engleski

Legal regime of concessions for tourist and recreational use on maritime domain according to Croatian law

The seminar was interdisciplinary and its goal was to examine administrative, technical and legal issues related to the recent decision of the Court of Justice of the European Union 14 July 2016 (C-458/14 and C-67/15). In the introductory part of the presentation the legal status of maritime domain according to Croatian law was presented. Maritime domain is a res communes omnium and res extra commertium, but at the same time is very attractive for carrying out a number of commercial activities, many of which are for tourism and recreational purposes. According to Croatian law maritime domain may be used and economically exploited only on the basis of a granted concession or concession approval. Therefore, a review of the concession granting procedure and the procedure of issuing concession approvals for commercial exploitation of maritime domain was provided. Additionally, the compatibility of those procedures with the requirements from the Directive 2006/123/EC was examined. Namely, Directive is seeking for procedures which provide full guaranties of impartiality and transparency including adequate publicity about the launch, conduct and completion of the procedure ; furthermore it does not allow automatic renewal of the authorization nor any other advantage on the provider whose authorization has just expired. The existing incompatibilities were pinpointed and proposals de lege ferenda offered in order to harmonize Croatian law on concession granting and issuing concession approvals for tourist and recreational use on maritime domain with the Directive provisions. Special attention was devoted to the scope of application of the Directive 2006/123/EC, in particular its applicability to the sport ports and nautical tourism ports, since non-profit making amateur sporting activities are excluded from its scope (Preamble, p. 35), as well as port activities (Art. 2/2/d of Directive 2006/123/EC). Since the concessions for sport purpose ports can, according to Croatian law, be granted only to an association registered for performing of sport activities and can be used only for the members of the association and such association cannot gain any profit from performing of its activities, sport ports should fall outside of its scope. In order to answer the question of the Directive’s applicability on nautical tourism ports, an analysis of the relevant provisions of the Maritime Domain and Seaports Act, regulating the matter of port activities, and the Act on Providing of Tourism Services, regulating tourism services rendered in nautical tourism ports was presented. Since services provided in nautical ports are by their nature prevailingly tourist and leisure- oriented, the conclusion was brought that Directive should apply on nautical tourism ports. The question was raised whether its application on nautical tourism ports fulfills one of its major aims – to ensure the economic and social progress. Namely, it is indisputable that big capital investments in the nautical tourism ports, invested either in the construction of the new ports, or in the reconstruction of the existing facilities, increase the value of the maritime domain. However, on expiry of the period for which concession has been granted, the former concessionaire does not have the right to the compensation for that increased value. At the same time, according to Croatian law, as well as under the Directive, the former concessionaire must not have the right to a priority concession or a privileged position in concession granting. Such business environment represents a disincentive for the investments of the existing concessionaires as well as for the potential investors and it hampers the progress of the existing nautical tourism ports. Solutions to this problem have to be found within the instruments of the law of obligations.

maritime domain, concessions, services, EU law, C-458/14 and C-67/15

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