In the last two months, the Regional Administrative Court of Piedmont has repeatedly expressed its view regarding the scope of the regulatory competence of the Italian Transport Regulation Authority, (“TRA”) and the obligation to pay a fee for its functioning. We would like to shed light on the Court’s ruling, also taking into account that the press releases on the topic do not seem to have fully gotten the point.
For a better understanding of the topic, it is first useful to mention the applicable regulatory framework. Let us therefore remember that Article 37, paragraph 1, of Decree Law No. 201 of 6 December 2011 (“Urgent provisions for the growth, equity and the consolidation of public accounts”), converted with amendments into Law No. 214 of 22 December 2011, as amended, established – in the sector of transport and access to the relevant facilities and ancillary services – the Transport Regulation Authority, whose tasks and powers are set out in the second paragraph of the said provision[1].
Moreover, to ensure the functioning of the TRA, paragraph 6, b), of the aforementioned provision, provided for “a fee payable by the managers of facilities and regulated services not exceeding one per thousand of the turnover derived from the activities performed in the last financial year”[2].
As is known, several companies carrying out logistics activities and other companies performing transport-related services (warehousing, distribution, logistics, consulting for distribution, shipping, brokerage, customs clearance services, port terminal management, airport handling, express courier services) as well as some of their representative associations challenged before the Regional Administrative Court of Piedmont certain orders whereby the TRA had required them to pay a fee pursuant to the above provision, primarily based upon the allegations that
Both issues were addressed by judgement No. 69 of 7 April 2017 of the Italian Constitutional Court, subsequently confirmed by the TAR of Piedmont in all its subsequent judgements, including in recent months.
First, as regards the scope of the TRA’s regulatory competence, it should be noted that both the Italian Constitutional Court and the TAR of Piedmont seem to have rejected the objection of the lack of jurisdiction (and, therefore, of regulatory power) of the TRA vis-à-visthe operating sectors of the businesses who contested the obligation to pay the fee.
In this regard, the judges seem to have suggested that the TRA itself has a right to identify, according to “changing and actual market needs”[3], the persons who are potentially subject to its regulatory activity. We will come back to this issue – which in our view is the most delicate and can give rise to misunderstandings – further below.
As concerns the TRA’s power to tax and the methods for calculating the fee, the Constitutional Court made its point clearly: indeed, the Judge of the Laws, albeit considering such fee as a compulsory financial provision and, therefore, subject to statutory reservation under Article 23 of the Italian Constitution[4], considered the TRA’s power to tax and the fee calculation methods as legitimate, acknowledging that the law provides for “limits, guidelines, parameters and procedural constraints that are generally adequate to limit its discretion”[5].
Finally, as concerns the right of the TRA to claim the payment of the fee, the courts stated that such right is not “absolute”, being conditional on ascertaining the actual exercise of the TRA’s regulatory powers vis-à-visthe parties concerned.
The Italian Constitutional Court indeed stated that the persons liable for payment are “those in respect of whom the TRA has actually carried out the activities (set out in paragraph 3 of Article 37) whereby it exercises its powers (as listed in paragraph 2 of the same provision)”. Therefore, according to the Italian Constitutional Court, the persons liable for payment “are only those carrying out activities in respect of which the TRA actually exercised its institutional regulatory functions”.
Said principle was followed in all the subsequent judgements of the Regional Administrative Court of Piedmont, which “summarised” it as follows: “the obligation to pay the contribution only applies to those carrying out activities that have already been subject to the exercise of the regulatory functions entrusted to the Authority. Therefore, the identification of such persons depends on a concrete fact and not on the (theoretical and, therefore, questionable) circumstance that the TRA has the power to take action in the area where they operate. This means that the fee shall in no event be due for the period preceding the concrete exercise of regulatory powers”[6].
In this context, there is an outstanding issue that still does not seem to have been definitively solved: in order for the TRA’s regulatory functions to be deemed exercised, is the mere initiating of a public consultation process sufficient, or a final provision is required?
Relying on ana contrarioreasoning in light of the first judgement made by the Regional Administrative Court of Piedmont about an application filed by various port terminal operators[7], the initiation of a consultation would seem sufficient[8].
In a recent judgement (No. 513 of 02 May 2018), however, the Regional Administrative Court of Piedmont stated that – since the regulatory activity must be “effective” – the mere start of a regulatory procedure cannot be considered as such “where the regulatory order is adopted after the resolution setting the fee is made”. On the other hand, the Administrative Regional Court observes in said judgement that “the fact that the regulatory activity is carried out earlier responds to the need of certainty and predictability of the obligations of undertakings, who would not otherwise be able to know whether they are supposed to incur the fee until the expiry of the year to which the resolution relates”.
As anticipated, in making our final remarks we believe it appropriate to come back to the issue of the scope of the TRA’s regulatory competence. It is, indeed, precisely in this respect that we see a risk of misinterpretation of what can be inferred from the judgements mentioned above.
In our opinion, it should be stressed that the aforementioned applications – filed to challenge requests for payment of the TRA’s fee – were upheld only on the basis of the principle of the necessary and concrete exercise by the aforementioned Authority of its regulatory powers vis-à-visthe undertakings required to pay the fee.
This does not change the fact that the Italian Constitutional Court and the Regional Administrative Court of Piedmont seem to have confirmed both the scope of the regulatory competence and the power of the TRA to require payment of the fee (when its regulatory function has been as a matter of fact exercised).
In light of the above, we deem it appropriate to underline that the decisions mentioned above – however it may “appear” – seem to move in the direction of legitimising the TRA and its activity.
This article is for information purposes only and is not intended as a professional opinion.
For further information, please contact Simone Gaggero.
[1] Due to space constraints given by this article, we cannot include here the text of the provision. However, for prompt reference of our readers, we report here below a link to the above-mentioned provision:http://www.autorita-trasporti.it/wp-content/uploads/2013/11/art-37-dl-201-2011.pdf
[2] According to the same provision, “the fee is set annually by an order of the Authority, subject to the approval of the President of the Council of Ministers in consultation with the Minister of Finance and Economy. Remarks may be submitted within thirty days of the receipt thereof, to be complied with by the Authority; if no remarks are submitted within such deadline, the order shall be deemed approved”.
[3] Judgement No. 539 of 21 April 2017 of T.A.R. of Piedmont – Turin, Second Division.
[4] “No services of a personal or a capital nature may be imposed except on the basis of law”.
[5] Italian Constitutional Court – Case No. 69 of 7 April 2017.
[6] See, inter alia, judgement No. 288 of 8 March 2018 of T.A.R. of Piedmont – Turin, Second Division.
[7] Judgement No. 288 of 8 March 2018 of T.A.R. of Piedmont – Turin, Second Division.
[8] This is because the TAR of Piedmont appears to have taken into account the start of a public consultation on “Methods and criteria to ensure fair and non-discriminatory access to port facilities. First regulatory measures” as per TRA resolution No. 156 of 22 December 2017, which marks the first action of the TRA in respect of port facilities.
