No more extensions of beach concessions. The message from the Antitrust, which arrived on August 12, is clear and seems to want to block in advance the government’s intentions to extend all beach concessions until December 31, 2025. It had already expressed itself in this sense in the past, with reasoned opinions addressed to both the Municipalities and Parliament, but this time the Antitrust has reported it extensively both to the Anci and to the State-Regions Conference. The aim is to definitively block violations of the Bolkestein directive and the distorting effects caused by automatic renewals.
In addition to the idea of appealing to the need to map the beaches, various options are still circulating among members of the government: granting a right of pre-emption to owners or establishing substantial compensation for outgoing beach operators. However, none of these options is in line with current regulations or with the positions expressed by both Italian and European judges. Meanwhile in Naples, with two twin ordinances, the Regional Administrative Court of Campania has clearly established that the public administration cannot limit access to beaches, based on fears for public order, depriving citizens, ‘of any age group and social condition, of enjoying the public good of the beach’. An important ruling, which opens a new chapter in the very tough battle for access to the sea.
The position of the Antitrust
The Competition Authority has ordered that the tender procedures be started quickly, so as to assign the new tenders by the end of this year. While the executive aims to delay the tenders by appealing to the mapping of the beaches, the Antitrust Authority reiterates that the state resource is scarce, in some cases non-existent for the new potential concessionaires. In practice, there are too few free beaches. In terms of hierarchy between rules, the Authority clarifies that European law prevails over national law, therefore the Milleproroghe that has so far authorized the extension of the concessions would give way to the Bolkestein directive. Finally, despite wanting to apply Italian law, the “exceptional cases” that many tourist locations have appealed to avoid tenders and renew existing contracts do not comply with the law, relying on “unfounded” circumstances.
How Meloni wants to exploit beach mapping
In Rome, Meloni and her government have not given up so far, even in the face of rulings, protests and legal provisions. The real goal goes well beyond 2025 and aims to authorize an extension until 2030. Palazzo Chigi intends to resort to the verification of the mapping of beaches in such a way as to exploit a specific passage of the Bolkestein directive. The EU law establishes that each member state can carry out an assessment “valid for the entire national territory”. Alternatively, it can “favor a case-by-case approach, which emphasizes the situation existing in the coastal territory” or by combining these approaches. If the mapping were to reveal that in some regions or coastal areas there is no shortage of access to the sea, then the government could resort to the extension. Here is the alibi.
The beach workers’ strike was a flop. We need more free beaches”
The decision that established the ban on extensions dates back to 2021, when the Council of State set the expiry of the concessions to December 31, 2023. Any further extension, the judges had specified, is to be considered illegitimate. In April 2023, the Court of Justice of the European Union confirmed the decision of the Italian magistrates. Yet the government has remained deaf to the rulings of both the Italian and European courts and is determined to continue this regime of illegality on the beaches of the Peninsula.
Calls postponed to 2027 and 2029
The trick of mapping the beaches would allow the tender notices to be modulated with this timing: in the regions where less than 25% of the coasts are free, the new tenders would be set by 2027. The deadline would be postponed to 2029 instead in the case in which this percentage was higher than 25%. As highlighted by the jurist Vitalba Azzollini on Tomorrowhowever, the government’s plan ignores one of the key steps in the Council of State’s assessment. Even in specific cases where scarcity is not verified, there is still an obligation to proceed with tenders, the judges specified. The legal basis derives from the “certain cross-border interests” connected to the concessions, based on the rules of the Treaty on the Functioning of the EU. An interest that, as recalled by the highest administrative judges in 2021, derives from the “exceptional attractive capacity” exercised by the Italian coastal heritage thanks to its tourist vocation. Beyond EU law, the very nature of the concessions imposes the ban: temporary, subject to expiry and not automatically renewable.
Salvini’s deception on the right of pre-emption
In a study commissioned in 2017 by the EU Citizens’ Rights and Constitutional Affairs Unit on concessions, it was recalled that the European Commission had already reprimanded Italy on 5 May 2010, when Silvio Berlusconi was in government. In a letter challenging Italian rules on state-owned concessions, European officials stressed that Italian rules, through automatic renewal every six years, confer “a privileged position to outgoing providers who have the possibility of having their concession renewed without an impartial and transparent procedure having been applied”. More than twenty years later, the situation has not changed. Transport Minister Matteo Salvini, who for years had promised to overcome or cancel the Bolkestein, has adopted a new strategy in the face of the inevitability of the sentences.
Now it claims the need to apply a “right of first refusal” to current concessionaires and the provision of compensation in the event of loss of the tender, as requirements to be applied to the Brussels directive. This “advantage” for the beach resort owners who have been incumbents until now is however expressly prohibited by Bolkestein, at the same time as it prohibits granting “advantages” to outgoing beach resort owners. The only way to circumvent this prohibition would be to recognize in the tender notices criteria that grant priority to subjects who have already gained previous experience in managing beaches. A possibility contemplated in art. 5 of the law that welcomed Bolkestein way back in 2018, where it is established that the municipalities, in addition to the “economic-financial capacity requirements” necessary for those participating in the selection, can establish “other requirements of moral and professional capacity that they deem appropriate to request”.
The question of compensation
The issue of compensation is even more thorny. On the one hand, the law assumes that the current managers have had the opportunity to recover the expenses incurred, taking into account the long duration of the contracts they have enjoyed so far. On the other hand, given that it should be the new concessionaire who bears the costs of compensation, this would constitute a disincentive for those who want to participate in the tenders. In short, the principle of protection of competition that is the basis of the directive would be lacking. The word compensation does not appear in any article of the law, therefore it appears to be a pure and simple invention of the Northern League minister. Although the rules are clear and the related sentences are equally clear, the concern of the infringement procedures that Italy would incur in the event of further extensions does not seem to worry Meloni or her government allies. In the end, the ones who would pay the fines would be the citizens. Deprived of the beaches and also of the resources to live there better.
