La proroga delle concessioni demaniali marittime tra disapplicazione e incidente di costituzionalità. Questioni aperte, opacità della giurisprudenza

The prorogation of maritime State concessions between disapplication and incident of constitutionality. Open issues, opacity of the case law

Abstract

The issue of maritime State concessions for tourist-recreational purposes that have been repeatedly extended presents some profiles of primary constitutional relevance, as is also apparent from the most recent pronouncements of the Council of State and the Court of Justice of the European Union. The tendency to dilate the area of the direct effect of precise and unconditional directives is considered in these pages both in its repercussions on the relations between internal sources and supranational norms, as well as for the purposes of the perimeter of the area reserved to the control of constitutionality. The common courts power-duty of disapplication, as an alternative to the question of constitutionality, is at the centre of the discussion on the disapplication of legislative extensions contrary to Directive 2006/123/EC, as well as Article 49 TFEU, which prohibits restrictions on freedom of establishment. The article, in particular, addresses the question of the relevance, for the purposes of recognising direct effect in the concrete case, of the invocation of the directive by the person to whom it attributes an advantage in a precise and unconditional manner.