Concessions relating to State-owned maritime property within the context of free movement: reflections on the promoimpresa judgment


In Promoimpresa and Melis judgment, the Court of Justice did not hesitate to assert that concessions of State-owned maritime property for tourist and leisure-oriented business purposes “concern a right of establishment on State-owned land with a view to conducting tourist and leisure-oriented business activities so that the situations at issue in the cases in the main proceedings fall, by their very nature, within the scope of Article 49 TFEU”. This legal
classification not only provides the necessary premise for limiting the scope of EU law, but is also helpful in fully appreciating the Court’s reasoning in which primary law intersects with secondary law. The parameters offered respectively by the former and the latter are not neutral or equivalent. On the contrary, the consequences resulting from the application of one or the other parameter seem to be rather significant for the residual room for
manoeuvre of the Member States.


1. Introduction: freedom of establishment as the reference standard for assessing legislation regulating the grant of concessions of State-owned maritime property
2. The two parameters: harmonised rules; primary law
3. The first parameter: Directive 123/2006/EC and the degree of harmonisation achieved by it
4. The second parameter: primary law
4.1. The cross-border interest
4.2. Overriding reasons in the public interest
5. Concluding remarks

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