Le 'sentenze gemelle' del Consiglio di Stato in materia di concessioni balneari e la dottrina degli effetti diretti delle direttive

Pantaleo, Luca

2023-01-01

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Abstract

The present essay dwells on the theory of direct effects of EU directives in light of the application and interpretation of such theory carried out by the Italiana Council of State in two landmark rulings concerning the vexed question of beach concessions granted by the Italian State allegedly in breach of art. 12 of the so-called Services Directive. The essay argues that while commendable in its intentions (that is, to finally guarantee compliance of the Italian legislation with the said Directive) the Council of State has applied an erroneous version of the direct effects theory that goes well beyond its scope as interpreted by the Court of Justice of the EU. The essay suggests that Italian courts (most appropriately, the Constitutional Court) should find alternative legal mechanisms based entirely on domestic law to overcome the Italian lawmaker’s unrepentant lack of discipline regarding the correct transposition of the Services Directive in the field of beach concessions.