the Council of State gives reason to the Harbour Authority of Genoa on the sovrattassa on the cargo and disembarked in port



The Council of State has receives the resource introduced this year from the Harbour Authority of Genoa against the iron and steel group Ilva Spa with regard to the institution of the sovrattassa on the cargo and disembarked in the genoese port of call and has rejected the resource introduced from the Ilva that instead was received in first degree from the Regional administrative court for the Liguria.

The sovrattassa it was deliberated in 2003, with application beginning from on 1° January of the next year, in order to inside retrieve useful resources to the realization of works of common interest of the port of Genoa. With deposited sentence tuesday, that we publish below, the Council of State has received the reasons of the Harbour Authority admitting that the institution of the sovrattassa is one of the options allowed from law 84/94 of reorders of the legislation in harbour matter in order to allow with the harbour agency to inside realize works of public interest of the port of call.

"The institution of the sovrattassa - the president of the genoese harbour agency has commented, Luigi Merlo - has allowed in the years to realize many important works for the genoese harbour community that has accepted this choice responsibly. The goodness of the decision that the agency has assumed in 2003 today totally is legitimized by the Council of State and this will allow us to go ahead working in order to grow the port of call".

N. 05012/2013REG.PROV.COLL.
N. 00813/2013 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 813 of 2013, proposed from the harbour Authority of Genoa, in person of the President pro tempore, represented and defended for law from the general Legal profession of the State, domiciled in Rome, via of the Portugueses, 12;

against

Ilva s.p.a., in person of the legal representative, represented and defended from lawyer Francesco Perli, with address which elected near the Berenghi law firm and associates in Rome, via IV November, n.149;

Ministry of Infrastructures and the transports, in person of the Ministry pro tempore, Agency of Customs and the Monopolies, Agency of customs and the Monopolies - Regional Direction Liguria;

for the reform

of the sentence 18 October 2012, n. 1230 of the Regional administrative court of the Liguria, Genoa, Section I.

Seen the resource in appeal and relative the attached ones;

seen the certificate of incorporation in judgment of Ilva s.p.a.;

seen the defensive memories;

visas all the actions of the cause;

reporter in the public audience of day 18 june the 2013 Cons. Vincenzo Lopilato and hearings for the parts the lawyer of the Palatiello State and lawyer Perli.

FACT

1. - The Ilva society s.p.a. (henceforth also only society), having to object the activity development iron worker, is concessionary of a state property area of about 73.000 square metres, takes part of the port of Genoa.

The harbour Authority of Genoa, with deliberation of the harbour committee on November 5, 2003, n. 4, and with I decree on December 2, 2013 of the President, n. 1553, have instituted, according to the law 28 January 1994, n. 84 (I reorder of the legislation in harbour matter), beginning from on January 1°, 2004, a sovrattassa on the goods disembarked and boarded.

The society has appealled, before the Regional administrative court for the Liguria, Section before, such provisions.

In particular, the following bastardies (brought back in synthesis have been deducted):

i) violation of art. the 5, codicil 8, of the law 28 January 1994, n. 84 (I reorder of the legislation in harbour matter), as such law would allow the imposition of the sovrattassa with the solo fine "to cover the actual costs supported for the realization of the works", than, in this case under investigation, they would not be realized;

ii) violation of foretold art. the 5, codicils 8 and 9, let alone deficiency of foundations and contrast with the triennial operations plan, as the previewed works (dredging of the backdrops of the basin of Sampierdarena and opening to West of the basin of Sampierdarena, participations of security, informatizzazione crosses harbour and fognari connections, infrastructural participations on the common areas) would not re-enter in the application within of the aforesaid law (having to be supported from the State) and they would not have been neither programmed (the triennial operations plan, approved of on December 13, 2002 from the harbour Authority for years 2003-2005, would not contemplate the foretold works);

iii) violation of foretold art. the 5, codicil 8, let alone deficiency of preliminary investigation, defect of motivation and contraddittorietà, as the Authority would not have indicated the reasons, as demanded from the norm, for which it would have decided to impose a surtax rather than to opt for the increase of the concessori canons (in the part motivates of the deliberation n. 4 of 2003 express are asserted that "between the hypotheses that will have to be subordinates to verifications and deepenings re-enter the additional application of a tariff one that is the hypothesis of increase of the state property canons"); one joins that any indication would lack the measure of the sovrattassa, of the costs estimated for the works, of the works that must be realized (this last, are emphasized, would be indicated only generically);

iv) violation of article 23 and 25 of the Ec treaty, as a measure would be introduced equivalent to the customs duties, prohibited from the indicated European norms.

1.1. - In the judgment first degree the harbour Authority has been formed, eccependo, in via preliminary matter: i) inadmissibility of the resource first degree, as the society would have had acquaintance of the sovrattassa already to make given from on December 31, 2003, as it would turn out from the bill warning, deposited in judgment; ii) the inammissibilità of the resource for compliance, in order not to have the appealled society some next actions to the institution of sovrattassa (which, the convention that has attributed to the Agency of customs the tasks of assessment, collection and deposit of the tax, I decree on August 30, 2004 of the harbour Authority, n. 1152, the triennial operations plans, the consuntivi budgets and accounts, that they would indicate the concrete modalities of I use and destination of the sovrattassa).

2. - The Administrative court, with sentence 21 Decembers 2010, n. 10957, have declared inadmissible the resource for jurisdiction defect, indicating, which competent judge, the fiscal commission.

The Section, Council of State V, with sentence 2 Decembers 2011, n. 6360, have reformed the foretold sentence, considering subsistent the jurisdiction of the administrative judge, as "the recurrent ones have appealled the discretionary choice of the administration to choose, between the two possible alternatives, that of additional the tariff one, considering that with such choice they are not approachable in best of the ways the interests publics persecuted".

2.1. - The Administrative court, with sentence 18 October 2012, n. 1230, have, therefore, decided the controversy.

In via preliminary matter, it has considered not founded the aforesaid exceptions, as: i) the mere indication of a code I pay would not be sufficient to integrate requirement of the full acquaintance; ii) legitimacy of a provision must be estimated at the moment of its adoption, without, to the aims of the validity judgment, the next actions of performance can come in relief.

In the merit, the Court has received the resource.

In particular, the judge first degree has considered, in the first instance, that art. the 5, codicil 8, of the law n. 84 of 1994, also not demanding that the works must be already realized to the action of the institution of the sopratassa, the same ones, in application of the principle of sanctioned legality from art. the 23 of the Constitution, must be at least planned. In this case under investigation, the appealled provisions do not give account, are asserted in the judgment, of the insertion of the works “in the action of programming of the public works” and, in particular, “in the triennial operations plan and the directory anniversary”.

In the second place, the Court has found that the harbour Authority has not indicated the reasons of the preference of the surtax regarding the increase of the concessori canons. Sul point, indeed, express the Authority has sent back, with the appealled deliberation, to next verifications and deepenings, also in coordination with the categories interested.

3. - The harbour Authority has proposed appeal for the reasons indicated in the considered one in right.

3.1. - The society has been formed in judgment, asking the refusal for the appeal.

3.2. - With decree 11 March 2013, n. 806, this Section has received the question of suspension of the effects of the appealled sentence.

3.3. - The parts have deposited, in the terms defensive lawyers, memories and of retort.

4. - The cause is decided to the outcome of the argument audience on June 18, 2013.

STRAIGHT

1. - The issue mails to the examination of the Section concerns to legitimacy of the actions with which the harbour Authority of Genoa it has previewed the imposition of a sovrattassa on the goods disembarked and boarded.

2. - The appeal, to prescind from the which reproposed preliminary exceptions, is founded in the merit.

3. - With a first reason the erroneità of the sentence in the part is assumed in which, in application of art. the 23 of the Constitution (not evoked, moreover, in the resource first degree), it has considered that the works had not been object of adapted programming. Sul point, deduces that, contrarily to asserted how much from the first judge, the Authority would have programmed in detailed way the works to carry out as it would turn out from the fact that the appealled deliberation: i) ago expressed reference to the works previewed from the harbour town development plan of the agency which took effect in year 2001; ii) it recalls the works previewed in the triennial operations plan of agency 2003-2005, approved of from the harbour committee in date 13 Decembers 2002; iii) it is assumed “to valley” of other deliberation, n. 84, adopted in pairs given, with which the agency it has supplied to update the program of the infrastructural participations of the port of Genoa; iv) it is adopted contextually to the adoption of the budget of forecast 2004, in which the triennial operations plan the 2004-2006 and directory are inserted anniversary of the works.

The reason is founded.

The law 28 January 1994, n. 84 (I reorder of the legislation in harbour matter), previews, to art. the 5, codicil 8, the modalities of financing of the harbour works, establishing that: i) the burden “for the realization of the works” in the ports finalized to the defense and safety of the State (category I) let alone “for the realization of the works of great infrastructuring” in the ports of international economic importance is up to the State (category II, classes I and II); ii) the Regions, the interested Municipality or the harbour Authority can however take part with own resources, in competition or substitution of the State, for the realization of the works of great infrastructuring in the ports last indicated; iii) the burden for the realization of the works of great infrastructuring in the ports of national economic importance is up to the Region or the interested Regions (category II, class III); iv) “the harbour authorities, to cover of the costs supported for the works from same they realized, can impose surtaxes at the expense of the cargo or disembarked, or to increase to the entity of the concession canons” (added italicses).

Next codicils 8 and 9 of art. the 5 preview, respective, that:

- “works of great infrastructuring are considered the constructions of marine channels, outer dams of defense, docks, basins and equipped docks, let alone the excavation and the deepening of the backdrops (…)”;

- “the Minister of the transports and navigation, on the base of the contained proposals in the managed triennial operations plans from the harbour authorities (…) he annually characterizes the works of which to codicil 9 of article anticipates, to realize in the ports of which to category II, classes I and II”.

The above-referenced norms must be so interpreted:

- the harbour Authority, in the within of own competences, for “all” the works “realized” can resort to the indicated modalities of financing over;

- the expression “realized” must be understanding, online with the ratio of the norm that is that to allow the finding of resources financial institutions in order to put into effect the previewed participations from the same one, in the sense that must be be a matter of works that the Authority has the intention of realize by means of the adoption of the specific represented programmatorio action from the triennial operations plans;

- the specific previewed procedimentali modalities from codicil 10, that they contemplate an action of the Ministry, only in the presence of operate “works of great infrastructuring” to realize in the ports of international economic importance.

In this case under investigation it turns out that the Authority has observed the rules placed from the brought back norm. In fact, the appealled deliberation:

- it has indicated the works to realize (infrastructural participations on the common areas; dredging of the backdrops of the basin of Sampierdarena; participations of security and informatizzazione cross harbour; fognari connections; participations of opening to West of the basin of Sampierdarena);

- it has recalled, for the ulterior specifications, the “contents of approved of triennial operations plan 2003-2005 from the harbour committee in the sitting on December 13, 2002”.

From exposed how much it turns out clearly as previewed how much from the law of discipline of the matter is respected. Neither varrebbe to object, as ago the society, in defensive written own, than the works they are not realized, than the same ones they would not be placed to service of the activity of the same society and that the costs of the works and the concrete measure of the tax would not be previewed. Sul point, in fact, is sufficient to find that the norm, as already emphasized, imposes only the programming of the participations. The issues placed from the society concern to the various phase of performance of the same participations that esula from this judgment and, more, in general terms, from the jurisdiction of the administrative judge.

3.1. - With according to reason, the appellant assumes the erroneità of the sentence in the part in which she has considered that the Authority would not have indicated the reasons of the preference of the surtax regarding the increase of the concessori canons, sending back the deepening of this next aspect to action instructors not adopted. Sul point, the appellant deduces that the appealled deliberation would contain an expressed motivation on the point and that the operated dismissal would exclusively regard the relative choice to means of more suitable financing to use for two categories, characterized in the “passengers” and in the “nautical one from diporto”.

The reason is founded.

Art. a 5, codicil 8, above-referenced, arrange that “the harbour authorities, to cover of the costs supported for the works from same they realized, can impose surtaxes at the expense of the cargo or disembarked, or to increase the entity of the concession canons”.

The norm attributes a power of chosen to the Authority, in the exercise of own discretionary powers and without predetermination of criteria lawyers. It is not, therefore, sindacabile on the point the carried out choice as such.

In any case, also to wanting to prescind from this aspect, the appealled deliberation contains a motivation expressed in order to the made option. In it, in fact, law that “the previewed works are characterized for a common usefullness that if on one side returns a criterion inspired to the location of specific users inefficient on which availing again itself in reason of the principle, sanctioned to communitarian level, of “who uses wage”, from the other side it cannot burden in terms of direct costs and totally to budget of the harbour Authority”.

Not rivalry of the consumption joins that “the proposed participations can be assimilated to the realization of assets re-entering in the category of the assets publics, placed to the characteristics and not escludibilità (…) of the benefits in head to the various users, factors that besides to remit to the public sector the production of the assets in question mainly induce a cover of the costs through various mechanisms from the prices and riferibili to the withdrawals of money of obligatory type” (p. 3).

In prosieguo of the motivation of the deliberation the law, in fact, than: “if the investments in docks, large squares and more in general terms in productive structures managed by the concessionary enterprises, have a return, even though slow and in the long period, represented much from the payment of the state property canons, the cost of the “financial common projects” must find an adequate support in a source alternative”, which p is the surtax (. 5).

The reference, instead, to the requirement to carry out ulterior deepenings instructors aimed at the choice between the two modalities of financing concerns exclusively, as it is always deduced from the reading of the appealled deliberation, to the measures to apply to the “passengers” and the “nautical one from diporto” (pagg. 6, last paragraph, and 7).

4. - The appeal, for the reasons up to here exposed, must be received and, for the effect, in reform of the appealled sentence, it must be rejected the resource first degree.

5. - The named society is condemned to the payment of the trial-like expenses of the two degrees, in favour of the appellant Authority, than I determine myself in euro 2,000, beyond accessories.

P.Q.M.

The Council of State, in jurisdictional center, Section Sixth, definitively pronouncing:

a) it receives the appeal proposed with the resource n. 813 of 2013, indicated in epigraph, and, for the effect, in reform of the appealled sentence, reject the resource first degree;

b) sentence the Ilva s.p.a to the payment, in favour of the harbour Authority of Genoa, of the trial-like expenses of the two degrees, than is determined in euro 2,000, 00, beyond accessories.

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

So decided in Rome in the Council Chamber of day 18 june 2013 with the participation of the magistrates:

Luigi Maruotti, President

Giulio Castriota Scanderbeg, Councilman

Roberta Vigotti, Councilman

Bernhard Lageder, Councilman

Vincenzo Lopilato, Councilman, Drafter

THE DRAFTER

THE PRESIDENT

DEPOSITED IN SECRETARIAT
The 15/10/2013
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)