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December 21, 2011
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- The Council of State confirmation the right of the Harbor Authority of Venice and the Marine Authority to administer the technical-nautical services independently
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- Restated how much already established from the sentence of the Regional Administrative Court of Veneto
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 The Council of State has confirmed the right of the Harbor Authority of Venice and the Marine Authority independently to administer the technical-nautical services and the harbor operativity. With sentence 13th December, that we publish below, the Council of State in fact has rejected the resource proposed from the Reunited Tugs Panfido against the ministry of Infrastructures and the Transports and the Harbor Authority of Venice and regarding the associations of the shippers and the shipping agents of Venice and Veneto with the objective to reform the 15 sentence of june 2010 of the Regional administrative court of the Veneto that in its turn has rejected the resource proposed from same the Reunited Tugs Panfido for the cancellation of the decree n. 41 of 30 April 2010 of the Harbor office of Venice of modification to Regolamento for the service of towing of the ships in the port of Venice and of the connected actions, between which in particular 3 note of March 2010 "Proposal of new regulations for the service of towing in the Port of Venice", with annexed rough draft of regulations, of the president of the Harbor Authority of Venice.-
- Specifying that the pronunciamento of the Council of State entrusts the organization and the discipline of the technical-nautical services to the understanding between the Harbor Authority and the Harbor office assigning to the ministry of Infrastructures and the Transports a competence to exercise in the single hypothesis of lacked attainment an understanding between the two marine-harbor institutions, the Port Authority of Venice it has evidenced that, "from a legal point of view, the Council of State has restated that article 102 of the navigation code - where it is previewed that "the norms on the discipline of the service of towing in every marine port are established by local regulations, approved of from the minister of the Transports and Navigation" - partially it is repealed by the effectiveness of art the 14 of law 84/94 that the determination of the norms entrusts on the discipline and the organization of the services of towing in every port center of Harbor Authorities to the understanding between this last and the Harbor office".
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- "The sentence of the Council of State, than confirmation how much already established from the sentence of the Regional Administrative Court of Veneto the 15 june 2010 - it has concluded the Venetian harbor agency - allows therefore better an organization of the nautical services technical in the port of Venice with the objective to increase the competitiveness of the harbor operations and therefore to attract more traffic".
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- N. 06526/2011REG.PROV.COLL.
- N. 08962/2010 REG.RIC.
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- ITALIAN REPUBLIC
- IN THE NAME OF ITALIAN PEOPLE
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- The Council of State
- in jurisdictional center (Section Sixth)
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it has pronounced anticipates
SENTENCE
on the resource number of general registry 8962 of 2010, proposed from the s.r.l. Reunited tugs Panfido & C.. in person of the legal representative in charge, represented and defended from lawyers Gianluca Rizzardi, Alessio Vianello and Andrea Steers, near quast'ultimo electively domiciled in Rome, via Confalonieri, 5;
against
The Ministry of infrastructures and the transports in person of the Minister in charge, represented and defended from the general Legal profession of the State, domiciliataria in Rome, via of the Portugueses, 12;
the harbor Authority of Venice in person of the President in charge, represented and defended from lawyers Francesca Gravili, Francesco Acerboni and Gabriel Pafundi, near this last one electively domiciled in Rome, tree-lined avenue Giulio Cesar, 14;
regarding
Association enterprises of Venice shipment, Association marine raccomandatari and mediating agents of Veneto, not constituted in according to degree of the judgment;
for the reform
of the sentence of the T.A.R. VENETO - VENICE: SECTION the n. 2547/2010, been profitable between the parts, concerning MODIFICATIONS AL REGULATIONS FOR the SERVICE OF TOWING OF SHIPS - (RIS.DANNI);
Seen the resource in appeal and relative the attached ones;
Seen the certificates of incorporation in judgment of the intimate Administrations;
Seen the defensive memories;
Approvals all the actions of the cause;
Reporter in the public audience of the day 22 November 2011 councilman Roberta Vigotti and hearings for the parts the lawyer Steers, the lawyer of the Bacosi State, and Santarelli lawyer for delegation of Pafundi lawyer.;
Considered and considered in fact and right how much follows:
FACT and RIGHT
I) The society reunited Tugs Panfido and C., concessionaire of the marine Authority for the service of towing in the port of Venice, with the resource n. 927 of 2010 have appealled in front of the Regional Administrative Court of Veneto the decree n. 41/10 of the bringing Harbor office, previa understanding with the harbor Authority, modifications, to experimental and temporary character, of the regulations of the service of towing of the ships in the port of Venice, approved of from the Ministry of Transportation with I decree of 18 February 2008. The Regional Administrative Court, with sentence returned to the outcome of the Council Chamber in which the precautionary request was discussed, has rejected the resource.
II) the appellant society reproposes in second degree the censorships carried out in front of the first judge, relative to the lacked approval the regulations from the Ministry, to the lacked involvement the operators of the port, to the excess to be able under various profiles, and critic the sentence appealled in the parts in which: - it has considered art. the 102 cod. implicitly abolished navigation from art. the 14, codicil 1 ter, law n. 84 of 1994; - it has excluded the violation of the artt. 7 and ss and 14 and ss. law n. 241 of 1990 and the Ministry Circular n. 1739 of 2000;
- it has not considered, which decisive point of the controversy, than the digging of the harbor channels, adduced to reason of the prescribed modification, to the age of the adoption of the provision it was not even begun; - it has omitted to consider the lacunosità of the preliminary investigation lead from the Harbor office, also because of the lack of the opinion of the Corporation pilots Venetian matting. The appellant society concludes for the reform of the same sentence, with acceptation of the resource first degree also to the aims of the compensation of the suffering damage. The intimate public Administrations have been formed; the Ministry of infrastructures and the transports has proposed incident appeal asking the reform for the sentence in the part in which it has considered that art. the 102 cod. navigation, for effect of which the approval of the local regulations of the towing service is of competence of the same Minister, is repealed by art. the 14, codicil 1 ter, of the law n. 84 of 1994.
III) the appeal proposed from the s.r.l. Reunited tugs Panfido are groundless, and can therefore prescind examining the profiles of inammissibilità of same and the resource first degree (desumibili from the taken part adoption of provisions having effectiveness on the same matter object of the judgment and that they have lead to the definitive approval of the new regulations for the service of towing in date 31 Decembers 2010). It must first of all be observed that art. the 14, codicil ter, of the law n. 84 of 1994, added from art. the 2, d.l. 21 October 1996, n. 535, conv. in l. 23 Decembers 1996, n. 647, are clear in establishing that “in the ports center of harbor Authority the discipline and the organization of the services of which to codicil 1 second they are established by the marine Authority of understanding with the harbor Authority” and that “in understanding defect it only supplies the Minister of the transports and navigation” (codicil 1 second comprises, between other technical-nautical services, that of towing), while the obligatory nature of the service of pilotage and the criteria of formation of the rates remains of central ministerial competence to establish.
It is groundless, therefore, the reason carried out from the turned appellant to contest, on the point, the appealled sentence. It turns out also groundless, based on the same considerations, the carried out incident appeal from the Ministry of infrastructures and of the transports, since, as one has been said, I leave again of competences defined from the law n. 84 of 1994 are worth to make to consider that the provision appealled, emanated from the Harbor office (peripheral office of the Ministry of infrastructures and the transports) previa understanding with the harbor Authority, correctly are brought back by the first judge in the within of the competences established from the law. As for the successive reasons of the main appeal, the following considerations are worth to make some to consider the infondatezza: - the encumbrance reason is groundless with which the violation of it is restated obligation of communication of the start of the procedure of which to art. the 7 of the law n. 241/1990, since the regulations for the service of towing, modified with the deliberation of that be, constitute a normative action of general capacity, like such removed to the norms on the participation according to the disposed one of art. the 13 of the law n. 241/1990, law recalled from the Ministry Circular cited from the appellant (n. 1739 of 2000); - not even the deficiency of preliminary investigation and motivation, complained from the recurrent one does not turn out subsistent, considering that the determination to modify, and temporarily experimental, the towing regulations achieves to considerations pertaining to the discrezionalità of the Administration with respect to the total situation of safety of navigation, than they avoid to the jurisdictional union if not for reasons of illogicità, not subsistent in this case under investigation; for analogous reasons, data the temporary character of the prescribed modifications, the lacked acquisition the opinion (not binding) of the Corporation pilots Venetian matting, than is however expressed on the proposal of modification however in soprassessorio sense, it does not constitute defect of the appealled provision; - from the reiezione of the impugnatoria part of the resource first degree, than the College confirmation, the infondatezza of the advanced risarcitoria pretension from the recurrent one derives.
IV) In conclusion, the main appeal and that incident one are groundless and go rejected. The expenses of the judgment go placed at the expense of the appellant society and they are liquidated in device in favor of the harbor Authority, while they can be compensated for the remainder.
P.Q.M.
The Council of State in jurisdictional center (Section Sixth), definitively pronouncing on the appeal in indicated epigraph n. 8962 of 2010, reject it; it rejects the proposed incident appeal from the resistant Ministry, confirming, for the effect, the appealled sentence.
Sentence the society appellant to refund to the harbor Authority of Venice the expenses of the judgment, in the measure of 5.000 (five thousand) euros for both degrees of the judgment, beyond VAT and CPA.
It compensates for the remainder.
It orders that sentence anticipates is executed by the administrative authority.
So decided in Rome in the Council Chamber of the day 22 November 2011 with the participation of the magistrates: Luigi Maruotti, President Roberto Garofoli, Councilman Manfred Atzeni, Councilman Roberta Vigotti, Councilman, Drafter Bernhard Lageder, Councilman
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THE DRAFTER |
THE PRESIDENT |
- DEPOSITED IN SECRETARIAT
- The 13/12/2011
- THE SECRETARY
- (Art. 89, Co. 3, cod. proc. amm.)
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- Piazza Matteotti 1/3 - 16123 Genoa - ITALY
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