In the last issue of our newsletter we started to examine the circular of the Italian Ministry of Infrastructure and Transport ("MIT"), published in the Official Gazette of the Italian Republic of 5 February 2018, concerning the parameters for evaluating concession applications that Port System Authorities ("PSAs") are required take into account when comparing such applications, with attention also paid to the use of maritime State-owned areas and quays.
We announced we would be commenting on such parameters one by one, starting with this issue of our newsletter. So, let us start with the first criterion referred to under a):
"the level of coherence of the National strategic plan for ports and logistics and of the other national sector planning instruments in force".
The MIT circular clarifies that applications in order to obtain a public domain concession under Article 18 of the Italian Law No. 84/94 must be consistent, inter alia, with the provisions of the National Strategic Plan for Ports and Logistics ("Piano strategico nazionale della portualità e della logistica" ("PSNPL"), the Port Regulatory Plan ("PRP") and the Three-year Operational Plan ("Piano Operativo Triennale", "TOP") in force.
The PSNPL was adopted in 2015 in order to foster the economic growth of our country and, in particular it is aimed at: (i) improving the competitiveness of the port and logistic system, (ii) increasing traffic growth and (iii) encouraging the intermodal system in freight transport. All this, with a view to improving the competitiveness of the Italian port and logistic system as a whole.
The PRP – envisaged for all port areas – sets out the overall scope and organisational structure of a port, while identifying the characteristics and specific uses of the port areas (including those designed for industrial production and for rail and road infrastructure)1.
The POT is a programming document to be drafted every three years and reviewed annually, which sets out development strategies relating to port activities and the actions required to ensure the achievement of predefined objectives.
The recent port reform introduced in Italy – with a view to improving the competitiveness of the Italian port and logistic system and increasing the importance of the planning instruments in force – also introduced, under Article 11-ter of Law No. 84/94, the so-called "Conferenza Nazionale di Coordinamento delle Autorità di Sistema Portuale" ("National Conference for the Coordination of Port System Authorities"). According to said Article, such body has the task of "coordinating and harmonising, at national level, the town planning options available in the port area, the strategies for implementing concession policies in respect of maritime State-owned areas as well as the strategies for promoting the national port system in leading international markets, including by monitoring port development plans through specific reports to be drafted by individual PSAs".
As already noted by several stakeholders, however, the National Conference for the Coordination of the Port System Authorities had a quite "slow" start, to such an extent that it is still going through a running-in phase, and the goal of "coordination" of different Port System Authorities has still to be achieved, which is basically slowing down the intended "control room" function of the Conference.
Hence, especially as a result the aforementioned reform, the planning instruments to which the MIT circular refers are, to date, of particular relevance to PSAs when assessing competing applications for the purpose of granting concessions under Article 18 of the Italian Law No. 84/94.
A further interesting aspect to be taken into account is that planning instruments are of course relevant to investments too. The PRP – which sets out uses and methods of use of port areas – is particularly aimed at optimising the performance of not only the activities to be carried out in the interest of the port, but also of those to be carried out by port operators themselves (i.e. concessionaires) insofar as they can rely on such plan for planning their investments and, thus, their business activities.
We will therefore see in the near future how – once the Coordination Conference will have fully come into operation – this delicate aspect will be handled in the context of the not easy monitoring task entrusted to such coordination body. This is all the more so now that there is an increasing trend in Brussels towards acknowledging the business nature of our PSAs, so that one of their "coordinating bodies" might even cause some discomfort to Italy from an anti-trust standpoint.
Without going into the merits of this last aspect, in the next issue of our newsletter we will explore the second evaluation parameter envisaged in the MIT circular, which, we anticipate, is focused on the ability to ensure the widest access conditions to terminals for both the users and operators concerned.
1 Provided for by Article 5 of Law No. 84/94 which, as a result of the recent amendments of the port Italian legislation, has been replaced by the Port System Regulatory Plan for ports included in the local districts where PSAs are based.
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