Efficacia diretta e primato europeo. condizioni, effetti e limiti di operatività nel settore delle concessioni demaniali marittime

The well-known incompatibility between the Italian legislation on the renewal of public concessions and Article 12 of the so called Bolkestein Directive leads us to examine the application of the principle of EU primacy and the doctrine of direct effects. In this regard, the present study will attempt to highlight the fact that the remedies provided by EU law in the event of a normative conflict between EU directives and domestic law depend on the nature of the dispute, the parties involved and, consequently, the limits of the applicability of the doctrine of direct effects. The crucial point seems to lie in the legal qualification of the prejudice suffered by the former concessionaire. On the one hand, if the prejudice resulting from the disapplication of the domestic legislation can be qualified as a mere negative effect, the Member State authorities would be entitled to disapply national law. If, on the other hand, such prejudice can be seen as an additional obligation imposed on the third party, the remedies of the State liability for breach of EU law, or infringement procedure, should be preferred, on the understanding that the only definitive solution is the abrogating intervention of the Italian legislature.