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As mentioned in an earlier issue of our newsletter[6], the Regional Administrative Court (“Tribunale Amministrativo Regionale”, “TAR”) of Piedmont has often ruled on the scope of the regulatory powers of the Italian Transport Regulation Authority ("TRA") and the obligation to pay the fee for its functioning.
The TRA was set up under Article 37, paragraph 1, of Decree Law No. 2016 of December 2011, converted, with amendments, into Law No. 214 of 22 December 2011, as amended, which attributed specific functions and powers to such Authority in the sector of transport and the access to the relevant infrastructure and ancillary services.
Furthermore, to ensure the functioning of the TRA, paragraph 6, b, of Article 37 provides for “a fee to be paid by the managers of the regulated infrastructure and services, in an amount not exceeding one per thousand of the revenues deriving from the exercise of the activities accrued in the last year”.
The Italian Supreme Court has ruled in the past on the TRA’s taxation power and the quantification of the relevant fee, giving clarifications in its decision No. 69/2017. More specifically, despite having considered the payment of the fee in question as a statutory pecuniary obligation, thus falling within the scope of the legal reserve under Article 23 of the Italian Constitution, the Supreme Court deemed the TRA’s taxation power and the relevant fee calculation methods legitimate, arguing that the law provides for “limits, guidelines, parameters and procedural constraints that are generally adequate to limit its discretion”.
Furthermore, the Supreme Court established a principle which the Regional Administrative Court of Piedmont has apparently never deviated from in its rulings concerning the payment of the fee.
According to the Supreme Court, the persons to whom the fee applies should not be identified "according to a broad and indefinite notion of ‘transport market’ (and ‘ancillary services’) but, on the contrary, should only include those carrying out activities in respect of which the TRA has actually exercised its institutional regulatory powers".
In other words, the fee at issue should only be payable in connection with the actual exercise by the TRA of its regulatory powers, as the mere fact that the Authority has, on paper, the possibility of exercising regulatory powers in a specific sector[7] is not deemed sufficient to legitimise the request for payment of the fee.
The Piedmont TAR has recently confirmed such principle again. We will see below by which new decisions - and in what terms - the TAR has thus confirmed its approach.
1. Ruling No. 1127 of 11 November 2019 on maritime transport service of passengers and goods
In this case, the Piedmont TAR assessed the position of an Italian shipping company operating maritime transport service of passengers and goods without public service charges.
Said company had challenged the TRA’s resolutions setting out the amount and methods of payment of the fee payable for the year 2019 and contesting its obligation to pay the fee.
In particular, the case at issue concerned the fee payable for the year 2019. Consequently, to establish whether the Authority had actually started exercising its institutional powers in the sector of maritime transport of people or goods to determine the fee, reference should be made to the orders and measures adopted before December 2018 (to this end, in the light of the reform of Article 37 of Decree Law 201/2011 referred to below, what is relevant are not only the acts and measures of a strictly regulatory nature, but in general the performance of any activity attributed to the TRA by the law).
In respect of the only relevant measures submitted for this purpose to its attention[8], the TAR observed that, as a matter of fact, none of them is addressed to persons engaged in maritime transport of goods.
According to the Court, the plaintiff certainly operates in a liberalised market in relation to the maritime cargo transport segment, benefiting from the TRA’s regulatory activity concerning port infrastructures; but without its relevant specific sector being affected by any regulatory activity of the Authority.
The solution - i.e. the inapplicability of any fee for such activity - therefore seems consistent with earlier case law of the Piedmont TAR regarding the obligation to pay the fee.
The appeal was therefore upheld in the part challenging the eligibility for payment of the 2019 fee of the market segment relating to cargo transport and the challenged TRA’s resolution was therefore repealed in its part providing that the services of “transport of (...) goods by sea and inland waterways” be subject to payment of the fee.
A different approach was however taken in relation to the other market segment in which the plaintiff operates, namely, maritime passenger transport, not subject to public service obligations.
In that respect, certain Regional Administrative Court’s considerations were based on the new wording of Article 37 of Decree Law No. 201/2011 (as amended further to the Italian Supreme Court’s ruling), which provides that the fee be payable by all the operators of the transport sector operating in a market in relation to which the Authority has actually exercised not only its regulatory powers under paragraph 2, or the activities instrumental to the regulatory ones under paragraph 3, of Article 37, but – indistinctly – any of the “activities provided for by the law”.
This is the case of the powers exercised by the TRA as public authority responsible for applying Regulation (EU) No. 1177/2010, concerning the rights of passengers when travelling by sea and inland waterway.
So, the challenged measures were deemed illegal and repealed insofar as imposing the payment of the 2019 fee on undertakings operating in the maritime freight transport sector, while being deemed legitimate insofar as imposing such obligation on undertakings operating in the maritime passenger transport sector.
2. Ruling No. 55 of 22 January 2020 on port terminal operators
In this case, the Piedmont TAR ruled on the appeal filed by a series of terminal operators against the TRA's resolutions imposing the payment of the fee at issue, for the year 2019, also on companies operating as port terminal operators.
In particular, the plaintiffs claimed that, as matter of fact, the TRA had exercised no authority at all in the (liberalized) sector in which they operate and in which they are subject to the control of the Port System Authorities and not of the TRA.
However, the administrative court reiterated that, in order to establish whether an undertaking should pay the fee or not, it is necessary to ascertain whether, in the specific market in which said company operates, the TRA has actually started exercising (in the period preceding the adoption of acts to determine the fee) its own powers and institutional activities. In the light of the aforesaid reform of Article 37 of Decree Law 201/2011, this should refer not only to the acts of a strictly regulatory nature, but in general to any activity attributed to the TRA by the law.
In this context, the Piedmont TAR held that TRA's Resolution No. 57/2018 (“Methods and criteria to ensure fair and non-discriminatory access to port infrastructure. First regulatory measures”) has effectively regulated port infrastructures and affected issues such as - for example - the duration and content of concessions held by terminal operators, thus being considered a measure whereby the TRA has concretely exercised its powers in the port terminal sector.
The objections of the plaintiffs, according to which the Port System Authorities should have been the only addressees of the aforesaid decision, were worthless to that effect. Indeed, in the opinion of the Piedmont TAR, the TRA act concerned both the Port System Authorities and the sector operators, i.e. the terminal operators (which are consequently required to pay the fee).
3. Ruling No. 115 of 10 February 2020 on cruise companies
In this latter case, a cruise company operating in the cruise sector had challenged the TRA's resolutions that imposed on it the payment of the fee at issue for the year 2019.
However, also on this occasion, the Piedmont TAR reiterated its position, making specific reference - in particular - to the aforementioned reform of Article 37 of Law Decree 201/2011. As we have seen, on the basis of said reform, the imposition of the fee no longer arises only from the concrete exercise - by the TRA - of its regulatory powers in a strict sense or from the activities instrumental to the regulation, but also - more in general - from “the carrying out of the activities provided for by the law”.
Therefore, it should be stressed that the TRA acts as the body responsible for the enforcement of above-mentioned Regulation (EU) No. 1177/2010, concerning the rights of passengers when travelling by sea and inland waterway. This role does not imply in itself the exercise of a regulatory task, but rather an activity of “law enforcement” of EU legislation and “advocacy” (see information reports to the Parliament or the carrying out of surveys). The Piedmont TAR pointed out that, in this context, the TRA has, in particular, regulated the sanctioning procedure referred to in the aforesaid European regulation and handled the relevant complaints.
So, the administrative court confirmed that the TRA has carried out activities provided for by the law in the sector of maritime passenger transport and - consequently - undertakings operating in that sector are subject to payment of the fee in question.
***
The case-law trend concerning the payment of the fee for the functioning of the TRA is still in progress and, in particular, the next decisions of the Council of State are awaited. We will therefore return to this thorny subject.
This article is for information purposes only and is not intended as a professional opinion.
For further information, please contact Franco Rossi o Simone Gaggero.
[6] See Shipping & Transport Bulletin of June-July 2018.
[7] It should be recalled that, on the basis of said principle, the Regional Administrative Court of Piedmont (by judgment No. 513/2018) had already repealed TRA's resolution No. 139/2016 in the part imposing the payment of the 2017 fee on port terminal operators. This was grounded on the fact that the TRA had not concretely implemented any regulatory activity in the sector of port terminals until the end of 2017.
[8] That is, TRA’s resolution No. 86/2015 of 19 October 2015 and TRA’s notes of 27 January 2016 and 27 May 2016.
