majority of Puerto meritevolezza Thanks Ltd and thus providing that the state concession was absent in the latter denied the same and Nautica service (assigned to the same 10 days to defend itself). Promptly rejected the comments made by the latter, the Ministry issued the final order of the same tenor, dated 18/3/2010.
This is now contested by the group of aspiring pretermessi dealers who deny the legitimacy again for the following reasons:
1) violation and misapplication of Articles. 36 and 37 of the Navigation Code, art. 97 of the Constitution, and Articles. 3:10 bis of Law 241/90 - too much power in several respects.
would have been circumvented the principles affirmed by the Court in n. 100/2009. In particular, the administration, even though it accepted the application jointly made by the group of private enterprises, continue to discriminate in the benchmark because of its alleged unreliability arising from the group, not yet formally established, the administration While recognizing that the total assets of the three applicants is greater than that of the other party, assign a value to a subtle problem of solvency Comune di Roccella (exponential institution, member of the Porto delle Grazie Ltd.), thereby, inter alia, only to change the same evaluation criteria that instead imposed the evaluability of the only assets of the competitors (and their partners), the 'administration once again failed to take note of the management is not economically pay the previous experience of surfing and Italy did not explain the reasons which led it to consider such a factor less significant lack of experience in the field of management by the group of applicants ( specializing in individual sectors, but not in the management of the entire structure), the administration still did not take account of the design improvements suggested by Nautic weather service (construction of a tower) and, finally, did not properly weigh the implications and analytically at the point of supply reliability benefits derived from the same areas not covered by the concession in each case the government did not provide real feedback to the deductions made by the applicant following the notice of rejection
2) and erroneous application of Article Infringement. 37 of the Navigation Code, art. 18 of Law No 84/94, art. 97 cost. Of Directive 2004/18/EC and the EU principles and constitutional matters of procedure for evidence public. Excess power in several respects.
in particular would be in breach of Article. 37, no. nav. which requires, if not met, the reasons of preference, listed exhaustively therein, to proceed by private treaty. In this case the administration would rather proceed to tender a race against the criteria of preference. The fact is made increasingly serious participation by the Mayor of Roccella (at the same time member of the Port of Grace Ltd) to the conference which provided services in the identification of these criteria;
3) Invalidity of the art. F 21 of Law 241/90 and / or incompetence of the Ministry under Legislative Decree No Regional Law No 112/2008 and Calabria 17/05.
The authority to grant licenses for the Port of Roccella would be transferred to the Region, as also confirmed by the Ministry, and the decision of the Court is not likely to change the attitude of the law.
It is an action against the other party, who first argues the inadmissibility of the appeal, to be regarded as the complaints by means of the same proposals as instrumentally aimed at obtaining a new appraisal by the Court on the same case had already been decided and now pending on appeal, the substance of the dispute raised by the applicant on time, and finally, as the third ground of appeal relating to the jurisdiction's notes, reiterating its earlier statement by the authority within the contested decision, which hinges on the competence to provide "under the ordinary functional continuum that needs to elapse between the court and in conformity iussum risolventesi the reissue of power, according to the framework outlined by the command of the administrative judge. "
The Ministry of Infrastructure duly constituted insists the appeal inadmissible.
have also made the town of Roccella Ionica and the Region of Calabria, the first insists on the rejection of the application showing consistency and exhaustiveness of the grounds of the contested decision, the second argues that it is not passively standing by failing to have any active role in the administrative matter.
In view of the hearing on the parties exchanged their defenses further illustrating their thesis.
At the hearing on February 23, 2011, the case was held for the decision.
1. Must be rejected the plea of \u200b\u200binadmissibility of the appeal.
It 'true that during the preliminary view of the demolition and subsequent re-release of power, the Court stated the principles to be followed while specifying the constraints and limits effective compliance resulting from the court ruling, but the fact remains that the administration has reviewed the results of the investigation coming to a new and more articulated evaluations although overlapping in their final outcome.
In such a case it is reasonable to doubt the eligibility of complaints pertaining to the preliminary stages of the procedure (, invitations, admission, conference services) already counted by the Court in previous proceedings, since the administration has been limited to reactivate the process, using the objective results of the investigation have already acquired and recorded only on the segment by means of decision-renewed evaluations. In contrast, however, must be completed for those who consecrated in the final measure, retain their autonomy, representing a new exercise of power that had already produced a measure that was struck down because it is desperately flawed.
Power is the same as the procedure. What changes is instead the final measure, if only because of the previous elimination with retroactive effect as the previous one. Consequently, only the complaints addressed to the proceedings and not at the time shall be deemed ineligible.
2. Excluding the root of the appeal inadmissible in the College can not go directly to the scrutiny of complaints explained by the first two grounds of appeal.
Despite the prospect of the parties, in fact, the complaint alleging lack of competence must be assessed in priority to others. Case law has clarified that this is necessary, because otherwise the merits of the dispute would be resolved in a purely hypothetical opinion on the further activities of the competent administrative responsibility in the effective assessment of each other, increasingly emphasizing that this would undermine the principle inconsistent with the relevant body, forming the rule of judicial conduct without the latter's part in the proceedings (Cfr.Consiglio State, sec. V, June 12, 2009, No 3765).
2.1. The applicant submits that the jurisdiction to issue the grant in relation to the Port of Rocella was and is the Region of Calabria. The claim is not contested in hindsight, neither by nor by counterparties.
The regulatory framework is clear enough and is the same administration to rebuild it properly, though not exhaustively, in note 3521 of March 16, 2010, by which it transmits the file to the Region of Calabria for the concession of the real issue: already the law under Article 112 / 98. 105, as amended by art. 9, of Law of 16 March 2001, n. 88 had given to the regions, with effect from 1 January 2002, the functions relating to the "licensing of domain property of the inland waterway, maritime property and areas of territorial waters for purposes other than those in the supply of energy sources ", taking care to specify that the provision did not operate exclusively in ports designed for military defense and security of the state and the ports of international and national economic significance, and in areas of major national interest identified by the Decree of the President of the Council of Ministers 21 December 1995. Intervened the reform of Title V of the Constitution, the Constitutional Court then clarified on several occasions that the new system of division of powers, the field of tourism must now be considered the residual legislative powers, and therefore full of the regions, not being able to present value attributable to the inclusion of more marinas and commercial significance regional and interregional economic in DPCM 21 December 1995, precluding the possibility that they affect the same regions concerned, in accordance with the principle of sincere cooperation, to recognize certain ports that character of international economic importance of major national interest or whether it is fit to justify the legislative and administrative jurisdiction of the State on the same port and related port areas (Court Constitutional, December 17, 2008, No 412).
So the ownership of the function is certainly on the part of the Region.
In the case of the Calabria region, however it has been delegated to municipalities.
Calabria Regional Law n.17 21/12/2005 on rules for the exercise of delegated administrative functions across the areas of maritime domain "art. 4 provides that for the implementation of the purposes referred to in this law (tourist - recreational facilities), "The region gives municipalities the administrative functions related to ... .. the issuance, renewal, modification and revocation of licenses for the ports of interest set in Article 9 of Law No 88/2001 ", while retaining the features on" the regional port system planning "and" monitor works "(see Article 3 l. 17/2005)
In conclusion, the jurisdiction in respect of the proceedings at issue the state concession for the management of the port structure but not to the State of the Region of Calabria, a regional law 17/2005 has delegated to municipalities the exercise regularly, dictating that purpose the necessary guidelines by the Regional Plan to Address (PIR) Paperback. BURC on 14 July 2007.
2.2. Clarified the terms of competence in its general aspects, must now be examined the arguments from the other party for costs weaken the complaint. In particular, according to the defendant, and before that as expressly stated in the note by 3521 of 16 March 2010, the competence of the final adoption of the procedure for selecting the concessionaire would be rooted within the State "under the ordinary functional continuum that needs to elapse between the court and in conformity iussum risolventesi in reissue of power, according to the command structure outlined by the administrative judge. "
The argument, however impressive, can not be shared. With the Court Judgement No 100/2009 merely to annul the final act of the procedure for selecting the concessionaire for reasons of inconsistency and illogical reasons, while clarifying, in the field of motivation, scope and limits of effective compliance. Did not address the question of competence and, above all, has not identified a specific competent authority which, merely laid down the principles for the re-release the power already exercised unlawfully. The previous judicial
parentheses can not therefore give or take root in the State jurisdiction has ruled that the law having to rely on partners. Neither can be sustained that, having been the case brought by the State and the same conclusion, and having the decision affected the final decision-making segment and the previous ones, should be the same authority that effectively started the process to finish it properly. This is true not only because from the moment of publication of the notice the power was believed to be attributed to the Regions, but also because, in the absence of transitional rules governing the fate of the ongoing proceedings in respect of which changed the statutory jurisdiction, it can only take root in the authority which the law attributes the adoption of the Final, with the possible salvation of the obligations procedural care body illo tempore responsible. Support, in the absence of express provision, a sort of perpetuatio competentiae body-in-chief for the original proceedings already initiated would allow the issuance of a document to a body without the power to do so, and resulting in clear violation of the principle of legality .
The third ground of appeal must be upheld at the conclusion of the contested and void.
3. As for the remaining complaints, although it should be noted that Article. 34 cpa has not repeated the contents of Art. 26 TAR law under which the court "if it upholds the claim on grounds of incompetence, cancel the act and call the deal to the competent authority ", it is reasonable to assume that the change has been excluded by the requirement for exclusive referral, but it has also imposed on the judge, anyway, the examination of the other claims on the merits. Rather this is a case in which the assessment whether to treat or not these allegations can not remain in the hands of the court, which modulates in relation to the nature of the complaints, as well as, of course, have the power to be exercised.
In this case, issue undoubtedly a power the exercise of which implies some debatable valuation and complaints that affect their fairness and reasonableness of those estimates. Pronounce on these matters, the outcome a process in which there is the competent body and uncertainty of what the potential assessment of the latter than the results of the investigation, it would mean encroaching on the allocation reserved for him.
annul acts, the deal must then be put to the town of Roccella Ionica, as competent authority for granting the license.
taking into consideration the complexities and peculiarities of each other, there are good reasons for the offset between the parties costs.
PQM
The Regional Administrative Court for a branch of Calabria Reggio Calabria
definitively pronouncing on appeal, as suggested in the epigraph, and welcomed him to the effect, undo the contested measures in the manner of the reasons given, and puts the deal to the City of Roccella Ionica, the competent authority to adjudicate.
offset expenses.
Order that the above is carried out by the administrative authority.
Decided in Reggio Calabria in chambers on the day February 23, 2011 with the intervention of the judiciary:
Ettore Leotta, President
Giuseppe Caruso, Director
Giulio Veltri, Legal secretary, Stretchers
The author
THE PRESIDENT
FILED IN OFFICE
03/11/2011 The
THE SECRETARY
(Art. 89, para. 3, no. Proc. Admin.)
