The Corte di Cassazione (the Italian Supreme Court) has recently ruled (ruling of 4th May 2016, no. 8916) on the exercise of non-scheduled public services without the required authorization in the Municipality of Venice.
In the case at hand, a company challenged an order issued by the Municipality of Venice for payment of a fine and confiscation of a vessel for passenger transport due to the breach of articles 5 and 43 of the Regional Law of the Veneto Region no. 63/1993 (non-scheduled public transport of 46 passengers without authorization).
The challenge was rejected by the Tribunale (Court) of Venice, whose decision was then confirmed by the Corte d’Appello (Court of Appeal) of Venice. An appeal was then filed with the Corte di Cassazione against the decision of the Court of Appeal.
The Corte di Cassazione has pointed out that «[…] it is absolutely evident that the administrative wrong concerns the breach of Regional Law no. 63 of 1993, art. 5, para. 5 (Rules for the exercise of administrative functions with regard to non-scheduled transport services in internal waters and for the public service of gondolas in the city of Venice) pursuant to which transport under non-scheduled public service with operator and motor boat “can be exercised only by persons with the specific authorization issued by the municipality”. Plaintiff deems that such violation could be notified only by the Magistrato delle Acque and not by the Municipality of Venice because the boat was not found in an internal navigation canal but in a “state owned maritime lagoon canal” subject to the jurisdiction of the Magistrato delle Acque. […] Well, plaintiff’s first presupposition is correct, because there is no doubt […] that the navigation in the canal is regulated by ordinance no. 93/2007 of the President of the Magistrato delle Acque (office which was by the way suppressed through Law Decree 24 June 2014, no. 90, art. 18, para. 3, converted with changes from Law 11 August 2014, no. 114)».
The Court has also pointed out that «However, the conclusion drawn by plaintiff cannot be agreed with (exclusive authority of the Magistrato delle Acque with regard to administrative fines for violations ascertained within canals under its jurisdiction). The mentioned ordinance 93/2007 only governs the safety of navigation on the abovementioned canals, with particular reference to the speed of vessels, to mooring and to navigation in shallow areas, while the ordinance does not provide anything with regard to authorizations to the exercise of non-scheduled public transport (nor could it provide anything since the matter is delegated by the Region to the Municipality pursuant to Regional Law no. 63 of 1993, art. 2)».
Therefore, «[…] the exercise of non-scheduled transport remains regulated by the Municipality of Venice, who has jurisdiction (regional law no. 63/1993) over the issuance of the necessary authorizations. As already pointed out by the Court of Appeal, art. 6 of the Regulation for the Coordination of Local Navigation in the (OMISSIS) sets forth that “public transport services ‒whether scheduled or not‒ of persons or things, performed exclusively in the (OMISSIS) and along the afferent internal waterways, including sea and port canals, are subject to concession, licence or authorization and are regulated by the regional rules of local public transport and by those relating to internal navigation”. The navigable canals of the (OMISSIS) under the Magistrato delle Acque’s jurisdiction (see art. 4 of the quoted Regulation containing the definition and classification of waters and navigable canals) fall under such ample provision. Therefore, the application of administrative fines for the relevant violations committed in the areas which are in any case included in the municipal territory […] is up to the Municipality of Venice. Art. 1 of Regional Law 28 January 1977, no. 10 (Regulation and delegation of the functions concerning the application of administrative fines which pertain to the Region) indeed stipulates that “starting from the coming into force of this law, the functions concerning the application of administrative fines in all matters pertaining to the Region ‒be they transferred or delegated‒ including those provided by State Law no. 558 dated 28 July 1971, are delegated or sub-delegated, except for what provided under the following paragraph, to the municipalities in whose territory the violations are ascertained”».
The Corte di Cassazione has hence ruled that «[…] the Municipality of Venice was fully entitled to issue the order for payment against plaintiff for the exercise of non-scheduled public service without the required authorization […]».
(Bologna Office – 0039(0)51 250020)
