The Antitrust reiterates: “No to the extension of beach concessions, they should be put out to tender. Free beaches are a scarce resource”

Even theAntitrust reiterates that the extensions of the beach concessions are illegitimate and those State-owned areas should be put to tender. And he denies the imaginative government “mapping” – aimed at not applying the directive Bolkestein – explaining to share “the conclusions reached by the administrative judge national and the European Commission according to which the current situation is evident notable scarcity (in some cases non-existence) that characterizes the public areas available to new operators”. This is stated in the weekly bulletin released today, sent to theAnci and to the State-Regions Conference.

The Competition and Market Authority “deems it necessary to recall its numerous interventions aimed at censor both the unjustified extensions of existing concessions and the provisions contained in the selection procedures initiated for the assignment of new concessions that are likely to undermine fair competitive comparison”. The Antitrust “has repeatedly underlined that the continued use of this instrument violate the principles of competition to the extent that it prevents the competitive comparison for the market, which should be guaranteed when awarding services affecting scarce state resources, in a context in which competitive dynamics are already particularly weakened due to the long duration of the concessions currently in place, and favors the distorting effects connected to unjustified vested interests attributed to the concessionaires”.

And he reiterates that, “in order not to nullify the use of competitive assignment procedures, the duration of the concession should be commensurate with its value and its organizational complexity and should not exceed the time reasonably necessary for the recovery of authorized investments and a fair return on invested capital“. Finally, the Antitrust “reiterates the importance of using competitive methods of assigning state-owned maritime, lake and river concessions for the exercise of tourist-recreational and sporting activities, avoiding further automatic extensions and renewals and, to this end, hopes that the above observations will be taken into due consideration”.

The Authority therefore urges the bodies “to ensure that all the selection procedures for the assignment of the new concessions are carried out as soon as possible” and that the assignment “takes place no later than December 31, 2024“. In the report published in its weekly bulletin, the Authority recalls that the Thousand prorogations of 2022, providing for the extension of existing concessions to 31 December 2024, provided for the possibility of further postponing the deadline to 31 December 2025, “in the event that the administrations are unable to complete the tender procedures within the deadline for objective reasons”. In light of these provisions, many administrations have decided to adopt measures to extend the deadline to 31 December 2024, justifying them with the complexity of the jurisprudential and regulatory framework and the impossibility of carrying out the tenders before the reorganization of the concessions and before clarifications were given on the scarcity or otherwise of the state-owned resource.

The Antitrust therefore specifies that it provided reasoned opinions, in which it clarified that the granting administrations “they should have disregarded the national legislation” in contrast with the European Union Services Directive, and proceed with the tenders. “As is known, in fact, Member States are required to comply with the EU principles and provisions and, where internal legislation conflicts with European Union law, its relative non-application is required”, the report states. Furthermore, on numerous occasions, the Authority has contested the arguments of the bodies in support of the extension, “considered the groundlessness of the same”. The rule in fact “limits the possibility of further deferring the duration of the concessions to entirely exceptional cases connected to specific circumstances that prevent the conclusion of the selection procedure. In order for the rule to be applicable, therefore, it is necessary that the selection procedure has been started and that there are objective reasons that prevent the conclusion of the procedure. Only in the presence of such circumstances is it legitimate to believe that the expiry date of the concessions can be deferred”. But “in none of the cases examined by the Authority had the granting administrations started a selection procedure for the assignment of the concessions”. With reference to the extensions, moreover, the Council of State has also recently affirmed the principle according to which only a “technical” extension limited to the time strictly necessary for the performance of the tenders can be considered compatible with Union law, the Guarantor further specifies.

It is false that free beaches are abundant and therefore there is no need to put them out to tender, a conclusion reached by the mapping already contested by Brussels. The situation of scarcity “is even more pronounced if one considers the municipal territorial areas or in any case takes as a reference small portions of coast”. The concept of shortage “must be interpreted in relative and not absolute terms, taking into account not only the “quantity” of the available good, but also the its qualitative aspects and, consequently, of the demand that it is able to generate from other potential competitors. This considering that, even today, the data of the State Maritime Property Information System – also recalled by the Plenary Assembly of the Council of State – attest to the existence of a very high percentage of occupation of the coasts, given the free beach areas that they are not usable and taking into account the maximum quantitative limits of coast that can be the object of a concession provided for in many Regions”, highlights the Antitrust.