In Italy, the overall area of operation and organisational structure of a port – including areas designated for industrial production, shipyard activities and road and rail infrastructure – are set out in the Port Master Plan. This is in accordance with Article 5 of the Italian Port Law (Law No. 84/94), which inter alia provides that the Port Master Plan shall identify "the characteristics and functional use of the areas concerned" (Article 5, paragraph 1, Law No. 84/94).
It should be noted, however, that not all Italian ports have a Master Plan in place and that a Master Plan can – depending on the port concerned – either consist in a complex and detailed document or in a mere layout of the port specifying the intended uses of the relevant areas.
Such differentiation among ports depending on their having more or less complex Master Plans (not to mention the ports that do not have a Master Plan at all), as one can easily understand, might impact on the competitive dispute among companies who, operating in different ports with more or less stringent Master Pans, may face more or less difficulties in adjusting their activities to market changes.
It is indeed clear that, where a Master Plan is less structured, and thus more flexible, a company may have greater chances to change its business while continuing to operate in the same port area (even if with a specific intended use).
Indeed, as shown by a recent judgment of the Administrative Regional Court of Tuscany 1, the Port Master Plan is "not a mere planning instrument but rather a general act of programming whereby the Authority sets out rules, criteria and methods for using port areas".
The purpose of all this is to optimize the performance of port activities, "functionalise" and "specialise" the various port areas in such a way as to fully maximise their potential, with a view to improving effectiveness and efficiency in the use of State property areas and developing trade.
Concerning this, the Administrative Regional Court of Tuscany highlighted how a functional distinction of different port areas, although involving a risk of partially limiting any potential business plans of port operators, is however instrumental to pursuing the general interest (and, therefore, also the interest of such operators) in achieving improved levels of efficiency in handling goods and further trade growth.
The function of Port Master Plans was previously dealt with by the Italian Consiglio di Stato 2, which stated that such plan "is still a general act of programming by which the Public Administration sets out the rules and the terms and conditions for the future use of a port; such plan is binding even upon authorities, limiting their discretion, as they are prevented from deviating from it on no valid grounds and without stating reasons".
In light of the aforementioned case law and on account of the physiological changes of the market, it would therefore seem legitimate to ask oneself whether a port could (or rather should) be considered to be "constrained" by the intended use of its own areas under the Master Plan.
Luckily, the answer is no. Whenever there is a need to modify the original production layout of a port, the managing body is indeed entitled to implement appropriate instruments to change the Port Master Plan and – this way – even modify the intended use of port areas.
In particular, Article 5 of Law No. 84/94 allows changing the Port Master Plan by way of an excerpt variant or Technical and Functional Adjustment ("ATF").
The excerpt variant, despite not involving infrastructure or functional change to the purposes and/or strategies of a master plan, involves substantive changes to it.
On the contrary, ATF is a statutory instrument intended to make "modifications that do not materially alter the layout of a port system master plan in terms of purposes, strategic choices and functional characteristics of port areas" (Article 5, paragraph 5, of Law No. 84/94).
The Guidelines for drafting Master Plans, published by the Ministry of Infrastructure and Transport in March 2017, clarify that a case of non-material modification in terms of function can occur whenever it is necessary to include a designated use into a specific port area for which a specific function is already set out. In such cases, therefore, ATF will be the appropriate instrument.
It should be mentioned here that changes to Port Master Plans are subject to certain procedural rules, regulated by specific and mandatory statutory provisions.
This is also to guarantee those companies who – based on the provisions of a particular Master Plan – are investing, or may have invested, hugely, relying on the validity of the Master Plan provisions.
In other words, just to give a concrete example, a company may decide to invest a huge amount of capital to carry out a business in a given port area on the assumption that such area – based on the Master Plan provisions – is the only one designated for such business. Well, if the Master Plan is at some time surreptitiously amended without resorting to the above-mentioned statutory instruments to that effect, the investment of such company might be unfairly thwarted.
Even from a perspective of development of the industry, it is therefore important to ensure that investments be protected and – consequently – that companies be able to actually rely on Master Plan provisions without worrying that they may be surreptitiously changed at a later stage.
In other words: if it is true that a Master Plan can be changed and – consequently – the intended use of a port area can be reviewed, it is equally true that any such modification / review will only be allowed by using the aforementioned instruments (i.e. excerpt variant and ATF), in accordance with the statutory procedures set out to that effect.
This means that neither surreptitious changes nor any review allegedly justified by an allegedly extensive interpretation of Master Plan provisions will be allowed, since – before making any change to the intended use of a port area – one should resort to the instruments provided for by law for that purpose. So much so that the Transport Regulatory Authority, in its recent resolution No. 130/2017, properly stated that "the improvement of strategic decisions on the planning of port activities should be linked to incentive policies aimed at ensuring efficiency of management and control of costs for users, companies and consumers in accordance with the principles of preventive awareness, transparency, fairness and non-discrimination".
The reference to preventive awareness and transparency seems to us crucial to ensuring protection of, and encouraging, investments. It is on the other hand clear that any company – who is willing to invest – first and foremost needs clear (knowable in advance) rules to rely on.
1 See decision No. 1620/2016 of the Regional Administrative Court (TAR) of Tuscany.
2 See decision No. 242 of 2 July 1997 of the Council of Administrative Justice of Sicily (Jurisdictional Division).
This Article was first published on www.nctm.it
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