the Council of State assigns the property of Toremar to Tuscany di Navigazione and it removes Moby



The Council of State, with sentence that we publish below, has received the resource of Tuscany di Navigazione against Region Tuscany and Moby for the privatization of the Toremar, company of the Tuscany Region that work marine services between the Tuscan ports of Livorno, Piombino and Santo Stefano Port and the islands of the Tuscan archipelago and whose capital in 2011 was conferred with public contest to the shipowning group Moby di Vincenzo Onorato ( on 5 May 2011). In the 2012 Regional administrative court for the Tuscany it had rejected the advanced resource from Tuscany di Navigazione for being excluded from the contest procedure as, having also advanced the economically more favorable offer, in the technical offer it had proposed an additional series of race regarding when tax from the contest ban.

Now Tuscany di Navigazione, that it is constituted by the network formed by Salvatore Lauro, Franco Del Giudice, Tiziano Nocentini and Vincenzo Gorgoglione, will have to decide if to accept the acquisition of the Toremar. It is possible that Moby or the Tuscany Region, or from both, advances in alternative a compensation proposal.

The city council member to the transports of the Tuscany Region, Vincenzo Ceccarelli, taking note of the decision of the Administrative court of second degree that has overturned the sentence first degree of the REGIONAL ADMINISTRATIVE COURT, has specified that the sentence of the Council of State "in no way will be able to affect the continuity of the contractual relationship between Toremar and Region in relation to the public service that the company carries out and will continue to carry out. This clarified - it has added - our offices is already deepening the content of the sentence in order to understand as applying it at best".

N. 00083/2015REG.PROV.COLL.
N. 03189/2012 REG.RIC.


ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE

The Council of State
in jurisdictional center (Section Fifth)
it has pronounced anticipates

SENTENCE

on the resource number of general registry 3189 of 2012, proposed they give:

Tuscany di Navigazione Srl, represented and defended from avv.ti Marcello Vignolo, Massimo Massa and Mario Sanino, with address which elected near Antonia De Angelis in Rome, via Portuense, 104;

against

Tuscany region, represented and defended from the avv. Lucia Bora and Luciana Caso, with address which elected near Marcello Cecchetti in Rome, to the way Antonio Mordini, n. 14;

Moby Spa, represented and defended from avv.ti Giuseppe Pericu, Sergio Massimiliano Sambri and Maurizio Mengassini, with address which elected near the Grimaldi study in Rome, to the way Pinciana, n. 25;

for the reform

of the sentence of the T.A.R. TUSCANY - FLORENCE: SECTION the n. 00414/2012, been profitable between the parts, concerning Toremar privatization spa and confidence services publics of marine cabotage

Seen the resource in appeal and relative the attached ones;

Seen the certificates of incorporation in judgment of Tuscany Region and Moby Spa;

Seen the defensive memories;

Visas all the actions of the cause;

Reporter in the public audience of the day 21 October 2014 the Cons. Francesco Caringella and hearings for the parts lawyers Massimo Massa, Maurizio Mengassini and Marcello Cecchetti, on delegation of avv.ti Lucia Bora and Luciana Caso;

Considered and considered in fact and right how much follows.

FACT and RIGHT

1. With the sentence in epigraph the Regional administrative court for the Tuscany has rejected to the resource proposed from adverse Tuscany di Navigazione s.r.l the provision of exclusion from the procedure of contest finalized to the privatization of the enterprise of regional navigation Toremar s.p.a, to adjudicate itself with the criterion of the economically more favorable offer on a level with criteria that previewed the attribution of ten for services additional points, of seventy points for the quality of the used ship and of twenty points for the economic offer.

To the contest the offers of the Moby S.p.a and the Tuscany di Navigazione S.r.l. were admitted.

To the outcome of the appraisal lead from the Commission the offer formulated from Tuscany di Navigazione s.r.l turned out to be the economically more favorable offer, with the allocation of 87,28 points against the 70,92 points attributed to the Moby s.p.a.

The contracting out station arranged however to the exclusion of the Tuscany Navigation as a result of the reply of a dissonance between the economic offer and that technique with which an additional number of race various from that tax in binding way from the contest law was offered.

In support of the espulsiva determination came, in particular, found a difference between the additional services declared from Tuscany di Navigazione S.r.l in technical offer and the offered nautical miles, circumstance this, second the Commission, not susceptible of regularization through a mere operation of I recalculate and that it would have, instead, necessarily involved a reformulation of the same offer.

With the appeal action the Tuscany Navigation contests the arguments mails to foundation of the decisum.

They resist the Region Tuscany and Moby S.p.a.

The parts have entrusted to the warehouse of appropriate memories the ulterior illustration of the respective defensive theses.

2. The appeal is founded.

2.1. It must be moved from the consideration that, in force of the discipline of contest, the integral offer of race additional a not necessary part of the offer. Be, therefore, of a finalized optional member to the attainment of an ulterior score, pairs to a maximum of ten points, regarding the score being up to the indefectible members dates from the quality of the ship and necessary relative the economic offer to the race based on the exercise program.

From the premise of the optional characterization of this segment of the offer it must be drawn, based on principles of the favor partecipationis and of conservation of the legal transactions, the corollary second which the relative defects to such member affect the attribution of the additional score without ridondare on admissibility of the basic offer self-sufficient person and in compliance with the norm of contest. If of single species in appearance the elimination of the race additional implies the necessity of a not permissible reformulation of the economic offer. Rapportando the migliatico price to the race obligatory and those optional ones turns out in fact possible to characterize, according to a merely arithmetical operation that does not imply some substitution to the will of the relative competitor to the migliatico price and the economic value of the two members of the exercise program, obligatory relative the economic offer to the race. The goodness of such offer after all is not scratched, in homage to the useful brocard for useless not vitiatur, from the exclusion of the optional member of the technical offer and its connected economic valorization.

3. To the stregua of the considerations that precede the appeal must be received.

The expenses follow the rule of the soccombenza.

P.Q.M.

The Council of State in jurisdictional center (Section Fifth)

definitively pronouncing on the appeal, as in proposed epigraph, it receives it and, for the effect, in reform of the named sentence it receives the resource first degree and it cancels, in with the consequent provisions, the provision of exclusion of the Tuscany Navigations. Sentence the intimata administration to arrange the award of the procedure, to the conditions in motivation exposed, in favour of the appellant, against the necessary control of subjective requirement.

Sentence the Region Tuscany and Moby s.p.a to the payment, in favour of the appellant part, of the expenses of liquid judgment that in the total measure of euro 20,000//00 (ventimila//00).

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

So decided in Rome in the Council Chamber of the day 21 October 2014 with the participation of the magistrates:

Alessandro Pajno, President

Francesco Caringella, Councilman, Drafter

Carlo Saltelli, Councilman

Nicola Gaviano, Councilman

Fabio Franconiero, Councilman

THE DRAFTER

THE PRESIDENT


DEPOSITED IN SECRETARIAT
The 16/01/2015
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)