326 COMPETITION LAW IN TOURISM laws which, understanding tourism as having an exclusively regional competence, regulated the subject matter. As far as the first group of rulings above is concerned, the administrative judge intervened several times, sometimes even discarding the national legislation, allowing the automatic extension of concessions in contrast with EU law and applying the principles set forth by the EU Court of Justice10. In most of cases, in particular, it affirmed the need for a public procurement proceeding when the property object of the concession is “economically competitive”, on the basis that, if prescribed differently, an unjustified restriction would affect the freedom of establishment, making it impossible for other competitors to obtain the expiring concessions11. In the second group of judgments, instead, a recent 2017 decision of the Constitutional Court stands out and, motivated by the legitimacy of some provisions introduced by the regional law of Tuscany no. 31/2016 on maritime property, it unveils many insights12. The Court takes partially from what EU case law already stated, as long as it establishes the principle that provisions (protecting the legitimate expectations of the exiting licensee and, thus, granting him advantages such as the allowances measured regarding the investments made in a time period when the title was reliable and solid) are, abstractly, not in breach of Article 12 of the service Directive. As far as the Constitutional Judge is concerned, the potential breach of the equal treatment principle, of the market and of the competition principle has to be interpreted concretely, considering the amount of indemnity in proportion to the value of the object of the concession and deeming illegitimate all disproportionate means of compensation; it reaches means which are not useful to the depreciation of the investments made and which limit the arena of prospective competitors, extending indefinitely the use of the public property. Therefore, the indemnity cannot, on the one hand, generate enrichment for the exiting licensee to the detriment of the new licensee and, on the other, there must not be an unjust enrichment of the managing institution to the detriment 10 See, ex multis, State Council, sect. VI, 12 February 2018, no. 873; Tar Abruzzo, sect. I, 2 July 2018, no. 271; Tar Campania, Naples, sect. VII, 13 July 2015, no. 3673. 11 See, ex multis, State Council, sect. V, 23 November 2016, no. 4911; State Council, sect. VI, 14 August 2015, no. 3936; State Council, sect. VI, 22 March 2011, no. 1747; Tar Puglia, Lecce, sect. I, 28 July 2017, no. 1329; Tar Lazio, Roma, sect. II, 9 May 2017, no. 5573; Tar Lombardia, Milan, sect. I, 27 April 2017, no. 959; Tar Campania, Salerno, sect. I, 27 September 2011, no. 1582; Tar Puglia, Lecce, sect. I, 9 September 2011, no. 1577. 12 Constitutional Court, 7 July 2017, no. 157, see also Constitutional Court, 9 January 2019, no. 1.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==