Opinion of the Advocate General — ECLI:EU:C:2024:129
Date: 2024-02-08
Language of the case: Italian
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-598/22 – 1 
Case C-598/22 
Request for a preliminary ruling 
Date lodged: 
16 September 2022 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
15 September 2022 
Appellant: 
Società Italiana Imprese Balneari Srl 
Respondents: 
Comune di Rosignano Marittimo 
Ministero dell’Economia e delle Finanze 
Agenzia del demanio – Direzione regionale Toscana e Umbria 
Regione Toscana 
  
[…] 
The Consiglio di Stato (Council of State, Italy) 
(Judicial Division) […] 
has made the following  
ORDER 
[…] 
Società Italiana Imprese Balneari S.r.l. […] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 15. 9. 2022 – CASE C-598/22 
 
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Comune Rosignano Marittimo (Municipality of Rosignano Marittimo, Italy) […] 
Ministero dell’economia e delle finanze (Ministry of Economic Affairs and 
Finance), Agenzia del demanio (Public Property Agency, Italy), Direzione 
regionale Toscana e Umbria (Regional Office for Tuscany and Umbria) […] 
Regione Toscana (Region of Tuscany) 
seeking the variation 
of the judgment of the Tribunale Amministrativo Regionale per la Toscana 
(Regional Administrative Court, Tuscany, Italy)[…] No 380/2021 
[…] 
[…] [standard wording] 
Subject matter of the main proceedings and relevant facts 
The company Società Italiana Imprese Balneari s.r.l. (SIIB s.r.l.), which has been 
the owner since 1928 of the seaside resort ‘Bagni Ausonia’ in the district of 
Castiglioncello, municipality of Rosignano Marittimo, located largely on land 
belonging to the State-owned maritime domain, claims to have legitimately 
developed over the years, under the concessions obtained thereby, which it claims 
have followed each other over time without interruption, a series of buildings, 
some of which are shown in an initial forfeiture survey certificate from 1958, and 
others built only later from 1964 to 1995. 
By decision No 31787 of 20 November 2007, the Municipality of Rosignano 
reclassified other works associated with State-owned land, considered difficult to 
remove, as State-owned appurtenances, considering that they had been acquired ex 
lege on expiry of concession No 36, valid from 1 January 1999 to 31 December 
2002, renewed by concession No 27/2003. 
Subsequently, by letter No 27774 of 23 September 2008, that Municipality 
notified SIIB s.r.l. of the commencement of the procedure for the forfeiture of the 
State-owned appurtenances not yet acquired, however without concluding the 
procedure and in the interim the Municipality issued the concessione demaniale 
marittima n. 181/2009 (State-owned maritime property concession No 181/2009) 
to that company. 
As provided for by Article 1 of Decreto del Presidente della Giunta Regionale 24 
settembre 2013 n. 52/R (Decree of the President of the Regional Council No 52/R 
of 24 September 2013) amending Decreto del Presidente della Giunta Regionale 
n. 18/2001/R (Decree of the President of the Regional Executive No 18/2001/R) 
— which inserted into Decree of the President of the Regional Executive 
No 18/R/2001 Article 44-bis, whereby ‘Items shall be classified as easy to remove 
and clear where they are buildings and structures used for the purposes of 
SOCIETÀ ITALIANA IMPRESE BALNEARI 
 
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operating tourist and recreational activities, built both above and below ground in 
areas of State-owned maritime property under concession that […][technical 
details] can be completely removed using normal engineering methods, with the 
sites consequently being restored to their original condition, in no more than 
90 days’ — SSIB s.r.l., therefore, submitted a declaration stating that all the works 
associated with the area of State-owned property being able to be removed within 
90 days were to be considered, in fact, easy to remove, which was followed by 
determinazione del Comune n. 5038 del 3.02.2014 (Municipal Decision No 5038 
of 3 February 2014) recognising that situation. 
That recognition was, however, subsequently declared ‘null and void’ by the same 
municipal administration in a letter of 26 November 2014, on the basis that the 
area of State-owned property contained items under concession that had already 
been acquired by the State under Article 49 of the Codice della Navigazione 
(Shipping Code). 
That order was challenged by SIIB s.r.l. […] before the Regional Administrative 
Court, Tuscany. 
In the course of the proceedings to extend State-owned property concession 
No 181/2009, requested until 31 December 2020, the Municipality issued 
provvedimento n. 17432 del 16 aprile 2015 (Order No 17432 of 16 April 2015), 
confirming the classification of the buildings constructed on the area under 
concession as State-owned appurtenances, and also recalculated the fees payable 
by SIIB s.r.l. in the period 2009-2015, also settling the amounts due for 
subsequent years by means of other measures. 
These orders were also challenged by SIIB s.r.l. 
The Regional Administrative Court, Tuscany joined all the actions […] and 
dismissed them in their entirety by judgment No 380 of 10 March 2021. 
SIIB s.r.l. appealed that decision before the Council of State, alleging the 
following grounds of appeal: (1) infringement and misapplication of Article 21-
octies of l. n. 241/1990 (Law No 241/1990) and inconsistency in the statement of 
reasons, in relation to the annulment of the letter recognising the easily removable 
nature of the works constructed in the area under concession of 3 February 2014, 
which was not preceded by any notice that proceedings were being initiated, 
which would have enabled SIIB s.r.l. to represent its reasons to the Administration 
before the adoption of the harmful measure […]; (2) infringement of Articles 2, 
3,11, 24, 42, 100, 103, 11 and 107 of the Constitution, Article 21-septies of Law 
No 241/1990, Articles 29, 36 and 49 of the Shipping Code, and Articles 934 and 
936 of the Civil Code, failure to rule, since the court at first instance failed to 
adequately consider the partial nullity of State-owned property concession 
No 181/2009, in so far as it attributed to the State the ownership of buildings not 
yet acquired by the State under Article 49 of the Shipping Code; (3) infringement 
and misapplication of Article 49 of the Shipping Code, inadequacy of the ruling 
REQUEST FOR A PRELIMINARY RULING OF 15. 9. 2022 – CASE C-598/22 
 
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on a decisive point in the dispute, since, following the 1958 survey certificate, 
which acknowledged the forfeiture by the State of certain buildings and structures, 
no other building had been acquired by the State, and they thus remained in the 
ownership of SIIB s.r.l.; (4) further infringement of Articles 29 and 49 of the 
Shipping Code, insufficient statement of reasons in relation to a decisive point of 
the dispute, as the forfeiture procedure initiated in 1958 had never actually been 
concluded and the Regional Administrative Court had confused the concepts of 
building appurtenance and State-owned appurtenance; (5) infringement of 
Articles 63, 64, 66 and 67 of the codice processo amministrativo (Code of 
Administrative Procedure), failure to rule, since the court at first instance did not 
rule on the request for a court-appointed expert report made by the appellant at 
first instance precisely in order to identify ‘the scope of the assets constructed 
after 1958 by the concessionaire within the Bagni Ausonia establishment’; (6) 
infringement of Articles 2, 3, 41 and 97 of the Constitution, Articles 49 and 56 
TFEU, Articles 42 and 117 of the Constitution in relation to Additional Protocol I 
to the ECHR, and Articles 934 and 936 of the Civil Code on the ground that the 
forfeiture of assets by the State in the course of a State concession relationship and 
without compensation is contrary to EU law; (7) infringement and misapplication 
of Article 3(1) of D.L. n. 400 del 5.10.1993 (Decree-Law No 400 of 5 October 
1993), converted into l. n. 494/1993 (Law No 494/1993), as replaced by 
Article 1(251) of l. n. 296/2006 (Law No 296/2006), Articles 49 and 56 TFEU and 
the principles that can be inferred from EU law on the subject of legitimate 
expectations and legal certainty by reason of the very significant increase in the 
amount of the fee determined by the 2006 law, which unexpectedly and seriously 
altered the contractual parameters of the concession; (8) further infringement of 
Articles 49 and 56 TFEU and the principles that can be inferred from EU law on 
the subject of legitimate expectations and legal certainty, which do not permit 
subsequent regulatory measures to have such an incisive effect on ongoing 
concessionary relationships, which can be qualified as ‘multi-year relationships of 
infinite or indefinite duration’; (9) erroneous nature of the judgment concerning 
the obligation to recalculate the State concession fees for the years 2007-2020, 
since the merits of the actions lodged at first instance also resulted in an obligation 
for the Administration to recalculate downwards the fees claimed for the period 
2007-2020. 
[…] 
[…] [proceedings] 
The regulatory framework and the judgment under appeal 
The decisive question to be addressed in the present case concerns the application 
of Article 49 of the Shipping Code to the buildings in the area under concession, 
so as to determine whether they were acquired by the State, on expiry of the 
concession, even if renewed, with the consequent application of the increased fee 
referred to in Article 1(251) of Law No 296 of 27 December 2006 to the buildings 
concerned, in so far as they are to be considered as State-owned appurtenances. 
SOCIETÀ ITALIANA IMPRESE BALNEARI 
 
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According to Article 49 of the Shipping Code, ‘Unless otherwise established in 
the concession instrument, when the concession comes to an end, the non-
removable works constructed on the State-owned area shall remain vested in the 
State, without any compensation or reimbursement, without prejudice to the 
granting authority’s right to order their demolition, with the State-owned asset 
thus to be returned to its original condition’: that provision – which refers to the 
mechanism of accession, in accordance with Article 934 of the Civil Code – has 
been interpreted by the majority of the administrative case-law to the effect that 
acquisition occurs by operation of law, at the end of the concession period, and 
must also be applied in the event of renewal of the concession itself, since 
renewal – unlike extension – implies a new concession in the strict sense, after the 
extinction of the previous concession on expiry, and thus automatically produces 
the effects referred to in the abovementioned Article 49 (see Council of State, 
judgments No 626/2013 and No 6852/2018). 
Only in the case that the concession has been renewed automatically before the 
natural date of expiry of the concession […] [case-law references] would the 
abovementioned principle of free accession under Article 49 of the Shipping Code 
not apply, ‘because the works constructed by the concessionaires on the State-
owned land … (would remain in that case), in accordance with Article 952 of the 
Civil Code, under exclusive private so-called long-leasehold ownership (proprietà 
superficiaria) until the time when the concession expires or is revoked before that 
date (and) therefore no … additional fee (would be) payable, since the 
concessionaire is required to pay a fee commensurate with the occupation of 
State-owned land with facilities that are easy/difficult to remove, as provided for 
in Article 1(251)(1)(b) of Law No 296/2006’ (Council of State, Sixth Chamber, 
Judgment No 229 of 13 January 2022). 
In the judgment under appeal, the court at first instance dismissed the actions […] 
brought by SIIB s.r.l., holding that ‘… both the certificate from 1958 and the 
concession from 2009 have produced effects that have become consolidated over 
time, inasmuch as the appellant has never contested them in part prior to the 
lodging of the current actions’. The Regional Administrative Court also stated that 
it was not possible to ‘invoke the nullity of the State concession (concluded by the 
party concerned and not challenged […]), inasmuch as there is no absolute lack of 
power on the part of the Administration in relation to the devolution to the public 
domain of works that are difficult to remove, constituting State-owned 
appurtenances’, specifically referring to the abovementioned case-law of the 
Council of State on the devolution at the moment when the concession expires, 
even if renewed […], and also adding that ‘the classification of works that are 
difficult to remove and maritime State-owned appurtenances laid down in page 2 
of the State concession and the ruling […] whereby they remain vested in the 
State under Article 49 of the Shipping Code (was) not … the result of a unilateral 
decision of the Administration, but rather of an agreed acknowledgement in the 
concession instrument signed by both parties …’. 
REQUEST FOR A PRELIMINARY RULING OF 15. 9. 2022 – CASE C-598/22 
 
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That argument has been further developed in the decision under appeal, which 
excluded the occurrence, by effect of the application of Article 49 of the Shipping 
Code, of a ‘surreptitious expropriation without compensation’ precisely because, 
through the words ‘“unless otherwise established in the concession 
instrument” …, the rule of free acquisition is conditioned by the consent of the 
parties, which could envisage a different legal regime for maritime State-owned 
appurtenances in the wording of the concession instrument (such as providing for 
a financial consideration to be paid by the public body) …’ and based on the 
observation that ‘if the private party, prior to taking delivery of the asset, has not 
expressed a contrary view to the effect of devolution to State ownership, it means 
that party has accepted the absence of the alternative agreement permitted by 
Article 49 of the Shipping Code’. 
Arguments of the parties  
The appellant challenged the judgment under appeal, arguing that the effect of the 
forfeiture of the works that are difficult to remove, which were constructed on 
State-owned land during the concession (in the expectation of its renewal) and 
without compensation, is contrary to [European Union] law and, in particular, to 
the principle of proportionality of the restrictions on fundamental freedoms 
enshrined in Articles 49 and 56 TFEU with respect to the achievement of the 
general interest objectives pursued, as set out by the Court of Justice in Laezza, 
albeit in relation to service concessions (Court of Justice, Section III, 28 January 
2016 in C-375/14). 
Emphasising that the mechanism of accession under Article 49 of the Shipping 
Code was introduced to respond to the need to ensure that non-removable works 
intended to remain in situ or to be removed, with inevitable destruction, ended up 
being fully available to the body owning the area so as to ensure they could be 
properly managed for prevailing public interest purposes, the appellant has 
asserted that this requirement could not be deemed to exist when the concession, 
rather than expiring, had been renewed without interruption as in its case, in 
which the application of the accession mechanism under Article 49 of the 
Shipping Code would therefore be ‘abnormal, unfair and unjustified’, having the 
effect of making it less attractive for economic operators from other Member 
States who were interested in the same property to establish themselves and 
imposing on the concessionaire a disproportionate sacrifice of its rights, consisting 
in the transfer of its assets without consideration to the State at a time when, as 
has been said, the public needs protected by Article 49 of the Shipping Code were 
not yet apparent. 
Moreover, for the purpose of determining the State ownership regime applicable 
to assets installed on State-owned land, the classification of those assets provided 
by State-owned maritime property concession No 181/2009 is not decisive, 
because that document would not have been able to dispose properly of a private 
asset in such a way as to cause its peremptory transfer to the Administration. 
SOCIETÀ ITALIANA IMPRESE BALNEARI 
 
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Neither could the original acquiescence by the concessionaire in respect of the 
future forfeiture under Article 49 of the Shipping Code, as erroneously interpreted 
by the Regional Administrative Court – which had given value to the clause in the 
legal text stating that ‘without prejudice to any agreement to the contrary’ – be 
considered to exclude the possibility that EU law has been infringed, since when 
SIIB s.r.l. had become concessionaire, it was able to rely on the so-called 
preferential right (diritto di insistenza) provided for under Article 37 of the 
Shipping Code, which had only subsequently been removed. 
For its part, the Municipality of Rosignano Marittimo has claimed that it issued 
concession No 181/2009 as a renewal of concession No 27/2003, which expired 
on 31 December 2008, not as a result of an automatic legislative process but 
following a specific examination and at the end of a corresponding procedure that 
had entailed the application of its discretionary power. The new concession, which 
was to be considered an entirely different concession from the previous one, was 
set to take effect on 1 January 2009, but was not signed until 12 May 2009. 
According to the Administration, the appellant’s arguments about the allegedly 
uninterrupted nature of the concession relationship and in relation to the alleged 
infringement of [European Union] law represented by the forfeiture of works that 
are difficult to remove on expiry of the concession, even if renewed, were 
therefore erroneous, because the failure to include a contrary provision in the 
concession meant that the private individual had considered the loss of ownership 
of the works constructed to be ‘compatible with the general economic equilibrium 
of the concession, which was, in any case, highly remunerative, being located, 
inter alia, in one of the most renowned locations in Italy …’. 
The questions referred for a preliminary ruling 
[…] In view of the importance of the interests involved and the complexity of the 
values at stake, the court believes that the following question should be submitted 
to the Court of Justice: 
– Do Articles 49 and 56 TFEU and the principles arising from the Laezza 
judgment (C-375/14), where applicable, preclude the interpretation of a national 
provision such as Article 49 [of the Shipping Code] as meaning that it results in 
the transfer without consideration and without compensation, by the 
concessionaire on expiry of the concession, when that concession has been 
renewed on an uninterrupted basis, where applicable by virtue of a new measure, 
of the building works constructed on the State-owned land forming part of the 
complex of assets organised for the operation of the resort enterprise, since that 
effect of immediate forfeiture could constitute a restriction that goes beyond what 
is necessary to achieve the objective actually pursued by the national legislature 
and is therefore disproportionate to the aim? 
[…] [standard wording] 
ON THOSE GROUNDS 
REQUEST FOR A PRELIMINARY RULING OF 15. 9. 2022 – CASE C-598/22 
 
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The Council of State (Judicial Division) (Sixth Chamber) 
(1) refers the question indicated in the grounds to the Court of Justice of the 
European Union for a preliminary ruling pursuant to Article 267 TFEU; 
(2) […] [proceedings] 
(3) stays the proceedings pending resolution of the questions referred for a 
preliminary ruling […]. 
[…] Rome […] 28 June 2022 […] 
[…] 
[…] [signatures]