In order to tackle to the Assiterminal emergency it asks the zero setting for the state property canons
The crisis - the association emphasizes - hits is the field of the passengers who that of the goods
March 30, 2020
The Italian Association Terminalisti Harbour (Assiterminal) has sent to the government and to the members of the Commission Transports of Chamber and Senate a letter, that we below publish, in which evidences the traumatic situation newly in which they pour not only the passenger terminals of the Italian ports, that they are arrest warrants as a result of the block of the crocieristici traffics and the fleeting connections through the freeways of the sea, but also of the terminals and the harbour enterprises that operate in the field of the goods. These last ones - specific the association - are enduring a contraction of the -40% of the traffics with which had operating stresses to the slow down of the internal transports and to the congestionamento of the areas of storage for the block of the production.
Which measure of support to the field hit from the effects of the assumed measures in order to face the emergency of the Covid-19 virus, in the Assiterminal letter asks the government a disapplicazione total or a reduction for the which had state property canons for year 2020 from the Marine Stations and that the applicabilità to all the subjects of the terminalistico field extends some.
Object: Epidemiologica emergency from COVID-19 - demanded participation of zero setting of the state property canons for terminalisti
continuation how much represented in precedence communications from our Association, we write on behalf anticipates in name and of all the Italian Marine Stations (between which Venice, Genoa, Civitavecchia, Naples, Cagliari, Catania, Trieste, Ravenna, Livorno, Messina, solo in order to cite the main ones) to the aim to demand a modification and integration to art. the 92 of the D.L. 18/2020 relatively to previewed the partial suspension of the marine state property canons.
And in fact, as famous the current epidemiologica emergency from COVID-19 and the measures of contingentamento adopted in order to contrast the spread of the virus, are determining the total zero setting of the tourist field and in particular of the crocieristico traffic in Italy and the world.
Also not being possible at the moment to determine the duration of such situation, one considers, verosimilmente, that the particularitity of the crocieristico traffic and the accadimenti of the last days legacies in the specific one to the fleeting ships, will not allow a resumption of the field before 2021.
He is, therefore, obvious that such circumstance is involving and will involve a total almost absence than entered the 2020 for all truth that, in various way, takes part of the crocieristica row, beginning from carriers and terminalisti until all their suppliers, there comprised Fincantieri S.p.A., than, as famous, it sees such subjects between the own greater customers, circumstance never happened before in the history of the crocieristica industry.
And this becomes still more impattante if it is considered that the societies that manage the Italian marine stations - often participated by the greater world-wide groups of the field (MSC, Royal Carribean Cruise Line, Carnival…) that they turn out, therefore, doubly damaged - however they are held to the deposit of elevated state property canons to the respective Authorities of Harbour System, most times not connected, in their determination, to the entity of the traffic effectively enlivened.
In such context the disposition over cited (art. 92), introduced with the D.L. 18/2020, appear completely insufficient to protecting the enterprises for which today it is written and inidonea to protecting the rights of the same ones and employee theirs. It is worth it to remember, in purpose also that, second last study CLIA (world-wide union of the crocieristici operators) of 2018, the occupied ones in the field in Italy is about 119.000 between direct and indirect, that they represent about 30% of the total number of occupied in the entire Europe (about 400.000).
The norm, in fact, if on one side articles are applicable only to the former concessionaires. 16, 17 and 18 of L. 84/94, excluding the other concessorie types of the field (which, for example, the concessions of service of former general interest art. 6 of same L. 84/94 and former concessionaires art. 36 cod. nav.), from the other side it on July 31, 2020 previews a mere suspension of the terms of payment of the canon until, maintaining however to it obligation of the integral corresponsione of the same canon within on December 31, 2020 alive.
Orbene, is unquestionable the fact that the situation of epidemiologica emergency in existence, that it is affecting in radical and infallible measure the field of the croceristica industry and the instrumental activities, shapes unforeseeable event of act of God, officially and inequivocabilmente assessed from the Italian Government and the Italian and international Sanitary Authorities, and that the cogenti provisions adopted from the Italian Government in order to contrast such event rightfully re-enter in c.d the obstructive factum principis of behaviors and important actions in the within of the contractual relationships inside of the field.
A lot is obvious that in the same D.L. 18/2020, the Government has express previewed (art. 91) that the contingentamento measures in existence are from estimating themselves automatically and ex lege to the aims of the exoneration of the contractual responsibility, with this allowing the lacked implementation the obligations assumed from the parts.
He is obvious, therefore, than, to the state, sussistono objective the conditions in order to suspend all the contractual implementations in being until the emergency situation lasts.
But there is more. If specific of lease or concession of assets, the objective impossibility of I use of the assets for fine own for which they are rented or grant determines a clear situation of which supervened excessive onerosità of the corresponded canon, raising the right for the damaged subject to obtain a re-balance of the obligatory relationship, according to art. the 1464 and 1467 c.c.
This said online general, appears obvious that the same considerations must be made also with specific reference to the obligations deriving from state property concessions as those in word, than for they nature previews the payment of a canon against a right to exercise a determined activity on the granted good.
It is clear, therefore, than an unexpected impossibility of I use of the same good, also only temporary, that he is imputable to external causes, it imposes not as well as the suspension of the canon, how much a its abolition or meaningful reduction for a correspondent period, own in application of the sopracitati general principles by right common (art. 1218 c.c. - impossibility which supervened for not imputable cause to the defaulting subject and articles. 1464 and 1467 c.c. - partial impossibility and resolution for excessive onerosità), let alone online with how much in matter arranged from art. the 45 of the cod. nav., than, in its by now recognized extensive interpretation, it recognizes the right for the concessionaire to obtain an adequate reduction of the canon in case of modifications - also functional - of the granted good that I determine some a restriction in I use it.
And in truth, the concession of the government property to the private one shapes, as it is famous, a form of particular use that it is come to an agreement so that - assigning it to a productive activity of yield by means of adapted investments - at the same time the economic operator assures a use in compliance with the general interests, than only the concurrent speculative purpose can guarantee. Draft, therefore, of a legal relationship in whose structure constituent re-enters an advantage by the private one. Therefore, when for reasons due because of act of God, to the relationship fails its usefullness member, guarantor of the sustainability of the destination - and it remains only the burden of the management of the areas - the riconduzione to fairness constitutes the exclusive instrument for the reconstruction of the conditions of economic sustainability of the concession. Since the object of anticipates demanded goes estimated to the stregua of the exercise of the legislative function, the criterion of riconduzione to fairness is the only correspondent to the reasonableness parameter, fundamental criterion, for pacific constitutional jurisprudence, which it is necessary to refer in order to judge of legitimacy of the law.
Last it is worth it to remember that the specific system normative (national and communitarian) in matter of concessions (eg. art.165 D.lgs 50/2016) previews express that, in case of disequilibrio of the sinallagma contractual, the concessionaire has right to obtain a its re-balance through one of the typical instruments of the relationship (decrease or zero setting of the canon, extension of the concession…) and this, not only in a privatistica optical, but above all according to the perseguimento of the public interest, whereby the estate of the activities in word constitutes guarantee of development, not only of the harbour within, but also and above all of the entire economic row that give that drift and that it involves in particular way the surrounding local truths.
He is obvious, in fact, than the indicated economic operators and the relative one induced constitutes a woven important economic-entrepreneurial of wide areas of the Country, than in indirect way they would come heavy damaged, if not cancelled, in absence of specific state participations in the indicated sense.
In purpose already acquired and our associates are commissioned appropriate opinions lawyers by many Marine Stations.
In consideration than over, which considered than already represented from Assiterminal for as for the entire category of the Operator Terminals, we are therefore to demand that it is estimated a modification and integration of the disposition of which to art. the 92 of the D.L. 18/2020, that it previews a disapplicazione total or a reduction of the which had state property canons for year 2020 from the Italian Marine Stations and that of it extends the applicabilità to all the subjects of the field to prescind from the concessoria form that allows the exercise of marine station. Please find enclosed proposed of amendment to art. the 92 of the D.L. 18/2020. , in such elaborated optical.
It is on hand remained for every clarification and necessity
Assiterminal Luca Becce The President
Assiterminal Galliano Di Marco The President of Commission Cruises
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