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The REGIONAL ADMINISTRATIVE COURT for the Apulia cancels the nomination of Haralambides to president of the Harbour Authority of Brindisi
The judges consider that the Italian citizenship is an indispensable requirement in order to approach the charge
June 27, 2012
The judges of the center of C#lecce of the Regional administrative court for the Apulia, with sentence who we publish below, have cancelled the actions of nomination of Hercules Haralambides to president of the Harbour Authority of Brindisi having received the resource introduced by Calogero Casilli, engineer brindisino opportunely designated to the charge of president of the city harbour agency in the terns introduced from the Province and of the Chamber of Commerce.
The decision is based on citizenship of Haralambides, that it is of Greek nationality: in the pronunciamento, in fact, the judges explain that "he must himself be considered that the Italian citizenship is an indispensable requirement in order to approach the charge of president of the Harbour Authority".
Haralambides was named president of Port Authority a year makes ( on 7 June 2011). Previously Casilli had already introduced a resource to the REGIONAL ADMINISTRATIVE COURT contesting to Haralambides not to have mastery of the Italian language, resource that but was rejected.
ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for Puglia
C#lecce - Section Before
it has pronounced anticipates
SENTENCE
on the resource number of general registry 1452 of 2011, proposed they give:
Calogero Casilli, represented and defended from the avv. Romeo Russo, Alessandra Menduni, Fabio Patarnello, Luigi Mariano, with address which elected near Romeo Russo in C#lecce, via T. Rate, 45;
against
Ministry of Infrastructures and the Transports, represented and defended for law from the District Legal profession It are, domiciled in C#lecce, via F.Rubichi 23; Harbour authority of Brindisi, represented and defended from the avv. Angelo Vantaggiato, Giuseppe M. Giacomini, Roberto Damonte; Region Apulia, Province of Brindisi, Municipality of Brindisi, Chamber of Commerce, Industry, Handicraft and Agriculture of Brindisi;
regarding
Iraklis Haralambidis, represented and defended from the avv. Giuseppe M. Giacomini, Angelo Vantaggiato, Giorgia Scuras, with address which elected near Angelo Vantaggiato in C#lecce, via Zanardelli 7;
for the cancellation
- of I decree on June 7, 2011 of the Minister of Infrastructures and the Transports with which Hercules Haralambides is named president of the harbour Authority of Brindisi prof.;
and however of every other, connected or consequenziale presupposed, which foreordained action and between they the following actions:
- note of the 12/01/2011 of the Ministry of Infrastructures and the Transports prot. 0015455-18/04/2011-escape;
- note of the 11/05/2011 of the Ministry of Infrastructures and the Transports;
- note of the president of the Region Puglia ADO 021 of 29/04/2011-0005338;
- to seem of IX the commission you transport of the Chamber of Deputies in the sitting of the 25/05/2011;
- to seem of IX the commission you transport of the Chamber of Deputies in the sitting of the 31/05/2011;
- to on June 1, 2011 seem of VIII the permanent commission public works and communications of the Senate.
Seen the resource and relative the attached ones;
Seen the certificates of incorporation in judgment of Ministry of Infrastructures and the Transports, of Harbour Authority of Brindisi and Hercules (Iraklis) Haralambides;
Seen the defensive memories;
Visas all the actions of the cause;
Reporter in the public audience of the day 24 May 2012 Dr. Claudia Lattanzi and hearings for the parts the defenders Patarnello Fabio, also in substitution of Russo Romeo and Mariano Luigi, Menduni Alessandra, Musio Fernando, Damonte Roberto, also in substitution of Scuras Giorgia, Vantaggiato Angelo, Giacomini Giuseppe.;
Considered and considered in fact and right how much follows.
FACT and RIGHT
I - Casilli Calogero appeals decrees in date 7 june 2011 with which the Minister of Infrastructures and the Transports the Prof. Hercules (Iraklis) Haralambides has named President of the Harbour Authority of Brindisi; it also appeals the presupposed actions.
It deduces the following reasons:
violation, forges and erroneous interpretation and application of the artt.1, lett.a) and b), 2 lett. a) of the D.P.C.M. 7 February 1994 n.174; of art. the 6, comma1, lett. to) b) c), codicils 2, 3 and 4 and of artt.12 and the 18 of L. n.84/1994; of art. the 38, codicils 1 and 2, of the d.lgs n.165 of 2001; of art. the 3, codicil 26, of the d.lgs n.163 of 2006; of art. the 48 of the Treaty 25 March 1957; of art. the 1, codicil 993, of L. n.296 of 2006; excess to be able, manifest injustice, contraddittorietà, illogicità, incongruità of the motivation.
It concludes for the cancellation, advance suspension, of the appealled actions.
They are formed in judgment the Ministry of Infrastructures and the Transports, the Harbour Authority of Brindisi and the Prof. Hercules (Iraklis) Haralambides contesting the interest to the resource and the fondatezza of the raised censorships.
With decree n.751 of 2011 the precautionary request is rejected.
To the audience on May 24, 2012 the cause is considered for the decision.
II – To – Preliminarily they go faced the ritual exceptions.
Art. the 8, first codicil, of the law n.84 of 1994 recite: "The president is named, advance understanding with the interested region, with decrees of the Minister of the transports and navigation, within a tern of experts of maximum and proven professional qualification in the fields of the economy of the designated transports and harbour respective from the province, the municipalities and the industry, Chambers of Commerce, handicraft and agriculture, whose territorial competence coincides, in all or partially, with the administrative division of which to article 6, codicil 7."
Legitimacy of the recurrent one certain is attended that the same one has participated to the procedure finalized to the nomination of the President of the harbour Authority of included Brindisi being in the tern of names indicated from the Province of Brindisi and being designated from the Chamber of Commerce of Brindisi.
Having omitted the impugnativa of the action with which the Municipality of Brindisi has concluded the selection from the same one indetta, designating prof. the Haralambides, does not affect the consistency of the boasted legal position from the recurrent one, since the law previews three subjects or groups of subjects invested of the power to designate to the candidates (one for every subject or group of subjects) and the Municipality of Brindisi is only one of these subjects.
The removal of the event to the scrutiny of the administrative judge according to art. the 7, first second codicil must, at last, be excluded period, c.p.a.
In the species, to prescind from the doubts in order to the possibility that a Minister of the Republic, that is one of the members of the Government, can adopt an action that concerns to the political organization (hypothesis that the code of the administrative process riconnette to the Government in its unit), the Minister of Infrastructures and the Transports has adopted a provision that concerns to between the multiple aims of the State and therefore it does not re-enter in the within of the general organization, that is political, concerning instead to the administrative within, even though to the most elevated level
B – In the merit the resource is founded.
to - the first node to melt is relative to the legal nature of the harbour Authority.
According to art. the 6, according to codicil, of the law n.84 of 1994 "the harbour authority has by right public legal personality and is equipped of administrative autonomy except how much having from article 12, let alone budgetary and financial institution in the limits previewed from law anticipates. To it the dispositions are not applied of which to the law 20 March 1975, n. 70, and next modifications, let alone the 3 dispositions of which to I decree legislative February 1993, n. 29, and next modifications and integrations, made exception for how much specifically previewed from codicil 2 of article 23 of law anticipates "(that it concerns the staff of the harbour organizations).
Other normative source is art. the 1, codicil 993, of the law n.296 of 2006, second which "the which released actions of state property concession from the harbour authorities, in reason of the legal nature of not economic public bodies of the same authorities, remain subjected to the single proportional tax of registry and the relative canons do not constitute taxable fees to the aims of the VAT.”
As for the jurisprudential interpretations of the legal nature of the harbour Authority the pronunce remember of the Court of Cassation n. 13729 of 2000 and n.12232 of 2004, the sentence of the C.G.A.R.S. 16 February 2011 n.134; for its amplitude, the opinion of III the Section of the Council of State 25 July 2008 n.2361.
Pronunce of the Court of Cassation (before which it regards just the harbour Authorities of Brindisi) assert the nature of economic public body with specific reference to the privatistica discipline of the job relationship, pronounce it of the Council of Administrative law privilege the literal data of art. the 1, codicil 993, of the law n.296 of 2006.
The opinion of the Council of State I found myself on the analysis of the functions carried out from the agency.
It cannot be that this the approach to the issue, since art. the 6, according to codicil, of the law n.84 of 1994 remove the harbour Authority to the discipline of the d.lgs n. 29 of 1993 (now d.lgs n.165 of 2001), that it regards also national the not economic public bodies, regional and local ones.
Art. the 1, codicil 993, of the law n. 296 of 2006 define, instead, express the harbour Authority as economic public body.
One and the other definition concerns to specific profiles of the action of the Authority: one regards the job relationship, the other the fiscal regime.
In the species draft of the preposition of a subject to the summit of the organization of the agency, sicché must be made reference to the complex of the functions from these carrying out, to the aim to normative define of the positioning in the ordering, firm remaining some specificities disciplined.
b b – Based on art. the 6, first codicil, of the law n.84 of 1994 the Authority carries out the following tasks:
“a) address, programming, coordination, promotion and control of the harbour operations of which to article 16, codicil 1, and of exercised commercial and industrial other asset in the ports, with powers of regulation and decree, also in reference to safety regarding risks of incidents connected to such activities and to the conditions of hygiene of the job in performance of article 24;
b) ordinary and extraordinary maintenance of the common parts in the harbour within, comprised that for the maintenance of the backdrops there, advance convention with the Ministry of Public Works deep whom the use of in case of necessity available ones previews on the state of forecast of the same administration;
c) confidence and control of the activities directed to a supply under onerous title to the harbour users of services of general interest, not coinciding neither closely connected to the harbour operations of which to article 16, codicil 1, characterized with I decree of the Minister of the transports and navigation, to emanate itself within thirty days from the date of effectiveness of anticipate law.”
The amplitude of the tasks of the Authority is better intelligible, however, from the elencazione of the tasks entrusted to the President of the same one from the next one art.8, third codicil, that it recites:
“The president of the harbour authority:
a) the harbour committee presides;
b) it subjects the harbour committee, for the approval, the triennial operations plan;
c) it subjects the harbour committee, for the adoption, the harbour town development plan;
d) the pre-emptive budget subjects to the harbour committee the outlines of regarding deliberations and the relative variations, the consuntivo account and the treatment of the general secretary, let alone the recepimento of relative the contractual agreements to the staff of the technical-operating secretariat;
e) it proposes to the harbour committee the outlines of regarding deliberations the concessions of which to article 6, codicil 5;
f) it supplies to the coordination of the activities carried out in the port from Public Administration, let alone to the coordination and the control of the activities subject to authorization and concession, and of the harbour services;
g) (letter abolished from art. the 2, d.l. 21 October 1996, n. 535, conv. in l. 23 Decembers 1996, n. 647);
h) it administers the areas and the assets of the marine Federal property comprised in the within of the territorial administrative division of which to article 6, codicil 7, on the base of the dispositions of law in matter, exercising, felt the harbour committee, the attributions established in articles from 36 to 55 and 68 of the navigation code and in the relative norms of performance;
i) it exercises the competences attributed to the harbour authority from article 16 and 18 and releases, felt the harbour committee, the authorizations and the concessions of which to same articles when these have lasted not advanced to four years, determining the amount of the relative canons, in the respect of the contained dispositions in you decree of the Minister of the transports and the navigation of which, respective, to article 16, codicil 4, and to article 18, commi1e 3;
l) it promotes the institution of the association of the harbour job of which to article 17;
m) it assures the navigability in the harbour within and supplies to the maintenance and deepening of the backdrops, being given how much having from article 5, codicils 8 and 9. To the aims of the participations of excavation and maintenance of the backdrops it can call, assuming of the presidency, a conference of services with the interested administrations to conclude itself in the term of sixty days. In the indifferibili cases of it needs ‘and urgency can adopt provisions of coactive character. Firm previewed how much to article 5, following, where applicable codicils remains 11-second and.
n) it exercises the tasks of proposal in matter of marking out of the bonded areas, felt the marine authority and the interested local governments;
n-second) other competence exercises every that is not attributed by anticipates law to the other organs of the harbour authority.”
All these are competences of purely pubblicistica nature (as managing the harbour town development plan and the triennial operations plan and subjecting them to the harbour Committee or to assure the navigability), times indirectly or directly to improve, to promote the insertion of the structure in the market.
The separation between the promotion of the market and the participation to the same one in regime of parity with other operators is asserted in no uncertain terms by art. the 6, sixth codicil, that it recites: “The harbour authorities cannot exercise, neither directly neither through the participation of society, harbour operations and activity to closely connected they. The harbour authorities can constitute that is participate to society shopkeepers accessory or instrumental activities regarding the entrusted institutional tasks to the same authorities, also to the aims of the promotion and the development of the intermodalità, the logistics and the trasportistiche nets.”
The direct participation at the market (even though in a privileged position), that is the essential connotation of the economic public body (entity moreover exceeded in the next evolution of the ordering that, in the field of the services publics, privileges the limited companies), expresses alone in the hypothesis of which to art. the 23, fifth codicil, of the law n.84 of 1994, second which: “The harbour authorities instituted in the ports in which the harbour organizations they carried out the services of general interest of which to article 6, codicil 1, letter c), can continue to partially carry out in all or such services, excluded the harbour operations, using until exhaustion of the esuberi the staff of which to codicil 2 of article anticipates, promuovendo also the constitution of or a more society between the operating enterprises in the port, reserving itself a not majority participation however “.
It is this, but, a hypothesis of insertion in the market that, for the character of eventuality and still more for the marginality regarding the complex of the practised powers and the carried out activities, is not suitable to define the positioning – necessarily unitary – of the harbour Authority in the ordering.
It can, therefore, to conclude in the sense that the harbour Authority, for the absolute prevalence of the pubblicistici tasks entrusted them from the law and for the modalities with which it pursues them, is a not economic public body.
c c - art. the 51, first and according to codicil, of the Constitution recites: ” All the citizens of one or the other sex can approach the offices publics and the elective charges in equality conditions, second requirement established from the law. To such fine the Republic promotes with appropriate provisions the equal opportunities between women and men.
The law can, for the admission to the publics offices and the elective charges, to parificare to the citizens the Italians not pertaining to the Republic.”
The power attributed to the law of parificare to the citizens “the Italians not pertaining to the explicit Republic” that the Constituent has intended not to legitimize the citizens to approach the offices publics and the elective charges, but only allowing with same the such access.
Considering that all the offices publics are not on a plan of parity between they and with the elective charges and that the constitutional dictation refers to the offices publics who involve the exercise of powers more elevated content, art. the 37 of the d.lgs n.29 have previewed the access to the publics offices of the city members of the European Union and have put again to Prime Minister's decree of the Ministers the location of the places and the functions for which it cannot be prescinded from the possession of the Italian citizenship.
The removal of the harbour Authorities to the discipline of the d.lgs n.29 of 1993 does not exclude, therefore, the necessity of the possession of the Italian citizenship for the President of the harbour Authority, if such function involves the choice of fine of collective relief and the modalities in order to pursue the same ones, necessity that finds its justification in art. the 51 of the Constitution.
That the powers attributed to the President of the harbour Authority regard interests of the collectivity in the phase of the location of the same ones and the ways in order to reach them, that is powers publics in their more elevated declination in the within of the administration does not seem that it can be place in doubt.
Parimenti must be excluded that the principle asserted from art. the 51 of the Constitution, moreover in the content turning out from the temperament brought from art. the 37 of the d.lgs n.29 of 1993 and from the D.P.C.M. 7 February 1994 n.174, confligga with the principles of the Community (before) and the European Union (after).
Art. the 48 of the institutive treaty, in disciplining the free circulation of the workers, in the fourth codicil establish in fact that: “The dispositions of anticipate article are not applicable to employ in Public Administration “.
In conclusion, it must be considered that the Italian citizenship is an indispensable requirement in order to approach the charge of President of the harbour Authority.
To how much over it achieves the acceptation of the resource.
Sussistono valid reasons in order to arrange the compensation of the expenses.
P.Q.M.
The Regional administrative court for the C#lecce Apulia - Section Before
definitively pronouncing on the resource, as in proposed epigraph, it receives it and for the effect it cancels the appealled actions
Compensated expenses.
It orders that sentence anticipates is executed by the administrative authority.
So decided in C#lecce in the Council Chamber of the day 24 21 May 2012 and june 2012 with the participation of the magistrates:
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The judges of the center of C#lecce of the Regional administrative court for the Apulia, with sentence who we publish below, have cancelled the actions of nomination of Hercules Haralambides to president of the Harbour Authority of Brindisi having received the resource introduced by Calogero Casilli, engineer brindisino opportunely designated to the charge of president of the city harbour agency in the terns introduced from the Province and of the Chamber of Commerce.
- Via Raffaele Paolucci 17r/19r - 16129 Genoa - ITALY
