Trieste, its international Free Port and the Court of Justice of the European Union

Analysis by Paolo G. Parovel

Author of the English version: Silvia Verdoljak

Trieste, 22 July 2023.  ̶ Between June 30th and July 14th, the International Provisional Representative of the Free Territory of Trieste – I.P.R. F.T.T. has enabled the first procedures for the intervention of the Court of Justice of the European Union in the pending lawsuits regarding serious violations of the temporary civil administration of Trieste and of its international Free Port, which is entrusted to the Italian Government since 1954.

The I.P.R. F.T.T. is an Agency for representation established in 2015 to protect the rights of the citizens and enterprises of Trieste and of other States (LINK). The lawsuits it has initiated revolve especially on violations of the general tax system of the present-day Free Territory of Trieste (LINK), on the limits to the levying of the I.V.A. (Value Added Tax – VAT) to the Free Territory (LINK), and on the obligations regarding the management of its international Free Port (LINK).

Enabling the competences of the Court of Justice of the European Union is a decisive turn in the legal battle for the respect of the sovereignty of the present-day Free Territory of Trieste and of the functions of its international Free Port in the interest of all parties concerned and, in particular, for the development and the stabilization of the whole European area of the Three Seas Initiative and of the Western Balkans.

For the respect of sovereignty and borders in Europe.

Indeed, the question of Trieste is not about pro-independence or separatist movements. Instead, it revolves on respecting sovereignty and the borders of European States that are established with the Peace Treaties that followed the end of WWII, the specific UN Security Council Resolutions, and the freedom of international commerce.

The present-day Free Territory of Trieste is a small, neutral European sovereign State established with the Treaty of Peace with Italy of 10 February 1947, and provided with an international Free Port placed at the service of the ships and freight of all States, without discriminations. It borders with Italy since 1947, and with Slovenia since 1992.

The Free Territory of Trieste is placed under the direct responsibility of the UN Security Council with UNSC Resolution 16 (1947) and it is governed in accordance with a special Provisional Regime provided at art. 21.3 and at annex VII of the same Treaty of Peace. It has no public debt, and no territorial claims.

The Provisional Regime of government of the present-day Free Territory of Trieste has not date of expiry, and it does also provide for the direct enforcement (Annex VII, art. 2, fourth paragraph), since 15 September 1947, of all compatible meanest of Annex VI – Permanent Statute of the Free Territory of Trieste, including those that establish and regulate its international Free Port.

Since 1947, on the Security Council’s behalf, the Provisional Regime of the present-day Free Territory of Trieste is entrusted to the Governments of the US and of the United Kingdom; and in 1954, they have sub-entrusted Trieste’s temporary civil administration, including jurisdiction, to the responsibility of the Italian Government – not of the Italian State – with a Memorandum of Understanding. The Free Territory’s military defense was instead entrusted to NATO.

The Italian Government exercises the temporary civil administration of the Free Territory of Trieste to date, under that same title, through bodies and officers of the Italian Republic.

The international Free Port is established by the Treaty of Peace (Annex VI art. 34, Annex VII art. 2 fourth paragraph, Annex VIII) as a State corporation of the Free Territory of Trieste, and its correct management is included among the obligations of the sub-mandate of temporary civil administration that the Italian Government exercises since 1954.

The special regime of the international Free Port of Trieste allows the loading, unloading, warehousing, trading, and the processing of goods of all States in a custom-free regime, paying only duties or charges for services received from the port, and enjoying free transit through other States, under the control of the Government of the Free Territory and of an International Commission.

Furthermore, the geographic position of the Free Territory of Trieste makes it evident that the correct management of its international Free Port is an extraordinary valuable strategic instrument for a balanced economic and logistic development of the Three Seas Initiative and for its extension to all the countries of the Western Balkans.

The Italian legal order in force recognizes and fully enforces both the 1947 Peace Treaty (DLgsCPS // Legislative Decree of the Provisional Head of State 1430/1947, Law No. 3054/1952) and the sub-mandate entrusted to the responsibility of the Italian Government for the temporary civil administration of the present-day Free Territory Trieste (DPR // Decree of the President of the Italian Republic of 27 October 1954, without number). The Italian Government itself has recognizes this sub-mandate also with own, recent legal measures (LINK).

To study the subject up-to-date, it is worth consulting the systematic review of laws published in English (LINK) and in Italian (LINK) provided by the I.P.R. F.T.T. Law Commission.

This means that all questions regarding the correct provisional administration of Trieste and of its international Free Port can be settles with the ordinary instruments of law and negotiation, for the sake of the whole international Community, and without damaging anyone.

Origin of the dispute: a system involved in significant corruption.

The legal dispute arises because the Italian bodies and officers in charge of the provisional administration are openly violating both the mandate and the specific Italian laws in order to simulate that Trieste and its international Free Port do instead belong to the Italian State and, for this purpose, they falsely claim that the Free Territory of Trieste “does not exist and never existed”.

Indeed, the apparatus of the provisional administration is controlled by Italian political faction that force the illegal application of false nationalistic theses, developed in Italy after 1947, in order to deny the validity of the Peace Treaty and the existence of the Free Territory of Trieste.

The evidence that those theses rely entirely on gross, false, political interpretations of both the Treaties and international law did not prevent them from being spread in Italy and abroad for decades, with campaigns of propaganda and disinformation organized for the purpose.

This is how the Italian apparatus in charge of the provisional administration turned into a system of public corruption, because it breaches the laws and rights that it is legally obliged to respect and enforce. And there is full evidence of that.

See, for instance, the enormous frauds going on in Trieste since 2016 on the area of the Northern Free Port (also called “porto vecchio” as in “old port”) with the active or passive complicity of all local administrative and judicial authorities that have the legal obligation to prevent them (LINK).

The behaviors of those bodies and officers of the Italian provisional administration are subversive of international law, of the Italian Constitutional legal order, of the legal order of the European Union, and are causing severe economic damages to Trieste, to the freedom of international commerce, as well as to the strategic balances of the European region of the Three Seas Initiative (Baltic-Adriatic-Black Sea).

The simulation of the Italian State’s sovereignty over the Free Territory of Trieste and over its international Free Port is also used to conclude illegitimate port agreements with State corporations of both Iran (LINK) and of the People’s Republic of China (LINK) that are sanctioned by the United States, and to support destabilizing activities in the Western Balkans by funding and coordinating revanchist organizations of Italy and of other States.

This state of public illegality, economic damage, and of strategic risk is worsened by the fact that so far, no Italian Government had the capability and the courage needed to impose on those Italian bodies and officers respect for the sovereignty of the Free Territory of Trieste and for the rights of all States over its international Free Port.

For those reasons, there is no doubt that this is, for all purposes, a situation of public corruption akin to those that the U.S. Department of State defines of “significant corruption” because they corrupt the rule of law, undermine public faith in authorities, and are also factors of destabilization for the rules-based international order.

Disinformation and destabilization.

When it comes to the Italian provisional administration of the present-day Free Territory of Trieste and of its international Free Port, its public corruption and its implications for the development of Trieste’s Mitteleuropean Hinterland are not immediately evident, because they are covered up by a general state of disinformation regarding Trieste’s real legal status.

The disinformation is caused by the fact that the systematic spreading, in Italy and abroad, of the theses that simulate Italian sovereignty over the Free Territory of Trieste, not only conceals its real legal status of temporary civil administration, but conceals also the seriousness of the nature of the violations committed by the bodies and officers in charge of that Italian provisional administration.

This state of general disinformation can be verified easily on mass media or on the most popular encyclopedias, including Wikipedia, and it has been consolidated in the works of all historian and jurists who considered the question of Trieste from second-hand or third-hand sources, without directly and properly verifying the international instruments and other legal acts that define the subject.

Furthermore, independent and innovative studies were discouraged both with active political repression and censorship of information, and with the local consolidation of two different political factions based in the same, false premise that the Free Territory of Trieste was never established.

Indeed, starting from this false premise, an Italian “annexationist” faction claims to be entitled to occupy it, as it remained “stateless land”, and a Triestine “pro-independence” faction claims to be entitled to seek its establishment under the 1947 Peace Treaty.

However, those are merely two specular political absurdities, because the Free Territory of Trieste is already established as a sovereign State with a Provisional Regime of government since 15 September 1947, in compliance with the Treaty of Peace, and also because exercising the mandate, or sub-mandate, of Provisional Regime of government does not equate to occupying of the administered State, nor does it allow for it.

This means that the “annexationists” are not Italian “patriots”, because their claims breach the Constitution and international obligations of the Italian Republic, and in a democracy patriotism it nor nationalistic fanaticism, rather, it is compliance with the law and honor of one’s own Country.

But the “pro-independence” faction isn’t what it says either, as it isn’t secessionist or separatist, because it is impossible achieving independence or separation from Italy for a State that is already independent and separate since more than seventy years, in compliance with a Treaty in force and binding for the whole international Community.

The true destabilization problems coming from Trieste are those arising by the fact that the political corruption of the Italian provisional administration has created and maintained in Trieste itself, in Italy, and abroad a state of severe ignorance and disinformation regarding the international rights and obligations on the subject.

Indeed, this widespread disinformation is the political condition that allows that system of significant corruption to use its simulation of Italian sovereignty over Trieste and over its international Free Port also to support, in the European region of the Three Seas Initiative and in the Western Balkans, both destabilizing nationalistic activities and the economic and political penetration of the People’s Republic of China, be it directly or through companies of other States.

The criteria of the legal battle.

For those reasons, after completing all the analyses required by the subject, in 2017 the I.P.R. F.T.T. consolidated them in a systematic review (LINK) and initiated the legal battle for the protection of the rights of the Free Territory of Trieste, and the rights of all States over its international Free Port to counter the destabilizing activities promoted by the “significant corruption” of the Italian provisional administration.

Since this is all about defending specific rights that are already consolidated within the international order, enforced within the Italian one, and recognized by the legal order of the European Union, the I.P.R. F.T.T. decided to rely first and foremost on the simplest operational solutions, which are also the least embarrassing for all parties involved, adopting a gradual defense strategy before Italian Courts in order to continue it, if necessary, before European and international Courts.

This is why the legal battle of the I.P.R. F.T.T. started addressing the Italian judges who serve their duties in Trieste, requiring them to demonstrate and prevent, as is their duty, the breaches of laws and rights that are committed by the bodies and officers of the Italian provisional administration.

For this purpose, the I.P.R. F.T.T. has initiated the aforementioned three civil lawsuits, two of which dispute the illegal application of the Italian State’s taxation and budgets to the Free Territory of Trieste, while the third is mainly focused on the violations of the regime of international Free Port and on the illegitimate port agreements with the People’s Republic of China.

In all three of its lawsuits, the I.P.R. F.T.T. enjoys the support of hundreds of citizens and enterprises from Free Territory of Trieste and from other States, it has offered the Italian Government to settle the dispute out of Court with direct negotiations, and it has reserved the right to seek the referral of any of those disputes to the competent European and international Courts in so it deems appropriate.

The absolute denial of justice of the Italian Courts.

Since 2018, all Italian judges in charge refused to demonstrate and enforce the law on the matter, issuing a series of identical political judgments in which they falsely claim that the Free Territory of Trieste “does not exist and never existed”.

The analysis of those judgments makes it possible stating that the Italian judges in charge have refused to duly demonstrate the Italian laws in force that recognize the present-day Free Territory of Trieste and the consequent international obligations because they are perfectly aware of the fact that those laws do fully confirm the reasons of the I.P.R. F.T.T.

The same Italian judges did all systematically order the complainants to bear all court costs and fees, for the declared intention to dissuade them from containing to seek justice.

Between May and June 2023 this series of scandalous political judgments was ultimately worsened by the decision of the Joint Sections of the Court of Cassation in the lawsuit about Trieste’s general taxation system, and by the judgment in first instance in the lawsuit regarding the management of the international Free Port. See our analysis about them, released on June 16th (LINK).

The decision of the Court of Cassation is the most scandalous, because it has provided the ultimate evidence that when it comes to this subject, the political influence on Italian judges paralyzes even the independence of the highest Italian civil Court, which should grant full compliance with the laws within the Italian legal order, within the European Union’s, and within the international order.

On its side, the judgment of first instance in the lawsuit about the management of the international Free Port is the most destabilizing, because the alleged lack of legal existence of the Free Territory of Trieste would imply not only the lack of legal existence of its international Free Port and of the deriving rights of all States, but also the validity of the illegitimate port agreements of the administering Italian authorities with Iran and with the People’s Republic of China.

In our June 16th analysis we observed that those “escape judgments” of the Italian judiciary constitute an absolute denial of justice, organized and committed in open violation of the Italian, European, and International legal order, due to the evident pressing of subversive political circles that the Italian Government cannot or doesn’t want to oppose to.

We did also anticipate that the only actual result of this complete denial of justice by the Italian Court would be the one that the legal strategies of the I.P.R. F.T.T. had already foreseen: the immediate referral of the legal dispute to the higher European and international Court.

And this for the simple reason that the legal status and the Provisional Regime of government of the present-day Free Territory of Trieste and the management of its international Free Port are not domestic affairs of the Italian State.

Transferring the dispute.

Indeed, starting on June 30th, the I.P.R. F.T.T. has initiated the gradual transfer of the legal action to the higher Courts.

The first step was the immediate invocation, in the pending lawsuits, of the competence of the Court of Justice of the European Union to issue preliminary rulings about the interpretation of European Union Treaties, as established at art. 267 letter a) of the Treaty on the Functioning of the European Union – TFEU.

The successive steps, if necessary, are going to focus on direct actions before the competent European and international Courts, as well as on the eventual activation of the special clauses for international arbitration provided within the Treaty of Peace with Italy of 10 February 1947.

The first referrals to the Court of Justice of the European Union.

Because of this, the first requests for a preliminary ruling of the EU Court of Justice were lodged before the Court of Appeal of Trieste this June 30th, with the final brief in lawsuit No. 209/2022 regarding the arbitrary levying of the Italian VAT in Trieste.

On July 6th, the same requests for a preliminary ruling of the EU Court of Justice were introduced in the Writ of Summon for appeal in the lawsuit regarding the management of the international Free Port. The Court of Appeal recorded this new document on July 14th, with General Register number 242/2023.

We are publishing here, in English (LINK) and in Italian (LINK) that Writ of Summon for appeal, in order to allow our readers to personally verify how and why those new acts represent a decisive, unprecedented turn in the legal battle for the defense of Trieste and of its international Free Port.

Indeed, this is the first time since 1954 that the subject is removed from the control of the systems of corruption that, by pressing and propagandas, influence politics, justice, and public information in Italy as in the administered Free Territory.

The Court of Justice of the European Union (CJEU) consists of 27 judges, one from each Member State, and 11 Advocates General. Its role is interpreting European Community Law so that it is applied correctly and the same in all Member States, enforcing the law, ensuring the EU takes action, annulling its legal acts, and sanctioning its institutions.

The jurisdictional activity of the Court of Justice of the European Union is independent, attentive and rigorous, as is that of the European Court of Human Rights (ECHR), which is the international jurisdictional authority charged with ensuring that all Signatory States comply with the European Convention on Human Rights.

Some of the violations of rights committed by the unfaithful bodies and officers of the Italian provisional administration of the Free Territory of Trieste fall also within the scope of the ECHR.

The main violations of European Community Treaties challenged.

The provisions of European Law for which the I.P.R. F.T.T. has already required the referral to the higher jurisdictional competences of the European Court of Justice in the aforementioned lawsuits of second instance are, in particular, those that are directly violated by the simulation of Italian sovereignty over the present-day Free Territory of Trieste and over its international Free Port.

It is the following two different groups of provisions of European Union Treaties, the effects of which overlap when it comes to the Free Territory of Trieste and of its international Free Port:

a) of European Union provisions that allow for the enforcement of European Treaties to the Territories of which a Member State exercises representation in foreign relations, having administration over them, but not sovereignty;

b) of the European provisions that limit that enforcement, as they recognize the primacy of international obligations that founding States accepted before 1 January 1958, and other States accepted before joining the European Union, «between one or more Member States on the one hand, and one or more third countries on the other».

Indeed, to date this is the case of the present-day Free Territory of Trieste, which since 1954 is sub-entrusted to the temporary civil administration of the Italian Government, and it is also the case of the international obligations that the Italian State and the Italian Government accepted towards the international Community with the 1947 Treaty of Peace of Paris and with the 1954 Memorandum of Understanding of London respectively.

And it is legal relationships in force, which are perfectly documented in the archives of both the UN and the current European Commission, as well as being fully enforced and implemented within the Italian legal order.

In particular, this means that the direct enforcement of provisions of EU Treaties to the administered Free Territory, when those conflict with either its sovereignty (be it territorial, monetary, fiscal, customary, or financial sovereignty), the consequent rights of its citizens and of its enterprises, or with the regime of its international Free Port and with the rights of all States and their enterprises over it, that constitutes a violation of the provisions of the same European Treaties.

Instead, the simulation of the sovereignty of the Italian State over the Free Territory of Trieste and over its international Free Port is used also to directly apply to it European Union Treaties directly and in full, therefore breaching those provisions of the same Treaties, and causing relevant damages also the European Union itself and to its current and future members.

For a detailed discussion about this new, decisive argument, see especially point B n. 9 (from 9.1 to 9.11) of the Writ of Summon for appeal that is published with this analysis (LINK).

Outcomes and conclusions.

The Writ of Summon in second instance of the lawsuit for the international Free Port established the first hearing on November 23rd, 2023, and this is also the expected time for the end of the appeal in the lawsuit regarding the levying of the Italian VAT, which does as well contain the same requests of referral to the Court of Justice of the European Union for its preliminary ruling.

If the Court of Appeal refuses to carry out the referral of the case for a preliminary ruling of the Court of Justice of the European Union, it would only worsen the position of the Italian judiciary on this subject, because the I.P.R. F.T.T. would immediately lodge the same request before the Italian Court of Cassation which, being the national Court of last instance, has no such faculty, rather, bears an obligation to do so, and would be punished in case of noncompliance.

The request of referral for a preliminary judgment of the Court of Justice of the European Union does also put into question and override the conclusions and the enforceability of the previous decisions of the same Italian Court of Cassation.

This means that at this point the whole question has come to a turn that makes as vexatious as useless the continuation of the previously mentioned violations on taxation and on the port, all while making reasonable initiating the identification of a shared solution of the dispute that satisfies all international parties concerned.

© 22 Luglio 2023