the REGIONAL ADMINISTRATIVE COURT has rejected the new resource of Tuscany di Navigazione against the award of Toremar to Moby



Last week the Regional administrative court for the Tuscany has rejected the new resource introduced from Tuscany di Navigazione against Tuscany Region and Moby for the two cancellation you decree regional relative to the bestowal of the property of the society of navigation Toremar (Tuscan Regional Shipping Company).

With first I decree on September 29, 2011 is decided definitively to adjudicate the contest announced publicly for the privatization of the Toremar to the shipowning company Moby, than on January 2, 2012 the contract of passage of hand of the shareholding and the contract of service for the exercise of the marine services has undersigned with the Region.

In the 2012 Tuscany di Navigazione, society that is controlled by the company marine Delcomar and participated from Alilauro and BN of Navigation (Navy blue) and that it is excluded by the procedure of contest for the privatization of Toremar as the introduced economic offer turned out different from the technical offer and the prescription of the administration, has proposed resorted against the definitive award of the company to Moby, resource that same the REGIONAL ADMINISTRATIVE COURT for the Tuscany has rejected.

Successively Tuscany di Navigazione has proposed appeal and the Council of State, with deposited sentence on January 16, 2015, has received the impugnativa and cancelled the provision of exclusion of the Tuscany di Navigazione condemning the regional administration to arrange the award of the procedure of contest in favour of advance Tuscany di Navigazione the control of subjective requirement.

The Tuscany Region - as it remembers the REGIONAL ADMINISTRATIVE COURT for the Tuscany in the last sentence - therefore has started "the procedure for the verification of the declarations and the autocertificazioni introduced in contest from Tuscany di Navigazione, contextually asking the interested one to update to the inherent declarations the possession of requirement of blanket order and to prove own ability technical-professional economic-financial institution and. To the outcome of the verification, with I decree managing on March 30, 2015 (according to I decree of which Tuscany di Navigazione it has asked the cancellation, ndr), the Region has had not to be able itself to proceed to the award being considered indimostrato the possession of requirement demanded from the contest law".

With the last deposited sentence 26th October, that we publish below, the REGIONAL ADMINISTRATIVE COURT of the Tuscany has rejected to the new resource of Tuscany di Navigazione confirming so legitimacy of the disposed award in favor of Moby.


N. 01446/2015 REG.PROV.COLL.
N. 00778/2015 REG.RIC.


ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for the Tuscany
(Section Before)

it has pronounced anticipates

SENTENCE

on the resource number of general registry 778 of 2015, proposed they give:

Tuscany di Navigazione S.r.l., in person of the legal representative pro tempore, represented and defended from avv.ti Enea Baronti, Marcello Vignolo and Massimo Massa, with address which elected near the study of first in Florence, Via Maggio 30;

against

Tuscany region, in person of the President pro tempore, represented and defended from avv.ti Lucia Bora and Luciana Caso, and electively domiciled near the center of the regional Legal profession in Florence, square of Italian Unit 1;

regarding

Moby S.p.a., in person of the legal representative pro tempore, represented and defended from avv.ti Beniamino Caravita Di Toritto, Beniamino Carnevale, Saverio Sticchi Damiani and Natale Giallongo, with address which elected near the study of this last one in Florence, Via Vittorio Alfieri 19;

for the cancellation

of Decreto n. 1312 on March 30, 2015, with which the Leader of the Politiche Head office Mobility, Infrastructures and Local Public transport - Area of Coordination Local Public transport - has established not to inside proceed to the award of the contest announced publicly from the Tuscany Region for the Privatization of the society Toremar S.p.A. (Tuscan Regional Shipping Company) and the confidence of the services marine publics of cabotage armies of the Tuscany Region, for lack of requirement of technical-professional ability and economic-financial institution, demanded for the participation to the same one;

let alone, in via subordinate and conditioned, for the cancellation of Decreto n. 4098 of the 29.9.2011, with which the delegated leader, in charge of the field "Strategies and programming of local public transport of regional competence and relative performance" of the Tuscany Region, has approved of all the minutes of the giudicatrice commission and has adjudicated definitively the contest to the Moby society spa, with center in Milan and, however, of all the actions by virtue of which the contest is adjudicated the Moby spa, that is, still, in the parts in which they have not excluded the Moby spa from the same contest; and for the compensation of all the damage deriving from the execution of the illegitimate actions, in specific form or, in alternative, for equivalent, in the measure of the useful lacked one.

Seen the resource and relative the attached ones;

Seen the certificates of incorporation in judgment of the Tuscany Region and the controinteressata Moby S.p.a.;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter in the public audience of day 23 september 2015 Dr. Pierpaolo Grauso and hearings for the parts the defenders as specified in the minutes;

Considered and considered in fact and right how much follows.

FACT and RIGHT

1. With sentence n. 83/2015 the Council of State, reforming the decision in first cures of this T.A.R., has condemned the Tuscany Region to adjudicate in favour of the Tuscany di Navigazione S.r.l., against the necessary control of subjective requirement, the procedure indetta with letter of invitation on January 17, 2011 for the privatization of the Toremar S.p.a and for the confidence of the services publics of regional marine cabotage. From the procedure today's the recurrent excluded era, with provisions then cancelled from the appeal judge, for allegated difference of the economic offer from the technical offer and the prescription of the administration, and the contest was adjudicated the Moby S.p.a.

Running of the sentence, in January 2015 the Tuscany Region has started the procedure for the verification of the declarations and the autocertificazioni introduced in contest from Tuscany di Navigazione, contextually asking the interested one to update to the inherent declarations the possession of requirement of blanket order and to prove own ability technical-professional economic-financial institution and.

To the outcome of the verification, with I decree on March 30, 2015 managing, the Region has had not to be able itself to proceed to the award being considered indimostrato the possession of requirement demanded from the contest law. To warning of the proceeding administration, the award would be precluded by the absence of test in order to the volume of fleeting services of marine transport executed in the period 30 November 2006 - 30 November 2009, integrating requirement of technical and professional suitability; let alone from the circumstance that Tuscany di Navigazione would inammissibilmente have declared to make use of some enterprises never previously mentioned in the actions of participation to the contest to the aims of the demonstration of the ability economic-financial institution, requirement that would not be reached with the competition of the sun enterprises art. the 49 auxiliaries opportunely indicated according to D.Lgs n. 163/2006.

1.1. Controversy anticipates is proposed by Tuscany di Navigazione S.r.l., with notified resource on 30 April and deposited on May 13, 2015, for the cancellation of the cited one I decree on March 30, 2015 regional and, subordinately, of I decree n. 4098 on September 29, 2011 of approval of all the minutes of the commission of contest and the disposed award in favour of the Moby S.p.a.

Be formed in judgment the Tuscany Region and the controinteressata society, the cause is discussed and withheld for the decision in the public audience on September 23, 2015, preceded from the warehouse of documents, defensive memories and retorts.

2. The recurrent society, initially excluded by the contest indetta from the Tuscany Region for the confidence of the services cabotage publics, you is readmitted in force of the sentence n. 83/2015 of the Council of State, which has contextually cancelled the disposed award in favour of the Moby S.p.a and condemned the Region to adjudicate the contest to Tuscany di Navigazione.

With the provision appealled here, the Region however has denied to be able itself to proceed to the award arranged from the judge, being the lack in head to Tuscany di Navigazione of necessary requirement minimums of technical capability and economic-financial institution.

2.1. With first, articulated reason of encumbrance, sub a) the recurrent one deduces to have timely transmitted to the Region - to the aims of the verification of requirement under way as a result of the decision of the Council of State - the note on January 27, 2015, with which own Alilauro auxiliary had asked the Harbour office for Naples the relative certification to the nautical miles covered for the transport fleeting in the period indicated from the lex specialis. Such documentation, correspondent within the fixed term in case of necessity assigned from the Region, would have to be deemed sufficient to according to satisfy art. the 48 the burdens burdening of Co. 2 D.Lgs n. 163/2006 on the competitor, from which the production of documents or attestations not falling back in its availability could not be demanded because, as in the species, object of release by Public Administration. It would be poured, in short, in the hypothesis of objective impediment to the production of demanded documents, such to justify the removal of the enterprise interested to the negative consequences of the useless one passed of former term art. 48 Co. 2 cit.

Under a various profile, the recurrent Tuscany di Navigazione also supports that, in compliance with art. the 43 of the D.P.R n. 445/2000, the possession of requirement would have been burden of the Region to strive directly in order to acquire from other administration the attesting certificate, this that would confirm the absence in head to the competitor of ulterior burdens regarding that to make demanded of the same certificate the competent Harbour office. On the other hand, the affirmation would be be a matter second of a certification demanded from the letter of invitation to the procedure, not turning out therefore groundless - contained in the appealled provision - which the recurrent one would have had to have of until from the moment of the presentation of the offer.

2.1.1. The doglianza is groundless.

2.1.2. The term of ten days from the demand for the contracting out station, assigned to the competitors first and second classified for it second proves of ability requirement technical-organizational economic-financial institution and from art. the 48 codicil of the D.lgs n. 163/2006, have fixed nature, as clarified from the Plenary session of the Council of State with sentence 25 February 2014, n. 10, to resolution of the interpretative contrast which the norm had given rise in law. The reasons of the decision, to which the college intends to comply, rest on the requirements of timeliness and certainty of the procedures for the confidence of contracts publics, which various would risk to remain suspended to indeterminate time against inertia of the enterprises and second before graded: inadmissible conclusion, taken into consideration the fact, for how much it finds here, that the documents to confirmation of requirement must be found already in the possession of the interested ones, potentially held to their exhibition until from the phase of the verification to champion in the starting phase of the contest, according to the first codicil of same art. the 48 cit.

In the species, the recurrent society has given keeps on the demand for the Tuscany Region on January 21, 2015 limiting itself to on January 27, 2015 transmit the request advanced from own auxiliary Alilauro S.p.a to the Harbour office of Naples and directed to the release of appropriate attesting declaration the nautical miles covered in the fleeting service of transport in the period considered from the contest law. It dictates production cannot however be deemed suitable to satisfy the burdens demonstratives weighing on Tuscany di Navigazione, neither to legitimize the exception to the established fixed term from the law for proves it of requirement, had in the first instance care is to the tempistica of the request, addressed to the Harbour office when the fixed term passing from the demand for the Region already was consumed for beyond the half, is to the content of the same request, which it does not bring some signalling about its specific purpose.

The rigor with which it must be estimated the breach of the fixed term of which to art. the 48 Co. 2 of the D.Lgs n. 163/2006 can be mitigated, in fact, only in case of objective impossibility for the enterprise to produce to the documentation not re-entering in its availability (constant jurisprudence: for all, cfr. A.P n. 10/2014, cit.), situation that the interested enterprise does not rerun whereby not it has made all how much in its power in order to procure the documentation demanded from the contracting out station, or other equipollente documentation. And it is of all evidence that, being the meager term on hand, in order to go free from guilt Tuscany di Navigazione and the auxiliary Alilauro S.p.a would have had at least to activate itself immediately and, in the same way, to put the Harbour office in a position to appreciating the urgency of the implementation.

Anyway, as punctually found from the resistant defenses, already with the publication of the sentence of the Council of State in date 11 January 2015 the recurrent one would have had to mature - second a criterion of ordinary entrepreneurial stagecoach - the knowledge of the necessity to fortify itself of the documentation to confirmation of the possession of requirement for the award of the service; to this having itself to add that to the outage of an any reply of those requirement integral in its turn a negligent behavior that very can be made to go back to the starting phases of the contest procedure, attended that the enterprises must be ready to demonstrate own economic and technical ability until from the moment of the control to champion, and that, upstream, does not seem likely that the competitors can introduce reliable substitutive declarations if not on the base of a pre-emptive verification of the documentary data of which they have. And if also Tuscany di Navigazione complains that the specific demand for an attestation which released from the competent marine authorities, absent in the contest law, it would be formulated by the single Region with the note on January 20, 2015, remains the fact that - beyond how much already observed in order to the intempestività and inadequacy of the request addressed to the Neapolitan Harbour office - the recurrent one has not offered to the Region not even a test principle about the possession of requirement.

In support of the impugnation is not then worth invoking art. the 43 of the D.P.R n. 445/2000, than, obligating the public administrations to acquire the information compulsory object of the substitutive declarations of which to the next articles. 46 and 47, that is to accept the substitutive declarations yields from the interested one, establish an alternative stranger to the fattispecie which ordered from art. the 48 D.Lgs n. 163/2006. This last norm presupposes in fact as already happened - united to the question of participation to the contest - the presentation of the substitutive declarations to work of the competitors and their acceptance by the station contracting out, and said a discipline of the controls (not as well as and not only on the declarations, how much) on the possession of requirement that, setting itself in relationship of specialty regarding that of the control on the declarations contained in the cited D.P.R n. 445/2000, onera of the relative demonstration the enterprises participants to the contests.

The certification demanded from Alilauro to the Harbour office of Naples does not re-enter, moreover, in the directory of the certifications that can form object of substitutive declaration and that, as such, is subordinates to control and acquisition compulsory in compliance with the joint provision of the articles. 46 and 71 of the D.P.R n. 445/2000 (and in this reside the difference between the case dealt and that deciding from the Council of State here, sez. V, with sentence 11 june 2013, n. 3231, recalled from recurrent and the relative one to a hypothesis of exclusion for lacked presentation the D.U.R.C., certifyd which express the letter p) of art. the 46 refers).

2.2. With the rubricate censorships sub b), recurrent - premised that the letter of invitation to the contest demanded that the participants had achieved in the 2006s - a 2008 volume of transactions for services of not inferior marine transport to 75 million euros and a not inferior total turnover to 150 million euros - exposes to have declared, relatively to the considered years, a turnover for services of marine transport of beyond 148 million euros and a total turnover of beyond 231 million euros, amounts which one reaches thanks to the volume of transactions of the auxiliary Alilauro S.p.a and of all the enterprises from it controlled and participated majority, making part of an only entrepreneurial group.

In the contract of avvalimento produced in contest, Alilauro anyway would have been engaged to supply to Tuscany di Navigazione all the resources, nobody excluded, in order to allow the execution of the service, comprised the riferibili resources to the enterprises pertaining to the group from controlled it there. Therefore the proceeding administration in considering would have roved insignificant the relative data to the turnover of the societies controlled from Alilauro, because not indicated at the moment of the presentation of the offer: infuence dominant exercised on group would justify in fact riconducibilità of turnovers of all controlled to that of group leader, as it would be confirmed by the fact that in the budget of this last one would be brought back, exactly, also the data which deduced from the budgets of the controlled ones.

The peculiar condition of an enterprise pertaining to a determined group would find confirmation, to warning of the recurrent one, in art. the 49 of the D.Lgs n. 163/2006, in force of which, to the aims of the avvalimento between enterprises of the group, an unilateral declaration is sufficient attesting the legal and economic tie between the enterprises helped and auxiliary, and not the contract ordinarily demanded for the avvalimento hypotheses extragroup.

2.2.1. Not even such censorship does not hit the mark.

2.2.2. The recurrent Tuscany di Navigazione has declared to make use, to integration of requirement of ability financial institution given from the total volume of transactions and the volume of transactions for fleeting services of marine transport in three years 2006 - 2008, of the Cyan Trading Services C.T. & S. S.r.l and of the Alilauro S.p.a. During former control art. 48 Co. 2 D.Lgs n. 163/2006, it has produced to relative documentation not only to the two enterprises auxiliaries, but also to others three enterprises - Alilauro Gru.So.n. S.p.a., Alicost S.p.a and Vola Viamare S.c to r.l. - asseritamente pertaining to a same entrepreneurial group it are under responsibility to Alilauro S.p.a., which, supports Tuscany di Navigazione, very it could put on of third party requirement of ability economic-financial institution own and controlled own.

In contrary sense, it is observed that the institute of the avvalimento, also answering to the requirement to widen the participation to the contests also to the competitors who are lacking in requirement demanded from the ban, does not allow to extend to possible infinity the chain of sub-auxiliary (the avvalimento c.d. “to cascade”), and that it goes therefore excluded from the contest who makes use of enterprise auxiliary in its turn it deprives of the requirement demanded from the ban in the sufficient measure to integrate own requirement of lacking qualification. The national jurisprudence, on the wake of that European, has also clearly specified that the existence of a relationship of social participation, that is the belongings to a same group of enterprises, does not afford to presume that one of the enterprises in relationship of participation or belongings to the group can for that solo have, to the aims of the participation to a procedure of contract confidence publics, of means of the participated enterprise or the other enterprises of the group; turning out therefore completely legitimate demand, by law and of station contracting out, of determined modality of proves of availability of requirement object of avvalimento with reference specific contract and valid for all duration of performance deducted in contest, while the mere allegation of the social ties that fascinate two enterprises, that for the contractual autonomy cannot be considered sufficient it weren't for of which they continue to enjoy the single societies the group (Cons. It are, sez. IV, 24 May 2013, n. 2832; id., sez. V, 20 june 2011, n. 3670; id., sez. IV, 20 November 2008 n. 5742; Law court EU, 2 Decembers 1999, in C-176/98 cause).

For such reasons, it must be excluded in root that the contract of avvalimento stipulated with Alilauro S.p.a allows with today's the recurrent one to make use also of requirement of the other enterprises pertaining to the same group of the helped enterprise, attended that such common belongings in itself do not involve, by those enterprises, the assumption of some obligation or engagement in favour of Tuscany di Navigazione. Indirect confirmation is drawn some from art. the 49 Co. 2 lett. g) of the D.Lgs n. 163/2006, also invoked from Tuscany di Navigazione, than for the avvalimento case infragroup the legal and economic tie in the group demands the presentation in attesting contest at least of a substitutive declaration existing: if the single fact to belong to a same group enough in order not to legitimize the avvalimento in the relationship directed between concurrent enterprise and enterprise auxiliary, tantomeno can be enough if the competitor intends to make use (also) of requirement of enterprises third, connected not to himself, but to own auxiliary (this in addition, evidently, to already found ontological inammissibilità of the avvalimento “to cascade”).

2.3. Sub c), in via subordinate clause, is denounced the bastardy of the warning of contest and the letter of invitation in the part in which they prescribe, for the participation to the procedure, requirement of specific and total turnover that the recurrent one assumes disproportionate regarding the value of the service object of the confidence.

2.3.1. The censorship, in its generic formulation, is groundless.

2.3.2. Against a total value of the confidence estimated to the B.1 point) of the letter of invitation in beyond 174 million euros for twelve years (which the amount of the temporary bail corresponds, fixed in euro 3.492.096, 20), the demand for not inferior a total triennial turnover 150 million euros and of a triennial volume of transactions in the not inferior transport fleeting to 75 million euros some profile of manifest disproportion does not anticipate or discriminatorietà and, in continuity with constant jurisprudence and the precedence of the Section, must therefore be deemed yields of a choice removed to the jurisdictional union (cfr. T.A.R. Tuscany, sez. I, 27 May 2013, n. 844).

3. With according to reason, the Tuscany di Navigazione - with reference to the opportunely conclusesi operations of contest with the award in favour of Moby S.p.a. - the lacked exclusion complains the controinteressata one, that illegittimamente it would be admitted to the procedure also having introduced the aliquot engagement of two fideiussori to constitute the definitive bail, rather than to supply a unitary guarantee as demand from the law of contest and art. the 75 D.Lgs n. 163/2006.

3.1.1. The reason is inadmissible and however irricevibile.

3.1.2. The lacked exclusion the controinteressata Moby from the contest opportunely is appealled by today's the recurrent one within resource R.G n. 1184/2011 defined from the T.A.R with the sentence n. 412/2012, then reformed in appeal. In that judgment Tuscany di Navigazione it among other things has in fact also deducted the bastardy of the disposed award in favour of Moby, asserting, with the fourth reason of which to the introductory resource and with the fourth added reason, defects of the guarantee lend from the highest bidder in the same terms that come today pedissequamente reproposed and on which the T.A.R is pronounced, this that gives rise today to inadmissible second one in idem.

Oltretutto, with the impugnation of the sentence n. 412/2012 Tuscany di Navigazione has express declared to renounce to censorships in question (v. p. 26 of the resource in appeal), of which the today's reproposition becomes to greater inadmissible reason, and this to shut up of the backwardness of the deduction in this center of defects that invest the original award of the contest.

4. With the deposited defensive memory on September 7, 2015, the recurrent formula request preliminary investigation turns to on April 3, 2015 obtain the access to documents demanded to the Tuscany Region with note, remained inevasa.

4.1. The request is inadmissible, not being proposed in the term of thirty days from the pronounced turndown from the Region with note on May 4, 2015 and the respect of the modalities previewed from art. the 116 c.p.a second codicil. Neither it considers the college of having to set in action own powers officiosi instructors, be a matter itself of insignificant documentation to the aims of deciding.

5. In force of all the considerations that precede, the resource cannot find acceptation.

5.1. The argument expenses follow the soccombenza and are liquidated as in device.

P.Q.M.

The Regional administrative court for the Tuscany (Section Before), definitively pronouncing, rejects to the resource and sentence the Tuscany di Navigazione S.r.l to the remelting of the trial-like expenses, than liquid in total euros 4,000, 00, besides the accessories of law, in favour of each of the resistant counterparts.

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

So decided in Florence in the Council Chamber of day 23 september 2015 with the participation of the magistrates:

Armando Pozzi, President

Alessandro Cacciari, Councilman

Pierpaolo Grauso, Councilman, Drafter

THE DRAFTER

THE PRESIDENT