the Council of State has declared illegitimate the nomination of Massidda to president of the Harbour Authority of Cagliari



Yesterday Council Be, with sentence that we publish below and that - as is said - it seems destined "to make jurisprudence", has reformed the sentence n. 520/2012 of the Regional administrative court for the Sardinia on the nomination of Piergiorgio Massidda to president of the Harbour Authority of Cagliari receiving the resource n. 1054/2011 introduced from the ordinary by right of Massimo Deiana navigation for the cancellation of I decree on September 23, 2011 emitted from the ministry of Infrastructures and the Transport with which Massidda president of the Sardinian harbour authority is named.

In the judgment the Council of State, recalling itself to article 8 of the law 84/1994 that establishes the criteria of nomination of the presidents of the Harbour Authorities, concludes that, "for its personal history, the dr. on. Massida could not certainly have achieved the "… maximum one and proven professional qualification in the fields of the economy of the harbour transports and" and was devoid in root of the requirement prescribed from the law, for which its nomination probably had to its political-relational abilities (to deputy, senator and provincial councilman, etc). In short the subject chosen, not only possessed qualifications completely strangers to the matter, but in its also pluriennale experience parliamentarian always had been interested of the matters directly or indirectly with its it convinced professional and with its specific medical competences".

In the judgment the magistrates of the Council of State remember that Massidda "is a medical physiatrics, specialist in aesthetic medicine reconstructive and titular plastic surgery of a rehabilitation center; he has been parliamentarian from 1994-2006 to the Chamber and 2006 from 2010 to the Senate; from which elected May 2010 and also in the Provincial council of Cagliari; she has been member is to the Chamber that to the Senate respective of the Commission Social Transactions and Health; of the Court of inquiry on the National Health Service, and of the Parliamentary commission for children" finding that "the non involvement of its distance is obvious political-parliamentarian to the competences that the third codicil of art. the 8 of 28 the law January 1994 n. 84 entrust, between the others, to the president in management and control, coordination, administration, address, impulse matter; of triennial operations plan, harbour town development plan, pre-emptive and consuntivi budgets, staff, state property concessions, harbour services; of areas and assets of the marine Federal property, state property canons of navigability and backdrops, etc. etc."

As "in the species he did not be a matter himself of the presidency of a sanitary agency or associate-assistanziale - the magistrates of the Council of State explain - must himself be concluded for the bastardy of the designation of the dr. on. Massidda: for the lack of a any implying qualification however the possession of generically raccordabili competences also with the matter; for the non involvement to the field of also the immense professional activities, political and parliamentarians and which at all did not concern the fields of the economy of the transports; for the brevity of the experiences which president of VIII the Commission Trasporti (in order less than a year) or of that of the analogous structure near the Province of Cagliari, which therefore could not certainly make to presuppose the attainment of the theoretical competences and practical demands".

N. 04768/2013REG.PROV.COLL.
N. 08214/2012 REG.RIC.


ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Council of State
in jurisdictional center (Fourth Section)

it has pronounced anticipates
SENTENCE
SENTENCE

on the resource number of general registry 8214 of 2012, proposed they give:
Massimo Deiana, represented and defended from the avv. Silvio Pinna, with address which elected near Giorgio Carta in Rome, via Bruno Buozzi, 87;
against
against

-- Ministry of Infrastructures and the Transports, Harbour Authority Of Cagliari, represented and defended for law from the Legal profession, domiciled in Rome, via of Portugueses, 12;
-- Sardinia region, represented and defended from the avv. Alessandra Camba, Sandra Trincas, with address which elected near Office of Representation Sardinia Region in Rome, via Lucullo, 24;
-- Chamber Di Commercio Industry Handicraft and Agriculture Of Cagliari, represented and defended from the avv. Stefano Porcu, with address which elected near Cons. di Stato, Secretariat in Rome, p.za Iron Head 13;
Municipality of Capoterra, Provincial Administration of Cagliari, Municipality of Cagliari, Municipality of Sarroch;
regarding
regarding

Piergiorgio Massidda, represented and defended from the avv. Giovanni Contu, Matilde Mura, with address which elected near Giovanni Contu in Rome, via Maximums 154;
for the reform
for the reform

of the sentence of the T.A.R. SARDINIA - CAGLIARI: SECTION the n. 00520/2012, been profitable between the parts, concerning nomination president of the Harbour Authority of Cagliari

Seen the resource in appeal and relative the attached ones;

Seen the certificates of incorporation in judgment of Delle Infrastrutture Ministry and the Transports and of Harbour Authority of Cagliari and Sardinia Region and Chamber of Commerce Industry Handicraft and Agriculture of Cagliari and Piergiorgio Massidda;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter in the public audience of day 25 june the 2013 Cons. Umberto Realfonzo and hearings for the parts lawyers Silvio Pinna, the Lawyer of the Ranucci State, Sandra Trincas, Maria Stefania Masini on delegation of lawyer Stefano Porcu and Matilde Mura;

Considered and considered in fact and right how much follows.
FACT
FACT

With encumbrance anticipates, the appellant asks the cancellation for the sentence with which the REGIONAL ADMINISTRATIVE COURT of Cagliari, in main way, she has rejected adverse to the direct resource the procedure of nomination of the President of the harbour Authority of Cagliari and, consequently, has declared the improcedibilità of the incident resource of the controinteressato one.

The appeal is entrusted to the denunciation of an only address book of encumbrance, articulated in three relative profiles to the violation of art. the 8 of 28 L. January 1994 n. 84, of art. the 97 of the Cost., and to the erroneità and the deficiency of the motivation of the sentence.

The General Legal profession of the State has been formed in judgment for the Ministry of Infrastructures and the Harbour Authority of Cagliari, and has analytically refuted the theses of recurrent part on the fundamental relief for which the choice of the Minister, of second degree (as remembered from the Council of State, Section Sixth n. 2551/2007) would have been absolutely discretionary.

The Chamber of Commerce has been formed in judgment of Cagliari, which has eccepito the inammissibilità of the impugnation of the tern for defect of interest of the main appellant and, in the merit, it has contested to its affirmations insisting that the refusal of the appeal.

The Sardinia Region ritualmente has been formed in judgment and has emphasized as the same appellant would be deprived of requirement that assume lacking in head to the named controinteressato one. The main appellant, that she would have in fact a narrow theoretical competence to the single matter of the "right of navigation", would not have had some practical experience of relative the problematic detailed lists to the "economy of the transports and the ports": to case the Region had not named also a commercial and by right social full professor.

The controinteressato one dr. on. Piergiorgio Massidda has been formed in judgment with memory and annexed incident resource with which the introduced incident resource in first degree has reproposed.

The appellant with memory for the argument has contested to the opposing defenses has emphasized them the own specific ability in matter.

With the memory for the argument, the named one has insistito in own reasonings.

Call to the public audience of argument on June 25, 2013, hearings supporters of the parts, the cause is withheld in decision.
STRAIGHT
STRAIGHT

1. The introduced preliminary exception from the main appellant prof. Deiana must in the first instance be disregarded for which the incident appeal would be inadmissible as, not being its nominative case is object of ministerial choice, the dr. on. Massida would not have had some interest to ask of the cancellation for the designation for prof. the Deiana.

On the contrary, the trial-like interest of the incident appellant is obvious, which gives the eventual acceptation of its encumbrance would have proceeds the immediate usefullness to deprive of legitimacy the main appellant.

2. The Chamber of Commerce eccepisce the defect of original interest of the main appellant to appeal the relative designation to the Massida as it would be a merely instrumental action to the final provision of nomination and as such lacking one in an independent lesiva ability. In any case it assumes then the deficiency of absolute legitimacy of the subject however inserted appellant as in the tern.

The exceptions go both rejected.

In the first instance it is observed that, if, it is however dirimente the fact that is appealled also the definitive provision of choice here.

But in any case, in the within of the characterized sub-procedures of nomination from the formation of having terns of title, who is ricompreso in the same ones relatively has however a directed trial-like interest to the immediate impugnativa of the actions of designation to another subject of which it assumes the total deficiency of requirement for the inclusion in the tern for the subjective and objective autonomy of the sub-procedure in word.

In such cases, the trial-like and substantial interest in fact is connected to the purpose to avoid that a totally inidoneo subject ends however in order to make a profit indebtedness a position to which could not aspire for deficiency of the titles.

3. For connected reasons of trial-like economy to the substantial coincidence of the profiles, they can then be examined unitarally:

-- the exception, raised from the Sardinia Region, of defect of legitimacy and interest of prof. the Deiana for the allegated deficiency, in head to the foretold appellant, of requirement previewed from article 1 of L. n. 84/1994: in its curriculum they would not turn out characterized professional experiences in the fields “of the economy of the transports and harbour”;

-- the incident appeal of on. Dr. Massida with which the controinteressato foretold one it has asked, in its turn, the cancellation of the designations - relatively to the nominative case of prof. the Deiana -- from the Province of Cagliari, from the municipality of Sarroch and the Chamber of Commerce industry and handicraft of Cagliari.

__3. 1. The named one, with a first profile of the first doglianza, assumes that erroneously the Regional Administrative Court would have declared improcedibile, for supervened deficiency of interest, its incident resource. On the contrary the dispute of legitimacy of the interest to resort of prof. the Deiana, being priority regarding the main resource, would have returned the cognition of this last one superfluous.

The Sardinia Region with its exception and the incident appellant, with according to profile of substantial character, assume that prof. the Deiana, having had experience only of instruction of “right of navigation”, would not have had experience of “practical” character in matter. Its advisory activities would not have integrated “a professional” experience and they would not have had nothing to that to make with the management of the harbour activities, concerning fields not relevant to the economy of marine transports and the portualità.

The advisings indicated in the curriculum would instead have regarded thematic and problematic relative to the “territorial continuity”, to the services airplane, the refusals and fields strangers to article 8 L. 84, for which it could not be considered integrated the requirement previewed from the law.

The Prof. Deiana would be inidoneo to the nomination because it would not have the titles that the President of a harbour Authority would have to possess, and in particular would not possess:

--specific competences on all problematic economic relative to the systems and the costs the realization and maintenance of infrastructures, to it I use of the services transport, to the analysis costs/benefits of the investments;

-- a deepened experience of the practical aspects respective of economic character, concerning the contracts publics, the relationships with the territorial E regions the other agencies, the predisposition of i harbour town development plans etc all topics that would be strangers to the right to navigation.

3. 2. With an analogous second doglianza reason the incident appellant complains that art. the 8 of L. n. 94 would have had to be interpreted with reference to the “problematic practical experiences” and inherent the management of the Harbour Authority and not being able to consider the exegesis and the systematic one of the right of navigation useful that is of other legal matters.

3.3. All the sayings profiles are groundless.

3.3.1. Contrarily to how much they would want the Sardinia Region and the incident appellant, from the examination of the curriculum of prof. the Deiana they are not only recovered title didactic, scientific and cultural but generically specific and important consulenziali activities in matter of concession of harbour services, staff, management of the refusals in harbour dress, the thematic ones on the goods dangerous, of taxes on the port of call of the pleasure crafts, of state property concessions, etc. etc.

He is therefore obvious that for the performance of specific advisings to objective predetermined in the aim in the fields of the economy of transports and harbour of that art. 8 of the law. 84/1994 the possession of the necessary competences and acquaintances is indispensable own in matter.

Under other profile it must then be found that the foretold advisings presuppose, in reality, a professional performance which -- if not in the form -- it is completely analogous, in the substance, to the management activity, as demands not only a complete mastery of the normative orders, but above all there is a need for the acquaintance of the problems, of associate-economic dynamics, the concrete operating truths and “the practical” profiles of the field.

In such optical vain the parts named assume that the acquaintances of the “right of navigation and the transports”, it would constitute the exercise of a mere competence of didactic character of no use. The Defense of the main appellant has therefore reason when it remembers that:

-- the right of navigation embraces however all pubblicistici, privatistici, commercial, communitarian, penal the aspects, that they interest the harbour management from the realization of infrastructures, to the harbour police, the management of the services, the user, the harbour staff, safety, etc. etc.

-- the same law n.84/1994 that it concerns the management of infrastructures for navigation re-enters by right in the notion of navigation.

Draft of a discipline that it binds together is pubblicistici aspects that closely privatistici aspects of marine navigation, in the within of which the national discipline, vanishes its importance in favour of the norms of communitarian and international character.

The activities of the operating enterprises in the field in fact are regulated by a complex of heterogenous sources having concerned contracts of use of the ships and the harbour services, the accessory activities, auxiliaries and propedeutiche to the enterprises of navigation, the intersoggettivi towing, pilotage, relationships, the promotion of the transport in its various forms, the contract of transport, the marine sales, the multimodali transports, safety of navigation and the transports, the prevention and the responsibilities in environmental pollution matter; the recoveries, the liability, etc. etc.

All thematic concrete ones re-entering in the sphere of action of the Harbour Authority.

That premising, is therefore obvious that the certain scientific preparation of prof. the Deiana had been the same reason for which it the various advisings were entrusted and that the same professional advisings specifically constituted professional experiences relating to the problematic ones of a harbour Authority.

As for the allegated deficiency of competences under the economic profile it would be enough with regard to remembering the advising in matter of privatization of the public companies of navigation Tirrenia and Saremar or of canons and rates for I use it of the harbour structures.

At last, under other profile, the abilities in matter of the main appellant emerge indicatively also from the fact that the several experiences are not only entrusted many times over in a decennial span of time, but above all that the same Independent Region Sardinia and the harbour Authority of Cagliari are carried out on assignment of different agencies (which, the harbour Authority of Olbia and Golfo Aranci, Sardinian Intermare - Saipen etc).

3.3.2. On the wake of the considerations that precede it must be rejected also according to reason.

The remembered professional experiences demonstrate that the attempt of the incident appellant to insinuate “a practical” inability of prof. the Deiana, on one side, do not correspond to the truth of the things and, from the other, it at all does not hold account that, in harbour matter, the right of navigation is the instrument of the economy of the transports.

Profile managerial is in fact directly consequence of regulation legal of field, for which not there is some antithesis between two profiles that are naturally inseparable, as anyway demonstrate “international commercial terms”, that is the series of legal terms used in the field of the import and exports, valid all over the world, that they define in univocal way and without possibility of error, every right and duty that is up to the several subjects involved in an operation of international transfer of assets (c.d incoterms).

With this it is not wanted to be absolutely asserted that only a university professor by right of navigation can be inserted in the terns of which to L. n. 84/1994, but that certainly it cannot be some automatically excluded if, besides the didactic experience, have matured in the field a wide professional experience in matter

3.4. In conclusion it must be concluded that, based on the curriculari outcomes - anyway undisputed -- prof. the Deiana was in possession of requirement of the “… maximum one and proven qualification in the fields of the economy of the transports it is harbour…” demanded from article 8 of law 84/1994.

The exception of the Region goes therefore rejected.

The incident appeal is parimenti groundless and must be rejected.

4. The main appeal is entrusted to two reasons that, even though logically connected, appear opportune to examine partitamente, concerning one to profiles of general character, and the other to the particular case under investigation.

4.1. With the first profile the appellant prof. Deiana complains the erroneità of the decision of the REGIONAL ADMINISTRATIVE COURT which:

-- it has characterized as “action of high administration” the nomination of the President the Harbour Authority, having considered that, in the species, the limits to the exercise of the power would be respected by the administration, places from art. the 8 of L. 84/1994 and has singularly asserted that the dr on. Massida would be equipped of requirement of the maximum and proven qualification in the field;

-- it has considered the free provision from the doglianze that “… would evocatively be carried out by the recurrent one….” and that its question would instead have implied the appraisal of the “merit” of the choice of the administration;

-- it would have remembered one (better not specified) affirmation than this Which was about to Council of which a specific qualification would not be demanded neither and neither a professional distance as “… the competences entrusted to the harbour authority and its President are multiple and do not demand alone knowing of technical character…”.

On the contrary, for the appellant the law would limit, in primary way, the interpreter in the sense to always demand however in head to the aspirants to the Presidency of the harbour authority -- which that they are the specific titles of possessed studies -- the possession of the maximum and proven professional qualification of the specific fields of the economy of the transports and harbour.

In defect of such requirement completely the possibility would be precluded to approach the selection de quo. In consequence they would be illegitimate it is the coming actions of designation from the local authorities, of subjects in possession of foretold pregressa the sector qualification of high degree and is not the ministerial nomination. The norm would place of the limits of substantial character to the faculty of the Minister of chosen of the President consisting in the necessity that the designated president is however effectively possession of technical requirement of the proven professional qualification in the fields of the economy of the transports.

Except not wanting to empty the substantial carried one of the law, the nomination to President of harbour authority cannot prescind from part named in the possession of a kick-ass qualification, for which the presence of the spas of a subject lacking in any requirement it must be considered irrimediabilmente vitiated.

The task deserves of being integrally shared.

It must be remembered that, in the first instance, art. the 8 of 28 L. January 1994 n. 84 preview exactly that:

“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. … “(so the first codicil, and in absolutely identical terms also next codicil 1 second).

Art. the 8 codicils 1 and 1 second, l. n. 84 of 1994, in its literal and lexical content, with the recorded “tern of experts” - the power of nomination of the Ministry wants to limit whose selective choice must happen between a pluralità of nominative cases all in possession of the which requisitioned prescribed ones for the exercise of the tasks to the summit of the harbour authority.

The norm shapes the ministerial power of nomination of the President of the Harbour Authority to the stregua of the highest levels than responsibility of the technical-bureaucratic apparatuses publics, that own of the c.d allows to lead back the fattispecie to the river bed. “high administration”, as it is a provision:

-- that it does not need of a comparative appraisal between the others aspirants, becoming necessary that the possession of the which requisitioned prescribed ones is proven alone;

-- that it is informed to eminently fiduciary criteria having been however complex expression of the power of address and government of the various prelocated authorities the same administrations;

-- that it presupposes only the advance definition of subjects characterized in reason of the possession of the titles specifically indicated from the norm;

-- that however he is also always assisted by the general guarantees and the limits own of the administrative actions, being also always face to the cure and the perseguimento of the interests publics.

As provision of “high administration” is not therefore action completely removed to the jurisdictional union in order to the subsistence of the relative foundations previewed from the law or in the cases of manifest deficiency and unreasonableness of the choice in practice operated (cfr. Council It are sez. YOU 18 April 2007 n. 1783).

The certain “fiduciarietà” of the nomination cannot therefore be berthed to personal, amical criteria or of partitica militancy (in a kind of “confidence friendly cum” completely stranger to the original romanistico outline).

Its choice cannot however to concern a subject, which even though designated from the local authorities, is not really an expert “in possession of the maximum and proven qualification” being obvious “… the attempt of the norm to assure a suitable area of selective choice of the foretold Authority” (cfr. Council of State sez. YOU 21 May 2007 n. 2551).

With regard to completely erroneous it is the emphatic assertion of the Primo Giudice for which the President of the Harbour Authority she is not an technical-administrative leader as the variety of the competences you entrust to it “do not demand alone acquaintances of technical character”.

The acquaintance of technical character is in fact an absolutely necessary condition, though does not exhaust the competences here demanded own perches “the President, in synthesis, is place to the summit of a complex organization that she sees involved, and subjects to its coordination, also frankly state organs (presides, among other things, the harbour committee of which takes part the commander of the port and, in representation of the Ministries of finances and the public works, a leader of the customs services and one of the special office of the civil genius), and a fundamental role is assigned to it, also of propulsive character, because the port acquits to its function (of importance international or national, second the class of belongings), however interesting the national economy (so the Constitutional Court in pronounces on October 7, 2005 during attribution conflict n. 378, improperly recalled also from the REGIONAL ADMINISTRATIVE COURT).

With regard to if also “the expert” expression turns out connoted from a certain semiologica ambiguity, that does not alter the fact that the correct interpretation of the norm imposes that, in matter, the designated subjects must necessarily be in possession of a specific cultural, theoretical and grassland qualification in the matters indicated from the law.

In such perspective, even if art. the 8, l. n. 84 on January 28, 1994 do not demand neither a specific qualification and neither a specific professional distance of legal or technical character, economic etc. necessary etc. are of norm the possession of, connected or linkable connected, analogous a bachelor with the harbour matter for being able itself to define expert of the field.

Such indispensable cultural requirement appears an absolutely necessary element for the demonstration of having a distance professional such from being able to be qualified as “expert” of maximum and proven professional qualification in the fields of the economy of the harbour transports. The possession of a sure specific cultural background of the field constitutes an indispensable element for the demanded demonstration of “expertise”.

In such cases the designation in the spas and the next nomination of a subject lacking in prescribed cultural requirement and professional experience in the maximum measure must therefore be considered irrimediabilmente illegitimate.

Hence the erroneità of the sentence in the part in which it has considered that the formal respect of the procedimentale sequence was sufficient to integrate the previewed substantial fattispecie from the law, and that it goes consequently reformed on the point.

4.2. With according to reason it is complained that, erroneously, the Regional Administrative Court would have asserted, in consequence, than the judicial question of prof. the Deiana it would have implied an appraisal of the merit of the choices of the administration, as the today's appellant had been limited to assert the absolute absence in head to the dr. on. Massida of the which requisitioned detail of the maximum sector competence previewed from the law.

The Regional Administrative Court has expeditious considered the experience parliamentarian matured from 1994 for a total of five legislatures, the belongings to the Commission sufficient Social Transactions and Health and, however for a short time the Presidency of the Eighth Commission Public works, Transports and Communications; and its presence which councilman of the province of Cagliari and member of the relative commission you transport.

Also to wanting to admit in theoretical way the subsistence of professional experiences of the dr. on. Massidda in the fields of the economy of the transports, cannot be asserted that such experience would have reached that of the maximum degree, demanded art. the 8, codicil first of L. 84/1994.

With regard to, the various bills or the amendments of which it has been signer had not had some continuation and however the relation or the drawing up of the bills would presuppose a minimal acquaintance of the first object of the participation. Insignificant it would be then attached B of the curriculum with which the actions are recorded generically parliamentarians to which, in the 17 years, the named one has participated (also as simple voting) since it would be an aberrant thesis to support that, to participate to the voting of provisions, to. eg. on the justice, it would make of a parliamentarian an expert jurist.

Also the Presidency of the commission Transports - only from March to june 2011 -- it has not been sure I yield of its pregressa qualification or professional experience in the field, but indeed it has happened for exclusively political appraisals, and would have been own finalized to make to acquire a appearance of competence for being able to then justify the appealled designation to the harbour authority.

Analogous, the activity of President of the Commission Transports of the Province would have lasted some month (from on September 24, 2000 to june 2011) and however the competences of the Province in matter would be somewhat modest.

It would have been be a matter of a skillful attempt to acquire some modest formal title of a nonexistent competence.

Such circumstances would not have been absolutely important as they would demonstrate the political involvement of the territorial agencies in the “governance” of the port, and would not be sure indication of competence of the chosen one.

Unreasonably the Regional Administrative Court therefore would have asserted that the experience of medical physiatrist, parliamentarian or of provincial councilman was in itself suitable to make to mature in head to same requirement of the maximum ability, being obvious the lack of demanded professional requirement from art. the 8, first codicil of L. n. 84/1994 for the access to the selection for the attribution of the charge in question.

Hence the bastardy of the actions of designation appealled for deficiency of requirement professional minimums and the consequent one chosen of the Ministry.

The task deserves of being integrally shared.

In the first instance, as he will be better obvious afterwards, it must exclude that the negation in root of the necessary one and indispensable competence of a subject concerns to an appraisal of the merit of the administrative choice and therefore is resolved in an overcoming of the same limit of the jurisdiction.

In fact it is here in dispute, in the first instance, the foundation demanded from the law for the formation of the tern.

If, as visa, the choice of the President of the Authority must be operated in the within of the category of subjects in possession of the specific titles, the verification of such foundation concerns specifically to the profile of legitimacy of the procedure and however it constitutes symptomatic profile of the excess to be able in the within of the union on the reasonableness, or less, of the operated choice,

In the merit, it must then be dissented from the opinion of the first Judge for which the function of parliamentarian or provincial councilman former himself it could make to integrate requirement - many times over remembered - of the maximum and proven professional qualification in the fields of the economy of former transports and harbour “art. 8 of L. n.84 cit.

The function parliamentarian, in general terms, in itself does not imply some activity and responsibility, of professional or managerial content. Therefore its automatic usableness to the aims must be excluded for which it is cause, as asserts the REGIONAL ADMINISTRATIVE COURT apoditticamente.

That fact always except the case in which, besides the possession of specifically professionalizing qualifications however, it reruns also the development of an important one, been extended and specific activity of the parliamentarian in the fields of the economy of the transports and harbour.

But the case is not that under investigation as the subject chosen from the Minister:

-- it is a medical physiatrics, specialist in aesthetic medicine Reconstructive and titular Plastic Surgery of a rehabilitation center;

-- he has been parliamentarian from 1994-2006 to the Chamber and 2006 from 2010 to the Senate;

-- from which elected Maggio 2010 and also in the Provincial council of Cagliari.

-- she has been member is to the Chamber that to the Senate respective of the Commission Social Transactions and Health; of the Court of inquiry on the National Health Service, and of the Parliamentary commission for children;

-- it has introduced various DDL. in matter of sanitary service in the penitentiaries; of social protection of old the not self-sufficient ones; of fight to the pedophilia; of seizures personally; of development of the smaller islands; of support of the sick ones of Alzheimer; of sick chronic and invalids; of trombofiliaci; of old incontinent and stomizzati; of the thalassaemic ones; of domiciliary palliative cures for the terminal patients of cancer; of not conventional medicine and phytotherapy; etc. etc. (as announced from its same website (immediately and generally accessible on the net).

The non involvement of its distance is obvious political-parliamentarian to the competences that the third codicil of art. the 8 of 28 L. January 1994 n. 84 entrust, between the others, to the President in management and control, coordination, administration, address, impulse matter; of triennial operations plan, harbour town development plan, pre-emptive and consuntivi budgets, staff, state property concessions, harbour services; of areas and assets of the marine Federal property, state property canons of navigability and backdrops, etc. etc.

For its personal history, the dr. on. Massida could not certainly have achieved the “… maximum one and proven professional qualification in the fields of the economy of the harbour transports and” and was devoid in root of the requirement prescribed from the law, for which its nomination probably had to its political-relational abilities (to deputy, senator and provincial councilman, etc).

In short the subject chosen, not only possessed qualifications completely strangers to the matter, but in its also pluriennale experience parliamentarian always had been interested of the matters directly or indirectly with its it convinced professional and with its specific medical competences.

As in the species he did not be a matter himself of the presidency of a sanitary agency or associate-assistanziale must himself be concluded for the bastardy of the designation of the dr. on. Massidda:

-- for the lack of a any implying qualification however the possession of generically raccordabili competences also with the matter;

-- for the non involvement to the field of also the immense professional activities, political and parliamentarians and which at all did not concern the fields of the economy of the transports;

-- for the brevity of the experiences which president of VIII the Commission Trasporti (in order less than a year) or of that of the analogous structure near the Province of Cagliari, which therefore could not certainly make to presuppose the attainment of the theoretical competences and practical demands.

For the same reasons the choice of the Ministry is illegitimate which, in the exercise of its latamente discretionary power, would have had to estimate the designations and of forehead to a profile to curriculare that ictu oculi it had to make to exclude that was in the presence of the competences in the fields of the economy of the transports and in that specifically harbour, demands to the “maximum degree” would have had to ask an ulterior tern for candidates.

In conclusion the erroneità of the appealled decision is therefore obvious that, also relatively to the foretold profiles, it must be reformed.

5. In conclusion:

5.1. the incident appeal must be rejected because groundless;

5.2. the main appeal must instead be received.

The decision first degree must in consequence to be reformed, and for the effect, the cancellation of the actions appealled in first degree must be pronounced.

5.2. The expenses, second the general rules of which to art. the 26 c.p.c., they follow the soccombenza and are liquidated in device.
P.Q.M.
P.Q.M.

The Council of State in jurisdictional center (Fourth Section) definitively pronouncing:

1. it rejects the incident appeal;

2. it receives the main appeal and in reform of the decision of the REGIONAL ADMINISTRATIVE COURT, it cancels the actions appealled in first degree.

3. Sentence the parts succumbing to the payment of the expenses of anticipates judgment in favour of prof. Massimo Deiana that are liquidated as follow:

3.1. € 2,000, 00, besides the VAT and to CPA as for law, are at the expense of the Ministry of Infrastructures and the Sardinia Region in solid.

3.2. € 2,000, 00, put up of the accessories of law, and the integral reimbursement of the unified contribution of which to art. the 9 and ss. of the d.p.r. 30 May 2002 n. 115 poured from the main appellant, are placed at the expense of the named one dr. on. Piergiorgio Massidda.

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

So decided in Rome in the Council Chamber of day 25 june 2013 with the participation of the magistrates:
Marzio Branca, President FF
Fabio Taormina, Councilman
Francesca Quadri, Councilman
Umberto Realfonzo, Councilman, Drafter
Giulio Veltri, Councilman

THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 26/09/2013
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)