Competition law, Mattarella signs the bill but sends a letter asking for new rules


By John

Sergio Mattarella promulgates the law on competition, a fundamental element for the funding of the Pnrr, but sends a letter to the presidents of the Chambers and the Prime Minister to ask for new rules on article 11 of the law which concerns street vendors.
As he had already done on 24 February 2023, when he asked for changes to the milleproroghe bill for the part concerning seaside resorts, the President of the Republic now believes “indispensable” new rules that “soon” will intervene to modify article 11 of the competition bill approved in December, considering the extensions for the concessions already in place for street traders to be excessively long.
«Article 11 of the law in question provides, for the procedures for the renewal of the concession titles identified by paragraph 4-bis not yet concluded also due to the inertia of the Municipalities, a further term of six months, with application, upon renewal, of the twelve-year term provided for by paragraph 4-bis. If the administration does not conclude the procedure within this additional six-month period, the concession title is automatically renewed, subject to the waiver of the person entitled”, continues the letter.
«Finally, with a provision whose rationale and impact are unclear, concessions not affected by the renewal procedures pursuant to the aforementioned art. 181 are automatically extended until 31 December 2025, without prejudice to any longer duration foreseen in the title – we read further – the regulation of trade in public areas, as also stated by the Constitutional Court, with sentence no. 291 of 2012, falls within the scope of application of Directive 2006/123/EC, relating to services in the internal market (so-called services directive). The directive is self-applicable, with the consequent need for the disapplication of incompatible internal rules, with the obligation of a selection procedure ‘if the number of authorizations available for a given activity is limited due to the scarcity of natural resources or usable technical capabilities’ , excluding automatic renewal procedures. The need to disapply internal rules in conflict with this obligation was recently reiterated, with reference to the regulation of maritime state concessions, by the Lazio TAR, with ruling no. 19051 of 15 December 2023, and by the Court of Justice, with sentence of 20 April 2023″.
«The annual law for the market and competition 2022 was submitted to me for promulgation. The provision represents one of the goals of the National Recovery and Resilience Plan to be achieved by the fourth quarter of 2023 and therefore, in order to fulfill the commitment adopted at the European level, it is necessary to promptly proceed with the promulgation”, writes the President of the Republic, Sergio Mattarella, in the lletter sent today to the presidents of the Senate and Chamber, Ignazio La Russa and Lorenzo Fontana, and to the president of the Council of Ministers, Giorgia Meloni, after the signing of the law on December 30th.
«I believe, however, it is right to draw the attention of the Government and Parliament to article 11 of the law, regarding the assignment of concessions for commerce in public areas, which, in addition to regulating the methods of issuing new concessions, introduces the yet another automatic extension of existing concessions, for an extremely long period, in a way that appears incompatible with the principles repeatedly reaffirmed by the Court of Justice, the Constitutional Court, administrative jurisprudence and the Competition and Market Authority on the subject opening to the services market. Furthermore, the general criteria for the granting of new concessions, as also stated by the Competition and Market Authority, appear restrictive of incoming competition and favor, in contrast with European rules, outgoing concessionaires”, we read again in the letter.
«The discipline in question presents obvious analogies with that of maritime state concessions, introduced with the conversion law of the decree law of 29 December 2022, n.198, containing ‘Urgent provisions regarding legislative deadlines’, the subject of a previous letter of mine dated 24 February 2023, sent to the Presidents of the Chambers and to the President of the Council of Ministers , where I highlighted the contrasting aspects of that discipline with European law and, therefore, with the constitutional provisions – writes Mattarella – of the law now under consideration, the provisions of the aforementioned article 11 which intervene on concessions in be and have extensions for various reasons. In fact, it is expected that not only – as is logical – the concessions assigned with selective procedures, but also the concessions already reassigned pursuant to article 181, paragraphs 4-bis and 4, will continue to be effective until the term set out in the relevant title. -ter, of the legislative decree of 19 May 2020, n. 34, converted, with amendments, by law 17 July 2020, n. 77. The aforementioned paragraph 4-bis provided for, in its time, the renewal for a duration of twelve years for the concessions expiring on 31 December 2020, while paragraph 4-ter provided for theto the power of the regions to provide that the municipalities can assign, upon request of those entitled, as a priority and in derogation of any other criteria, concessions for free, vacant or newly established parking spaces, where necessary, to operators, in possession of the prescribed requirements, who have been excluded from the selection procedures provided for by current legislation or who, following the outcome of the procedures themselves, have not achieved the reassignment of the concession”. (AGI)
«With specific reference to concessions for trade in public areas, the Competition and Market Authority, with respect to the extension provided for by Legislative Decree no. 34 of 2020, had already noted, in the opinion of 15 February 2021, the incompatibility with the services directive, inviting the Municipalities to disapply the legal provisions”, continues the head of state.
«The story of the Municipality of Rome appears paradigmatic, which therefore proceeded to disapply the aforementioned paragraph 4-bis and started the procedures for the tendering of concessions. The Council of State affirmed the legitimacy of the disapplication by the Municipality of Rome of this internal provision, as it is incompatible with the services directive (Council of State, section VII, sentence no. 9104 of 19 October 2023) – exemplifies – the Council of State thus confirmed the first instance sentence which it had also indicated for the concessions of parking spaces for commerce in public areas, as well as for the concessions of maritime state property, the maximum limit of 31 December 2023, upon reaching which the concessions will cease to produce effects, ‘despite any possible further legislative extension that may intervene in the meantime, which should be considered ineffective because in contrast with the rules of EU law and without prejudice to the fact that, in the meantime, the administration has the power/duty to initiate the procedures aimed at assigning the concession (Tar Lazio, ruling no. 530/2022). Similarly, the Lazio Regional Administrative Court has ruled in other proceedings with sentences no. 539/2022; 8136/2022, not contested and, therefore, finalized”.
«The twelve-year extension provided for by the law in question for existing concessions appears, in light of these jurisprudential guidelines, excessive and disproportionate. It should also be noted the inconsistency of providing for an automatic extension of a longer duration (12 years) than that of the new concessions (10 years). The context that is thus created has very similar characteristics to that which was the subject of my letter of 24 February. The profiles of conflict with European law and with definitive jurisdictional decisions increase the uncertainty of the regulatory framework, determining the need to guarantee legal certainty and the uniform interpretation of the law by all the subjects involved. Just as I observed regarding the issue of state concessions, this makes further Government and Parliament initiatives essential in the short term”, he concludes.