The COVID-19 emergency has hit all sectors of our economy and even the port industry has not been able to escape its impact.
When the most critical phase is over and the time comes to deal with the difficulties of a restart, it will be necessary to facilitate the action of economic operators, avoiding obstacles and unnecessary procedural delays as much as possible.
From a quayside perspective, terminal operators, holding State property concessions, well know how exhausting it is to carry out infrastructural works on the areas under concession, often necessary to increase or even just maintain their traffic volumes unaltered. Indeed, so far, Port System Authorities, unavoidably faced with interpretative uncertainty as to the applicable legislation and just to be on the safe side, have in most cases required concessionaires to follow a public and open procedure, in implementation of Legislative Decree No. 50 of 18 April 2016 (Code of Public Contracts) or, in any event, of the principles applicable in the public procurement sector.
This has, inevitably, given rise to certain operational uncertainties (Who should prepare the tender documentation? Who should prepare the call for tenders and where should it be published? Who should supervise the procedure and the award? Who should verify the validity of the works carried out?) and, of course, an unforeseeable lengthening of the time involved in the process.
Recent ruling No. 220 of 20 February 2020 by the Second Division of the Tuscany Regional Administrative Court (TAR) has brought a change of course.
In the case submitted for assessment by the administrative court, by its application initiating proceedings, the applicant company, the holder a maritime State property concession wishing to carry out a series of works on the port facilities, challenged the deeds whereby the authorities of the Municipality where the assets under concession are located – following an opinion to that effect from the Anticorruption National Authority (ANAC) – had required the implementation of tender
procedures for the awarding of the works. In other words, the municipal authorities had imposed a specific procedural obligation on the holder of the State property concession, making the execution of port works conditional on the implementation of public and open procedures.
In such context, the Regional Administrative Court, endorsing the applicant’s position, upheld the application based on a number of relevant considerations.
More specifically, looking at the main passages of the ruling, according to the TAR, both Council of State’s opinion No. 1505 of 2016 and plenty of administrative case law and practice, if on the one hand require competition (upstream) for issue and renewal of State concessions, on the other hand do not require the same for the execution (downstream) of contracts by the concessionaire.
Moreover, according to the court, the mention of Whereas clause No. 15 of Directive 23/2014/EU – reproduced in footnote below (18) – does not sound convincing either, as it does not seem in itself appropriate to justify the reference to tenders tout court, in the form of public and open tenders, with respect to construction works to be carried out by concessionaires.
Furthermore, Article 1, paragraph 2, d) of Legislative Decree No. 50 of 2016, which provides for the application of the Code of Public Contracts to "public works entrusted by service concessionaires", does not refer, instead, to concessions of public goods. In this respect, there is not even a reference to the concession of State property in Article 177, paragraph 1, of Legislative Decree No. 50 of 2016.
Finally, according to the Regional Administrative Court, there is no explicit and unambiguous statutory provision that requires a State property concessionaire to comply with public tendering requirements.
Indeed, as underlined by the Italian Constitutional Court (judgment No. 29/2017), the works carried out by a concessionaire do not have a public nature until the concession expires ("in order to establish State ownership of hardly-removable assets built on maritime State land under concession, the expiry of the concession is decisive, since it is precisely at that time that the asset built by the concessionaire becomes State property"): this, in the absence of a specific statutory provision, prevents the application of the provisions on public tendering being considered necessary.
This is because the concessionaire's right on works built on state-owned assets can be classified as leasehold right, with the consequence that such assets will become public property only on forfeiture by the granting administration. Such interpretation is confirmed by Article 41 of the Italian Navigation Code, which allows a concessionaire to establish a mortgage on works built on Stateowned property.
The judgment under examination can still be appealed against before the Council of State but the view of the Regional Administrative Court would in any event seem based on well-founded legal considerations, which might significantly contribute to boosting the willingness of port operators to recover and restart their activities.
[18] “In addition, certain agreements having as their object the right of an economic operator to exploit certain public domains or resources under private or public law, such as land or any public property, in particular in the maritime, inland ports or airports sector, whereby the State or contracting authority or contracting entity establishes only general conditions for their use without procuring specific works or services, should not qualify as concessions within the meaning of this Directive. This is normally the case with public domain or land lease contracts which generally contain terms concerning entry into possession by the tenant, the use to which the property is to be put, the obligations of the landlord and tenant regarding the maintenance of the property, the duration of the lease and the giving up of possession to the landlord, the rent and the incidental charges to be paid by the tenant”.
