The annual law for the market and competition of 2021[1] (“Legge Concorrenza 2021”) has been approved as a result of a long legislative procedure that, as is known, experienced some slowdowns due to the priority taken by the emergency legislation to be introduced in connection with the continuation of the pandemic.
Nevertheless, said delay allowed the operators of the sector to express their own opinions on the draft law and to discuss the most relevant issues in a more detailed manner. Some drafts of the bill and some opinions of the sector insiders were previously dealt with by us[2].
With a view to focusing only on the issues related to port state concessions addressed by the Legge Concorrenza 2021, let’s examine the new provisions of Article 18 of Law No. 84/94, introduced by Article 5 of the Legge Concorrenza 2021, entitled “Concession of State-owned areas”.
Let’s briefly see what this is all about.
In general, the regulatory changes that are potentially most interesting to our sector primarily relate to greater definition of the principle of public procurement in the granting of concessions for State-owned port areas, bringing a new and more precise regulation of the modalities for the issuance of the relevant deeds and for the management of the property under concession by the concessionaire.
The new law “once again” provides for the adoption by the Ministry of Infrastructures and Sustainable Mobility (in consultation with the Ministry of Economy and Finance) of the so-called “Regulation on Concessions”, in order to harmonise the rules on issuance of concessions. Such Regulation, to be adopted within 90 days of the date of the coming into force of the Legge Concorrenza 2021, shall set out the criteria for:
a) the granting of concessions;
b) the identification of the duration of concessions;
c) the exercise of supervisory and control powers by granting authorities (i.e. Port System Authorities or, in their absence, Maritime Authorities);
d) the identification of the modalities for renewal and for the transfer of the facilities granted under concession to a new concessionaire, upon the expiry of a concession;
e) the identification of the limits of the concession fees payable by concessionaires;
f) the identification of the modalities aimed at ensuring compliance with the principle of competition in ports of international and national relevance, identified pursuant to Article 4 of Law No. 84/1994 (see paragraph 2 of “new” Article 18 Law No. 84/94).
Looking into the new regulatory provisions in greater detail, it can be noted that if, on the one hand, compared to the very first versions circulated in the past few months, provision has again being made for the adoption of a Regulation on Concessions at the central level (which certainly is, at least in principle, a good opportunity to establish some objective parameters common to all Port System Authorities, allowing would-be concessionaires to “play by the same rules” in all ports and thus limiting any distorting effects on competition), on the other hand some potential issues of concern still remain for the operators.
For example, (new) paragraph 1 of Article 18 provides for the payment by any newcomer of a (generic) indemnity to the incumbent. Now, although this is in accordance with Resolution No. 57/2018 of the Transport Regulation Authority (ART) on “methods and criteria to ensure fair and non-discriminatory access to port infrastructures”, the scope of such indemnification remains indefinite, as is its wording, which seems too generic and can therefore give rise to abuse. In other words, it is still unclear whether indemnification is limited to investment in infrastructure only, or whether it also extends to investment in equipment and superstructure; likewise, it is still unclear whether the indemnity amount should only cover the not-yet-amortized part of the investment in question or not.
Furthermore, again concerning paragraph 2 of Article 18, the fact remains that the State fees already set out by the competent authorities for already-granted concessions “shall continue to apply until the expiry of the concession” (although subject to specific criteria for their determination to be set out in the Regulation on Concessions), which, considering that most of port concessions have already been granted, may as a matter of fact have the effect of distorting competition, at both individual port level and at national level, among the various ports of call.
Moreover, as concerns the long-standing issue of the prohibition of a double concession for the same port (under Article 18, paragraph 7 - now 9 -), the provision upholds the AGCM’s proposal for rewording the prohibition on overlapping concessions for the same activity only for smaller ports. In this regard – although, in our opinion, recent experience has shown how, regardless of the size of a port, the spaces within it are limited, as is, actually, the number of operators who can access it, and the abolition of this prohibition might lead to abusive dominant positions –, the political “balance” has ultimately been found in prohibiting exchange of labour among the different State-owned areas granted to the same concessionaire or its related entities in ports of international and national economic relevance where the prohibition of overlapping concessions does not apply (i.e., basically, in ports where the Port System Authorities are based). Nevertheless, we believe that the fact remains that said prohibition, as previously understood, could be handled by individual Port System Authorities – on the assumption that the “asset” protected by the provision is precisely competition – with a view to an increasing traffic and productivity of ports, as envisaged by port law.
Finally, as previously mentioned[3], some actions are still to be implemented regarding (i) bankability of concessionaires’ investments (i.e., the absence of a detailed regulation on lapse of concessions, insofar as Port System Authorities as a matter of fact enjoy almost total discretion with respect to such decision that “frightens” lenders), and (ii) specific procedures for monitoring the compliance with business plans (which “new” paragraph 10 of Article 18 merely defines, in general terms, as “assessments” by granting Authorities, thus leaving the regulation unchanged compared to the former version of Article 18 of Law No. 84/1994).
To conclude, the novation of Article 18 of Law No. 84/94 by the Legge Concorrenza 2021 is certainly intended to improve some aspects of the day by day of port operators and Port System Authorities, which is partially positive for the competitiveness of our ports. However, a few grey areas still remain that might create some interpretative difficulties at the local level. What is certain is that, in this context, fundamental will be the guidelines given by central authorities to individual local System contexts, first and foremost in defining the criteria set out in the Regulation on Concessions, with a view to improving the competitiveness of our ports and, thus, of the entire so-called “Sistema-Paese”.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Ekaterina Aksenova and Luca Brandimarte.
[1] Law 5 August 2022, No. 118.
[2] See Shipping and Transport Bulletin of April-June 2021 and Shipping and Transport Bulletin of March 2022.
[3] For a more detailed analysis, see Shipping and Transport Bulletin of March 2022.