The Council of State confirmation the right of the Harbour Authority of Venice and the Marine Authority to administer the technical-nautical services independently



The Council of State has confirmed the right of the Harbour Authority of Venice and the Marine Authority independently to administer the technical-nautical services and the harbour operativity. With sentence 13th December, that we publish below, the Council of State in fact has rejected the resource proposed from the Reunited Tugs Panfido against the ministry of Infrastructures and the Transports and the Harbour Authority of Venice and regarding the associations of the shippers and the shipping agents of Venice and Veneto with the objective to on June 15, 2010 reform the sentence of the Regional administrative court of the Veneto that in its turn has rejected the resource proposed from same the Reunited Tugs Panfido for the cancellation of the decree n. 41 on April 30, 2010 of the Harbour office of Venice of modification to Regolamento for the service of towing of the ships in the port of Venice and of the connected actions, between which in particular note on March 3, 2010 "Proposed of new regulations for the service of towing in the Port of Venice", with annexed rough draft of regulations, of the president of the Harbour Authority of Venice.

Specifying that the pronunciamento of the Council of State entrusts the organization and the discipline of the technical-nautical services to the understanding between the Harbour Authority and the Harbour office assigning to the ministry of Infrastructures and the Transports a competence to exercise in the single hypothesis of lacked attainment an understanding between the two marine-harbour institutions, Port Authority of Venice it has evidenced that, "from a legal point of view, the Council of State has restated that article 102 of the navigation code - where it is previewed that "the norms on the discipline of the service of towing in every marine port are established by local regulations, approved of from the minister of the Transports and Navigation" - partially it is repealed by the effectiveness of art the 14 of the law 84/94 that the determination of the norms entrusts on the discipline and the organization of the services of towing in every port center of Harbour Authorities to the understanding between this last and the Harbour office".

"The sentence of the Council of State, than confirmation how much already established from the judgment of the Regional Administrative Court of Veneto on June 15, 2010 - it has concluded the Venetian harbour agency - allows therefore better an organization of the nautical services technical in the port of Venice with the objective to increase the competitiveness of the harbour operations and therefore to attract more traffic".

N. 06526/2011REG.PROV.COLL.
N. 08962/2010 REG.RIC.


ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE

The Council of State
in jurisdictional center (Section Sixth)

it has pronounced anticipates

SENTENCE

on the resource number of general registry 8962 of 2010, proposed from the s.r.l. Reunited tugs Panfido & C.. in person of the legal representative in charge, represented and defended from lawyers Gianluca Rizzardi, Alessio Vianello and Andrea Manzi, near quast'ultimo electively domiciled in Rome, via Confalonieri, 5;

against

The Ministry of infrastructures and the transports in person of the Minister in charge, represented and defended from the general Legal profession of the State, domiciliataria in Rome, via of the Portugueses, 12;

the harbour Authority of Venice in person of the President in charge, represented and defended from lawyers Francesca Gravili, Francesco Acerboni and Gabriele Pafundi, near this last one electively domiciled in Rome, Giulio Cesare tree-lined avenue, 14;

regarding

Association enterprises of Venice shipment, Association marine raccomandatari and mediating agents of Veneto, not constituted in according to degree of the judgment;

for the reform

of the sentence of the T.A.R. VENETO - VENICE: SECTION the n. 2547/2010, been profitable between the parts, concerning MODIFICATIONS AL REGULATIONS FOR the SERVICE OF TOWING DELLE NAVI - (RIS.DANNI);

Seen the resource in appeal and relative the attached ones;

Seen the certificates of incorporation in judgment of the intimate Administrations;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter in the public audience of the day 22 November 2011 councilman Roberta Vigotti and hearings for the parts lawyer Manzi, the lawyer of the Bacosi State, and lawyer Santarelli for delegation of lawyer Pafundi. ;

Considered and considered in fact and right how much follows:

FACT and RIGHT

I) The society reunited Tugs Panfido and C., concessionaire of the marine Authority for the service of towing in the port of Venice, with the resource n. 927 of 2010 have appealled in front of the Regional Administrative Court of Veneto the decree n. 41/10 of the bringing Harbour office, advance understanding with the harbour Authority, modifications, to experimental and temporary character, of the regulations of the service of towing of the ships in the port of Venice, approved of from the Ministry of Transportation with I decree on February 18, 2008.

The Regional Administrative Court, with sentence returned to the outcome of the Council Chamber in which the precautionary request was discussed, has rejected the resource.

II) the appellant society in the second degree reproposes the censorships carried out in front of the first judge, relative to the lacked approval the regulations by the Ministry, to the lacked involvement the operators of the port, to the excess to be able under various profiles, and critic the sentence appealled in the parts in which:

- it has considered art. the 102 cod. implicitly abolished navigation from art. the 14, codicil 1 ter, law n. 84 of 1994;

- it has excluded the violation of the articles. 7 and ss and 14 and ss. law n. 241 of 1990 and the Ministry Circular n. 1739 of 2000;

- it has not considered, which decisive point of the controversy, than the digging of the harbour channels, adduced to reason of the prescribed modification, to the age of the adoption of the provision it was not even begun;

- it has omitted to consider the lacunosità of the preliminary investigation lead from the Harbour office, also because of the lack of the opinion of the Corporation pilots Venetian matting.

The appellant society concludes for the reform of the same sentence, with acceptation of the resource first degree also to the aims of the compensation of the suffering damage.

The intimate public Administrations have been formed; the Ministry of infrastructures and the transports has proposed incident appeal asking the reform for the sentence in the part in which it has considered that art. the 102 cod. navigation, for effect of which the approval of the local regulations of the towing service is of competence of the same Minister, is repealed by art. the 14, codicil 1 ter, of the law n. 84 of 1994.

III) the appeal proposed from the s.r.l. Reunited tugs Panfido are groundless, and can therefore prescind examining the profiles of inammissibilità of same and the resource first degree (desumibili from the taken part adoption of provisions having effectiveness on the same matter object of the judgment and that they have lead to the definitive approval of the new regulations for the service of towing in date 31 Decembers 2010).

It must first of all be observed that art. the 14, codicil ter, of the law n. 84 of 1994, added from art. the 2, d.l. 21 October 1996, n. 535, conv. in l. 23 Decembers 1996, n. 647, are clear in establishing that "in the ports center of harbour Authority the discipline and the organization of the services of which to codicil 1 second they are established by the marine Authority of understanding with the harbour Authority" and that "in understanding defect it only supplies the Minister of the transports and navigation" (codicil 1 second comprises, between other technical-nautical services, that of towing), while the obligatory nature of the service of pilotage and the criteria of formation of the rates remains of central ministerial competence to establish.

It is groundless, therefore, the reason carried out from the turned appellant to contest, on the point, the appealled sentence.

It turns out also groundless, based on the same considerations, the carried out incident appeal from the Ministry of infrastructures and of the transports, since, as one has been said, I leave again of competences defined from the law n. 84 of 1994 are worth to make to consider that the provision appealled, emanated from the Harbour office (peripheral office of the Ministry of infrastructures and the transports) advance understanding with the harbour Authority, correctly are brought back by the first judge in the within of the competences established from the law.

As for the next reasons of the main appeal, the following considerations are worth to make some to consider the infondatezza:

- the encumbrance reason is groundless with which the violation of it is restated obligation of communication of the start of the procedure of which to art. the 7 of the law n. 241/1990, since the regulations for the service of towing, modified with the deliberation of that be, constitute a normative action of general capacity, as such removed to the norms on the participation according to the disposed one of art. the 13 of the law n. 241/1990, law recalled from the Ministry Circular cited from the appellant (n. 1739 of 2000);

- not even the deficiency of preliminary investigation and motivation, complained from the recurrent one does not turn out subsistent, considering that the determination to modify, and temporarily experimental, the towing regulations achieves to considerations pertaining to the discrezionalità of the Administration with respect to the total situation of safety of navigation, than avoids to the jurisdictional union if not for reasons of illogicità, not subsistent in this case under investigation; for analogous reasons, data the temporary character of the prescribed modifications, the lacked acquisition the opinion (not binding) of the Corporation pilots Venetian matting, than is however expressed on the proposal of modification however in soprassessorio sense, it does not constitute defect of the appealled provision;

- from the reiezione of the impugnatoria part of the resource first degree, than the College confirmation, the infondatezza of the advanced risarcitoria pretension from the recurrent one derives.

IV) In conclusion, the main appeal and that incident one are groundless and go rejected.

The expenses of the judgment go placed at the expense of the appellant society and they are liquidated in device in favour of the harbour Authority, while they can be compensated for the remainder.

P.Q.M.

The Council of State in jurisdictional center (Section Sixth), definitively pronouncing on the appeal in indicated epigraph n. 8962 of 2010, reject it; it rejects the proposed incident appeal from the resistant Ministry, confirming, for the effect, the appealled sentence.

Sentence the society appellant to refund to the harbour Authority of Venice the expenses of the judgment, in the measure of 5.000 (five thousand) euros for both degrees of the judgment, beyond VAT and CPA.

It compensates for the remainder.

It orders that sentence anticipates is executed by the administrative authority.

So decided in Rome in the Council Chamber of the day 22 November 2011 with the participation of the magistrates:

Luigi Maruotti, President

Roberto Garofoli, Councilman

Manfredo Atzeni, Councilman

Roberta Vigotti, Councilman, Drafter

Bernhard Lageder, Councilman

THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 13/12/2011
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)