Italy: Core Functions And Permitted Functions In Port Master Plans: Instructions For Use

A recent judgment of the Regional Administrative Court of Liguria ("TAR Liguria") ¹ provides an interesting key for the interpretation of the provisions of Port Master Plans ("Piani Regolatori Portuali", hereinafter "PRPs"), with a focus on those concerning the core functions of the different functional areas in which Italian ports are divided.

As is known, PRPs have the purpose of setting out the objectives, forecasts, elements, contents and strategies of a port, also outlining the overall structure of major infrastructure works. A PRP is, therefore, "more than a planning tool, it is a general act of planning by which the Administration establishes rules, criteria and methods for the use of port areas" ². The main purpose of PRPs is indeed to allocate specific logistic functions to port areas and infrastructures in order to have them tailored to the respective type of goods and traffic. This is done to optimise the performance of port activities, "functionalising" the various areas of a port so as to enhance its potential.

As a rule, a functional area can be designated, in addition to its core function, for one or more permitted functions. This leads us to wonder what ratio must exist, for the purposes of a PRP, between the activities related to core functions and those related to permitted functions.

The TAR Liguria analysed the case of an operator of the port of Genoa engaged in "multi-purpose" traffic operations, in accordance with the core function of the area, while being also engaged - inter alia - in full-container traffic (which, admittedly, was among the allowed functions of the functional area concerned).

Another competing operator in the port of Genoa – specialising in full container traffic – decided to apply to the TAR Liguria, alleging breach on the part of the above-mentioned operator of the PRP provisions, on the ground that, according to plaintiff, its competitor was primarily engaged in operations related to full-container traffic in an area designated for multi-purpose traffic.

The TAR Liguria dismissed the appeal, holding that «compliance with the "core functional use" should not be verified, as a consequence, having regard to the single portion or area granted under concession, but having regard to the entire area in which they fall. It follows that, even admitting that the handling of containers was the prevailing activity of ...omissis... the first operator, Editor's note] by virtue of the concession, such circumstance would not in itself be sufficient to demonstrate breach of the provisions of the port master plan, where the activities envisaged for the functional area at issue primarily relate to the handling of conventional cargo».

In other words, according to the Regional Administrative Court, in order to assess compliance with the "core functional use" of a given port area, reference should not be made to the activity carried out in a specific area granted under concession, but to the activity carried out in the area intended for that specific core functional use as a whole and, therefore, by the plurality of concessionaires operating there.

The TAR Liguria also argued that "in any event, the notion of core designated use does not seem to relate to the quantity of goods handled but to whole surface area designated for that specific function".

In the case examined by the TAR Liguria, in the area at issue, the area designated for handling containers was smaller than the one designated for multipurpose traffic, which led to dismissing the application.

The above recent approach of the TAR Liguria can be read in the sense of favouring a more flexible interpretation of the PRP in order to allow a better adaptation to traffic trends, which – as is known – are subject to change (which cannot always be "promptly" reflected in PRPs).

Moreover, said approach seems to be reflected in the principles set out in a recent opinion issued by the Ministry of Infrastructure and Transport – Supreme Council of Public Works – Second Section ("CSLLPP") ³. The CSLLPP states that «the impetuous, often unpredictable, dynamics of a port cannot be governed by a "strict" planning tool [...] but rather, by a planning by "objectives", with an intrinsic character of reasoned flexibility in its structures. A plan structured by objectives, moreover, is in strict conceptual coherence with the "performance-based approach" of modern port planning at the international level».

The CSLLPP also took the opportunity to reiterate once again that Article 5 of Italian Law No. 84/1994 "requires port master plans (PRP) to be drawn up in implementation of the National Strategic Plan for Ports and Logistics and the strategic planning and system document (DPSS) as well as in accordance with the Guidelines issued by the Supreme Council of Public Works and approved by the Ministry of Infrastructure and Transport", while confirming that the main purpose of port master plans is to "set out the objectives, forecasts, elements, contents and strategies of each port of call, also outlining the overall structure of major infrastructure works".

All the above would seem to be aimed at making PRPs more "flexible" - without prejudice, however, to any specific restrictions - in order to help ports and their individual areas adjust to the events affecting traffic. The clarification that individual PRPs should be drawn up in implementation of national plans such as the National Strategic Plan for Ports and Logistics would seem to clarify in a more open way the reason why PRPs should promote - by promoting individual ports - traffic development in the country, considered as a system. It should also be recalled that, following the so-called "Delrio reform" ⁴, Port Systems Master Plans are still to be adopted. It seems desirable that, in drawing up such plans, Port System Authorities take into account also what has been said above, given that some flexibility in goal setting - subject to observance, at all times, of the restrictions provided for by PRPs - seems to have become crucial in order to remain competitive compared to other European ports.

Footnotes

1. See TAR Liguria judgment No. 584 of 12 August 2020.

2. See TAR Toscana judgment No. 1620 of 8 November 2016.

3. See CSLLPP's opinion No. 21/2020 of 25 September 2020.

4. Legislative Decree No. 169 of 4 August 2016.

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