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The Regional Administrative Court Liguria has rejected the resources of Grendi and Spinelli against the award of the Multipurpose to the groups Messina and Gavio
They are declared partially inadmissible and partially they are rejected
April 22, 2011
The Second Section of the Regional administrative court for the Liguria, with sentence deposited yesterday that we publish below, has declared partially inadmissible and partially it has rejected the resources introduced by Centro Servizi Derna Srl, society of the Group Joints, and from the Grendi Group against the Harbour Authority of Genoa and regarding the shipowning society Ignazio Messina & C. Spa and of the terminalista society Saint George Terminal controlled from the Gavio Group for the cancellation of the ban of contest on October 26, 2009 for the consent in state property concession of the areas and the docks for beyond 300.000 square metres placed between Bridge Canepa and Calata Tripoli, that they take part ofthe terminalistico compendium Multipurpose of the port of Genoa, and for the cancellation of the provision on April 12, 2010 of the Harbour Authority of temporary award of the contest to the temporary grouping of enterprises constituted by the shipowning group Messina and the Saint George Terminal (inforMARE on June 1°, 2010).
ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for the Liguria
(Second Section)
it has pronounced anticipates
SENTENCE
on the resource number of general registry 6 of 2010, integrated from reasons added, proposed they give:
Centro Servizi Derna Srl, represented and defended from the avv. Piermario Cat, Paolo Turci, Giovanni Acquarone, Lorenzo Acquarone, with address which elected near Lorenzo Acquarone in Genoa, via Corsica, 21/18-20;
against
Harbour authority of Genoa, represented and defended from the avv. Alessandra Busnelli, Antonella Traverso, with address which elected near Antonella Traverso in Genoa, via of Merchandise 2;
regarding
Ignazio Messina & C. Spa, represented and defended from the avv. Luigi Cocchi, Francesco Munari, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8; Tirrenia Spa Navigation, Grendi You transport Marine Spa, Terminal Saint Giorgio Srl;
on the resource number of general registry 11 of 2010, proposed they give:
Grendi Marine Transports Spa, represented and defended from the avv. Giuseppe Inglese, Elisa Moro, with address which elected near Giuseppe Inglese in Genoa, via Door D' Archi 3;
against
Harbour authority of Genoa, represented and defended from the avv. Alessandra Busnelli, Antonella Traverso, with address which elected near Antonella Traverso in Genoa, via of Merchandise 2;
regarding
Ignazio Messina & C. S.P.A, represented and defended from the avv. Luigi Cocchi, Francesco Munari, Gerolamo Taccogna, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8; Terminal Saint Giorgio Srl;
on the resource number of general registry 261 of 2010, proposed they give:
Grendi Marine Transports Spa, Centro Servizi Derna, Angelo Pastorino Srl, represented and defended from the avv. Giuseppe Inglese, with address which elected near Giuseppe Inglese in Genoa, via Door D' Archi 3;
against
Harbour authority of Genoa, represented and defended from the avv. Alessandra Busnelli, with address which elected near Alessandra Busnelli in Genoa, via of the Merchandise, 2;
regarding
Ignazio Messina & C. Spa, Terminal Saint Giorgio Srl;
on the resource number of general registry 354 of 2010, proposed they give:
Grendi Marine Transports Spa, Grendi Marine Transports Spa Mandataria ATI Group leader, represented and defended from the avv. Giuseppe Inglese, with address which elected near Giuseppe Inglese in Genoa, via Door D' Archi 3;
against
Harbour authority of Genoa, represented and defended from the avv. Antonella Traverso, with address which elected near Antonella Traverso in Genoa, via of Merchandise 2;
regarding
Ignazio Messina & C. Spa and Mandataria Rti Saint George Terminal, represented and defended from the avv. Luigi Cocchi, Francesco Munari, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8;
for the cancellation
as for the resource n. 6 of 2010:
of the ban of contest of 26/10/09 indetta from the Harbour Authority of Genoa for the confidence of the concession of areas and docks in Genoa let alone of the note of the Harbour Authority prot. 8586/P of the 12/04/10 bringing temporary award of the contest to the RTI Messina s.p.a. – Saint George terminal s.r.l.;.
as for the resource n. 11 of 2010:
BAN OF CONTEST FOR ASSENTRIMENTO IN CONCESSION AREAS AND DOCKS BETWEEN BRIDGE CANEPA AND TRIPOLI DESCENT.
as for the resource n. 261 of 2010:
CONSENT PROVISION STATE PROPERTY CONCESSION.
as for the resource n. 354 of 2010:
BRINGING PROVISION COMMUNICATION OF THE TEMPORARY AWARD OF CONTEST FOR THE CONSENT IN CONCESSION, ACCORDING TO AND FOR THE EFFECTS OF ART. 18, 84/94 L. DELLE AREE AND DOCKS IN GENOA SAMPIERDARENA IN THE COMPENDIUM COMPRISED BETWEEN BRIDGE CANEPA AND TRIPOLI DESCENT, FOR A COMPLEX OF SUPERFICIAL OF SQM 306.550 APPROXIMATELY.
Seen the resources the added and relative reasons the attached ones;
Seen the certificates of incorporation in judgment of Harbour Authority of Genoa and Ignazio Messina & C. Spa and Harbour Authority of Genoa and Ignazio Messina & C. S.P.A and Harbour Authority of Genoa and Harbour Authority of Genoa and Ignazio Messina & C. Spa and Mandataria Rti Saint George Terminal;
Seen the certificate of incorporation di in judgment and the proposed incident resource from recurrent incident Ignazio Messina § C. Spa, represented and defended from the avv. Luigi Cocchi, Francesco Munari, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8;
Seen the certificate of incorporation di in judgment proposed from recurrent incident Ignazio Messina & C. S.p.A. (Ric. Inc), represented and defended from the avv. Luigi Cocchi, Francesco Munari, Gerolamo Taccogna, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8;
Seen the certificate of incorporation di in judgment proposed from recurrent incident Ignazio Messina & C. Spa (Ric. Inc.), represented and defended from the avv. Luigi Cocchi, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8;
Seen the certificate of incorporation di in judgment proposed from recurrent incident Ignazio Messina & C. Spa (Ric. Inc.), represented and defended from the avv. Luigi Cocchi, Francesco Munari, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8;
Seen the defensive memories;
Visas all the actions of the cause;
Reporter in the public audience of the day 7 April 2011 Dr. Davide Ponte and hearings for the parts the defenders as specified in the minutes;
Considered and considered in fact and right how much follows.
FACT
With the introductory encumbrance of the judgment the society Center Derna services, which enterprise operator of the marine field for the development of harbour operations, in reconstructing the multiporpose judicial events also that have involved the said harbour compendium, evidenced to have obtained in date 27 \ 7 \ 2006 concessorio action and to have undersigned in 6 date 17 \ \ 2009 action of submission for the anticipated occupation, according to art. the 38 cod nav in the blackberries of the definition of definitive a concessorio title, of an area comprised pairs to 20.000 sqm there; obtained the revocation of the penal seizure of the area the authorization to the anticipated occupation was object of next delays. In such context the exponent came to acquaintance of the ban with which the intimata harbour authority indiceva the contest in object, for the confidence of the concession of areas and docks in Genoa Sampierdarena in the compendium comprised between bridge canepa and Tripoli bridge, for a complex of superficial of about 306.500 sqm that, except those of new formation for fillings of watery mirrors, was already you anticipate in multiporpose the concession which released to the consortium in 1996.
Adverse the contest ban the following censorships moved therefore:
- violation of art. the 18 l. 84 \ 1994 and of the concorsuali principles for the confidence of marine state property concessions and of the principles of legality, excess to be able for erroneità in the foundations, defect of preliminary investigation and motivation, travesty, illogicità and manifest injustice, contraddittorietà, as it is put to contest in compendia also the consented area to Derna of which the therefore entrusting authority it did not have the availability;
- violation of the principles of good course and efficiency of the administrative action and of conservation of the actions, excess to be able for illogicità, contraddittorietà, defect of motivation and erroneità of the foundations, violation of the principle of protection of the confidence ingendered in head to the private one with the public warning dated 23 \ 10 \ 2003 to which the authority it would have had to give course;
- violation of art. the 38 cod nav, defect of preliminary investigation and motivation, illogicità, erroneità of the foundations, for analogous profiles in relation to the authorization to the anticipated occupation;
- analogous profiles of violation for bastardy of the ban in the part in which euro 411,400 for a reason or purpose does not preview clauses of restitution of the anticipated sum of indemnification for the precedence consortium (, 00).
The intimata administration and the controinteressata society were formed in judgment and, against deducing point by point, they asked the refusal for the encumbrance.
With action of added reasons deposited in date 26 \ 4 \ the 2010 recurrent enterprise appealled the taken part temporary award in favour of the today's interested part against, extending in via derivative the already deducted defects let alone deducing the following ones:
- violation of the articles. 38 codicil 1 lett c) d.lgs. 163 \ 2006 and 5,1 lett a.1 of the ban, 97 Cost. and of the principles of reasonableness and equal visibility, excess to be able for deficiency of preliminary investigation and motivation, illogicità, contraddittorietà, disparity of treatment, serious and manifest injustice, being the relative declaration returned from the highest bidder lacking in subscription, and being however the declaration lacking in reference to the subjects stopped from the charge in the precedence three years;
- violation of art. the 18 codicil 7 l. 84 cit. and of the principles in topic of competition and free circulation of the services, excess to be able for error on the foundations and travesty, defect of preliminary investigation and motivation, contraddittorietà and illogicità, as the Ignazio Messina enterprise, takes part of the grouping highest bidder, has not reached, unless for 2004, the handling objectives, sussistendo therefore the foundations for the extension of the concession already in being would not have had to be excluded;
- excess to be able relative to the attribution of the score for the voice infrastructural investment in defect of the approval of the relative project of tombamento by the Higher council of the public works, violation of art. the 5 codicil 9 reads n. 84 cit., defect of preliminary investigation and repercussion on the other defects of the offer having involved an alteration of score pairs to 18,902 that added to the 25 for infrastructural investment the final difference between offers exceeds turned out pairs to 28,93 (119.51 to 90,58);
- violation of art. the 84 codicil 8 d.lgs. 163 cit., for illegitimate composition of the giudicatrice commission in relation to the nomination of the Dr. Marchesiello, magistrate in quiescence and therefore not re-entering in the categories previewed from the which invoked norm.
Also adverse such reasons replied the resistant parts concluding for the declaratory judgement of inammissibilità and the refusal of the encumbrance.
With decree n. 155 of 30 \ 4 \ 2010 this Regional Administrative Court rejected the proposed precautionary question.
With incident resource the controinteressata society contested for such way the lacked exclusion the recurrent one, deducing the following censorships: violation of the articles. 38 d.lgs. 163 cit. and 3 l. 241 \ 1990 for lack of analogous declaration for the subjects stopped from the charge, in the same deducted terms with the main resource; violation of art. the 18 l. 84 cit. and various profiles of excess to be able for lack of requirement of admission being concerned the volume of transactions, not having the recurrent societies a suitable structure to justify the allocation of a so immense compendium, analogous to the reason of main resource.
With according to action of reasons added, deposited in date 14 \ 5 \ 2010 recurrent part extended the same censorships to an ulterior bringing action oral of temporary award.
With an action of added reasons of incident resource resistant part also restated the foretold censorships also adverse such ulterior impugnativa, deducing the following censorships: violation of art. the 38 cit and the point 4.1.b) and 5,1 lett a) of the ban, DM 585 \ 1995, for lack declarations of the prosecuting attorneys with consequent exclusion of ATI grendi; analogous profiles for lack of the subscription of declaration on criminal record, oltretutto important as concerning the violation of norms on immigration; analogous profiles in order to a sentence for environmental crime of Giselda Pastorino, important crime on the professional morals and in order to which the harbour authority has not carried out the due verifications; analogous profiles for the lack of the necessary declaration about the subsistence or insussistenza of relationships of control or social connection, that is as the returned declaration, in terms of insussistenza, were in truthful as the recurrent today's society are controlled by Rebora Industries, with this hiding a relationship of important control to the aims of the operativity of the exclusion cause 38 sub art. lett c in order to stopped administrator Spinelli; analogous profiles of censorship for lack of requirement of turnover demanded from point 4,2 of the ban, against the irrelevancy of the activity carried out from the two various enterprises of the grouping from not qualificabile Grendi as terminalistica; violation of the ban point 5,2 last paragraph for incoherence with the harbour town development plan, as assessed moreover also from the contest organ; violation of point 9,2 of the ban and art. the 3 l. 241 cit., excess to be able for contraddittorietà, as the serious deficiencies of the today's offer of the recurrent one, listed in the minutes n. 9 of 26 \ 10 \ 2009 from p 13 in then, would have had to carry to the exclusion.
With a third action of added reasons, deposited in date 12 \ 6 \ 2010 recurrent part deduced the adverse the temporary award and relative minutes, following the ulterior reasons: violation of art. the 18 l. 84 cit. and of the circular of the navigation and Ministry of Transportation n. 41 of 6 \ 5 \ 1996, contraddittorietà, as the previewed tombamento of the watery mirrors does not turn out confirmed from the triennial plan, besides the lack of the necessary one to seem of the Higher council of the public works; analogous profiles for the contraddittorietà of the tombamento with the harbour plan; violation of art. the 18 cit. and of the attautiva circular n. 41 of the 6 \ 5 \ 1996 that previews criteria for the nomination of the commission; violation of art. the 18 codicil 7 l. 84, travesty, as the concessionaire of a state property area cannot have in force of identical regime of other state property spaces in the same port; analogous profiles for the lacked appraisal the reliability of the enterprise plans of the winner; violation of the articles. 38 cit. 3 l. 241 cit., 4,1 a.1 of the ban for lacked appraisal the ostatività of the sentences suffered from member of the board of directors of the Messina and from the prosecuting attorney of the same society, let alone from the special prosecuting attorney production manager and administrator of Saint George terminal; violation of art. the 18 codicil 7 l. 84 cit. and of the principles in topic of competition and free circulation of the services, excess to be able under various profiles, for the favor deriving to controinteressata the possession already in concession consequent bordering area with unwarrantable favor in the appraisal of the offer.
With a fourth action of added reasons, deposited in date 18 \ 6 \ 2010, the censorships were extended in via derivative and directly in it confronts of the definitive award. In truth, in such center the censorships, which restated that deducted adverse ban, came in such center rimodulate in the following terms:
- for the zero setting of the procedure: violation art. 84 cit. for illegitimate composition of the commission relatively it is to pres the Marchesiello is avv the Contri as characterized to out of the modalities of which to foretold art. the 84; violation of art. the 18 cit. and of the parimenti cited circular n. 41 \ 96 on the nomination of the giudicatrici commission in matter;
- for the exclusion of ATI Messina: violation of art. the 18 codicil 7 l. 84 cit. being already to title of concession in the same port; violation of art. the 38 cit. and analogous already deducted profiles for lacked subscription the declaration on requirement; analogous profiles for the lacked concerning declaration administrators stopped in the three years; analogous profiles for the ostativo character of sentences suffered from councilman of Messina (for violation to t.u in matter of environmental arts and – rectius landscaped) and from special prosecuting attorney of Messina (the emission check without authorization); analogous profiles for sentences suffered from administrators of the Saint George Terminal;
- for the bastardy of the appraisals of the commission: violation of the town development plan and contraddittorietà and illegitimate attribution of 25 points respect to an unattainable work as not previewed from the triennial plan and in absence of the approval of the Higher council of the public works, with consequent also alteration of the score in favour of against interested ATI Messina for 18,902 points; inattendibilità of the flat enterprise of ATI Messina against the trend negative of the activities in being; illogicità of the attributed scores to ATI Messina under various profiles.
Also adverse both the actions of added reasons replied the resistant parts constituted, asking the declaratory judgement of inammissibilità for the encumbrance let alone the refusal for the same one.
With next action of added reasons of deposited incident resource in date 29 \ 6 \ 2010 the already deducted censorships in adverse incident way were extended to the definitive award the admission in contest of the grouping of the recurrent one.
To the public audience of the 7 \ 4 \ 2011, which it was reached on request of dismissal of the parts, the cause passed in decision.
With the independent resource n. 11 \ 2010 Grendi, which enterprise operator of the port and concessionaire of an area of 50.000 sqm to Libya bridge, appealled the same ban of contest deducing the following reasons:
- violation of art. the 18 also in relation to the principles of competition and good faith, violation of the articles. 1325 ss c.c and invalidity for lack of the object of the concession, violation of the good course, excess to be able for unreasonableness, contraddittorietà and sidetracking, for uncertainty on the object of the concession as subordinated to the outcome of the hanging judicial events;
- analogous profiles of censorship for uncertainty of the object of concession against the effects of the previewed tombamento, let alone violation of the equal visibility against the choice of the ban to indicate as optional element of the offer the presentation of the infrastructural plan;
- analogous profiles for the fallen back ones that the censured defects of uncertainty of the object have in order to the previewed criteria of appraisal;
- analogous profiles of censorship for the inadvisability and uselessness to put to contest an entire compendium let alone the previewed possibility to introduce also offered in extension respect to other concessions already you anticipate.
The intimata authority was formed in judgment against deducing point by point and asking the refusal for the encumbrance.
With action of added reasons deposited in date 21 \ 5 \ the 2010 recurrent enterprise, which participant in ATI with Derna and Pastorino to the contest indetta from the appealled ban, appealled the taken part temporary award in favour of the today's controinteressata part, extending in via derivative the already deducted defects.
With deposited incident resource in date 7 \ 6 \ 2010 controinteressata part contested for such way the lacked exclusion the recurrent one, deducing the following censorships: violation of the articles. 5.1.a) of the ban, 38 d.lgs. 163 cit. and 3 l. 241 \ 1990 for lack, formal, of declaration for a subject stopped from the charge in the three years, let alone for substantial lack of the necessary dissosciation in relation to taken part sentence of a moreover having subject the control of the same Derna society; violation of art. the 18 l. 84 cit. and various profiles of excess to be able for lack of requirement of admission being concerned the volume of transactions, not having the recurrent societies a suitable structure to justify the allocation of a so immense compendium, analogous to the reason of main resource; : violation of art. the 38 cit and the point 4.1.b) and 5,1 lett a) of the ban, DM 585 \ 1995, for lack declarations of the prosecuting attorneys with consequent exclusion of ATI grendi; ulterior identical censorships to those already placed made up of the incident resource and of the relative reasons added to the resource n. 6 of 2010, the above-referenced ones.
Once taken part the definitive award, if for a back leaves recurrent appealled it with ulterior action of added reasons (deposited in date 22 \ 6 \ 2010) with which the ban in via derivative restated the proposed censorships adverse, for another back it leave controinteressata proposed resorted incident (deposited in date 6 \ 7 \ 2010) with which it already extended and it restated the proposed censorships.
After some disposed dismissals on request of the parts, also such resource passed in decision to the audience of 7 \ 4 \ 2011.
With resource n. 261 \ the 2010 same recurrent Grendi also appealled the admission to the contest of ATI composed from the controinteressata society, deducing the following reasons, analogous to some already deducted from Derna with the first resource: lack of the subscription of the declaration sets up from art. the 38 cit. and 5,1 of the ban; lack of the same declaration in the concerning part the subjects stopped from the charge in the three years precedence.
With action of added reasons the foretold censorships were extended to the minutes of the contest sitting.
With two series of reasons of incident resource controinteressata part deduced the same above-referenced censorships, as deducted in the rerun precedence, adverse the lacked exclusion ATI represented from the recurrent one.
After a dismissal disposed on request of the parts, also such resource passed in decision to the audience of 7 \ 4 \ 2011.
With the quarter and last resource in epigraph, the same recurrent Grendi appealled the temporary award deducing the same censorships proposed from Derna with the first encumbrance. With two series of added reasons the impugnatzione was extended to the minutes of temporary award.
With ulterior action of added reasons, deposited in date 23 \ 6 \ 2010, the impugnativa came extensive, with reproduction of the same foretold reasons, adverse the definitive award.
Analogous, controinteressata part reproposed in such center the already deducted reasons of incident resource in the precedence encumbrances.
After some disposed dismissals on request of the parts, also such resource passed in decision to the audience of 7 \ 4 \ 2011.
STRAIGHT
1. Controversy anticipates has to object the impugnativa of the actions of contest, concerning the confidence in concession of the marine compendium in question, by the enterprises grouped in the a.t.i turned out succumbs; in particular, the disputes follow the course of the contest, turning out directed adverse the ban, the actions of admission of the two competitors (today's private counterparts), the temporary award and, at last, that definitive one.
The contest in dispute concerns the concorsuale procedure of an area of the port of Genoa, already object of complex judicial events, in order to which the harbour Authority has been determined to proceed ex novo to confronts competitive in the terms sets up from the principles by now consolidated in topic of confidence of concessions. The harbour administration therefore has induced to the publication of the ban, appealled also it in this center, with which it has been indetta the selection in question to which has only participated the private parts today in cause, constituted in opposite groupings with other enterprises. The outcome of the procedure has been favorable to the today's controinteressata part, yes that the recurrent one has extended the dispute, already moved to the ban, the actions of contest; impugnativa to which the harbour authority and the controinteressata one are opposite; both have carried out a defensive activity, while the highest bidder has proposed also of the reasons of incident resource.
2. In via preliminary matter it is necessary therefore to arrange the reunion for the obvious connection is subjective that objective of the resources, so as reassumed in the novellistic one in fact: in the first direction, to the formal identity also of the resistant parts (harbour Authority and society highest bidder) the substantial identity of the recurrent parts and the relative interests is accompanied, in quality of authorized harbour enterprises to operate in the interested within and participants to the contest in the same grouping; in the second direction the identity emerges to the evidence as well as of the burdened actions of the deducted censorships, it is in main way that incident.
3. Parimenti in via preliminary matter goes declared inadmissible for defect of concrete and current interest to the decision the reasons of adverse resource proposed the various actions from the ban and the definitive award. In particular, in fact, no usefullnesses the parts could draw from the eventual cancellation of actions lacking in concrete lesività of the set in action interests, which the admission in contest of a competitor and the temporary award: in order to the first the eventual disputes, not deductible whereby only adverse the ban, cannot that to be reflected in it confronts of the only in concrete terms lesivo action of the procedure, the definitive award; in order to the second, the same one assumes nature of endoprocedimentale action, to still unstable and interim effects, sicché is inidoneo to produce to the definitive lesion of the enterprise not turned out single highest bidder that verification with the definitive award, which does not constitute merely confermativo action of the first (cfr. eg. Council It are, sez. III, 11 March 2011, n. 1581) and regarding which they are only concentrated are the lesivi effects that the deducted disputes. Incidently, to this last care it goes evidenced as the same trial-like discipline in topic of contracts publics, even though not directly applicable, evidences in terms of principle with reference to the impugnativa of contest procedures, which that under investigation, as (besides exclusion and ban) “all the other actions of the confidence procedures are appealled with the definitive award” (cfr. art. 44 codicil 3 lett f l. 88 \ 2009, bringing delegation for the rerun performance of “new” the directive”).
Consequently, analogous rising follow the reasons of adverse incident resource proposed such actions.
4. In via preliminary matter the concerning issue is always set the order of discourse of the deducted reasons during incident resource regarding those of main resource, in species against the nature of contest with two single competitors.
In purpose, the thesis already supported from the College finds comfort in recene the reassumed prevailing jurisprudence in the decision returned from the Plenary session of the Council of State with the sentence n. 4 of 2011, to tenor of which the incident resource, directed to contest recurrent legitimacy of the main one, by means of the censorship of its admission to the contest procedure, must be always examined priority, also if recurrent the main one encloses the instrumental interest to the renovation of the entire procedure. It independently dictates sussiste logical priorities from the number of the participants to the selective procedure, from the type of recurrent censorship shown from the incident one and the demands formulated from the resistant administration.
In general terms, the same prevailing jurisprudence considers that the priority examination of the main resource is admitted, for reasons of trial-like economy, in case is obvious its infondatezza, inammissibilità, inadmissibility or improcedibilità; this faculty cannot be denied, a priori, that its exercise does not affect the right of defense of the controinteressato one and always allows a effective acceleration of the definition of the controversy. In truth, if of species the reasons of adverse main resource the award, even though after all not susceptible of acceptation, do not seem to assume connoted of the absolute evidence being presupposed relative refusal a groundbreaking and analytical examination, so that it is necessary to give prominence to the general rule and to take the movements, in examining the impugnativa of the award, from the reasons of incident resource.
This moreover regards the relationship between impugnativa of the award proposed from the private parts, as the deducted reasons upstream adverse the ban assume however priority character; in fact, contesting, at least for the area object of advance concession, the same possibility to proceed to contest, first the fine ones persecuted from the parts are not as well as the renovation how much not the development of the same one, for which the eventual acceptation it would be able to sweep up the entire procedure, according to the famous mechanism of the caducante effect.
5. In the merit it is necessary therefore to take to the movements from the deducted censorships adverse the ban, deducted in terms distinguished by the enterprises then met in the turned out grouping it succumb in contest.
5.1 With the first reason of encumbrance, between those deducted ones from Derna, the bastardy is complained of having put to contest in the immensest compendium also the area consented to the recurrent one of which, therefore, the entrusting authority would not have had the availability.
The infondatezza of the relief emerges is in the light of precedence jurisprudential statuizioni yields in analogous fattispecie, is based on legal considerations logical deriving from the analysis of the actions.
Under the first profile, they go from the judgment recalled the carried out considerations n. 4413 of 2009 of the Council of State which it is sent back integrally.
Under according to profile, if on one side it would be dirimente already the ascertainment that the boasted concession came to expiration in date 31 \ 12 \ 2009 (art 6 of the same one), therefore very before the outcome of the contest in question and the consequent confidence, from the other side in any case the forecast of which to point 2,4 it appears invoked mistimed from recurrent part, as not unreasonable statuizione in species against the peculiar come situation to create with respect to the confidence of the areas in question.
In purpose, dinanzi to the situation of deriving uncertainty overlapping itself of various judicial statuizioni, he is totally comprehensible that the authority called to the fruitful management in the public interest of strategic areas, which those in object, try the system to prefortify themselves regarding eventual the possible future change of the scene taken in consideration. Without to reopen depositors by now concluded, is obvious that, against (mere) the recognized bastardy (and acclarata, although snoops about put in doubt of the interest to act of authorized operators of same the narrow field, on the escort of the consolidated notion of instrumental interest) of a stiff agreement to close a precedence contest for the confidence of the compendium, the main roads that the authority has been found to cover could not that be that of the new contest; in such context, parimenti reasonable are the predisposition of protection clauses, regarding future and uncertain judicial developments, in the perseguimento of the same interests publics, as in truth implicitly desumibile from the same decision of recalled appeal over.
5.2 With according to order of reliefs violation is complained of the protection principle of the confidence ingendered in head to the private one with the public warning dated 23 \ 10 \ 2003 to which the authority it would have had to give course.
The carried out considerations over and the outcome of the impugnativa precedence of the agreement of the 2004 impose the refusal also of such reason, not being able however to attribute importance to a presumed confidence, lacking in necessary requirement such to limit that is to exclude the exercise of the autoritativi powers of confidence of the areas in head to the regolatrice authority. In the balance of the opposite ones the contested clause places, and over recalled, it seems to constitute a reasonable compromise respect to a in truth peculiar situation. Moreover, regarding passing of numerous years the determination of the authority to proceed to a new contest is parimenti logical, in the track of the full respect of the recalled competitive principle over.
5.3 How much up to here evidenced prima facie involves the infondatezza also of the third order of reliefs, with which analogous considerations were extended respect to an action, which the authorization to the anticipated occupation, parimenti lacking in the characters own of the invoked confidence, being limited in the time to a front age to the outcome of the contest in question let alone based on interim foundations lacking in consistency second how much already evidenced.
Moreover, in terms of specific infondatezza of the censorship it goes also evidenced as the which invoked action is former if lacking in stability characters such to guarantee how much wishing from recurrent part: in fact, art. the 38, Cod. Nav. it admits that place to temporary allocation of state property assets can be made, which pear tree, own because intrinsically transitory, are not only able to root deserving confidences of protection in head to the holders, but preludono necessarily to the start of comparative procedures in sight of the definitive allocation (cfr. eg. Council It are, sez. YOU, 29 Decembers 2010, n. 9574).
5.4 At last, parimenti prima facie dismissed of foundation the ban is the fourth order of deducted reliefs from adverse Derna that would be illegitimate in the part in which euro 411,400 for a reason or purpose does not preview clauses of restitution of the anticipated sum of indemnification for the precedence consortium (, 00). In fact, as against correctly deducted from the defense of the harbour Authority no forecast it had on the point to be inserted in the ban, being the issue remittance to the various center of the closing of the relationships eventually opened, also in terms of debit credit, in order to precedence concessori relationships.
5.5 Always adverse the ban also the other society of the grouping then turned out succumbs has proposed a series of censorships that, even though connected to the precedence (so that I am in great part richiamabili also the considerations up to here carried out), go examined separately in order to ulterior deducted profiles.
With a first order of reliefs it is contested is the lack of the object of the concession, not having the authority the availability of the areas, is the uncertainty on the object of the concession as subordinated to the outcome of the hanging judicial events. While in the first direction he is sufficient to recall how much over evidenced in order to the effects of precedence partial concessions (is in terms of time space that), in the second direction hire character dirimente the considerations carried out in order to the reasonableness of the determination adopted from the agency manager of strategic areas under various profiles that, in the perseguimento of the interests publics of which the same one is titular, it has supplied to put to contest the confidence of the same areas in terms, for a back, totally answering to the current state of the same ones and, for another back, dictating stiff clauses to place eventual remedy to supervening of events that, for own nature, assume the uncertainty character.
5.6 With according to order of reliefs the uncertainty of the object of concession against the effects of the previewed tombamento, let alone the violation of the equal visibility against the choice of the ban to indicate as optional element of the offer is contested the presentation of the infrastructural plan.
The censorship is partially inadmissible, relatively to the dispute of profiles that leak from the limits of admissibility of the impugnativa of a general action which are the contest ban, and partially groundless.
Under the first profile, online general the prevailing jurisprudence, made own from the recent decision of the Plenary one already recalled and shared from the College, considers that legitimacy to the resource, if of resources in matter of procedures of contest (analogically applicable to the contest in question), must be correlated to a differentiated situation, in sure way, for effect of the participation to the same procedure dispute object. Such rule, by now consolidated, endures some exceptions, concerning, respective: a) legitimacy of the subject that contrasts, in root, the choice of the contracting out station to call the procedure; b) legitimacy of the economic operator “of field”, that it intends to contest a “direct confidence” or without contest; c) legitimacy of the manifest operator who the intention to appeal a clause of “the excluding” ban, in relation to the illegitimate forecast of determined requisitioned of qualification. Such exceptions, than are connected to requirements and to peculiar reasons, they are however inidonee to determine the affirmation of a new general rule of indifferenziata title of legitimacy to the resource, based on the mere subjective qualification of entrepreneur potentially aspirant to the indiction of a new contest.
In such optical, sub a) legitimacy of the subject that appeals the decision to call a contest is admitted in the single cases in which these it demonstrates an adapted differentiated position, constituted, for example, from the title of an incompatible relationship with the new contested confidence; if of species that sussiste with respect to the reasons foretold in which the same subsistence of the object of contest or the relationship with the concessions in being has come in dispute, not in order to the under investigation relative reasons to the forecasts on the tombamento, that is to clauses of contained and merit of the ban, not regarding the same faculty to proceed to contest.
Insignificant the issue sub b), if of species the problematic one of the direct impugnabilità of the ban is set, sub c), permissible only in relation to cc.dd the excluding clauses. Orbene the reasons under investigation do not regard to the evidence clauses and involving dispositions of the ban not the admission in contest of the enterprises that contest the same clauses. In so far as then instead the clauses of the ban in dispute they can be reverberated on the prosieguo of the contest and therefore on the definitive award, the considerations resume full load vigor that in case of necessity consider the examination of the incident resource preliminary.
Under according to profile, the deducted censorships appear moreover groundless as the ban, after to have previewed the extension of the object of the concession, comprehensive of the watery space, it has previewed the faculty to introduce investment plans infrastructural, in terms sufficiently detailed (cfr. point 2,6 of the ban), previewing then during predetermination of the award criteria the possibility to obtain the maximum score second a measure that, in the limits of union of the ban dispositions, does not appear manifestly unreasonable.
5.7 the considerations up to here carried out return obvious the inammissibilità (not be a matter itself of excluding clauses) and infondatezza also of the remaining deducted defects, is for presumed the fallen back ones that the censured defects of uncertainty of the object would have in order to the previewed criteria of appraisal, is the presumed inadvisability and uselessness to put to contest an entire compendium that is to introduce also offered in extension respect to other concessions already you anticipate.
In truth, to this last care let alone in via more general regarding the disputes which moved to the lex specialis in object, also deeming superable the perplexities deriving from a deducted censorship in terms of inadvisability of the administrative choice (through therefore the resource to a relative concept to the administrative merit, excluded from jurisdictional union anticipates), cannot that to send back itself to how much already statuito from the College in order to the same ban (cfr. sentence 1215 \ 2010): “In truth, if for a back the enforced norm does not place some limitation in the location of the areas to put to contest, for another back they cannot that to be worth the ordinary principles thesis to regulating the exercise of the administrative discrezionalità. If under investigation, against the importance of the port of Genoa let alone of the consistency, positioning and conformation of the interested compendium, the contested determination does not seem neither based on a travesty of the facts neither on elements or vitiated considerations of manifest unreasonableness. The jurisprudence which invoked from recurrent part, if on one side it appears totally condivisibile as supported how much from this court in several statuizioni of the last years in order to the valence of the competitive principles in topic of harbour concessions also (CdS 362 \ 2007 restates that to case did not confirm one pronounces of this Regional Administrative Court), for another back no relief assumes to the fine ones wished, as the mass to contest of an extensive compendium but reasonably modulated regarding the importance of the port and to its conformation, it appears totally respectful of the recalled principles. All the harbour operators authorized persons, eventually grouped, have at least theoretical possibility to participate to the contest; moreover, the harbour Authority must carry out own considerations in order to the location and marking out of the areas in the primary interest not as well as of the enterprises how much of the best operation and yield, is economic that social against the pluralità of interests involved publics, the port and the relative activities. Neither it appears vitiated the previewed possibility to entrust areas in extension to other bordering concessionaire, second an allowed faculty in so far as it is not repealed in part, as it is not repealed in part in the species, to the rule of I confront competitive and to the necessity of possession of necessary requirement”.
6. According to the frame traced in via preliminary matter it is necessary to proceed to the examination of the reasons of incident resource, deducted adverse the definitive award by the controinteressata enterprise and thesis to contest the bastardy of the actions of contest in the part in which the exclusion is not arranged of the constituted grouping, between the others, from the recurrent today's enterprises.
6,1 Al fine of a tidy and complete examination of the same ones is necessary to take the movements from those deducted ones, in analogous terms but not coinciding, much to carry to various outcomes, some of the censorships of main resource, in allegated violation of the articles. 38 d.lgs. 163 cit. and 4 ss. of the ban, relatively to the declarations returned in order to the subsistence of requirement “legal professional moral”.
Also if the contest under investigation, having to object the confidence of a marine state property concession and not a contract contract, were not formally subject to every punctual rule dictated from the code of contracts publics, the ban has persecuted the road of the express callback to the norm in question in the following terms: to point 4,1. of the ban, entitled requisitioned legal professional moral, it is statuito as first point (a) that “the participation is classified to the enterprises in possession of requirement of which to art. the 38… In particular participants they must demonstrate not to be incurred in one of the exclusion causes of which to art. the 38 codicil 1 lett to) b) c) d) and) f) g) h) i) l) m) m-ter and codicil 2 d.lgs. 163/06”.
In truth, to light of the foretold organization of the object of contest and the formulation of the callback to the which invoked norm, an application in compliance with the ratio of the norm prevails some.
Online by right, and such optical, also during contract contest briefly this section has already many times over had a chance for evidence as the analysis of the issue must take the movements from the normative data of art. the 38 cit. invoked, which, after to have dictated (codicil 1) that “is excluded by the participation to the procedures of confidence of the concessions and the contracts of work, supplies and services, neither can be affidatari of subcontracts, and the subjects cannot stipulate relative contracts” that they second find in a series of situations characterized from the norm (a directory resumed from the introduced ban except lett the m quater in the blackberries of the adoption of the same ban), it previews (codicil 2) that the possession of such requirement can be attested by means of declaration.
In general terms, it goes therefore restated, species in cases as that under investigation, than the ratio of the norm of which to art. the 38 it resides in the requirement to verify the reliability altogether considered of the economic operator who will go to contract with the p.a in order to avoid, to protection of the good course of the administrative action, than this last one it enters in contact with subjects lacking in moral and professional reliability (cfr. eg. Regional Administrative Court Liguria 962 and 9201 \ 2010).
The single ones lex specialis dictate rules of specification of such burden that, if on one side they assume the tie value for the same contracting out station and the aspirants participants, the other must submit to the ordinary criteria of the editing clarity and the reasonableness of application.
In purpose, it also goes remembered the prevailing jurisprudential opinion (cfr. eg. Council of State Sez. YOU 4.8.2009, n. 4906, 22.2.2010, n. 1017) last in via consolidation, than move in the same evidenced optical over, to tenor of which codicil 1 of art. the 38 cit. it reconnects the exclusion from the contest to the substantial data of the lacked possession indicated requirement, while codicil 2 does not preview analogous endorsement for the hypothesis of the lacked or not perspicuous declaration: from this it comes down that only the insussistenza, in practice, of the previewed causes of exclusion from art. the 38 involves, “ope legis”, the espulsivo effect. When, on the contrary, the participant is in possession of all demanded requirement and “lex specialis” she express does not preview the pain of the exclusion in relation to the lacked punctual observance the prescription on how and on the object of the declarations to supply, making generic callback to the absence of the obstructive causes of which to the norm under investigation, omission or the incompleteness in order to such elements she does not produce some prejudice to the interests garrisoned from the norm, resorting a hypothesis of mere formalism as such insuscettibile, in deficiency of an expressed legislative forecast or - she repeats herself - of the law of contest, to found the exclusion, whose hypotheses are compulsory (cfr. Council It are, sez. V, 9 November 2010, n. 7967). In sense in compliance with the shown solution it places also art. the 45 of the directive 2004/18/CE that reconnects to the exclusion to the sun hypothesis of serious guilt of false declarations in supplying information, not rinvenibile if the competitor does not achieve some advantage in competitive terms, being in possession of all previewed requirement (cfr. Cons. St. n. 1017/2010 cit.).
6.2 In such optical if of species it is necessary to evidence laconicism of the ban which reserves the participation to the enterprises in possession of requirement of which to art. the 38, demonstrating not to be incurred in one of the foretold causes of exclusion.
If of species they go therefore deemed groundless the regarding defects and disputes not as well as the subsistence of requirement how much the formal absence of declaration by some of the interested subjects. This also in order to the specific figure of the special prosecuting attorneys of the societies which, also provided with representation powers, do not re-enter of the number of the subjects held to the substitutive declarations finalized to the verification of the possession of requirement of morals of the same society (cfr. eg. Council It are, sez. V, 25 January 2011, n. 513).
6.3 various conclusions it is reached for that it concerns instead the substantial relief, concerning the subsistence of the which requisitioned foretold ones, in species whereby contests the declaration in order to the subsistence of a cause of exclusion in head to an administrator stopped from the charge in the course of the three years, regarding which however, second the defense of recurrent part, would be taken part suitable measures of dissosciation, consisting in the approval in date 11 \ the 1 \ 2010 (that is day before the attached same declaration to the participation question) of an ethical code.
The Second Section of the Regional administrative court for the Liguria, with sentence deposited yesterday that we publish below, has declared partially inadmissible and partially it has rejected the resources introduced by Centro Servizi Derna Srl, society of the Group Joints, and from the Grendi Group against the Harbour Authority of Genoa and regarding the shipowning society Ignazio Messina & C. Spa and of the terminalista society Saint George Terminal controlled from the Gavio Group for the cancellation of the ban of contest on October 26, 2009 for the consent in state property concession of the areas and the docks for beyond 300.000 square metres placed between Bridge Canepa and Calata Tripoli, that they take part ofthe terminalistico compendium Multipurpose of the port of Genoa, and for the cancellation of the provision on April 12, 2010 of the Harbour Authority of temporary award of the contest to the temporary grouping of enterprises constituted by the shipowning group Messina and the Saint George Terminal (inforMARE on June 1°, 2010).