Adnkronos (Adnkronos) – “The news reported in recent days by numerous national newspapers, describing the definitive path to tenders for beach concessions by 2027, reiterates an interpretation that Assobalneari Italia firmly disputes, because it is deemed inconsistent with the text of Directive 2006/123/EC and the case law of the Court of Justice of the European Union.
Indeed, over the years, some of the Council of State's jurisprudence has developed a position that essentially considers the scarcity of natural resources to be a given, almost automatically deriving the obligation to conduct comparative procedures. It is precisely this automaticity that must be re-examined today,” Fabrizio Licordari, a member of Assobalneari Italia-Federturismo Confindustria, told Adnkronos/Labitalia.
“The Promoimpresa and Ginosa Municipality rulings, and the recent order of 10 July 2026 from the European Court of Justice,” he explains, “do not eliminate the scarcity requirement set out in Article 12 of the Directive.
On the contrary, they confirm the need to preliminarily verify whether the conditions for applying comparative procedures are met. The wording of Article 12 is unequivocal: selection among candidates applies when the number of available permits is limited due to the scarcity of natural resources. Assobalneari Italia therefore poses a question as simple as it is crucial: if scarcity were always presumed a priori, why would the European legislator have written 'if'? Scarcity cannot be transformed from a presupposition to be ascertained into a presumption from which to proceed.
“It is on this ground,” insists President Licordari, “that the Ginosa Municipality ruling, stemming from the preliminary reference filed by President Antonio Pasca, has assumed fundamental importance.
And it is along these same lines that the recent analysis by Marcovalerio Pozzato, President of the Regional Audit Section of the Court of Auditors for Emilia-Romagna, points to, focusing precisely on the need to prove scarcity, rather than considering it a priori. These readings, along with the reflections of Paolo Maddalena, President Emeritus of the Constitutional Court, and other authoritative voices in the legal world, demonstrate that the debate is far from over.
"It is that 'judge in Berlin'," Assobalneari Italia emphasizes, "that we continue to call for: magistrates capable of starting from the text of the regulations and their prerequisites, without considering a conclusion inevitable before having verified the conditions that justify it. The Court of Justice's ruling of September 3, 2026, on small hydroelectric diversions also confirms a principle of method: the Services Directive does not apply indiscriminately to any concession on public property. The Court clarified that Promoimpresa did not establish this automaticity and, having established the production nature of a good in the hydroelectric case, ruled out the application of the directive. The method is clear: first, the prerequisites are verified, then the consequences are drawn. Not automatic processes, but concrete assessments. Furthermore, the Services Directive was created to promote freedom of establishment and market openness. It cannot be reduced to the simple replacement of one company with another in the same portion of territory, when the opening of new areas could mean new businesses, new investments, and new jobs."
Assobalneari Italia "is not asking for exemptions or privileges. It demands that European law be applied in its entirety, without ignoring its prerequisites, and hopes that other Italian magistrates will explore these questions further, contributing to a re-examination of the current approach. The authority of the Council of State is not under discussion. However, it is legitimate to critically discuss case law when it is deemed inconsistent with the text of the Directive and with the guidance of the Court of Justice."
"When the Court of Justice," he clarifies, "repeatedly returns to the assumptions set by European law, it's not Europe that needs to change. It's the interpreter who needs to question himself. And today that question concerns precisely the stance of the Seventh Chamber of the Council of State."
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