Judgment;Summary — ECLI:EU:C:2023:301
Date: 2023-04-20
Language of the case: Italian
Court formation: Third Chamber
Subject matter: Right of establishment;Internal market - Principles;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-348/22 – 1 
Case C-348/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
30 May 2022 
Referring court: 
Tribunale Amministrativo Regionale per la Puglia (Italy) 
Date of the decision to refer: 
11 May 2022 
Applicant: 
Autorità Garante della Concorrenza e del Mercato 
Defendant: 
Comune di Ginosa 
  
Subject matter of the main proceedings 
Action brought before the Tribunale amministrativo regionale per la Puglia 
(Regional Administrative Court, Puglia) (‘the Regional Court’) by the Autorità 
Garante della Concorrenza e del Mercato (the Italian competition authority) (‘the 
Competition Authority’) seeking the annulment of a number of measures adopted 
by the Comune di Ginosa (Municipality of Ginosa, Italy) extending various 
concessions over State-owned maritime property. 
Subject matter and legal basis of the request for a preliminary ruling 
– Examination of the validity of Directive 2006/123 with regard to the 
conformity of the procedure for its adoption with Article 115 TFEU; 
– Interpretation of Directive 2006/123 with a view to determining which rules 
apply to concessions over State-owned maritime property; 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2022 – CASE C-348/22 
 
2  
– Interpretation of Directive 2006/123 with a view to establishing the division of 
powers between national courts and municipalities in the area of concessions 
over State-owned maritime property; 
– Interpretation of Directive 2006/123 with a view to verifying its compatibility 
with the protection of fundamental rights, in particular the right to property. 
Questions referred for a preliminary ruling 
‘1. Is Directive 2006/123 valid and binding on the Member States, or is it 
invalid inasmuch as, being a harmonisation directive, it was adopted only by a 
majority vote, rather than unanimously, in breach of Article 115 [of the Treaty on 
the Functioning of the European Union]? 
2. Does Directive 2006/123, also known as the Bolkestein directive, lay down, 
objectively and in the abstract, sufficiently detailed rules and consequently 
preclude the exercise of any discretion by national legislatures, this being the 
minimum requirement for that directive to be regarded as self-executing and 
immediately applicable? 
3. In the event that Directive 2006/123 is held to be non-self-executing, is the 
effect of mere exclusion or merely preventive disapplication of national law 
compatible with the principle of legal certainty even where it is impossible for a 
national court to interpret national law in conformity with EU law or, on the 
contrary, may or must national law apply in such a situation, without prejudice to 
the specific penalties provided for under EU law for the failure by a [Member] 
State to fulfil its obligations under the Treaty of Accession (Article 49 [TFEU]) or 
for failure to implement a directive (infringement proceedings)? 
4. Does the direct effect of Article 12(1), (2) and (3) of Directive 2006/123 
amount to recognition of the self-executing nature or immediate applicability of 
that directive or, in the case of a harmonising directive such as Directive 2006/123 
(‘[it must be considered] that Articles 9 to 13 of Directive 2006/123 provide for 
exhaustive harmonisation’ ([paragraph 61 of] the judgment in Promoimpresa)), 
must it be understood as requiring a [Member] State to adopt harmonisation 
measures which are not merely general but binding as to their content? 
5. May or must the classification of a directive as self-executing or otherwise 
and, in the case of classification of a directive as self-executing, the merely 
preventive disapplication of national law, be regarded as falling within the 
exclusive jurisdiction of the national courts (which have been provided, for that 
purpose, with specific mechanisms to aid interpretation, such as making a 
reference to the Court of Justice for a preliminary ruling or seeking a ruling on 
constitutionality) or as falling also within the remit of the officials or heads of 
individual municipalities? 
AUTORITÀ GARANTE DELLA CONCORRENZA E DEL MERCATO 
 
3 
6. In the event that Directive 2006/123 is instead held to be self-executing, 
given that Article 49 [TFEU] has been held to preclude the automatic extension of 
concessions over or authorisations concerning State-owned maritime property for 
tourism and recreational use only ‘in so far as those concessions are of certain 
cross-border interest’, is the fulfilment of that condition a prerequisite also for the 
application of Article 12(1) and (2) of [that] directive? 
7. Is it consistent with the aims pursued by Directive 2006/123 and by 
Article 49 [TFEU] for a national court to find that, generally and in the abstract, 
there is a certain cross-border interest with reference to the entire national territory 
or, on the contrary, given the powers, in Italy, of individual municipalities, must 
such an assessment be understood as relating to the coastal territory of each 
individual municipality and, therefore, as falling exclusively within the remit of 
those municipalities? 
8. Is it consistent with the aims pursued by Directive 2006/123 and by 
Article 49 [TFEU] for a national court to find that, generally and in the abstract, 
there is a scarcity of resources and available concessions with reference to the 
entire national territory or, on the contrary, given the powers, in Italy, of 
individual municipalities, must such an assessment be understood as relating to 
the coastal territory of each individual municipality and, therefore, as falling 
exclusively within the remit of those municipalities? 
9. In the event that Directive 2006/123 is held, in the abstract, to be self-
executing, can such immediate applicability be regarded as pertaining even in a 
legislative context such as that in Italy, in which Article 49 of the Codice della 
navigazione (Shipping Code) (which provides that, on the expiry of a concession, 
‘all immovable property shall become the property of the State, without any 
compensation or reimbursement being due’) operates, and is such a consequence 
of the self-executing nature or immediate applicability of that directive 
(particularly with reference to duly authorised masonry structures and concessions 
over State-owned property that are functionally linked to a tourist business such as 
a hotel or holiday resort) consistent with the protection of fundamental rights, 
such as the right to property, which are accorded special protection under EU law 
and in the Charter of Fundamental Rights?’ 
Provisions of EU law relied on 
TFEU, in particular, Articles 2, 49 (freedom of establishment), 56, 115, 195, 288, 
291 [and] 352; 
Directive 2006/123/EU, recitals 7 and 39, [as well as] Articles 4 and 9 to 13 – in 
particular, Article 12: 
‘1. Where the number of authorisations available for a given activity is limited 
because of the scarcity of available natural resources or technical capacity, 
Member States shall apply a selection procedure to potential candidates which 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2022 – CASE C-348/22 
 
4  
provides full guarantees of impartiality and transparency, including, in particular, 
adequate publicity about the launch, conduct and completion of the procedure. 
2. In the cases referred to in paragraph 1, authorisation shall be granted for an 
appropriate limited period and may not be open to automatic renewal nor confer 
any other advantage on the provider whose authorisation has just expired or on 
any person having any particular links with that provider. 
[…]’; 
Directive 2014/24/EU, in particular, Article 10(i) [and] Article 12(1); 
Directive 2014/23/EU. 
Case-law of the Court of Justice relied on 
Judgments in Cases C-103/88, C-322/88, C-193/91, C-236/92, C-268/06 [and] 
C-579/15, in Joined Cases C-360/15 and C-31/16, and, in particular, in Joined 
Cases C-458/14 and C-67/15 [(‘the judgment in Promoimpresa’)]. 
Provisions of national law relied on 
1 Significant amendments have been made to the Italian legislation governing 
concessions over State-owned maritime property in order to bring that legislation 
into line with EU law. In that regard, Article 49 TFEU prohibits the Member 
States from restricting the freedom of establishment of nationals of other Member 
States of the European Union, who must accordingly be guaranteed the right to 
take up and pursue activities as self-employed persons under the conditions laid 
down by the law of the Member State of establishment for its own nationals. 
2 Formerly, Article 37 of the Codice della navigazione (Shipping Code) required a 
tendering procedure to be conducted for the award of a concession over State-
owned property only in the event that several parties had applied for a concession 
over the same property. That article also provided for a ‘diritto di insistenza’ 
(preferential right) in accordance with which, on the expiry of a concession, the 
outgoing concessionaire would be preferred over other parties in the award of the 
new concession. 
3 Following the commencement of Infringement Procedure No 2008/4908, the 
Italian State abolished, by means of Decreto-legge 30 dicembre 2009, n. 194 ‒ 
Proroga di termini previsti da disposizioni legislative (convertito con 
modificazioni dalla legge 26 febbraio 2010, n. 25) (Decree-Law No 194 of 
30 December 2009 on the extension of time limits laid down by legislative 
provisions (converted, with amendments, by Law No 25 of 26 February 2010)), 
the preferential right provided for in Article 37 of the Shipping Code. 
Subsequently, Directive 2006/123 was formally transposed by means of Decreto 
AUTORITÀ GARANTE DELLA CONCORRENZA E DEL MERCATO 
 
5 
legislativo 26 marzo 2010, n. 59 ‒ Attuazione della direttiva 2006/123/CE relativa 
ai servizi nel mercato interno (Legislative Decree No 59 of 26 March 2010 
implementing Directive 2006/123/EC on services in the internal market). 
Infringement Procedure No 2008/4908 was accordingly closed. 
4 In addition, over the years, various extensions of concessions over State-owned 
maritime property have been introduced. In particular, there was the extension 
provided for by Decreto-legge 18 ottobre 2012, n. 179 ‒ Ulteriori misure urgenti 
per la crescita del Paese (convertito con modificazioni dalla legge 17 dicembre 
2012, n. 221) (Decree-Law No 179 of 18 October 2012 laying down further 
urgent measures for the growth of the country (converted, with amendments, by 
Law No 221 of 17 December 2012)), which extended the validity of such 
concessions until December 2020. 
5 However, in [the judgment in Promoimpresa], the Court of Justice held that that 
national legislation extending the validity of concessions was contrary to EU law. 
6 Lastly, the Italian State made provision for two further extensions of concessions 
over State-owned maritime property, pending the completion of the reform of the 
regulations governing the sector, by means of Decreto-legge 24 giugno 2016, n. 
113 ‒ Misure finanziarie urgenti per gli enti territoriali e il territorio (convertito 
con modificazioni dalla legge 7 agosto 2016, n. 160) (Decree-Law No 113 of 
24 June 2016 laying down urgent financial measures for local authorities and the 
country (converted, with amendments, by Law No 160 of 7 August 2016)) and by 
means of Legge 30 dicembre 2018, n. 145 ‒ Bilancio di previsione dello Stato per 
l’anno finanziario 2019 e bilancio pluriennale per il triennio 2019-2021 (Law 
No 145 of 30 December 2018 on the estimated State budget for the 2019 financial 
year and the multiannual budget for the three-year period from 2019 to 2021 
inclusive) [(‘Law No 145/2018’)]. Article 1(682) and (683) of that law provided 
for the extension until 31 December 2033 of the concessions over State-owned 
property then in force. 
Succinct presentation of the facts and procedure in the main proceedings 
7 The proceedings concern various measures adopted by the Municipality of Ginosa 
between December 2020 and June 2021 by which, on the basis of the provisions 
of Article 1(682) to (684) of Law No 145/2018, certain concessions over State-
owned maritime property were extended. 
8 In particular, after taking note of the provisions of Article 1(682) to (684) of Law 
No 145/2018, the Municipality of Ginosa adopted official guidelines addressed to 
the competent staff of that municipality concerning the implementation of those 
provisions and addressed a communication to the holders of concessions over 
State-owned maritime property in the municipality’s territory. 
9 Taking the view that the measures adopted by the Municipality of Ginosa 
infringed Articles 49 and 56 TFEU, as well as Directive 2006/123, the 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2022 – CASE C-348/22 
 
6  
Competition Authority adopted a reasoned opinion, within the meaning of 
Article 21a of [Legge 10 ottobre 1990, n. 287 – Norme per la tutela della 
concorrenza e del mercato (Law No 287 of 10 October 1990 laying down 
provisions for the protection of competition and the market)], in which it 
emphasised that the principles of competition and freedom of establishment 
required a public tendering procedure to be conducted beforehand. The 
Competition Authority also stated that the national legislation on the extension of 
concessions was inconsistent with Directive 2006/123 and that all State bodies, 
whether judicial or administrative, were required to disapply that national 
legislation. 
10 In response, the Municipality of Ginosa argued that its measures were lawful. In 
view of the municipality’s failure to comply with its opinion, the Competition 
Authority brought an action before the Regional Court, which is the referring 
court, for the annulment of the measures extending the maritime concessions in 
question. 
11 In support of its action, the Competition Authority puts forward a plea alleging, in 
particular, infringement of Article 12 of Directive 2006/123 and Article 49 TFEU, 
as well as breach of the principles of freedom of establishment and the freedom to 
provide services within the internal market. 
12 The Municipality of Ginosa has entered an appearance, as have a number of 
holders of concessions over State-owned maritime property, as interested parties, 
claiming that the action should be dismissed. A number of industry associations 
have intervened in support of the defendant. 
The essential arguments of the parties in the main proceedings 
13 The Competition Authority has challenged the measures at issue on the ground 
that Article 12 of Directive 2006/123 is a self-executing provision and that the 
provisions of Law No 145/2018 which provide for the extension of concessions 
over State-owned maritime property must therefore be disapplied. 
14 The Municipality of Ginosa, on the other hand, contends that Directive 2006/123 
is a non-self-executing piece of legislation and that, accordingly, Law 
No 145/2018 must be applied. In this connection, the defendant argues that the 
principle of legal certainty requires that Law No 145/2018 be applied, whereas 
Directive 2006/123 does not apply in the present case, since the condition of 
scarcity of resources is not fulfilled: numerous parts of the coastal section of the 
territory of the Municipality of Ginosa in respect of which concessions over State-
owned maritime property have not been granted remain available. 
15 The defendant maintains that the existence of a certain cross-border interest in 
relation to the concessions over State-owned maritime property in question has 
not been proven. According to the Municipality of Ginosa, the disapplication of 
Law No 145/2018 would also entail a breach of the companies’ rights to property 
AUTORITÀ GARANTE DELLA CONCORRENZA E DEL MERCATO 
 
7 
and of the principle of the protection of legitimate expectations, given that the 
extension of concessions over State-owned maritime property would be prohibited 
generally, with no provision being made to compensate the current holders of 
those concessions, since Article 49 of the Shipping Code prohibits such 
compensation. In addition, a general prohibition on extending concessions over 
State-owned maritime property would not allow for any assessment of the 
particular situation of each of those concessions, such as in the case of a 
concession associated with a hotel business. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The referring court observes that, under Italian law, the management of 
concessions over State-owned property is currently the responsibility of the 
municipalities. It states that, following the entry into force of Directive 2006/123, 
the municipalities have encountered serious difficulties in this area, inasmuch as 
the Italian State confined itself to transposing the directive purely formally, 
leaving the actual implementation of that directive for future implementing 
legislation, which, however, has not yet been adopted. In the absence of an 
effective law implementing the directive and regulations governing the matter 
with binding and effective rules applicable throughout the national territory, the 
powers of heads of individual municipalities have resulted in a state of chaos and 
complete legal uncertainty. 
17 Thus, for example, some municipalities have applied the national law and granted 
extensions until 31 December 2033, while others have refused to do so, 
disapplying the national rules. 
18 The referring court states that a directive which is not immediately and directly 
applicable in a Member State is subordinate to national law, whereas a self-
executing directive will be superior in rank to national law, in the sense that 
ordinary laws may not derogate from the provisions of such a directive. 
19 The relevance of the questions referred for a preliminary ruling lies, according to 
the referring court, in the fact that, given the clear conflict between the national 
laws providing for the automatic extension of concessions over State-owned 
maritime property and Directive 2006/123 (Article 12), as well as Article 49 
TFEU, it is necessary to establish, for the purposes of the decision in the main 
proceedings, whether or not that directive may be regarded as self-executing and 
therefore immediately and directly applicable. 
20 The referring court observes in this connection that a directive may be regarded as 
self-executing only if two conditions are met: (i) the directive must contain 
specific, detailed provisions which leave no discretion whatsoever to the Member 
State, such that the directive is technically capable of governing relationships 
between public authorities and private individuals directly and automatically; (ii) 
the period granted to the Member States for transposing and implementing the 
directive and for attaining the objectives set must have expired. 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2022 – CASE C-348/22 
 
8  
21 The referring court recalls, in particular, the judgment in Promoimpresa referred 
to above and points out that, according to the Court of Justice, it falls to the 
national courts to determine whether Article 12 of Directive 2006/123 applies to a 
given activity, as a result of the scarcity of the resources to which that activity 
applies. The referring court considers that, in the present case, Article 12 of that 
directive is fully applicable to concessions over State-owned maritime property. 
22 The referring court adds that the Court of Justice has held that (i) Article 12(1) 
and (2) of Directive 2006/123 precludes the automatic extension of concessions 
over State-owned maritime property and (ii) Article 49 TFEU also precludes any 
such extension, in so far as the concessions in question are of certain cross-border 
interest. 
23 The referring court considers that the national laws which provide for the 
automatic extension of concessions over State-owned property are contrary to 
both Article 12 of Directive 2006/123 and Article 49 TFEU. It does not agree with 
the line of national case-law according to which the Court of Justice has 
established that that directive is self-executing, for the reasons that the question of 
whether Directive 2006/123 is self-executing has never been examined 
specifically in national case-law and that it has not been established in the case-
law of the Court of Justice (the judgment in Promoimpresa) that that directive is 
self-executing. 
24 The referring court emphasises that, in its own rulings on the matter, it has held 
that Directive 2006/123 is non-self-executing and is not immediately applicable, 
because there is no national law enacting specific implementing provisions. It 
refers to the fundamental principles of the integrity of the legal system and of 
legal certainty and asserts that, since Directive 2006/123 is non-self-executing, the 
provisions of national law which provide for the automatic extension of the 
concessions in question must be applied pending the adoption of legislation 
implementing that directive. The referring court also considers that it falls to the 
national courts alone, and not to the municipalities, to determine whether or not 
Directive 2006/123 is self-executing. 
25 The referring court has consistently held that, in observance of the fundamental 
principles of the integrity of the legal system and of legal certainty, given the non-
self-executing nature of Directive 2006/123, pending the adoption of 
implementing legislation, the national legislation which provides for automatic 
extension must apply. In particular, it considers that the power of ‘disapplication 
in the absolute sense’, or the ‘mere exclusionary effect’, cannot be regarded as 
having been conferred – given the powers of the municipalities – on the heads of 
individual municipalities, on the basis of their subjective, personal opinion of 
whether the directive is self-executing or not. That power lies instead solely with 
the national courts which have been provided, for that purpose, with specific 
mechanisms to aid interpretation, such as bringing an issue of constitutionality 
before the Corte Costituzionale (Constitutional Court) or making a reference to 
AUTORITÀ GARANTE DELLA CONCORRENZA E DEL MERCATO 
 
9 
the Court of Justice for a preliminary ruling. Those mechanisms are obviously not 
available to the heads of municipalities. 
26 The referring court observes that the approach that has been taken in its own case-
law, described in paragraphs 24 and 25 above, is contrary to a number of 
judgments of the Consiglio di Stato (Council of State) of 2021. According to the 
referring court, the Council of State has arrived at the following conclusions: (a) 
Directive 2006/123 has no bearing on tourism; (b) Directive 2006/123 must be 
regarded as a liberalisation directive; (c) Directive 2006/123 is self-executing and 
immediately applicable; (d) the obligation to disapply national law is incumbent 
also on individual municipalities; (e) and (f) in the case of concessions over State-
owned maritime property, there is, generally speaking and in the abstract, a certain 
cross-border interest and a scarcity of the resources which are the subject of the 
concessions. The referring court also points out that the Council of State has 
postponed the effects of those judgments until December 2023, which has 
entailed, in substance, an automatic and generalised extension of the expiry date 
of concessions over State-owned property. 
27 The referring court considers that, contrary to the findings of the Council of State, 
Directive 2006/123 must be regarded as a harmonisation directive, not a 
liberalisation directive. It observes in this connection that the word 
‘harmonisation’ appears in some of the Court of Justice’s judgments with 
reference to recital 7 and Articles 9 to 13 of that directive. That harmonisation 
objective is also confirmed by the wording of recital 7 and of Article 12 of 
Directive 2006/123, which refers to the adoption of specific national 
implementing legislation. 
28 According to the referring court, since Directive 2006/123 must be regarded as a 
harmonisation directive, it is invalid on the ground of infringement of Article 115 
TFEU, inasmuch as it was adopted only by a majority vote, rather than 
unanimously. 
29 As regards the relationship between directives and national rules, the referring 
court formulates the following two hypotheses. On the one hand, if there is a 
conflict between national rules and rules of EU law which are self-executing and 
immediately applicable, the national courts and public authorities must apply the 
rules of EU law and disapply the conflicting national rules. On the other hand, if 
there is a conflict between national rules and rules of EU law that are non-self-
executing, the national courts, without prejudice to the possibility of making a 
reference to the Court of Justice for a preliminary ruling or a reference to the 
Italian Constitutional Court, are required to apply the national rules, in the light of 
the principle that national law is to be interpreted in conformity with EU law. 
30 As has previously been stated, the Regional Court has consistently held that 
Directive 2006/123 is non-self-executing, the consequence of which is that it 
cannot immediately be applied in the national territory without a law first being 
enacted that lays down specific implementing provisions and, in particular, 
REQUEST FOR A PRELIMINARY RULING OF 11. 5. 2022 – CASE C-348/22 
 
10  
uniform rules for the conduct of tendering procedures governing, inter alia, 
participation requirements and award criteria, as well as uniform criteria for 
determining any ‘compensation’ payable to outgoing concessionaires. 
31 The referring court states that, according to the case-law of the Court of Justice, 
the application of the principle that national law is to be interpreted in conformity 
with EU law is circumscribed, in particular, by the principle of legal certainty. The 
latter principle presupposes the principle of the integrity of the legal system, and 
so a national rule which is contrary to EU law may not be disapplied unless there 
is a rule of EU law that can replace it. The referring court states in this connection 
that the Court of Justice has already excluded the possibility of disapplying 
national law when it conflicts with a rule of EU law that is not immediately 
applicable. 
32 The referring court concludes that, in the event of a conflict between national rules 
and rules of EU law that are not immediately applicable, the national courts, and a 
fortiori the public authorities, are precluded from disapplying those national rules. 
Furthermore, in such a situation, it is within the sole competence of the national 
courts to raise an issue of constitutionality before the Italian Constitutional Court, 
which may order the repeal of legislation which conflicts with EU law. It follows 
that, in the present case, the simple disapplication of Law No 145/2018 would 
both be unlawful and create grave uncertainty in the area concerned.