After the summer break, we are ready to get back to examining the parameters contained in the important circular of the Italian Ministry of Infrastructure and Transport ("MIT"), i.e. circular No. 187, published in the Official Gazette of the Republic of Italy on 5 February 2018, which Port System Authorities ("PSAs") are required to consider when comparing applications for renewal and/or issuance of concessions under Article 18 of Law No. 84/94.
In the last issue of our newsletter, we reviewed the second of such parameters, concerning the ability to provide the best possible access conditions to port terminals to users and operators.
Let's now examine the third criterion set out in the MIT circular:
"the nature and relevance of infrastructure and superstructure investments such as systems, equipment and technologies aimed at the development of port productivity, protection of the environment and safety, in terms of both "safety" and "security", including assessment of the financing used in the form of public and private funds".
The aforementioned circular provides that, when there are multiple potential users applying for a concession over a maritime State-owned area under Article 18 of Law No. 84/94, competent PSAs shall assess competing applications including by taking into account the nature of the infrastructure and superstructure investment proposed by the person concerned. This is, of course, also provided with a view to improving and developing port productivity.
Therefore, in the eyes of connoisseurs, the scope of the parameter under examination might resemble the scope of the National Strategic Plan for Ports and Logistics ("Piano strategico nazionale della portualità e della logistica") ("PSNPL") , which among its goals includes the improvement of the entire port system by encouraging, inter alia, intermodal freight transport.
Let's now analyse the parameter set out in the MIT circular in more detail.
The parameter in question first and foremost considers that infrastructure and superstructure investments (such as systems, equipment and technologies to be used within a port area) are aimed at developing "port productivity", i.e. the ability of a given port terminal to generate high "throughput" (i.e. production volumes) in connection with the resources used . It follows from this that any appropriate investment on areas granted under concession should contribute to increasing the production capacity of a given port terminal and, accordingly, increasing the production capacity of the port area as a whole.
The aforementioned parameter also involves complying with port environmental and safety protection goals, in terms of both "safety" and "security". In particular, the criterion in question, would seem to support the adoption by concessionaires of a set of measures aimed, as for the "safety" profiles, to safeguard the safety of port workers and third parties operating on the quay. On the other hand, with regard to "security" profiles, the aforementioned criterion would suggest the adoption, by the terminal operator, of measures aimed at safeguarding the security of port facilities in order to prevent and annul any harmful actions (such as, by way of example, acts of terrorism and sabotage) against the same facilities.
Obviously, the parameter under examination does not seem to be absolute, but its purpose is to bring to the attention of the terminal operator a set of goals to be achieved in order to promote the best possible satisfaction of the general interest.
Finally, the parameter under c) of the above-mentioned circular, provides that, when assessing concession applications, PSAs shall also consider the origin of funds (i.e. the public and/or private nature of the funds to be invested) that port operators/applicants are willing to use to be able to afford any proposed infrastructure and superstructure investment.
In the synthesis of the ministerial criterion, therefore, the PSAs will have to assess the applications with greater attention, also in terms of greater coordination with the public administration, as well as a rational exploitation of public resources, and above all identify – for the same investments proposed by the various aspiring concessionaires – which are actually of public source and which of a private source, valuing for this purpose the abovementioned aspect in the relevant preliminary investigation performed by the Entity.
In light of all the above, it would therefore seem clear that the parameter of the MIT circular under examination, in accordance with the goals set out by the PSNPL, include among its goals that of increasing traffic for the benefit of individual port areas and is therefore strongly linked to the evaluation parameter under d), focused on traffic and development targets, which will be reviewed in the next issue of our newsletter.
However, it would seem equally clear that the parameter under examination is aligned with the other parameters of the MIT circular – already discussed – relating to the coherence of the applications for concessions with the provisions of the national sector planning instruments in force and to the capacity to ensure the widest access conditions to terminals for interested users and that it is also aimed at ensuring a homogeneous zoning of the port areas within the single port areas.
Nonetheless, what we would like to observe is that the importance of the criterion sub letter c), also requires a necessary qualitative homogeneity of the applications for the granting of concessions with regard to the investments that must be compared. Hence the importance of the Port Master Plan zoning, in light of the evident consideration that terminals of different nature (i.e. specialized in different types of traffic) can evidently require investments of a different nature and entity, the comparison of which could be difficult for the PSAs.
1 In this regard, it is to be mentioned that some PSAs have already started to implement the contents of the MIT circular by enforcing its internal administrative procedures on maritime State-owned areas.
2 Introduced by Decree of the President of the Council of Ministers of 26 August 2015, aiming to: (i) improve the competitiveness of the port and logistic system, (ii) promote the growth of traffic, (iii) encourage the intermodality of cargo traffic.
3 Assessment of port productivity is carried out also considering the length of the quay and the square meters of a ramp granted under concession.
4 Reference is made, in particular, to the PSNPL, to the Port Regulatory Plan and to the Three-year Operational Plan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.