the Ministry of Transportation invites the Harbour Authorities to make reference to the "case" Livorno for the cruises



The Harbour Authority of Livorno has announced that the Porti head office of the ministry of Infrastructures and of the Transports, in a circular circulated a few days ago to all the Harbour Authorities and to the Harbour offices, have exhorted to little more take into consideration the pronunciamento of the Council of State than a month it makes, that we publish below, that it had overturned the sentence of the Regional administrative court for the Tuscany on September 13, 2013 having asserted that the Livorno Port 2000 Srl is the only which titled subject to manage the traffic of the cruises on the docks of Livorno.

"With the sentence n. 4667 of the 2014 - Cosimo Caliendo has written the general manager - Council of State have fixed some fundamental principles". In the first instance the cargo of the supplies, provisioning and other destined material to the direct consumption on board of the cruise ships is stranger to the cycle of transport of the goods, as to other asset which the drainage of the refusals of the ships or the water supply on board or the fuel refueling. "It is gained some - law in the circular - than the enterprises authorized to the development of the harbour operations cannot by right carry out relative activities to the passengers, and this to prescind from the fact that the former enterprise article 16 is or less concessionaire than areas and/or docks".

The second point evidences that, in the blackberries of the accomplishment of the procedures of dismissione of the quotas, Porto 2000, also being stopped to majority from the Authority of Livorno, "is titled to the development of all the services returned to the cruise ships and passengers according to the contract of confidence of the same services". Moreover, the berthing of the cruise ships to docks in concession of other subjects is permissible "whereby this turns out necessary for the requirements of the port and purposely is previewed in the concessorio action".

In the circular the ministry evidences at last that "the prerogatives and the responsibilities, between which for example security, they always remain in head to the which charged subject to manage the marine station and the services to the passengers".

"The fact that the MIT has considered to on a national level extend the contents of a sentence of the Council of State in which integrally is shared the positions of the livornese Authority - the general secretary of the Harbour Authority of Livorno has commented, Massimo Provinciali - is undoubtedly reason of satisfaction for the offices and contributes to stabilize the panorama of the rules".

N. 04667/2014REG.PROV.COLL.
N. 06990/2013 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 6990 of 2013, proposed from Port Livorno 2000 s.r.l., in person of its legal representative, for-tempore, represented and defended from lawyer Federico De Meo, with address which elected near the Grez study in Rome, Corso Vittorio Emanuele II, n. 18.

against

Company Enterprise Working Harbour (CILP) srl, in person of the President for-tempore, represented and defended from the avv. Claudio Cecchella, with address which elected near Bruno Nicola Sassani in Rome, via XX September, n.3.

regarding

Harbour authority of Livorno, in person of the President for-tempore, represented and defended from the general Legal profession of the State, with address which elected in Rome, via of the Portugueses, n.12.

for the reform

of the sentence n. 1018 REGIONAL ADMINISTRATIVE COURT Tuscany (Section III) on September 13, 2013, been profitable between the parts;

Seen the resource in appeal and relative the attached ones;

Seen the Harbour certificates of incorporation in judgment of Company Enterprise Working (Cilp) srl and of Harbour Authority of Livorno;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter, in the public audience of day 24 june 2014, the Cons. Carlo Mosca and hearings for the parts lawyers De Meo and Cecchella, and the lawyer of the Messuti State.;

Considered and considered in fact and right how much follows.

FACT

1. The Society Porto Livorno 2000 that it carries out, with concession of the Harbour Authority renewed on October 27, 2006 for the duration fifteen-year-old, the general services of management of the marine station of the port of Livorno and support of the passengers and whose constitution has happened as a result of I according to reorder of the legislation in harbour matter of article 20 of the 28 law January 1994, n 84 on the transformation in society of the harbour organizations, has appealled the sentence n. 1018 of the REGIONAL ADMINISTRATIVE COURT Tuscany on September 13, 2013.

That judge has received the resource introduced from the Company Enterprise Working Harbour (CILP) that he has the marine state property concession on the descent "High backdrop" of the same port of Livorno, in outcome to the substitutive agreement stipulated with the Harbour Authority in date 11 Decembers 1999, former article 18, codicil 4 of the cited law n. 84/94, postponed until 2024 with supplementary action on December 24, 2008, in order to maintain and to manage a polifunzionale terminal with exercise of harbour operations.

In fact, with notes n. 4252 on April 27, 2012 and n. 5284 on May 24, 2012, to signature of the Secretary Generale, the Harbour Authority of Livorno clarified that for the fleeting ships making occasionally port of call for the increment of the crocieristico traffic, to the Alto Fondale dock in concession to the CILP, for the various operations from those harbour ones of which to article 16 of the foretold law n. 84/94, the Society Porto Livorno 2000 for the development of the activities of boarding and disembarkation of the passengers would have been competent, comprised the cargo operations on board of the provisioning and the other functional material to the travel there.

The two cited notes came so appealled in front of the REGIONAL ADMINISTRATIVE COURT Tuscany for violation of article 6, 16, 18 and 23 of the law n. 84/94, of article 36 of the navigation code, for excess to be able in reason of the defect of preliminary investigation and motivation and of the conflicting one, let alone for violation of article 9 of the substitutive agreement of concession, and for incompetency in relation to article 6-10 of the cited law n. 84/94.

They were formed in judgment, for the refusal of the resource, the harbour Authority and the Society Porto Livorno 2000. Preliminarily, both deduced the inammissibilità of the encumbrance for defect of legitimacy and interest, being appealled notes of clarification of not provvedimentale, not lesiva and merely confermativa nature of the concessori actions.

The Society Porto Livorno 2000 also deduced the improcedibilità of the encumbrance for which supervened deficiency of interest, not being appealled the circular n. 1 on July 17, 2012 of the same Harbour Authority on the harbour activities and being taken part a transattivo agreement, in 11 date February 2013, between original recurrent and the controinteressata society Livorno Port 2000 on the credit relationships - debit for year 2012. This last society supported, at last, the inammissibilità of the resource for interest defect, being the recurrent authorized person, former article 16 and 18 of the law n. 84/94, to only carry out harbour operations and not services to the passengers.

2. The judge first degree with the sentence in epigraph, has preliminarily rejected the raised exceptions of ritual, considering the actions appealled of procedimentale nature, with independent innovative lesiva ability because to the concessori actions and the substitutive agreement of 11 Decembers 1999 and not regarding the circular n. the 1/2012 activities carried out from the Society Porto Livorno 2000 in the cited one which dropped Alto Fondale, but the harbour activities generally. The recurrent one did not have therefore interest to appeal it, but only interest to prevent that the Port Livorno 2000 carried out on the Alto Fondale dock activities not previewed from article 9 of many times over recalled substitutive agreement of 11 Decembers 1999 and previewed instead in two appealled notes.

The same judge therefore has received the resource with cancellation of appealled notes, signaling the incompetency of the Secretary Generale of former Harbour Authority art. 10 of the law n. 84/94 to emanate, instead of the President and of the Harbour Committee, provvedimentali actions incidents on the content of the state property concessions and on the substitutive agreements of the same ones.

The judge of first cures, in the circumstance, also evidenced that, based on cited article 9 of the substitutive Agreement of state property concession of 11 Decembers 1999 to the Society Porto Livorno 2000 was up only the task to manage the assembly of the motor vehicles and the people, being coordinated the flow and the outflow of the same ones, let alone all the ulterior cautions necessary to guarantee, in safety condition, the boarding and the disembarkation of the passengers, also in compresenza of harbour operations carried out inside of the terminal. This in adhesion to the decree n. 11 on September 9, 1997 of Harbour the Authority and second previewed how much from same article 7 of on October 27, 2006 which released the marine state property concession to the Society Porto 2000.

3. With the appeal in epigraph, the original one controinteressata appealled the said sentence:

a. for travesty of the contents of the resource and the original interest of the recurrent one, let alone for defect and erroneità of the motivation. This as, various from considered how much from the judge first degree, the CILP had censured notes of the Secretary Generale, because article 18 of the law was recognized own prerogative of former concessionaire n. 84/94 to carry out the activities of boarding of the supplies of edge, riconducibili activities to the number of the harbour operations, as characterized from article 16 of the same law n. 84/94. The pretensivo interest of CILP emerged from the first reason of resource where the violation of article 6 was assumed, 16 and 18 of the law n. 84/94, complaining that the Harbour Authority had denied the insertion of the supply of the provisioning to the cruise ships between the so-called harbour operations in which instead, according to cited article 16, went led back the complementary and accessory performances to the cycle of the same operations between which to also indent the operations of storage and transfer on the dock of goods, in favor of the companies of cruise ships. The pretensivo interest emerged, also, also whereby it was supported that the CILP would be expropriated by its prerogatives of concessionary terminalista in the cases of berthing of the cruise ships.

b. because the REGIONAL ADMINISTRATIVE COURT had not picked the issue of a controversy between CILP and Port Livorno 2000, neither the capacity of the interpretation operated from the Harbour Authority. One was, in short, to comprise if the title of a concession for harbour operations former article 18 of the law n. 84/94 less attributed or to concessionaire CILP the prerogative to directly negotiate with the shipowners of cruise ships the services of boarding of the edge supplies. CILP had, in fact, aimed to see itself to recognize the prerogative to organize and to carry out in own terminal all the services in favor of the cruise ships not closely connected to safety of the boarding and disembarkation of the passengers. From the requirement to characterize the activities that CILP could carry out on the dock, as, once excluded here that the Society could invoke the pretension to carry out instrumental and complementary services to the crocieristica, not ricompresi in former concession art. 18 of the law n. 84/94, failed the interest to the encumbrance;

c. for travesty of the capacity and the effects of the circular n. 1/2012 to the aims of the supervened deficiency of interest and the consequent improcedibilità of the resource, let alone for defect and erroneità of the motivation. This since, various from established how much from the judgment of the REGIONAL ADMINISTRATIVE COURT, the aforesaid circular finds with respect to the relationships between Port Livorno 2000 and CILP in the relative part to the crocieristico traffic, whereby asserts that every reference to the authorization turns out inconferente of which to article 16 and the position of former concessionaire article 18 of the law n. 84/94, since object of the harbour operation is the goods destined to the transport and that destined one not to satisfy the necessity of the ship and the crew during the travel. It achieves some that no pretension can be invoked, for the supply of instrumental and complementary services to the crocieristica, from former authorized enterprises art. 16 or former concessionary enterprises art. 18 of many times over recalled law n. 84/94. All this was sufficient to exclude the interest to the decision of the resource that invested the precedence notes of the Harbour Authority with respect to the infondatezza of the same pretensions.

The circular has disciplined, in fact, in via general, the activity of the harbour operators with prescription directly incidents on their prerogative, being of prescribed nature. On such base, the REGIONAL ADMINISTRATIVE COURT would have had to conclude that the lacked impugnation the circular had been profitable improcedibile, for supervened deficiency of interest, the resource against the precedence notes of the general Secretariat of the Authority, as the eventual cancellation of these last actions could not have brought some concrete advantage to the recurrent CILP, whose interest irrimediabilmente was prejudiced by the which supervened and not contested provision;

e. for erroneous appraisal of the interest to rerun against interpretative notes of the Secretary Generale and for defect and erroneità of the motivation. This as the REGIONAL ADMINISTRATIVE COURT has considered, without motivation, than cited notes they had provvedimentale nature, recording on the content of the substitutive agreement of the 11 Decembers 2012 whose article 9, second the sentence, would assert that to the Port Livorno 2000 the assembly of the motor vehicles and the people is only up, let alone the ulterior cautions. But the sentence does not explain, in that way the Secretary Generale of the Harbour Authority interpreting a contractual clause inserted in a joint action which the substitutive Agreement of state property concession, has been able to affect the content of this last one, so to make to assume to two appealled notes the effects of a provision. The notes in question have not produced, therefore, such effects because they have not revoked the concession or denied its release or increased the canon of state property concession, but have interpreted the within and the content of the faculty of the concessionaire on the base of the enforced norm and the tenor of the clause of the agreement that regulated the concession, without to alter the subjective position of the concessionaire whose rights and obligation remain second defined from such agreement and the primary and secondary sources of the admiralty law the appellant part. Anyway, the interpretations enunciated in the premise of two notes were own those “to reassume and to restate principles, operating modalities and moreover already clear roles in the enforced provisions”, let alone to offer “a contribution of clarity with reference enforced to the normative and prescribed picture”. This to confirmation of the not provvedimentale content and not incident on rights and obligation of concessionaire CILP, with the consequence of the lack of interest by this last one to rerun adverse two notes, that it is not recognized by the judge first degree. This last one has considered them provvedimentali and incisive on the content of the substitutive agreement of concession, while such characters are disownn to the circular n. 1/2012 of the President of the Authority, normative action that has circumscribed the positions of pretension of the former concessionaires article 18 of the law n. 84/94;

f. being to exclude the provvedimentale character of aforesaid notes, it also fails the censorship on the found incompetency of the Secretary Generale to emanate same notes, neither the REGIONAL ADMINISTRATIVE COURT has moreover clarified which riferibile power to the President or the Harbour Committee illegittimamente would be exercised by the Secretary Generale, which has limited himself to a science declaration about the capacity of a contractual clause and its interpretation is in compliance with the norms of the marine ordering. In any case, the interpretative participation in question is absorbed and exceeded the circular n. 1/2012 of the President of the Harbour Authority that has made own the expressed interpretative addresses in cited appealled notes;

for erroneous interpretation of article 9 of the substitutive agreement between CILP and Harbour Authority and for defect and erroneità of the motivation. This as the sentence, besides to declare the incompetency of the Secretary Generale has considered that article 9 of the agreement in question previews that to the appellant society the task is only up to manage the assembly of the motor vehicles and the people, let alone all the ulterior necessary cautions so that the boarding and the disembarkation happen in safety and it does not preview that it on board takes care also of the operations of cargo and drainage of the provisioning. According to the appellant part, this garbles the clause of foretold article 9 directed to guarantee the use of docks by fleeting ships and it does not clarify if the prerogative is up to CILP to execute the boarding of the victuals and to offer terminaliste services of enterprise to the shipowners of cruise ships, assuring they it close to the docks of Alto Fondale. In short, the REGIONAL ADMINISTRATIVE COURT has considered that article 9 describes the single services for safety fleeting that are up to the Livorno Port.

This is roved since the norm under investigation does not have the scope to characterize the single services that are up to Port of Livorno 2000, neither reserve to CILP the prerogative to return to the shipowner every technical service, since codicil 1 of article 9 asserts the obligation for terminalista society (the CILP), compatibly with the requirements of the terminal, to allow the use of the docks with cruise ships and municipality 2 it establishes that, in such cases, l they will have to be taken to agreements directed with the Livorno Port 2000 for the supply of the service and payment of the fee. Codicil 3 asserts, then, that it will be burden and cure of the Port Livorno 2000, to manage the assembly of the motor vehicles and the people to the aims of safety, also in compresenza of harbour operations carried out inside of the terminal carried out from CILP on other commercial ships, with consequent exoneration from responsibility of CILP regarding the risks of the income of passengers in a normally destined within to the commercial operativity.

Moreover, based on the decree n. 11/97, to the Livorno Port the 2000 Harbour Authority had entrusted the transennatura of the boarding zones/disembarkation in order to assure the vigilance of the area interested with care own to the Alto Fondale descent, reason for which would have been impossible to introduce itself by CILP in the cited protected area in order to avoid to interfere with the organization of safety. Alla Porto Livorno the 2000, del_resto, confidence of the task to manage the services of acceptance of the passengers and the crocieristici traffics also on commercial docks in the entire within of the Port of Livorno, is recognized by as soon as cited decree n. 11/97 and from the provision n. 45 /2004 with which the Harbour Committee, in expressing to seem favorable to I renew of the state property concession to the Port Livorno 2000, has recalled the law n. 84/94 (articles. 20 and 23) that it allows with the Harbour Authorities which succeeded to the Harbour Organizations, of being able to continue to carry out, in temporary way, the services of general interest between which they re-enter, according to the d. m. 14 November 1994, those of support to the traffic fleeting. But, also, it is recognized by the deliberation n. 11 on July 13, 2011 with which the Harbour Committee, in adopting an action of address for the procedure of privatization of the Port Livorno 2000, has acknowledged of the instrumental function for the harbour activities of the same Society, waiting for the dismissione of the quota control, which subject having purpose of management of the service traffic fleeting of general interest, moreover exercised until from its constitution.

According to the appellant part, the REGIONAL ADMINISTRATIVE COURT has not considered that: - I use of the docks of the Alto Fondale terminal supplies to the transitory outage of public docks; - art. the 7 of the substitutive Agreement establish that CILP must allow such mooring with ships third; - article 9 that this happens until to happened widening of the destined port to the tourist traffic;

h. for the violation of article 6, 16 and 18 of the law n. 84/94, for travesty of the scope of the consented concession to CILP, and for defect and erroneità of the motivation. Also, in fact, not having the REGIONAL ADMINISTRATIVE COURT asserted that between the harbour operations the boarding of the edge supplies re-enters and not even that such boarding is classified to the Society CILP, the sentence however it has legitimized the doubt that CILP can carry out such boarding, that is illegitimate. This as, afterlife of many times over recalled circular n. 1/2012, are article 16 of the law n. 84/94 to characterize the harbour operations and to distinguish them from the other categories of activity or svolgentesi services in the port and, in particular, from those that article 6, codicil 1, letter c) of the same law mention as activities directed to the supply, under onerous title, to the users of the port, of other not coinciding services, neither closely connected to the harbour operations of which to cited art. the 16, codicil first, characterized from the Minister of the Transports with I decree in 14 date November 1994. This last one has numbered between the services of general interest the management of the fleeting marine stations and the services of support of the passengers who ordinarily are entrusted in concession from the Harbour Authority, by means of public contest to which first application could be repealed in part in phase, where the foretold general services of which to cited article 6, codicil 1, lett. c), was already carried out, before the institution of the Harbour Authorities, from the harbour organizations listed in article 2 of the law n. 84/94.

Anyway, to the enterprises authorized to the development of harbour operations of which to the art.16, codicil 1, first part, of the law n. 84/94 can be entrusted in concession state property areas and docks for the accomplishment of harbour operations, as disciplined from article 18 of the same law that today, as a result of the modification introduced from article 2, codicil 17 of the d. l. n. 535/96 converted from law 647/96, have excluded that the enterprises of which to article 16, codicil 3, authorized from the exercise of harbour operations, become concessionary of areas and docks, they can use them also in order to carry out relative activities to the passengers and/or services of pre-eminent commercial interest.

It must therefore be excluded, second the appellant part that society CILP can use areas and docks obtained in former concession article 18 of the law n. 84/94 in order to offer connected services to the fleeting traffics, as article 3 of the substitutive Agreement assert that the use of the docks is consented in order to manage a polifunzionale terminal for the producing reception, shunting and handling of postal, containers and goods varied, without some reference to the cruise ships.

The REGIONAL ADMINISTRATIVE COURT has therefore, always second the appellant part, ignored the normative picture and has lacked to complete a unitary reading of the substitutive Agreement of state property concession between the Harbour Authority and CILP. The circumstance, then, than the Secretary Generale it has observed that the activities in question would not be prohibited concessionaire CILP, goes understanding, second the appellant part, in the sense that the Livorno Port can entrust of the practical execution to CILP in occasion of approaches to the Alto Fondale dock in a collaborativo relationship and not because it is up to CILP in force of the concession that regards it.

Approximately, at last, the raised preclusione relatively in the majority participation of the Harbour Authority to the capital of the society Porto Livorno 2000 with respect to the development of the services of general interest, is evidenced that this last Society is constituted according to article 20, codicil 2 of the law n. 84/94 in phase of dismissione of the operating activities of the harbour organization. Moreover, no norm establishes that Port Livorno 2000 can exercise services of general interest only where the Harbour Authority maintains a not majority participation in the enterprise, from the moment that a society constituted for the dismissione of the operating activities of the harbour organization in the field of the services of general interest, is natural affidataria of those services until from its constitution and therefore also before the Harbour Authority reduces own majority participation, for which the terms previewed from article 20 of the law n. 84/94 are not binding, second asserted how much from the judgment n. 1807 on March 27, 2005 of this Council. Also the callback of society CILP to article 3, codicil 27, of the law 27 Decembers 2007, n. 244 do not have foundation, because such norm previews the prohibition for the Administrations of the State to constitute societies having for object activity of production of assets and services not closely necessary for the perseguimento of own institutional purposes, but allow instead the constitution of societies that produce services of general interest and the Harbour Committee has acknowledged, with the deliberation n. 11 on July 13, 2011, of the instrumental function for the harbour activities of the society Porto Livorno 2000, waiting for dismissione which subject having purpose of management of the service traffic fleeting, of general interest, deliberates moreover not appealled from society CILP.

The appellant part has, also, produced to two memories of retort in date 22 30 May 2014 and May 2014.

4. One was formed in judgment, in date 14 November 2013, the CILP that, after to have contested the deficiency of interest, because the agreement taken part between the two Societies destined to discipline the aspects economic - commercial, it does not regard the litigation in being, it punctually has controdedotto on the appeal reasons considering them groundless. The same named part has then produced more memories than retort in date 20 29 May 2014 and May 2014.

5. The Harbour Authority was formed in judgment also that it made to reach two memories in date 21 21 February 2014 and May 2014, in which it was associated to the conclusions of the society Porto Livorno 2000, emphasizing the erroneità and the illogicità of the sentence of the REGIONAL ADMINISTRATIVE COURT, stopping itself in particular on the eccepita preclusione, by CILP, for Port Livorno 2000 to the development of the services of general interest, because of the majority participation of the Harbour Authority in the cited society.

STRAIGHT

1. The appeal is founded. This College prescinds from the examination of the exceptions raised preliminarily from the appellant part with respect to the inammissibilità and to the improcedibilità of the encumbrance proposed in first degree from the named part, in reason of the fondatezza of the appeal reasons.

In order to more better clarify the terms of the entire event subordinate to its sieve, this College also considers useful to specify that, with the progressive numerical increase of the crocieristici transits in the port of Livorno and the remarkable increase of the dimensions of the hulls, it has been come to record the inadequacy of the area of the terminal cruises and the marine station to receive such transits. From this the consequent necessity of landings place to the docks of the commercial port in concession to operators of commercial ships, landings place that by now regard great part of that type of traffic.

The Harbour Authority has, therefore, inserted in the substitutive agreements of state property concession with the main terminalisti of the port of Livorno a clause in order to engage them to allow the use of the docks in they concession, when the same ones were not occupied by commercial traffics.

For the dock of the Alto Fondale Descent, in concession to the Harbour society Company Enterprise Working (CILP,) the Harbour Authority stipulated, in December 1999, a substitutive agreement of state property concession former article 11 of the law n. 241/90, than to article 9 preview the obligation for terminalista society (the CILP), compatibly with the requirements of the terminal, to allow the use of the docks with fleeting ships until the happened widening of the destined port to tourist traffic and, in such cases, to take agreements directed with the society Porto Livorno 2000, for the supply of the services and the payment of the fee.

This, being given, at the expense of this last Society, the predisposition of the assembly of the motor vehicles and the people with the coordination of the flow and outflow of the same ones, let alone of all the cautions in order to guarantee the boarding and the disembarkation of the passengers, also in compresenza of harbour operations carried out inside of the terminal.

In this picture, the society Porto Livorno 2000, operating one in the within of the port of equipped Livorno as subject of general attributions of support for the fleeting traffics, has asked more and more frequently the Commander for the Port the allocation for the moorings for the cruise ships near the docks for the Alto Fondale Descent in concession to CILP, receiving some the assent, behind fee of the right of approaches that it is poured to balance of the landings place until on December 31, 2012, to the same CILP, as a result of the same action of taken part transaction 11 February 2013.

After a decade of collaboration between the two Societies, the CILP has tried to activate a commercial relationship direct with the agent of the society Carnival owner of a shipping company who expressed intention so the intention to the Harbour Authority, the Harbour office and the Port of Livorno to entrust the fleeting operations of disembarkation to the CILP, authorized to operate former art. 16 of the law n. 84/94, renouncing to you as a result of the participation of the Commander of the Port which, with the note on October 7, 2008, had evidenced the impossibility for former concessionaires art. 18 of the cited law n. 84/94 to operate to out of the riconducibili withins to harbour operations and defined harbour services as from article 16, codicil 1 and that between these last ones they could not be numbered the riferibili operations to fleeting ships, being the assistance for the boarding of the passengers stranger regarding the concept of working of the goods.

In March 2012, afterwards to a new agreement between the CILP and the agent of the society Carnival owner of a shipping company for the supply of all the services, with the exception of those express previewed from article 9 necessary for the disembarkation and boarding of the passengers, and to a demanded new of allocation of approach to the terminal Alto Fondale, the harbour Authority, on sollicitation of the society Porto Livorno 2000 and after the Harbour office had considered the location of the CILP as terminalista society not permissible, it emanated two appealled notes 2012 near the REGIONAL ADMINISTRATIVE COURT Tuscany in June, to which it made followed the circular on July 17, 2012 recalled inthe today's appeal.

2.Ciò place, to this College has appeared dirimente for the judgment, the examination of many times over cited substitutive Agreement of state property concession and, in particular, of article 9 of the same one, let alone than previewed from the 28 law January 1994, n. 84 and specifically of article 6, 16, 18; this in order to verify the exact capacity of the harbour operations connected to the position of former concessionaire article 18, before to face the issue of the majority participation of the Harbour Authority to the capital of the society leaves appellant and the preclusione that would achieve some to the development of the services of general interest.

From the documentation to the actions, it emerges that the society CILP, named part, is concessionary for harbour operations former article 18, codicil 1 of the cited law n. 84/94, of the docks of the Alto Fondale Descent, docks that are those demands, when free from commercial traffics, the society Porto Livorno 2000 to the Commander of the port for the berthing of the cruise ships.

Now, for expressed dictated of article 16, codicil 1, first part, of the same law n. 84/94, are harbour operations the cargo, the drainage, the transfer, the warehouse, the movement generally of the goods and every other material carried out in the harbour within.

According to then of the second part, of same codicil 1 those reported to specialized, complementary and accessory performances are harbour services to the cycle of the harbour operations, characterized from the same Harbour Authority.

He is therefore obvious that the harbour operations regard the cycle of activities that concern to the transit of the cargo, disembarked, enlivened or deposited in harbour spaces, with reference to contracts of marine transport or temporary warehouse, that is to the movement of the goods that inside determine a legal effect of the contractual relationship between carrier and loader or receiver.

Anyway, own in such logic the same Commander of the Port of Livorno to the expressed one demanded of the agent of the Society Carnival owner of a shipping company, answered that the riferibili operations to fleeting ships could not be riconnettere to the concept of working of the goods and chiarìva the bastardy to entrust such operations and services to an authorized enterprise former article 16 of the law n. 84/94 to only carry out harbour operations.

3. Also this College is convinced that the cargo of supplies, provisioning and other destined material to the direct consumption on board of the cruise ships is stranger to the cycle of transport of the goods, as to other operations which the drainage of the refusals of the ships, or the water supply of edge, or the refueling of the fuel, than therefore cannot be qualified as harbour operations. So as it they are not other asset listed in the agreement of March 2012 between Society CILP and agent of the society Carnival owner of a shipping company, strangers they also to the cycle of transport of the goods.

Anyway, in performance of the second part of codicil 1 of same article 16, modified from art. the 2, codicil 1, letter a) of law 30 june 2000, n. 186, with decree n. 40 on December 15, 2001 such services are characterized by the Harbour Authority in those connecting to the control of the goods and its transfer, its accommodation and its vigilance, let alone relative to the means chartering of vertical raising. Consequently, also under this profile the cargo activities, on board of the cruise ships, the provisioning fleeting and other functional material to their travel, cannot sure re-enter in the number of the services connected to the harbour operations.

It is gained some that the enterprises authorized to the development of harbour operations of which to article 16, codicil 1, to which docks for the accomplishment of harbour operations are entrusted in concession cannot carry out relative activities to the passengers.

This emerges moreover from the circumstance that, while the original text of article 18, codicil 1 of the same law it established that the areas and the docks could be dates in concession to the enterprises of which to article 16, codicil 3 for the accomplishment of the harbour operations, let alone of relative activities to the passengers and services of pre-eminent commercial and industrial interest, with the modification introduced from art. the 2, codicil 17 of 21 the bill October 1996, n. 535, converted from the law 23 Decembers 1996, n. 647, the reference to the relative activities to the passengers is suppressed, excluding so that an enterprise authorized to the exercise of harbour operations and become concessionary of areas and docks according to article 18 of the law n. 84/94 can use them also for the relative activities to the passengers.

Place, therefore, than the named part article 18 of the law is holder of a former concession n. 84/94, perfected with the substitutive agreement of 11 November 1999, from the date of the release of the concession the CILP could already not have carried out relative activities to the passengers, neither in truth the contents of such substitutive agreement could have been contrary to the law.

Same article 3 of the substitutive agreement in question specifies, in fact, than the use of the concession it is consented in order to maintain and to manage a polifunzionale terminal for the reception, the shunting and handling of producing forest, containers and goods varied and, according to the precedence article 2, concessionary society CILP are obligated, compatibly with the requirements of the terminal, to allow the use of the fleeting docks to ships, until to happened widening of the destined port to the tourist traffic.

Not even the task of the part named second is not condivisibile which the activities of provisioning to service of the cruise ships and all the services accessories recalled from the contract between CILP and the shipping agent of the Carnival society, would not neither re-enter between the harbour services and operations and between the services of general interest, from the moment that the permissible activities in the port are only those disciplined express by the enforced norm and does not exist a third genre of harbour activities that is not possible to ricomprendere or between the services of general interest that are, according to article 6, lett. c) of the law n. 84/94, those characterized from I decree on November 14, 1994 of the Minister of the Transports (and between these there is the management of the fleeting marine stations and the services of support to the passengers) or between the harbour operations.

4. It is in this normative picture and regarding such coordinates that go read to the substitutive agreement between the Harbour Authority of Livorno and the society CILP and, in particular, article 9 of such agreement, to whose contained a meaning cannot be given and a various capacity from that which it emerges from the letter of the forecast and however outside how much it imposes the law n. 84/94 that constitutes primary the normative frame that it cannot be violated.

It convene, to such fine, to compatibly resume the clause of the cited forecast that exactly the terminalista society recites “is obligated, with the requirements of the terminal, to allow the use of the fleeting docks to ships, until to happened widening of the destined port to the tourist traffic. In such cases, they will have to be taken to direct agreements with the society Port of Livorno 2000 s.r.l for the supply of the services and payment of the fee. It will be burden and cure of the society Porto Livorno 2000 to manage the assembly of the motor vehicles and the people, being coordinated the flow and outflow of the same ones, let alone all the ulterior necessary cautions, so that the boarding/disembarkation of the passengers happens in safety conditions, also in compresenza of harbour operations carried out inside of the terminal”.

The cited forecast turns out clear. It obligates the CILP to allow the use of the fleeting docks to ships from cruise compatibly with the requirements of the terminal and obligates the Livorno Port to supply to safety of the boarding and the disembarkation of the passengers. This, but, does not mean neither to confer to new society CILP various attributions from those previewed from the concession of which to art. the 18 of the law n. 84/94 for the accomplishment of the harbour operations, neither to remove to the society Porto Livorno the 2000 attributions previewed from the same decree n. with which the Harbour Authority it had instituted 11/97 services required of transennatura and vigilance of the boarding zones, of disembarkation and vigilance of such zones, with regard to the Alto Fondale descent in concession to CILP, but it had also established that at the expense of the same society Porto Livorno 2000 they were among other things, places, in the concession action, the assistance to the passengers also in the docks occasionally used for approaches of ships.

Not even, moreover, it cannot be sottaciuto that analogous forecasts are contained in the same action of state property concession n. 116 on October 27, 2006 with which the original concession to the society was renewed for 15 years Port of Livorno 2000 constituted by the Harbour Authority for the purpose of which to art. the 20 of the law n. 84/94, establishing as social object the exercise of the consequent, connected and complementary harbour and receptive activities to the traffic fleeting from and for the port of Livorno.

Anyway, the present documentation to the actions attests that the society Porto Livorno 2000 carries out in the entire port of Livorno the services of general interest of which to article 6 letter c) of the law n. 84/94 and of this are obvious trace in the deliberation n. 11 on July 13, 2011, whereby the Harbour Committee recognizes the instrumental function carried out for the harbour activities from the society having Porto which subject Livorno 2000 purpose of management of the service traffic fleeting of general interest, waiting for the dismissione of the control quota, to the aim of the procedure of revaluation of the same Society.

The circumstance, then, than the provisioning cargo activity in question on board and other functional material to the travel is carried out by society CILP does not find, since this has happened on confidence of the society Porto Livorno that, which titular of the service, it can carry out it directly or entrusting it to a third party. Legitimately, it has been the same Harbour Authority to evidence that the litigation is risen because the CILP has claimed, by a sure moment in then, the title of the service, riconnettendola to the concession of which to article 18 for the accomplishment of the harbour operations, let alone the title of being able to conclude agreements with the agent of the company of Carnival navigation for approaches to it in dock, connecting it analogous to the concession of which to recalled article 18.

Society CILP has so the obligation, based on the substitutive Agreement, to allow the use of the docks for I approach it of the cruise ships and continues to being to title of the harbour operations previewed from the concession that it regards it. But own such last specification does not allow them to become to title of various operations from those for which she is authorized person, by virtue of the single performance of the obligation to allow I approach it of the fleeting ships to the docks of which it has the concession, I approach of which remains to title and for which it perceives from the society Porto Livorno the 2000 refreshment in terms of economic fee for every I approach of cruise ships turnover and from which is moreover gushed a resolved litigation, for the landings place to all 2012, with the cited action of 11 transaction of February 2013.

In short, the cession by CILP of the dock, normally destined to commercial traffics, regarding the society Porto Livorno 2000 affidataria of the fleeting services for their use in favor of the crocieristico traffic does not involve other, in this case under investigation, than the fee for cession by the society Porto Livorno 2000 which remains to title of the general services to the same one stregua than it happens when I approach it is carried out near fleeting the destined docks to the traffic.

The cession and the temporary use of docks do not imply therefore the widening of the terms of the concession which released for harbour operations to society CILP. Obviously, as found from the Harbour Authority, position shared from this College, the services of provisioning supplying and how much other is destined to the edge consumption is not prohibited to society CILP, where the society Porto Livorno 2000 intends to entrust to this last one, behind a agreed fee, the practical execution of such services in occasion of approaches, but this cannot happen in force of the prerogatives that 18 former concession art. reserve to CILP.

5. On the exceptions proposed from CILP in the original resource with the first and second censorship and which reproposed from the part appellant because the REGIONAL ADMINISTRATIVE COURT had omitted to consider them, considering absorbed them, goes observed how much follows:

a. on the prospettazione that between the harbour operations cannot re-enter the operations of provisioning boarding, it has already wide been argued.

b. on the nonexistent preclusione that would achieve in the majority participation of the Harbour Authority to the capital of the Port Livorno 2000 and on the inapplicabilità of article 23, codicil 5 of the law n. 84/94, it is necessary to evidence that the society Porto Livorno 2000 is constituted as a result of the process of dismissione of the productive activities of the stopped harbour companies, according to the joint provision from article 20, codicil 2 and 23, codicil 5 of the law n. 84/94 that repeals in part to previewed how much from article 6, codicil 1, letter c) of the same law and second which the confidence of the services of general interest by the Harbour Authority happens by means of public contest. Own based on such exception, the President of the new-constituted Harbour Authority constituted, with own unilateral transaction, the society Porto Livorno 2000 “for the exercise of the consequent, connected or complementary harbour and receptive activities to the traffic fleeting from and for the port of Livorno, also with the use of infrastructures and the other coming assets from the dismissione of the operating activities of mechanical average the harbour organization Company”.

The society Porto Livorno 2000 is so subentrata, by virtue of cited article 20, in the exercise of the services of general interest of which to article 6, letter c), of the law n. 84/94, for the management of the marine station and the support of the passengers. Also having previewed, then, the positioning near third party of the social capital, same article 20 does not place but binding or sanzionatori terms, neither previews that the constituted society cannot exercise services of general interest, where the Harbour Authority maintains a majority participation in the same Society.

Moreover, it turns out from the acquired actions that the President of the Harbour Authority has activated the procedure of privatization of the society Porto Livorno, as a result of the deliberation of the Harbour Committee n. 11 on July 13, 2011, deliberation appealled from CILP and with which, as it has been already previously found, the action of address for such procedure is adopted, not acknowledging to the carried out instrumental function from Port Livorno 2000, waiting for the dismissione of the quota control, which subject having purpose of management of the fleeting service traffic of general interest.

From exposed how much it achieves that, in some way, the presumed nonperformance of the Harbour Authority in reducing own participation beneath of the quotas control of the society Porto Livorno, can at the moment determine the forfeiture of the participated ones regarding the confidence of the general services to the passengers.

6. In conclusion, the quarter, the fifth and sixth reason of appeal are founded and their fondatezza allows to absorb the examination of the other reasons.

In reason of the complexity of the contenziosa event, the College considers the foundations subsistent in order to compensate the judgment expenses.

P.Q.M.

The Council of State in jurisdictional center (Section Sixth) definitively pronouncing on the resource in epigraph, receives it and, for the effect, it cancels the appealled sentence.

Compensated expenses.

It orders that the sentence is executed by the Administrative Authority.

So decided in Rome, the Council Chamber of day 24 june 2014, with the participation of the magistrates:

Luciano Barra Caracciolo, President

Sergio De Felice, Councilman

Claudio Contessa, Councilman

Gabriella De Michele, Councilman

Carlo Mosca, Councilman, Drafter

THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 12/09/2014
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)