Genoa – The motorway viaducts occupy public space above the municipal roads and, therefore, the company concessionaire of these infrastructures must pay the relevant fee for the occupation of public land to the Municipality. This is what is established by a sentence of the Court of Genoa, rejecting the request of Autostrade per l'Italia (Aspi), which had promoted a civil lawsuit against the municipal administration of the Ligurian capitalto request that it be ordered to reimburse the 326,117 euros paid by Aspi in 2021 for the cup, the single property fee which, from that year, replaced the one for the occupation of public land at a national level.
In fact, the company had paid the Municipality the amount requested to avoid penalties, interest and surcharges, but believed that it was an undue payment, “due to the lack of obligation to pay the fee due to the non-existence of the legal requirements”. This is a theory contested by the Municipality of Genoa, according to which the payment is, however, due, and not shared even by the judge who denied the reimbursement.
«We were one of the pioneering Municipalities in Italy on this front and the Court recognized the validity of our recovery action, started already in 2019, in line with the work of many Municipalities and in compliance with a jurisprudence that now appears consolidated – comments the deputy mayor and budget councilor of the Municipality of Genoa, Pietro Piciocchi – . Those who, unjustly, accuse our administration of subservience towards Aspi, today have the right to do so. We have been impartial and transparent, as is our duty, and we demand respect for the rules from everyone.” The deputy mayor's allusion is to the controversies which, after the collapse of the Morandi Bridge – which, on 14 August 2018, cost the lives of 43 people – have affected the municipal administration on various occasions, accused by some parties of having had an of subordination towards Autostrade.
As regards the space occupied in the city by the motorway viaducts, the administration of Palazzo Tursi had started an action in 2019 to ask Aspi for payment. And the deputy mayor explains that that action had led to recover the fee for the years from 2009 to 2019, for 11,565 square meters of municipal roads over which motorway bridges and overpasses pass. Then the disputes initiated by Aspi began for the subsequent years. «There have been rulings in our favor regarding the disputes for 2021 and 2022, while the judgment on the case relating to the 2020 fee is still pending», explains Piciocchi.
In the ruling of the Court of Genoa last October – relating to the 2021 fee – various pronouncements of the Court of Cassation are cited, to affirm that the payment is a due act. «The tax basis is constituted (…) by the occupation, of any nature, of spaces and areas, even above or below the ground, belonging to the state property or the unavailable heritage of the municipalities and provinces, which involves an effective subtraction of the surface for public use – we read in one of the excerpts reported – Therefore for the purposes of payment the fact in itself of the aforementioned occupation is relevant, regardless of the existence or otherwise of a concession or authorization”.
And the judge still cites the Supreme Court (a 2017 ruling) when he states that «the fact that the viaduct is owned by the state and that, at the end of the concession, its management also returns to the State is irrelevant since , during the duration of the concession itself, the asset, which is also functional to the exercise of a public utility service, is managed under a concession regime by an entity that acts in full autonomy and not as a mere substitute for the State in the exploitation of the assets. It follows that the exemption (…) is not valid as it does not constitute employment by the State”.
For now, no comments have been received from Aspi. The company says that it will evaluate what to do, reporting, however, that there have also been opposite rulings from various courts. Among the most recent is that of the Council of State (shortly following the verdict of the Court of Genoa), which accepted Aspi's appeal against a ruling by the TAR of Abruzzo.
In that case the dispute was of an administrative nature, because the Province of Teramo had judged the occupation of provincial public land via overpasses and motorway viaducts to be abusive, as a specific concession had not been issued. According to the Council of State, however, no authorization is required from the local authorities and the payment of an occupation fee is not due.
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