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    13.02.2019

    New evaluation parameters for concession applications: the last three criteria issued by the Italian Ministry of Infrastructures and Transport


    This article focuses on examining the three latest evaluation criteria for the application/renewal for maritime concessions pursuant to Article 18 of Italian Law 84/94 issued by the Italian Ministry of Infrastructures and Transport (“MIT”) by the Circular published on the Italian Official Gazette on 5 February 2018.

     

    The three parameters at issue are quoted below for ease of reference:

    • e) “employment level, including also instructions on the use of temporary labour”;
    • f) “capability to ensure operational continuity of the port”;
    • g) “sustainability and environmental impact of the proposed industrial project, level of technological innovation and industrial partnership with universities and scientific research centres included in the activity programme”.

    As far as the parameter under e) is concerned, it should be noticed, in the first place, that the same refers to a topic (employment) that – given its undisputed public interest features – has always been of paramount relevance in every administrative procedure relating to the concession and/or renewal of concession and authorizations in the port sector.

     

    The above-mentioned parameter makes express reference to the use of temporary labour by the applicant concessionaire. The rationale of such a reference might relate to the provision set forth under Article 17, paragraph 15-bis, of Law 84/94 . Indeed, according to such provision, Italian Port System Authorities (“AdSP”) may allocate part of their income (arising out of taxes on loaded and unloaded goods) to the financing of training activities or to the relocation of the staff of enterprises providing temporary workforce for port activities. In times when many of these enterprises are in financial distress and should be destined to shrink in size, also in consideration of the technological development that nowadays urges towards fully automated terminals (consequently decreasing terminal operators’ need for workforce), it seems logical that the AdSP are interested in evaluating how much the entrepreneurial projects submitted by applicant concessionaires may “help” said enterprises, by providing job opportunities to their staff.

     

    Still with reference to the employment issue, it is appropriate to remind also the importance of the provisions laid down by European Regulation EU 2017/352 (see in particular Article 9.3) on the so-called “safeguard clause”. Said clause, quoted in the footnote for ease of reference essentially allows the managing entity of a port, in case of “change” of concessionaire, to demand that the rights and obligations of the outgoing concessionaire – arising out of a contract of employment and in force at the date of the “change” – be transferred to the incoming concessionaire.

     

    As far as the parameter under f) is concerned, it should be noticed instead that the provision seems to refer, in particular, to the hypothesis in which the operational plan submitted by the applicant concessionaire contemplates the carrying out of works and is therefore aimed at giving priority to applications (and the relevant underlying projects) that reduce to the minimum any interruption of port activities and interferences of said works with the proper port functioning.

     

    Accordingly, this parameter may seem an “instrument” to somehow favour present concessionaires. If it proves true that we can no longer talk of a “right of insistence” (which has been fully repealed by the law of the European Union), it is also true that such a criterion might seem to favour enterprises that are already concessionaires, for which no major issues as to operational continuity would arise. Therefore, the parameter being examined seems legitimate unless “fraudulently exploited” so as to revive the aforesaid right of insistence.

     

    Finally, as far as the parameter under g) is concerned, it should be noticed that said parameter - with a very broad content – makes reference to a set of elements that are somehow “new” or, at least, so far not “formally” acknowledged in a single legal provision.

     

    Such elements may be deemed of actual interest with respect to the pursuit of public interest. Let’s think, first of all, about environmental features, which certainly affect the sphere of public interest. From this standpoint, we assume that, by way of example, “green” solution projects for the actual performance of port activities (use of the latest generation means and equipment able to reduce to the minimum the environmental impact, use of renewable energies, new electrification sources from wharfs, electric systems, etc. etc.) may be positively evaluated.

     

    In this respect, also the reference to technological innovation prospects may be consistent with the logic to pursue the public interest, so much so in a context – such as the one we live in nowadays – where technological innovation (including for ports) seems concerned with the need for a stronger environmental protection. In such a scenario, the circular under analysis emphasizes the need for protection also by “rewarding” concessionaires entering into partnership agreements with research centres and universities, in order to foster the innovation process within port industries.

     

    So, we have concluded our examination of the parameters issued by the MIT to the AdSP in order to set the technical and economic criteria to be employed when comparing competing applications for the concession/renewal of maritime concessions under Article 18 of Italian law 84/94.

     

    All that remains is to wait and see how the AdSP will actually implement said criteria, keeping in mind – to ensure transparency and neutrality within the administrative action – that such criteria (and their relevant scorings) shall have to be disclosed by the AdSP before the beginning of the comparative processes among competing applications.

     

     

     

     

     

     

     

    This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Simone Gaggero.

     

     

     

     

     

     

     

    “In order to enhance employment, professional innovation and professional updating of the staff of enterprises or of agencies providing workforce, Italian port System Authorities may allocate part of its income, not exceeding 15 per cent of the income arising out of taxes on loaded and unloaded goods, to the financing of training activities, of staff relocation, including the redeployment of staff totally or partially unable to accomplish port operations and services on other different areas, and of early retirement incentive plans for workers of enterprises or of agencies under this article. In order to avoid a serious harm to the operativity of the port, Port System Authorities may fund operations aimed at restoring the economic balance of enterprises or of agencies providing workforce within the recovery plans signed by the same Authority.”

    Should the award of a concession or public contract result in the change of a port services provider, the managing body of the port, or the competent authority, may demand that the rights and obligations of the outgoing provider of port services arising from a contract of employment, or from an employment relationship as defined by the national law, and existing at the date of said change, be transferred to the newly appointed provider of port services. In such event, the staff previously engaged by the outgoing port services provider will be granted the same rights that they would have been entitled to in the event of transfer of undertaking within the meaning of Directive 2001/23/EC.