Sentence of the REGIONAL ADMINISTRATIVE COURT for the Apulia on the resource introduced from Bari Porto Mediterraneo



With today's sentence, that we publish below, the Regional administrative court for the Apulia of Bari has partially rejected, partially received and partially declared improcedibile the resource proposed from the society Bari Porto Mediterraneo Srl (BPM) against the Harbour Authority of Bari and regarding consortile society G.S.A. (Group Associate Services) for the cancellation of the provisions that have lead to the confidence of the management of the marine stations of the port of Bari to the G.S.A.

The Harbour Authority of Bari has received with satisfaction the sentence emphasizing that confirmation legitimacy of the acts of the agency. "The only received profile, to which the moreover already Harbour Authority it had lend ottemperanza until from December 2009 - it has specified port the authority - was relative to the immediate restitution of the destined areas to the services at call individual, that they could instead continue to be stopped from BPM Srl until the accomplishment of the contests. Such profile is currently insignificant as in last month of April the nonperformance of BPM to the obligation to pay the pacifically which had canon of concession it has involved the forfeiture of the same one from the transitory management".

The harbour agency of Bari has concluded considering that "it gives back it of the areas to the Harbour Authority, that is supplying to the procedures to public evidence for the relative confidence, appears anyway online, also with the interest of the same Bari Porto Mediterraneo, than finds in liquidation and that it would be burdened of the relative costs to an economically disadvantageous management, to the detriment of the corporate creditors".

N. 00744/2011 REG.PROV.COLL.

N. 01929/2009 REG.RIC.

ITALIAN REPUBLIC

IN THE NAME OF ITALIAN PEOPLE

The Regional administrative court for Puglia

(Section Before)

it has pronounced anticipates

SENTENCE

on the resource number of general 1929 of 2009, integrated from reasons added, proposed registry by Bari Porto Mediterraneo s.r.l., represented and defended from the avv. Vincenzo Caputi Jambrenghi, with address which elected near its study in Bari, via Abbot Eustasio, 5;

against

Harbour authority of Bari, represented and defended from the avv. Ignazio Fulvio Mezzina, with address which elected near the registered office in Bari, Christopher Columbus large square, 1;

regarding

G.S.A. Group Associate Services consortile society, represented and defended from the avv. Domenico Colella, with address which elected near its study in Bari, via Quintino Sella, 120;

and with the participation of

to adiuvandum:

Giorgia Giuseppina Barbara D' Amelio, Antonio Lopez, Nicola Gelao, Oronzo Matarrese, Luigia Sabatelli Melibeo, Caterina Angiulli, Francesca Minutillo, Brunella Aurisicchio, Pietro Munno, represented and defended from the avv. Antonio De Feo, with address which elected near its study in Bari, Vittorio Emanuele course, 143;

for the cancellation

of the deliberation of the Harbour Committee n. the 9 on October 30, 2009 and of all actions attached to it (partially not known), between which the lines of address for the location of the new modalities of management of the marine stations and the services of support to the passengers, the outline of which capitulated ban of contest and special, the outline of decree on the division of the rights for burdens of security and other services of general interest;

of the ban of contest sent for the publication in the G.U.U.E in date 4 November 2009, of capitulated special and all the constituent actions the lex specialis;

of the note of the Harbour Authority of Bari prot. 7117-U/09 on November 3, 2009;

of the definitive award, arranged with deliberation of the President of the Harbour Authority of Bari n. 61 on April 15, 2010, and of all the minutes of contest, let alone of the contract stipulated with G.S.A. Group Associate Services consortile society;

Seen the added and relative resource, reasons the attached ones;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter in the public audience of the day 9 March 2011 Dr. Savio Picone and hearings for the parts the defenders avv.ti Vincenzo Caputi Jambrenghi, Ignazio Fulvio Mezzina, Domenico Colella, Antonio De Feo;

Considered and considered in fact and right how much follows.

FACT

Bari Porto Mediterraneo s.r.l appeals the actions indicated in epigraph, with which the Harbour Authority of Bari has at first approved of the ban of contest and successively arranged the award to the controinteressata G.S.A. Group Associated Services, for the triennial concession of the marine stations "San Vito" and "Terminal Cruises" of the Port of Bari and the services of support to the passengers "to indifferenziato and indivisible use", establishing also the transitory destination of other harbour structures and the services "at call individual" and of the other having assets gainful potentialities (marine agencies, commercial exercises, parkings, assets and removable systems of property of the recurrent one, marine Station auxiliary).

It so deduces rubricati reasons:

A) in relation to the decision to accelerate the terms for the participation: violation of the sentences of which to the sentence of the Council of State n. 4812 of 2009; violation of the norms and the regulating principles the narrow procedure accelerated (art. 6 of the law n. 84 of the 1994 and articles. 70 and 227 of the d. lgs. n. 163 of 2006; violation of the norms of the Ec treaty in topic not discrimination, publicity and transparency; violation of the autovincolo and the principle of good course; sidetracking and excess to be able under multiple profiles;

B) in relation to the decision to immediately turn out the recurrent society from the management of the services "at call individual": violation of the sentences of which to the sentence of the Council of State n. 4812 of 2009; violation of the norms and the regulating principles the confidence of the contracts and the concessions; violation of the autovincolo and the principle of good course; sidetracking and excess to be able under multiple profiles;

C) in relation to the decision to separate the concession of the services of support to the passengers "to "at call individual" indifferenziato and indivisible use" from those: violation of the sentences of which to the sentence of the Council of State n. 4812 of 2009; violation of the norms and the regulating principles the confidence of the contracts and the concessions; violation of the law n. 84 of 1994 and the regulations approved of with d.m. 14 November 1994; violation of art. the 3 of the r.d n. 2440 of 1923 and art. the 37 of the r.d n. 827 of 1924, violation of art. the 36 cod. nav., violation of the principle of good course, sidetracking and excess to be able under multiple profiles;

D) in relation to the type of demanded camerale registration from the contest ban: violation of the articles. 41 and 42 of the d. lgs. n. 163 of 2006, violation of the norms and the principles in topic of qualification for the confidence of the contracts and the concessions; violation of the principle of good course; sidetracking and excess to be able under multiple profiles.

The Harbour Authority has been formed of Bari and G.S.A. Group Associate Services consortile society, eccependo the inammissibilità of the resource and asking of in any case the refusal.

The named dependent of Bari Porto Mediterraneo s.r.l in epigraph have deposited action of participation to adiuvandum.

The precautionary request partially is received with decree of this Section n. 791 on December 16, 2009, that it has suspended the effectiveness of the deliberation n. 9 on October 30, 2009, in the part in which it arranges the release from on January 1, 2010 of the marine agencies, of the commercial exercises, the parkings, the assets and removable systems of property of recurrent and the marine Station the auxiliary.

At last, the parts have carried out conclusive defenses in sight of the public audience on March 9, 2011, in which the cause is passed in decision.

STRAIGHT

1. Shortly, the facts.

With deliberation n. 1 on February 19, 2009, the Harbour Authority of Bari has cancelled in self-defence, because illegitimate, own precedence deliberations n. 5 on June 16, 2004 and n. 6 on July 28, 2004, having to object the twenty-year direct confidence, today's recurrent Bari Porto Mediterraneo s.r.l., of the management of the marine station, the terminal cruises and the services to the passengers.

In synthesis, the defect is ravvisato in the fact that the confidence to Bari Porto Mediterraneo s.r.l. (mixed society, of which the Harbour Authority still it stops 30% of the capital) is not preceded by a real contest for the choice of the private associates, but only by a public warning for the manifestations of interest, lacking not only in punctual criteria of chosen of the associates, but above all of the necessary marking out of the activity to carry out and the duration of the confidence.

In the same date, the President of the Harbour Authority has adopted the provision n. 1237, with which the restitution of the assets has intimato to the society object of the concession within ten days, beyond to a directed series of prescription to the immediate interruption of the carried out services.

The resource proposed from adverse Bari Porto Mediterraneo s.r.l the aforesaid actions integrally is rejected by Terza Sezione of this Court, with sentence n. 440 of 2009, partially reformed in appeal from the Sixth Section of the Council of State, with decision n. 4812 of 2009.

This last one, in particular, has confirmed legitimacy of the cancellation in self-defence decided from the Authority, but it has vice versa received the doglianze of the society in order to the presidential action n. 1237 on February 19, 2009 (erroneously considered absorbed of refusal in the judgment first degree).

The order of almost immediate release of the assets and the activities contrasts, second the appeal decision, with the principles of reasonableness and proportionality, considered that the cancellation compulsory of the confidence is arranged by the Authority to the aim to proceed through or more contests that they open to the competition, and in order not to assume in via direct the management of the harbour structures and the services.

Neither the immediacy of the release of the assets is tax from the self-defence provision, than nothing it has found with regard to, and indeed, according to the appeal judge, the possibility to attend the subentro of the new subjects is compatible with the typical effects of the cancellation compulsory, held also account that in some way the art. 21-nonies of the law n. 241 of 1990 precludes to adapt the temporal effectiveness of the action of self-defence to the concrete situation to all purposes and effects, than if of species it demands the subentro of other entrepreneurs characterized with or more contests to public evidence, this also in order to protect, in more effective way, the confidence ingendered in the beneficiary of the cancelled action and the certainty of the legal relationships in being.

With the cited one it pronounces, therefore, the Council of State has, on one side, definitively confirmed legitimacy of the cancellation in self-defence of the today's twenty-year concession to the recurrent one and, from the other, it has cancelled the provision of the President of the Harbour Authority, making some to come down “… the obligation conformativo for the Authority to program timely the location of the new modalities of management, proceeding with public contest and to plan I succeed to BPM of the new subject or the new subjects, being able meantime exercising every control on the activity of suitable BPM and also to dictate prescription to avoid establishing itself of incompatible relationships with the transitory character ofthe activity of BPM”.

2. With the resource under investigation, Bari Porto Mediterraneo s.r.l appeals the deliberation of the Harbour Committee n. 9 on October 30, 2009 and all the attached actions to it, between which the lines of address for the location of the new modalities of management of the marine stations and the services of support to the passengers, the ban of contest and the special capitulated one, the outline of decree on the division of the rights for burdens of security and other services of general interest.

Esperita the contest (which the recurrent society has participated in a.t.i with Glossy s.p.a and the Schiavone Salvatore & C. s.n.c., classifying itself fourth), definitively is adjudicated to the controinteressata G.S.A. Group Associate Services the triennial concession of the marine stations “San Vito” and “Terminal Cruises” and of the services of support to the passengers “to indifferenziato and indivisible use”, with deliberation burdened by means of added reasons and about to bastardy derivative.

3. Preliminarily, it goes on December 16, 2009 declared inadmissible the action of participation to adiuvandum deposited in occasion of the Council Chamber from some employee of Bari Porto Mediterraneo s.r.l. (Of Amelio and others, listed in epigraph), it is for the circumstance of its omitted notification to all the parts of the judgment, considering that the jurisprudence has constantly considered the inammissibilità of an action of participation in cause contained in a simple memory not notified to the counterparts (cfr. Cons. It are, sez. V, 25 February 1997 n.199), is because in it deducted new and various reasons from those contents in the main resource come, faces irritualmente to widen the object of the judgment (cfr., between many, REGIONAL ADMINISTRATIVE COURT Latium, sez. II, 19 February 2001 n. 1301; REGIONAL ADMINISTRATIVE COURT Campania, Naples, sez. V, 13 june 2000 n. 2063).

4. Passing to the merit, it must be proceeded with order to the examination of the censorships advanced from the recurrent one, that they reach distinguished aspects of the provisions appealled (from a part: the ban of contest and the award of the services “to indifferenziato and indivisible use”; from the other, the transitory regulation of the services “at call individual”).

4.1. Beginning from first of the profiles in dispute, it is groundless and it goes rejected to the reason sub A), with which recurrent part the bastardy complains of the abbreviation of the terms of the narrow procedure, indetta from the Harbour Authority with the ban sent for the publication in the G.U.U.E in 4 date November 2009.

Considering the motivation of the deliberation appealled in its complex, the considerations carried out from the recurrent one are lacking in importance on the allegated imputable nonperformances to Bari Porto Mediterraneo s.r.l., that they would have competition to justify the choice of the accelerated procedure.

While the thesis of the recurrent one is lacking in virtue second which the concessorio title, cancelled in self-defence from the Harbour Authority, would conserve effectiveness in ossequio to how much statuito from the Council of State. It must in fact exclude that the deliberations of confidence of the 2004 are in some way survivors to the exercise of the administrative self-defence that is cherish temporary effectiveness. The deliberation n. 1 on February 19, 2009, than also for such part has exited undamaged from the impugnative proposed in front of this Court and to the Council of State, it arranged with extreme clarity, among other things, own the caducazione of the precedence deliberations n. 5 on June 16, 2004 and n. 6 on July 28, 2004, having to object the twenty-year concession to today's recurrent Bari Porto Mediterraneo s.r.l of the management of the marine station, the terminal cruises and the services to the passengers, let alone the caducazione of the formal action of state property concession n. 3/2004.

Anyway, the abbreviation of the term to fifteen days was reported to the single presentation of the participation questions, to the aims of the pre-qualification, phase that Bari Porto Mediterraneo s.r.l has succeeded to exceed without obstacles. The contest, moreover, has seen to be confronted four competitors, sicché must exclude that the acceleration has in concrete terms precluded the development of confronts competitive.

It is true that, second a general principle applicable also to the procedures of concession of goods and services publics, the Administration is held to giving account of the urgency reasons that also justify the reduction of the terms, be a matter themselves always of the exercise of a discretionary directly incident on the order of contest and potentially detrimental power for the position of the enterprises of the field interested to the confidence (cfr. REGIONAL ADMINISTRATIVE COURT Campania, Naples, sez. I, 21 june 2005 n. 8391).

But in this case, to warning of the College, the justification of the resource to the accelerated procedure (than law to p. 8 of the contest ban) are consistent and immune from the defects denounced from the recurrent one.

The Harbour Authority in fact has decided to reduce the terms for the presentation of the questions, in consideration of dragging on of the economic prejudices legacies to the transitory phase, turning out from the cited sentence of the Council of State n. 4812 of 2009, to the declared one fine to achieve in faster times the best contractual conditions and economic offers from the new affidatario of the services.

The persistence of a temporary management, as a result of the cancellation in self-defence of the illegitimate precedence direct confidence of the services, in itself represents sure an endowed foundation of and manifest importance, such to justify the abbreviation of the contest procedure.

How much said the infondatezza of the censorship is descendant of.

4.2. Equally groundless it is the reason sub C), with which Bari Porto Mediterraneo s.r.l contests the assumed managerial choice from the wide illustrated Harbour Authority and in the deliberation n. 9 on October 30, 2009, that is to say the separation of the services of support to the passengers “to indifferenziato and indivisible use” (adjudicated to the G.S.A. Group Associated Services, with the actions appealled here) from those “at call individual” having puts up gainful potentialities (marine agencies, commercial, parkings, catering), destined exercises to being entrusted with or more next contests.

In the premise of the deliberation (p. 3), the decision is justified by considerations on the economic convenience and the quality of the services.

The recurrent one, in truth, seems to shade the suspicion that also in future the structures used after services “at call individual” will be granted in use from the Harbour Authority without the respect of the rules of the public evidence, but a lot constitutes an affirmation lacking in reply, since the deliberation n. 9 of the 2009 are limited, under such profile, to approve of the ban of contest for the being remained indivisible services.

The infondatezza of the censorship moreover is confirmed by the next events, documented in proximity of the public audience from the defense of the Harbour Authority. This last one in fact has given course, own in the first months of 2011, to the procedures of contest for the allocation of the relative concessions to the destined premises to the marine agencies, to the commercial exercises, the parkings.

For the remainder, the disputes articulated from recurrent in order to the pretension the irrationality of the separation between the indivisible services and the mainly gainful services involgono profiles of mere opportunity of the administrative action, confined in the removed sphere of the merit and to the union of the administrative judge.

The resource, for such part, must therefore be rejected.

4.3. The reason is vice versa improcedibile sub D), with which p is censured the forecast of the contest ban (. 6), relative to the prescribed camerale registration for the participation.

Bari Porto Mediterraneo s.r.l in fact is admitted to the narrow procedure (in a.t.i with other enterprises) and, for such profile, he does not have interest to cultivate the impugnativa.

4.4. At last, confirming already the highly summarizedly expressed warning in the precautionary phase, it must be received the reason sub B), turned adverse the deliberation n. 9 on October 30, 2009, in the part in which she on January 1, 2010 arranges that to the recurrent society abandonments within the management of the marine agencies, of the commercial exercises, the parkings, the assets and removable systems of its property and of the marine Station auxiliary.

The immediate riappropriazione arranged from the Harbour Authority does not turn out, in fact, justified from those requirements of restoration of the legality, that they are placed made up of the cancellation in self-defence of the twenty-year concession in favour of the recurrent one and that they are judged deserving of protection from the Judge of appeal (sees the cited sentence n. 4812 of 2009 of the Council of State), in sight of the necessary opening to the competition of the harbour services by means of or more contests to public evidence.

And indeed, falling in contraddittorietà and sidetracking, with the appealled deliberation the Harbour Authority of it decides the contextual riattribuzione directed to the sub-concessionaires who currently benefit some, so placing in the nothing (at least in immediate) the legitimate requests of restoration of the competition that had induced it to cancel in self-defence the precedence twenty-year direct confidence.

Own the decision of appeal many times over recalled had clarified that the immediacy of the release of the assets is not at all tax from the self-defence provision, than nothing has found with regard to, and indeed, the conservation of the existing management in the blackberries of the subentro of the new subjects is compatible with the typical effects of the cancellation compulsory, considered that the art. 21-nonies of the law n. 241 of 1990 allows to adapt the temporal effectiveness of the action of self-defence to the concrete situation to all purposes and effects.

If of species, they will have to subentrare in it I use of the assets and in the management of the services to the user other entrepreneurs characterized with or more contests to public evidence, and until that moment it must find adequate protects the today's confidence ingendered in the recurrent one, not being to you appreciable reasons in order to allow with the Harbour Authority of riappropriare itself of the structures in order to only reassign them to out of the rules of the competition.

For said how much, the position of the recurrent society must be held firm until the effective conclusion of the procedures of contest for the confidence of the assets and the harbour services “at call individual”.

The deliberation n. 9 on October 30, 2009 are cancelled partially here, whereby arrange (pagg. 7 and 8, points from a) to f) of the device) that the recurrent society abandonments within on January 1, 2010 the management of the marine agencies, the commercial exercises, the parkings, the assets and removable systems of its property and of the marine Station auxiliary.

5. The trial-like expenses can be integrally compensated, seen the mutual soccombenza.

P.Q.M.

The Regional administrative court for the Apulia (Section Before) definitively pronouncing on the resource, as in proposed epigraph, partially receives it, in the senses of which in motivation, partially he rejects it and partially he declares improcedibile to it.

It declares inadmissible the action of participation of Of Amelio and others.

Compensated expenses.

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

So decided in Bari in the Council Chamber of the day 9 March 2011 with the participation of the magistrates:

Corrado Allegretta, President

Giuseppina Adamo, Councilman

Savio Picone, Legal secretary, Drafter

THE DRAFTER

THE PRESIDENT

DEPOSITED IN SECRETARIAT

The 17/05/2011

THE SECRETARY

(Art. 89, Co. 3, cod. proc. amm.)