Let's go back to a topic already dealt with in the previous issues of our Bulletin, namely the call for input called by the Italian Transport Regulation Authority (hereinafter "TRA") on "Methods and criteria for ensuring fair and non-discriminatory access to port facilities. First regulation measures"1.
The TRA was established by Decree Law No. 201/2011 and aims to "ensure, according to methods that encourage competition, efficiency of production of the issues and cost containment for users, enterprises and consumers, fair and non-discriminatory access conditions to railway, port, airport facilities and motorway networks (...) as well as in relation to the mobility of passengers and goods at national, local and urban level also connected to stations, airports and ports".
Following some reports by several operators engaged in various port areas, that exposed problems related to the access to port facilities and distortions of competition, the TRA – in full compliance with its prerogatives2 – decided to call a consultation aimed at issuing a regulatory act that identified precisely the first methods and criteria aimed at limiting – if not at completely eliminating – distortions of the normal competition game.
After having carried out consultations with stakeholders and having examined the opinions expressed by the Italian Antitrust Authority and the National Anti-Corruption Authority, TRA has implemented, clarified and modified some of the regulatory measures proposed with the call for input.
In particular, following the public consultation, the Authority decided to examine in-depth some issues including: the identification of the essential facilities and the obligations connected to their management; principles and methods for granting concessions, as well as publicizing the related results; parameters for determining the duration of the concessions and the level of the concession fees; intermediate updates for longer-term concessions; assessment of the requirements and application of the criteria for the issuance of authorizations for the carrying out of port operations and services; fixing of rankings in case of applications exceeding the maximum number allowed; applicability of the measures.
But let's proceed with order. The leitmotiv of the first regulatory measures is the compliance, during all the stages of the granting procedure, enjoyment and conclusion of the concession and of the authorizations for the performance of port operations and services, with the principles of economic viability, effectiveness, impartiality, equal treatment, transparency, non-discrimination and proportionality. Moreover, these principles have been reiterated and further strengthened also by the European legislation with the adoption of Regulation (EU) No. 2017/3523.
With these first regulatory measures, the TRA decided to focus on:
- Concessions of port areas and
quays: focusing on the issues related to the scope of the
same, the duration, the concession fees, the methods of granting,
the subjective requirements for the participation in public
procedures.With reference to the scope of the
concessions, the TRA considers that the admitted
activities must expressly and clearly be provided within the
concession, both in relation to the types of traffic and in
relation to the volumes. Therefore, no restrictions can be applied
on the activities of the undertakings which are not objectively
justified.The duration of concessions must be
"proportional to the commitments in terms of volumes and
types of investments and traffics contained in the activity
programs".As regards concession fees,
apart from being proportionate to the commitments undertaken by the
concessionaire in terms of traffic and investments, they should be
composed of a "fixed fee", which is proportional
to the areas and reflects their
"constraints/advantages", and of a
"variable fee", which should be
"determined through incentive mechanisms aimed at pursuing
a better production, energetics and environmental efficiency of the
management and the improvement of service levels, in particular
transport and intermodal integration of the port, also in light of
an annual updating on the basis of the results achieved".
The methods for granting concessions must ensure the actual participation in the public procedure and should allow the knowledge of some elements including: (a) the maximum duration of the concession; (b) the predetermined selection criteria for applications; (c) the criteria and methods for proceeding with any intermediate updates for longer-term concessions; (d) subjective requirements for participation; (e) the procedures of granting to the new assignee upon conclusion of the previous concession durations, as well as the other aspects related to the end-of-concession allowance, such as the criteria for the assessment and identification of any relevant indemnities.
- Authorizations to carry out port operations and port services: for such authorizations, the ART emphasized the importance of "identifying port operations and port services [...] of the activities subject to the authorizations referred to in the aforementioned Article 16 [editor's note: of Law No. 84/1994], and of the elements necessary to objectively deduce which types of activities not already included in said list may anyway fall among those that are permissible".In assessing the applications for the issue of authorizations, the Port System Authorities (hereinafter "PSAs") must refer to pre-determined qualitative and quantitative indicators, connected with the criteria envisaged pursuant to Article 16, paragraph 4, of Law No. 84/944.
- Supervision of the tariffs of port operations and port services that require the use of essential facilities: the PSAs shall have to monitor the setting of tariffs for port operations and services that envisage the use of essential facilities, following criteria such as: relevance, adequacy, competence, recognition in the income statement, separation, comparability of values, verification of data.
This analysis, compulsorily concise, given the format of our publication, shows that all the provisions of the TRA basically consist in the predetermination of objective criteria that must then be applied to the different concrete cases. The predetermination and publicity of these criteria makes it possible to protect access to port facilities and competition since, on the one hand, it limits the discretion of the PSAs in their determinations and, on the other hand, it allows economic undertakings to have elements for the evaluation of both the opportunity to participate in public procedures and to verify the compliance of the same with the competition rules.
All that remains is to hope that the PSAs will adapt as soon as possible to the measures adopted by the TRA.
2 The Council of State with its opinion No. 2199/2017 of 24 October 2017 decided to "fully confirm the relationship between PSAs and the Italian Transport Regulation Authority which, among others, has allowed (and shall continue to allow) the latter Authority to usefully take both regulatory initiatives and investigations on the conditions of access to facilities and services, properly implementing its institutional mission which is rooted, for the transport sector, in the general pattern of the independent regulatory authorities referred to in Law No. 481 of 14 November 1995";
3 For more information, please follow the cycle of articles dedicated by our Shipping Bulletin to the Regulation (EU) No. 2017/352.
4 Pursuant to Article 16, paragraph 4, Law No. 84/94 "In order to obtain the authorizations set forth in paragraph 3 above from the relevant Authority, the Italian Minister of Transport and Navigation, with a decree to be issued within 30 days from the date of entry into force of this law, lays down: a) the requisites having a personal and technical-organizational nature, the requisites of financial capacities, of professional expertise of the applicant operators and firms, suitable for the activities to be carried out, including the presentation of an operational programme and the determination of a directly employed team of workers including management staff; b) the criteria, methods and terms of issue, suspension and annulment of the authorization, as well as the relevant controls; c) the parameters to define the minimum and maximum limits of annual fees and the deposit in relation to the duration and specific nature of the authorization, taking account of the volume of investments and the activities that need to be carried out; d) the criteria regarding the issues of specific authorizations and permits for running port operations, to be carried out on the arrival and departure of ships equipped with their own mechanical means and their own staff trained for these operations, as well as for determining a consideration and an appropriate deposit. These authorizations do not fall within the maximum number indicated in paragraph 7."
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.