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30 October 2014 The on-line newspaper devoted to the world of transports 20:00 GMT+1



May 30, 2012

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Original news
The Council of State sentence the ministry of Infrastructures and the Transports to pour 70 million euros to the Harbor Authority of Genoa

Received the appeal for the reform of the sentence of the REGIONAL ADMINISTRATIVE COURT Liguria that received the thesis of the ministry

The Section Sixth of the Council of State, with sentence deposited yesterday that we publish below, has received the appeal introduced from the Harbor Authority of Genoa against the ministry of Infrastructures and the Transports and other ministries, the Liguria Region, the Province of Genoa, the Municipality of Genoa and regarding Society for Cornigliano Spa, Ilva Spa, Airport of Genoa Spa and other trade-union agencies and associations for the reform of the sentence of the Regional administrative court for the 13 Liguria of May 2010 with which era rejected the resource introduced from the genoese Harbor Authority for the assessment of the nonperformance of the modificativo action ofagreement of program on the steel mills of Cornigliano (for the dismissione of the area in the heat of the moment of the Ilva steel mills) and for the sentence of the ministry of Infrastructures and the Transports to the assumed implementation of the obligations and to the payment in favor of the Harbor Authority of 70 million euros.

Article 10 of the modificativo action of the agreement of program of 19 November 1999, that 8 October 2005 has been undersigned, previews the delivery to the Harbor Authority of areas for approximately 140 thousand destined square meters, after a reclamation, to functions of harbor logistics and previews an indemnification of 70 million euros in confronts of the harbor agency.

The Council of State therefore has condemned the ministry to pour 70 million euros, sum that the genoese harbor agency had initially destined to the realization of logistic areas, a car park and for the elevated extension of the harbor one.




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 6034 of 2010, proposed they give:
Harbor authority of Genoa, in person of the president and lawyer representative, represented and defended from lawyers Frank Gaetano Scoca and Alessandra Busnelli, with address which elected near the law firm of first in Rome, via G. Paisiello, 55;

against

Ministry of infrastructures and the transports, Prime Minister's Office, Ministry of the economy and finances, Ministry of the job and the health, Ministry of the economic development, Ministry of the atmosphere and the protection of the territory and the sea, Ministry for the assets and the cultural activities, Agency of the Federal property of Genoa, Prefecture of Genoa, Anas s.p.a., Territorial Office of the Government of Genoa, in person of the respective representatives lawyers, represented and defended from the general Legal profession of the State, near whose offices domicile for law in Rome, via ofthe Portugueses, 12;
Liguria region, in person of the president of the Committee and lawyer representative pro tempore, represented and defended from lawyers Gabriel Pafundi and Michela Sommariva, with address which elected near the law firm of first in Rome, tree-lined avenue Giulio Cesar n. 14;
Province of Genoa, in person of the president and lawyer representative for-tempore, represented and defended from lawyers Gabriel Pafundi and Roberto Giovanetti, with address which elected near the law firm of first in Rome, tree-lined avenue Giulio Cesar n. 14;
Municipality of Genoa, in person of the mayor and lawyer representative pro tempore, represented and defended from lawyers Gabriel Pafundi and Aurelio Domenico Masuelli, with address which elected near the law firm of first in Rome, tree-lined avenue Giulio Cesar n. 14;

regarding

Society for Cornigliano s.p.a., in person of the legal representative, represented and defended from lawyers Gabriel Pafundi and Luigi Cocchi, with address which elected near the law firm of first in Rome, tree-lined avenue Giulio Cesar n.14;
Ilva s.p.a., in person of the legal representative pro tempore, represented and defended from lawyer Francesco Perli, with address which elected near the Berenghi study and associates in Rome, via IV November n. 149;
Airport of Genoa s.p.a., national Agency for the attraction of the investments and the development of enterprise s.p.a., Confindustria - Genoa, Cgil Regional, Cgil Provincial, Cisl Provincial, Uil Regional, Uil Provincial, Fiom-Cgil Regional, Fiom-Cgil Provincial, Fim-Cisl Regional, Fim-Cisl Provincial, Uilm-Uil Regional, Uilm-Uil Provincial, Provincial Failms-Cisal, not constituted in this degree of judgment;

for the reform

of the sentence of the T.A.R. LIGURIA: SECTION II n. 3551/2010, been profitable between the parts, concerning NONPERFORMANCE ACTION MODIFICATIVO PROGRAM AGREEMENT ON the CORNIGLIANO STEEL MILLS AND COMPENSATION DAMAGES

Seen the resource in appeal and relative the attached ones;

Seen the certificates of incorporation in judgment of the Ministry infrastructures and the transports, the Prime Minister's Office, of the Ministry of the economy and finances, the Ministry of the Job and the Health ministry, the Ministry of the economic development, the Ministry of the atmosphere and the protection of the territory and the sea, the Ministry for the cultural assets and activities and of the Agency of the Federal property of Genoa, the Prefecture of Genoa, the Liguria Region, the Province of Genoa, the Municipality of Genoa, of the Society for Cornigliano s.p.a., of the Anas s.p.a., the Ilva s.p.a and the Territorial Office of the Government of Genoa;

Seen the defensive memories;

Approvals all the actions of the cause;

Reporter in the public audience of the day 23 March 2012 the councilman of State Giulio Castriota Scanderbeg and hearings for the parts Scoca lawyers, Pafundi, Perli and the lawyer of the Pisana State;

Considered and considered in fact and right how much follows.


FACT and RIGHT

1. - May 2010 is appealled the sentence 27 n. 3551 of the Regional administrative court for the Liguria that has rejected to the resource of the harbor Authority of Genoa (today's appellant) for the assessment of the right to obtain from the Ministry of infrastructures (to the age of the facts subject distinguished from the Ministry of Transportation and the Ministry of the economic development) the corresponsione of a financing of 70 million euros, in implementation of art. the 10 of the agreement of 8 program of October 2005, taken part to modification of the precedence 29 agreement of November 1999 let alone, subordinately, for the declaratory judgment of the resolution for nonperformance of the aforesaid agreement with the refreshment, in any case, of the consequenziali damages.

2. - The appellant Authority iterates in this center the reasons of resource already disregarded by the judges first degree, evidencing the erroneità of the burdened sentence, than she would not have sufficiently estimated the imperatività of relative the conventional clause to the deducing distribution of the state financing in favor of the today's one, its special character regarding the new, and however inapplicable, normative dispositions which supervened (art. 1 codicils 982 and segg. of the law 27 Decembers 2006 n. 296), in the part in which they preview the abolition of the revenue transfers in favor of the harbor authorities, against more emphasized autonomy financial institution than these last ones, and of the transfer in head to same of the relative jettison at sea to the anchor duty and that afferent cargo and drainage of the goods.

The appellant insists therefore for the acceptation of the conclusions already resigned in first degree, with the sentence of the Ministry of infrastructures to the distribution of ridetto the financing, beyond interests and monetary revaluation; subordinately, the appellant authority asks the assessment for the resolution of the agreement, for nonperformance of it Ministry, with every consequenziale statuizione also in order to the damages endured for effect of the deducted nonperformance and with the favor of the expenses and competences of the double degree of judgment.

The intimate central Authorities have been formed in judgment in order to resist to the resource and in order to ask of the reiezione. Also the Ilva society s.p.a has been formed in order to resist to the resource.

The Liguria Region, the Province of Genoa, the Municipality of Genoa and the s.p.a. Societies for Cornigliano have instead joined, in being formed in judgment, to the main question of implementation proposed from the appellant, opposing themselves for against to the acceptation of the subordinate question of resolution of the agreement for nonperformance of the ministry of infrastructures.

To the audience of 23 March 2012 the cause is withheld for the decision.

3. - The College considers that the appeal is founded and goes consequently received, in the senses of which nearby.

3.1- The event must first of all be reconstructed shortly in fact that has given origin to the judgment under investigation. In synthesis, it puts account to remember that the parts of the today's controversy, already in date 29 November 1999, within a wider plan than environmental reclamation and of reconversion of the iron and steel pole of Cornigliano (consequent to the abolition of the working lamination process in the heat of the moment) are reached (according to art. 4 of the law 9 Decembers 1998 n. 426, bringing “New participations in environmental field”) to stipulate of an agreement of program, finalized to accommodation of the areas already object of concession in favor of the ILVA; such agreement of program is modified with the additional action of 8 October 2005, set in action in anticipates judgment.

It has happened that successively to the agreement of the 1999 the areas pertaining to the harbor Federal property of Genoa (excluded the docks) are sdemanializzate, by virtue of previewed how much from art. 53 of the law 28 Decembers 2011 n. 448, and recovered to the patrimony available of the Liguria Region in sight of their allocation to a private society, participated from the local authorities and the Government (the Cornigliano society s.p.a.), for the continuation of the productive activities in compatible forms with the respect of the atmosphere and for the definition of the infrastructural order of the area.

With the agreement of program of 8 October 2005 among other things it is established that the society for Cornigliano s.p.a., affidataria of the reclamation works and environmental reorganization of the areas dismesse from ILVA, would have had to supply to the restitution to the harbor Authority of Genoa of a part of the areas cleared (for an extension of approximately 144.100 sqm) in case of necessity constituting a right of surface of the duration of sixty years. Moreover on such areas the foretold harbor Authority of Genoa would be authorized to realize, against confronts with the labor organizations, some relative infrastructural works to the logistic-harbor functions, in case of necessity reaching to a financing of 70 million euros that, in the same agreement of program (art. 10), the Ministry of infrastructures was engaged to distribute in favor of the same Authority.

4. - The controversy under investigation is rebelled own in relation to such last clause when the Ministry has considered not to more be able to fulfill to the obligation contracted with the cited agreement of program because of the which supervened norm, that it would have inhibited every form of revenue transfer in favor of the harbor authorities. The legal issue to dirimere concerns then to the verification of the persistent vigenza or less of the effectiveness than such clause of the agreement (art. 10) contained in the recalled 8 action of October the 2005, afferent engagement of the Ministry of infrastructures (today Ministry of infrastructures and the transports) to the distribution of the foretold financing, had with regard to the effects to riconnettere to the supervened normative dispositions brought by art. the 1, codicils from 982 to 990, of the law 27 Decembers 2006 n. 296.

4.1. - The defensive theses of the parts to I confront appear extremely clear.

In the defensive prospettazione of the appellant Authority, the clause of the inherent agreement the distribution of the revenue financing of 70 million euros, as inserted in an agreement of program between administrations, would be from considering cogente and would have force of law between the parts having had to find application to the fattispecie the rules of the civil code in matter of obligations and contracts (by virtue of the partial callback, contained in art. the 15 of the law n. 241 of 7 August 1990, art. the 11 of the same law and the quivi principles of the civil code in its turn recalled).

To scratch of the effectiveness the recalled introduced normative discipline with the financial institution for 2007 could not in particular operate, in the part in which the same one it has arranged the abolition of the revenue transfers, and this in reason: a) of the special character of the contained pattuizione in recalled art. 10 of the agreement of program and its stipulazione on the base of a normative picture to special character also it (law n. 426 of 9 December 1998, art. 4 codicils 8, 9 and 10; law n.488 of 2001); b) of the consideration second which that clause would take part of a wider agreement in which the performances of the parts they would not be scorporabili, turning out fascinate from an only justification motive also based on the ritraibili principles from the civilistiche rules in matter of obligations and contract, as applicable; c) of the general principle of irretroattività of the legislation (at least until the limit of the respect of the principle of reasonableness), in itself incompatible with the possibility that it dictates normative new affects legal fattispecie under execution, pain the violation of legitimizes confidence and of the principles of conformed certainty of the right for like also as a result of the adhesion of our Country to the Convention CEDU, principles moreover flowed back in communitarian within based on art. the 6 of the Treaty on the operation of the European Union; d) of the otherwise constitutionally illegitimate nature of the norm which supervened, where interpreted in the sense that it can record, altering of the economic-functional balance, on legal positions having their source in conventions pregresse.

4.2- The central Administrations assume on the contrary that in no way the Ministry of infrastructures could have executed an implying performance a revenue transfer in favor of a harbor authority once which took effect the new normative regime that such eventuality has compulsorily excluded and that therefore correctly the judges first degree, excluded to a time the fondatezza of the action of implementation let alone the recurrence of a nonperformance hypothesis, have reached the reiettiva decision of the encumbrance. , In short in sight of the perseguimento of the autonomy principle financial institution of the harbor authorities, such new normative discipline would have substantially sterilized the mechanism generalized of the revenue transfers, against the constitution of a perequativo bottom and of the transfer in favor of the same authorities of the relative jettison at sea to two revenue taxes (anchor duty and tax on the cargo and disembarked).

4.3 Of various trial-like declination it turns out, at last, the position of the Liguria Region, of the other territorial Authorities let alone of the society for Cornigliano s.p.a., that they have joined to the main question of implementation of the appellant, having interest to the distribution of the functional financing to the realization on from Liguria territory of the suindicate infrastructural works, but they are opposite to the acceptation of the subordinate question of resolution of the agreement.

5. It observes the College that the action of implementation promoted from the harbor Authority of Genoa is deserving of acceptation. The clause of the program agreement mails made up of the set in action pretension turns out, in fact, in the part object of anticipates judgment, valid and totally binding for the parts.

5.1 To the agreements between Public Administration (sayings also agreements of horizontal type, in reason of the position of equiordinazione in which they pour the parts) apply, as compatible, the dispositions previewed from art. the 11, codicils 2 and 3, of the law n. 241 of 7 August 1990, and that is of a part of the normative discipline own of the agreements of vertical type that the Administration can conclude with private subjects in integrating that is substitutive function of a provision (in such sense sees art. the 15, codicil 2, of the law n. 241 of 1990). Between the dispositions express recalled re-enters (art. 11, codicil 2, according to alinea) therefore that which in its turn recalls the principles of the civil code in matter of obligations and contracts, as compatible. Also to the agreements between administrations they are applied therefore the civilistici principles on the obligations and contracts, are also with the clause of the compatibility of the relative legal regime.

5.2 Between the fundamental principles of the private autonomy there is that second which the contract has force of law between the parts and it cannot be melted if not for mutual consent or the causes admitted from the law (art. 1372 cod. civ.). Such principle express is not repealed in part by some rinvenibile contrary forecast in the discipline of the agreements between administrations, neither appears incompatible with the nature own of such by right public type of stores, considering that the giuridicità of the agreement, id est its vincolatività, implies that the consent liberations and mutual manifested from the parts represents suitable constituent title of the mutual contracted obligations, regarding which each not inadempiente part has straight to expect the execution, the resolution of the original agreement saves the possibility of a new agreement between all the parts having to object.

5.3 If under investigation it is necessary therefore to budge from the legal data of the vincolatività of the agreement of program of 8 October 2005 (modificativo of the agreement of program of 29 November 1999) taken part between all the parts, public and private, that they turn out signers of the document that agreement has sealed.

Draft of plurilaterale, regarding agreement the complex topic of the territorial reclamation and the reconversion of the iron and steel pole of Cornigliano in which, like correctly observed by the defense of the harbor Authority appellant, the obligations contracted from the parts, in sight of environmental accommodation and urban planning of the area, inscindibilmente they are connected on the plan motive, of guise that could not consider that failing of one of they it can remain without consequences on the balance of the entire agreement, except according to considering the performance lacked not essential and for the effects art. the 1466 cod.civ., being to that necessary point an integral rivisitazione of the obligations alternatively assumed.

But to such conclusions if under investigation not there is space in order to reach, already it indicate legal possibility that the entire agreement can find performance second the initial legal program of the parts, spelt in the original agreement of 1999 and in the modificativo agreement of 2005.

5.4 - It must first of all exclude that to the fattispecie under investigation, in which the Ministry of infrastructures it substantially refuses to fulfill the obligation to distribute the financing in favor of the harbor Authority of Genoa in reason of the impossibility to allocate the relative sums to budget, it can be applied the institute of the recess for which supervened interest reasons public (reconstruction which partially it approaches, with not condivisibili arguments, the judge first degree). It is not a case, on the other hand, than the discipline in matter of horizontal agreements you do not recall the disposition of art. the 11, fourth codicil, of the same general law on the procedure, attributive to the administration of a general power of unilateral recess (except the obligation of the indemnification) that, where not constituted with appropriate pattuizione, those private and those by right properly by right public elapsed between subjects in position of tendential equiordinazione turn out traditionally stranger to the regime of the joint relationships (which).

Not par doubt, on the other hand, than in the controversy under investigation (and in particular in the rebelled resolution of the interpretative issue around the capacity of art. the 10 of 8 the modificativo agreement of October 2005), in which legal relationships between distinguished subject publics come exclusively in relief, for like newborns from a program agreement, must find application the relative dispositions to the horizontal agreements, of which to art. the 15 of 7 the law August 1990 n. 241 and not those relative to the substitutive or integrating agreements of provision (so-called vertical agreements).

5.5- In such perspective the relief of the Authority turns out therefore condivisibile second appellant which the institute of the unilateral recess, express contemplated in the archetype of the agreements of vertical type (art. 11, codicil fourth, of law 241 of 1990), does not turn out instead applicable, is for reasons of literal interpretation (because of already found lacked callback, in the text of art. the 15, of the fourth codicil of art. the 11), is because, on the plan of the logical-systematic interpretation, the application of the recess to the agreements of horizontal type (which that subtended to the stipulazione of the clause Inter partes) would be equivalent to shape, moreover ex ante, an inadmissible prevalence of the public interest of recedes regarding the interests publics of which the other subjects are titular that to the same agreement have participated. However, in such a way, the meaningful elision of the connoted one of the legal vincolatività of the agreement between administrations would empty great part of the same function and the practical usefullness of the institute.

For said how much, it is not based on the mechanism of the unilateral recess that could be scriminato the lacked implementation, from the Ministry of infrastructures, to the performance of corresponsione of the financing which agreed in favor of the harbor Authority of Genoa; one would be, rather, second the same prospettazione of the revenue defense, of a typical hypothesis of impossibility which supervened of the performance for factum principis (coinciding with the taken part legislative modification introduced from the law 27 Decembers 2006 n. 296) that it would have returned the original deducted obligation in the agreement ineseguibile.

And in fact, as a result of the first demand for the harbor, going back Authority to 2007, of implementation of the afferent conventional clause the distribution of the financing (rectius, the shipment of the rough draft of procedimentale agreement for the definition of the procedural aspects for the distribution of the financing), in sight of the realization of the infrastructural works for the harbor logistics previewed in the same agreement and inserted in the triennial program of 2007/2009 intense activities - draft, in particular, of the elevated extension of the harbor one, the same modernization of the elevated one in the existing part, of the car park and the attrezzaggio of the Distripark -, the Ministry of infrastructures would have been found in the impossibility to give course to the demand, in reason of the effectiveness of the law 27 Decembers 2006 n. 296.

It observes however the College that not even the callback to such last legislative participation and the civilistici principles in matter of resolution of the contract for which supervened impossibility of the performance could not allow with the named Ministry to stave off to the implementation of the contracted obligation to means of recalled art. the 10 of the agreement.

In particular, to exclude that the institute of the resolution of the contract for impossibility of the performance (art. 1463 cod.civ.) it can find application, also only in analogic way, in this case under investigation, they are worth the following considerations.

The cited dispositions of the financial act for 2007 do not turn out ostative in reality, to seem of the College, to the implementation of the obligation of distribution of the financing contracted from the Ministry of infrastructures.

Not object of the financing previewed from the clause (art. 10) of the modificativo action of the agreement of program of 1999 and those is first of all oggettuale identity between the works specifically whose financing to means of revenue transfers turns out interdict from the new normative dispositions effectiveness the first January 2007.

These last ones refer in particular to generically destined the revenue transfers to the realization of harbor infrastructures (art. 1, codicil 990, law cit.) that is to the ordinary and extraordinary maintenance of ports (art. 1, codicils 982 and 983) or still to the accomplishment of the services of vigilance and for the supply of security services previewed in the harbor plans of safety (art. 1, codicil 984); moreover, cited codicil 990 of art. the 1 puts again to appropriate interministerial decree the determination of the quotas pays revenue, various from the taxes and the harbor dues, to transfer to the harbor authorities to the aim to realize of their full autonomy financial institution, previewing that only in outcome to such transfer of jettison at sea the destined transfers of the State to the realization of works and services previewed in the respective harbor town development plans and triennial operations plans can stop.

For converged, the participations which it refers the contested ministerial financing are works, to come true moreover on areas previamente sdemanializzate and cleared to work of the society of Cornigliano s.p.a., turned specifically to the attainment of the purposes of which to art. 53 of the law 28 Decembers 2001 n. 448, and that is to resolve problematic the connected ones to the reconversion of the iron and steel pole of Cornigliano.

Draft, in particular, like anticipated in fact, of the realization of a distripark, and that is of an area equipped with street and railway infrastructural connections in which structures dedicated to storage of the goods, the activity of commercialization of the same ones and to the management of the relative activities are realized, let alone of the realization of a car park and the elevated adaptation of the harbor one; not par doubt that already such distinguished oggettuale afferenza of the works to come true in harbor within is symptomatic of a relationship of specialty between the two normative disciplines, in reason of which is from excluding that the legislative participation to introduced general character with the financial act for the 2007, regarding changed order of the revenue transfers in favor of the harbor Authorities, has been able to deprive of legal effectiveness, with retroactive effect, the pregressi come to an agreement between administrations (between which exactly that object of judgment) having normative sources and material withins eteronomi.

As well as on the contenutistico plan, the principle of specialty between the distinguished normative bodies disvela moreover also on the formal plan, attended that the agreement of program of 1999 and its modificativo action of the 2005 constitute - like saying - expressed performance of the contained dispositions in the special laws n. 426 of 1998 and n. 448 of 2001, adopted in sight one of the resolution of the specific regarding issue the reconversion and the reorganization of the occupied areas from the steel mills of Cornigliano. The harbor Authority of Genoa, based on such legislative participations, had to be one of the subject actuators of the ambitious program of reconversion of those areas in sight of their successive productive development and the safeguard of the occupational levels.

6. - To light of the reliefs that precede, after all, the College considers that ostative reasons ravvisano in order not to deny flood effectiveness and operativity to the Inter agreement partes. Al purpose, is worth also observing that to various conclusions they do not lead the contents of the relation discharged from the Ministry of infrastructures and you transport as a result of the decree preliminary investigation of this 24 Section November 2011 n. 6203. In it, in fact, besides the excursus of the normative discipline of field and to the asseritamente ostativo character of the recalled dispositions introduced from the financial act for 2007 (in order to which, he sends back himself to observed how much dianzi), nothing joins that he can make various to estimate on the legal plan the elements already acquired instructors to the judgment. Indeed, the punctual precisazioni, dictated from a spirit of corrected institutional collaboration, in order to the lacked completion the autonomy process financial institution of the harbor authorities (in spite of the adoption of interministerial decree 12 October 2007 n. 151/T, implementing of the cited one art.1, codicil 990) in reason of the lacked activation, today, of the endowment fund of the harbor authorities, the shown legal reconstruction of the problematic one from the appellant Authority and made own from the College here is ulterior argument (eccedentario) though in support of; from such relation it remains ulteriorly in fact confirmed the data second which a specific engagement of financing gushing from appropriate agreement, binding on the legal plan, stipulated on the base of legislative forecasts to special character, could not evidently fail because of a successive general discipline that has redesigned, for-future, the mechanism of the revenue transfers in favor of the harbor authorities and that, like recognized in the cited ministerial relation, it turns out partially inattuato still today. It does not appear inopportune, to the purpose, to remember that the financing of 70 million euros in favor of the harbor Authority of Genoa was congegnato by the parts (cfr. clearly the reference to such purpose contained in according to codicil of recalled art. 10) also in compensating function in correlation to the oggettuale reorganization of the concession and failing, as a result of the disposed sdemanializzazione according to art. 53 of the law 28 Decembers 2001 n. 448, of the availability of immense harbor areas already in head to the today's appellant authority.

7. - For said how much, the appeal goes received and, in reform of the appealled sentence, it must be tidy to the Ministry of infrastructures and of the transports to correspond to the harbor Authority of Genoa the agreed financing of 70 million euros, with increase of the interests lawyers from the date of the judicial question and until I satisfy. No sum is instead due, attended the monetary nature (and not of value) of the set in action creditoria pretension, for a reason or purpose of monetary revaluation, in defect of test in order to the greater damage of which to art. 1224 of the cod. civ.

The found fondatezza of the implementation question, that it constitutes form of full and preferential repair of the set in action legal position from the today's appellant, implies the overcoming of the subordinate question of resolution of the agreement and the examination of the correlated raised issues, also about to exception, from the intimate parts. Moreover, considered that the corresponsione of the integral financing a form of reinstatement in specific form of the legal position of the appellant authority, it is from excluding itself that to the same one it can be recognized, like also asked, the right to the compensation of ulterior damages, in deficiency of test in order to such profiles of damage that adequately do not turn out compensated to means of the distribution of the financing.

8.Le expenses of argument of the double degree of judgment follow the rule of the soccombenza and are liquidated in favor of the appellant authority and at the expense of the Ministry, while they can be compensated in comparison of the remaining parts, in consideration of the distinguished trial-like position and the which asserted pretensions.

P.Q.M.

The Council of State in jurisdictional center (Section Sixth), definitively pronouncing on appeal (RG 6034/2010) like in proposed epigraph, receives the appeal and, for the effect, it receives the resource first degree and, in reform of the appealled sentence, sentence the Ministry to the payment in favor of the harbor Authority of Genoa of the sums of which to art. the 10 of the agreement in 8 date October 2005, with increase of the interests lawyers

Sentence the Ministry named to the payment of the expenses and competences of the double degree of judgment in favor of liquid the appellant Authority and said expenses in total euros 12,000, 00 (dodicimila/00), beyond vat and cpa like for law. It declares compensated the expenses of argument of the double degree regarding the others you leave.

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

So decided in Rome in the Council Chamber of the day 23 March 2012 with the participation of the magistrates:
Carmine Vixen, President
Roberto Giovagnoli, Councilman
Gabriella De Michele, Councilman
Giulio Castriota Scanderbeg, Councilman, Drafter
Roberta Vigotti, Councilman


THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 29/05/2012
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)



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