Articles
05/08/2020

“The case is dismissed!”: the Supreme Court in Plenary Session has ruled on the allocation of jurisdiction on administrative concessions

Jurisdiction and competence – statute of limitations and forfeiture”! This is how a teacher warned a young pupil to remind him of the technical and procedural requirements that he had to take into consideration when approaching a new matter brought before him, in order to avoid the bugbear of a possible ruling of inadmissibility by the seized court.

We often had to apply that wise advice to administrative concessions. Which judge should decide on disputes concerning administrative concessions that arise between the granting administration and the concessionaire? These cases are far from infrequent and, “going to the quayside”, they often involve Port System Authorities and the terminal concessionaire with regard to state fees and other fees.

According to article 133, paragraph 1, letter b), of the Code of Administrative Procedure (“c.p.a.”), disputes concerning acts and measures relating to the concession of public assets, “with the exception of disputes concerning indemnities, licence fees and other fees” shall be referred to the exclusive jurisdiction of administrative courts [1].

Putting it this way, there is apparently no doubt: when the dispute concerns state concessions in terms of indemnities, license fees and other fees, the ordinary court would have jurisdiction. But at a closer look, this is not quite the case, and the Supreme Court of Cassation has explained that.

With Order No. 4803 of 24 February 2020, the Supreme Court in Plenary Session clarified that: «with regard to state concessions, only disputes concerning “indemnities, license fees and other fees” that have a purely patrimonial nature, i.e. those disputes in which the power of intervention of the Public Administration “to protect general interests” is irrelevant, are reserved to the jurisdiction of the A.G.O. [2]»; while, «disputes involving the authoritative action of the Public Administration on the underlying concession relationship are still subject to the jurisdiction of administrative courts, with reference to the authoritative measures of the Public Administration for which the seized court is asked in the main to assess the non-application or annulment». It follows that – if the dispute on state fees challenges the legitimacy of the concession – then the jurisdiction reverts back to the administrative court.

Even more recently, the Joint Divisions have returned to this issue with judgment No. 11867 of 18 June 2020, further specifying the terms of the matter. In the case at issue, by appealing to the T.A.R. (Regional Administrative Court) of Emilia-Romagna, a company challenged the note of the Municipality of Cervia whereby the license fees for the years 2007, 2008 and 2009 relating to a State maritime concession for a marina in Cervia had been redetermined pursuant to Law No. 296 of 2006. The Municipality of Cervia resisted the appeal and, in turn, objected to the lack of jurisdiction of the administrative court on the assumption that, pursuant to Article 133(1)(b) of the Italian Code of Administrative Procedure, the dispute was to be considered as falling within the jurisdiction of the ordinary court.

The Supreme Court settled the dispute on the basis of the established case law of the Joint Divisions (see, among many others, Joint Divisions Nos. 24902/2011, 13940/2014, 21597/2018), according to which:

  • on the one hand, disputes of a purely patrimonial nature in which the power of intervention of the Public Administration to protect general interests is irrelevant are reserved to the jurisdiction of ordinary courts;
  • on the other hand, disputes involving the verification of the authoritative action of the Public Administration on the underlying concession relationship, with the exercise of discretionary and evaluation powers in the determination of the license fee (and therefore not simply the technical verification of the factual economic and business assumptions, both as to the merit and the amount), are brought within the jurisdiction of administrative courts.

In the case submitted to the Supreme Court, the Municipality of Cervia had not adopted a genuine authoritative measure representing the exercise of a public discretionary power (not even by way of “technical discretion”), since it had limited itself to order the recalculation of the annual license fee for the maritime State concession in application of a mere quantitative updating rule (i.e. pursuant to Article 1(252) of Law No. 296/2006).

So, the Supreme Court has ordered the dismissal of the appeal and referred the parties to the competent ordinary court, confirming the interpretation that “disputes relating only to the redetermination of concession fees, in application of a binding legal provision (as in the present case), due for the concession of use of a public property (as for the state concession of a marina) belong to the ordinary jurisdiction, having as their object subjective rights of a patrimonial nature”.

Ultimately, the jurisdiction of ordinary courts on administrative concessions simply does not exist if the dispute concerns indemnities, license fees and other fees, but it will be necessary to verify – on a case-by-case basis – the type of power exercised by the administration in the case at issue, with the consequence that it will be necessary to resort to administrative courts whenever there is evidence of an authoritative action (thus characterized by administrative discretion) of the Public Administration on the underlying concession.

 

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact your counsel.

 

 

[1] It should be noted that, in relation to certain matters indicated by law, the administrative court has to deal not only with legitimate interests but also with subjective rights, as an exception to the traditional criterion of allocation of jurisdictions.
[2] Ordinary Judicial Authority.

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