Vessels sailing to the EU from outside the bloc must buy carbon allowances covering half their emissions for the journey. But officials are concerned that ships from far-flung ports are cutting bills without reducing emissions by stopping at ports near EU member countries, and then counting only the shorter final leg into the bloc.

Brussels plans to tighten the rules by including traffic to North African, Middle Eastern and potentially UK ports in its emissions trading system. The rules currently bring in about €7bn-€9bn each year, according to ECSA, the European shipowners’ association […]

[…] “A vessel is paying roughly €300,000 per call so what liners decided to do is not to come directly to the European port but to stop at the nearby non-EU ports to benefit from the 50 per cent ETS rules,” said Alberto Rossi, secretary-general of the Italian shipowners’ association Assarmatori. 

Another issue was vessels bringing non-EU goods to EU ports for transshipment — where they are moved to different ships before being taken on to their final destination outside the bloc.

Rossi said that transshipment services were also moving to north Africa to evade ETS costs, impacting jobs and potentially giving EU countries less control over their supply chains.

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The electrification of port quays, known as “cold ironing”, falls within the broader objective of “sustainable mobility” and aims to reduce the negative externalities arising from the use of fuels during the stationary phase of vessels in port.

An initial regulatory framework for the system was established by Article 34-bis of Decree-Law No. 162 of 30 December 2019, as subsequently amended by Law No. 214 of 30 December 2023, which defined cold ironing as “the set of structures, works and installations built on land necessary for the supply of electricity to vessels moored in port”, further qualifying it as a service of general economic interest.

Within this context, the recent Decree of the Minister of Infrastructure and Transport No. 10 of 22 January 2026 (hereinafter, the “MIT Decree”) was adopted to provide the Port System Authorities with specific guidance on the management of cold ironing services and to ensure full compatibility of the tariff relief measures with Article 107 of the TFEU, in compliance with the European Commission Decision of 17 June 2024, C/2024/3934.

2. On the authorization regime: the regional single authorization

Pursuant to Article 33 of Decree-Law No. 36/2022, port electrification projects have been classified as programs “of public utility,” subjecting their construction and operation to the issuance of a single authorization by the competent region, in compliance with the regulations in force concerning the protection of the environment, landscape and historical-artistic heritage, with the aim of simplifying the procedures for the construction of the infrastructure necessary for the system.

The single authorization is issued upon conclusion of the conference of services convened by the Port System Authority or the competent region, with the participation of all relevant administrations, within a maximum period of one hundred and twenty days, or one hundred and eighty days where an environmental impact assessment (“EIA”) procedure or a screening for EIA (“EIA Screening”) is required.

With regard to the applicability of EIA, it is considered that the project must follow the ordinary rules of the Environmental Code (Legislative Decree No. 152/2006), where the individual interventions fall within those listed in Annexes II, II-bis, III and IV to Part II of the same Code.

3. On the regulatory framework: system charges and the relief regime

The issue of general system charges (hereinafter, “GSCs”) represents the central element of the advantageous regime granted to the cold ironing system: by ARERA Resolution 492/2024/R/eel of 29 November 2024, the provisions of Article 34-bis, paragraph 1, of Decree-Law No. 162/2019 were implemented, concerning “reductions on general system charges for electricity drawn from cold ironing infrastructure”.

The extent of the reduction amounts, for consumption in the years from 2025 to 2029, to 100% of the GSCs owed by the Cold Ironing Infrastructure Manager (“IM”), with a proportional reduction in cases where the POD is not exclusively dedicated to the supply of cold ironing infrastructure. The MIT Decree further specified the operational modalities of the regime: from 1 January 2030, the relief measures shall be granted only to vessels and in ports not subject to the obligations respectively provided for by EU Regulation 2023/1804 and EU Regulation 2023/1805, in order to limit the incentive to those cases where it is necessary to steer the conduct of operators.

The relief measures must be transferred in full to the end users of the cold ironing service, and the IM shall recognize, on a final settlement basis, any credits not passed on through the tariff, in the form of an adjustment or discount on subsequent supplies. A safeguard clause on State aid is also provided: the relief measures may not be granted to undertakings in difficulty or subject to a pending recovery order, for which purpose a self-certification shall be obtained from the beneficiary.

4. On the Cold Ironing Infrastructure Manager (IM) and the procedures for the award of the service

The IM may be an undertaking or a temporary grouping of undertakings (RTI), whether already formed or to be formed, demonstrating proven experience in the management of complex energy infrastructure, electricity distribution networks, cold ironing installations or high-power charging stations, operating in compliance with technical and safety standards equivalent to European standards.

The IM is required to ensure fair and non-discriminatory conditions of access and supply, sharing in advance with the competent Port System Authority the conditions of access to the installations, which shall be published on the Authority's institutional website, and is further required to submit semi-annual reports to the Port System Authorities, communicating data relating to the relief measures granted, the energy supplied and the tariff plan applied.

The provision of the service constitutes a service of general economic interest, the managers of which are identified by the competent Authorities through a public tender procedure pursuant to Article 6, paragraph 10, of Law No. 84/1994 and Legislative Decree No. 36/2023 (the so-called Public Contracts Code).

The optimal areas for award (so-called clusters) are identified by the competent Directorate-General, with the possibility for the relevant Port System Authorities to regulate the organization of the award through collaboration agreements pursuant to Article 15 of Law No. 241/1990. The award entails the granting to the IM of a maritime State property concession pursuant to Article 36 of the Navigation Code, while the IM shall be required to submit a balanced economic-financial plan, with tariff revenues sufficient to cover the costs of the service, including a reasonable profit margin tending towards the weighted average cost of invested capital.

5. Conclusions: an evolving regulatory framework

The regulatory framework reconstructed herein presents itself as a regulatory arrangement still in a phase of consolidation, the full definition of which remains contingent upon factors of a technical, economic and institutional nature, operating at both the national and European level. Moreover, notwithstanding the significant progress achieved to date in the subject matter at hand, certain fundamental aspects – such as the definition of the award clusters and the selection criteria for managers, as well as the allocation of responsibilities within the electricity supply chain in the context of the cold ironing system – remain at the implementation stage, and the EU framework on the energy transition of the maritime sector is itself undergoing rapid evolution.

1. ^ This refers to the Direzione generale per i porti, la logistica e l’intermodalità del Ministero delle infrastrutture e dei trasporti, which forms part of the Department for Transport and Navigation (Dipartimento per i trasporti e la navigazione).

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).

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.

For years, the European Union has been a leader in protecting the environment and fighting the climate change. In addition to the rules laid down by the IMO[1], the European maritime transport sector has long since been provided with a regulatory framework aimed at reducing its own environmental impact[2].During 2019, the European Commission (the “Commission”) submitted to the European Parliament the so-called “European Green Deal”, i.e. a set of initiatives and proposals aimed to make Europe climate neutral by 2050[3]. So, on 14 July 2021, in the context of the Green Deal, the Commission, adopted the so-called “Fit for 55 climate Package” (“Fit for 55”)[4], i.e. a set of proposals guiding EU policies on climate, energy, transport and taxation so as to reduce net greenhouse gas emissions by at least 55% by 2030 compared to 1990 levels. It is a package of proposals covering all sectors of economy and aiming to change and accelerate Europe’s decarbonisation trajectory, mainly through economic and fiscal leverage.

2. The Fit for 55 Package and the proposals for the shipping sector

In particular, four of the above proposals directly concern shipping (both at international and intra-European level).

a. Inclusion of maritime transport in the so-called “Emissions Trading System” (“EU-ETS” or “ETS System”), the EU emissions trading system

b. Imposition of greenhouse gases intensity requirements on marine fuels through the so-called “FuelEu Maritime” initiative

c. Revision of the so-called “Energy Taxation Directive” (“ETD”) proposing the removal of tax exemptions provided for fossil fuels used in maritime transport sector

d. Adoption of a new regulation for the deployment of alternative fuels infrastructure (the so-called “Alternative Fuels Infrastructure Deployment” or “AFID”).

3. Possible implications for the shipping sector

According to the initial estimates of specific industry studies, both the ETS proposal and the FuelEU Maritime initiative would impact slightly less than 70% of the annual CO₂ emissions due to EEA-related maritime transport, including the portions of international voyages to and from the ports of the EEA itself.With regard to the inclusion of the maritime transport sector in the EU-ETS, if, on the one hand, the allowances regime aims at a reduction of emissions through the economic leverage - according to “the polluter pays” principle - combined with a progressive decrease of available allowances (which will consequently increase in price), on the other hand, there is the issue that shipping companies, due to a technological and infrastructural framework beyond their control[9], might be unable to change their own energy plan and instead be subject to the mere payment of allowances. This would lead to a significant increase in transport costs, without any real benefit in terms of reducing emissions - at least in the short term. Therefore, it would be very difficult for shipowners to afford the investments needed for a real energy transition, with a negative impact on the competitiveness of said companies and other European maritime and port operators, such as port terminals.On the contrary, the FuelEU Maritime initiative could, in theory, be favourable to the maritime transport sector, insofar as it aims to encourage the adoption of alternative fuels to those derived from oil by imposing that fleets use gradually increasing percentages of low or zero carbon energy.Yet, the Commission’s proposed timetable, which assumes that the development of low-carbon fuels is currently unforeseeable, gives rise to some concern[10]. Indeed, if on the one hand incentives can be a valid support to speed up the process, on the other hand, the obligation to reach pre-established quotas of “alternative fuels” in the absence of technological and supply certainty would once again be “punitive” towards a sector that would be basically penalised for “faults” that at times are not its own, with further economic burdens to the detriment of the development and renewal of fleets.With regard to the last two proposals, first of all, it should be noted that the envisaged revision of the ETD would lead to the elimination of the exemption from payment of excise duties on marine fuels (which is still provided for), thus opening the way to the introduction of excise duties on marine fuels, with potentially serious repercussions on the costs of shipping companies and therefore of maritime transport as a whole. Instead, it would be appropriate to extend the exemption to include LNG, in line with the objectives of the EU Fuel Maritime initiative and AFID.Lastly, the initiative aimed at adopting the AFID Regulation could have positive implications for the shipping sector, given that the availability of an adequate distribution network for alternative fuels is a precursor to the effective - albeit progressive - de-carbonization of shipping.In this respect - even assuming that such a distribution network is closely linked to the choice of alternative fuels that will become available on the market and that therefore a careful reflection and planning will be required - it would be crucial that the implementation of the LNG distribution network, despite being a transitional fuel, be accelerated as much as possible. This would allow ships to use such fuel on a large scale as soon as possible. All this would be possible through an appropriate and efficient interface between shore-side electricity supply facilities for ships at berth in ports and the installation of “cold ironing” facilities on board. Likewise, it should be possible to compare the cost of shore-side electricity with that of self-generated electricity on board the ship, which is currently significantly lower.

4. Concluding remarks

The framework described above basically refers to possible solutions which, before being adopted, will have to be discussed with the European Parliament and the Member States, but which, in any case, could mark the start of more “aggressive” policies on emissions and the de-carbonization of the maritime transports sector. This, as we have seen, also through the imposition of unilateral measures on international shipping that are in potential conflict with the measures adopted by the IMO, which is the regulatory body responsible for international maritime traffic.There is no doubt that the real “battle” will be played out in Brussels, where the competent authorities at national level, as well as the stakeholders concerned, will most likely try to explain to Europe that initiatives such as those outlined here, which are more than worthy of support in their aims, must in any case also take into account the interests and needs of our sector. This, in order to avoid the adoption of solutions that entail the risk of triggering a process that is extremely detrimental to the maritime-port sector in our country. All the above, with the possible consequent alteration of the level of competition between transport companies operating in and with Europe and the other global companies which, by not calling European ports, would escape the new and more restrictive rules, thereby risking a significant reduction in traffic flows and port activities on the European continent and, in particular, in our Country. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Simone Gaggero, partner ADVANT Nctm, and Luca Brandimarte, Assarmatori.  [1]   First of all, one should consider, the adoption of the International Convention for the Prevention of Pollution from Ships (MARPOL) of 1973 which: (i) in 1997, was supplemented by Annex VI dedicated to the prevention of air pollution from ships; (ii) in 2011, introduced a chapter concerning mandatory technical and operational measures to improve energy efficiency, aimed at reducing greenhouse gases emissions from ships. Further measures, just as an example, were subsequently introduced by the IMO - starting from 2013 – in the so-called “Energy Efficiency Design Index” (EEDI) for all new ships and the so-called “Ship Energy Efficiency Management Plan” (SEEMP) for all ships in operation. Starting in 2023, new measures will be introduced that: (a) will require all existing ships to calculate their energy efficiency index (EEXI - “Energy Efficiency Existing Ship Index”), which shall comply with a specific baseline identified by IMO itself according to the type of ship, so that if the ship does not meet the requirements, specific technical solutions shall be adopted to improve its energy efficiency and bring the EEXI back to the expected value; (b) will require ships to provide their Carbon Intensity Indicator (CII) and CII rating on an annual basis. All this in order to achieve, by 2030, a reduction of at least 40% in carbon intensity and, by 2050, a reduction of at least 70% in carbon intensity and 50% in the absolute value of greenhouse gas emissions, with the stated aim of “zero emissions as soon as possible, by the end of this century”.[2] Other examples include, by way of example, action in the fuel and ships dismantling sectors. Indeed, since 1 January 2010, all ships, of all flags, docked in European Union ports must use fuels with a sulphur content not exceeding 0.1% and, since 31 December 2014, Regulation (EU) 1257/2013 on ship recycling has been in force, which applies to all ships of 500 gross tonnage or more, flying the flag of an EU Member State and to ships flying the flag of third-party countries calling at an European Union port.[3] See European Commission Communication of 11.12.2019, COM(2019) 640 final.[4] See European Commission Communication of 14.07.2021, COM(2021) 550 final, entitled: “Fit for 55: delivering the EU’s 2030 Climate Target on the way to climate neutrality”.^[5] Subsequently amended by Directive (EU) 2018/410.[6] Still with a gross tonnage of 5,000 gt or more.[7] See Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity.[8] All with a view to improving the provisions already laid down in Directive (EU) 2014/94 on the deployment of alternative fuels infrastructure.[9] Indeed, the ship is only the user of an alternative fuel that must first of all exist and be produced and distributed.[10] This is based on the assumption that the least carbon-intensive energy sources would currently consist of LNG only, which allows a drastic reduction in sulphur and nitrogen oxides and particulates emissions, but has also a significant effect, albeit more limited - until 20%, if particular conditions are observed - on the CO₂ emissions. Indeed, in practice, there are currently no “zero carbon” energy sources available for ships and industry studies predict that there will not be any for several years.

i) removal of any reference to a regulation on concessions, with the consequence that the determination of the criteria for the granting of concessions is directly entrusted to individual Port System Authorities;

ii) failure to introduce any objective criteria for determining concession fees;

iii) provision for compensation by the newcomer to the incumbent for the investments made;

iv) applicability of the provision of Article 18, paragraph 7, of Law No. 84/1994 to minor ports only;

v) failure to provide for certain long-awaited and hoped-for measures in the field of (a) financing of concessionaires’ investments and (b) enhancement of the procedures for verification of compliance with business plans.

• Removal of any reference to a regulation on concessions, with the consequence that the determination of the criteria for the granting of concessions is directly entrusted to individual Port System Authorities.

On the one hand, such removal reflects the factual situation and it seems as if the legislator has faced up to the facts. Since thirty years have passed from the approval of Law No. 84/1994 without the relevant regulation for granting concessions having been issued, Port Authorities first, and then Port System Authorities, have over the years adapted to such regulatory gap and identified their own rules and/or practices for granting concessions.On the other hand, this was an excellent opportunity to finally determine some objective parameters shared by all Port System Authorities.Adopting a regulation would have allowed aspiring concessionaires to “play by the same rules” in all Italian ports, thus avoiding competitive distortions. To date, however, since there is no regulation laying down criteria which are generally valid, each Port System Authority is free to adopt its own rules for identifying the “most worthy” competitor. Unfortunately, such rules do not always identify certain, clear, transparent and non-discriminatory criteria.

• Failure to introduce any objective criteria for determining concession fees.

Along with the removal of the regulation for the granting of concessions, no predetermined, objective and transparent criteria for determining concession fees have been set out.Such task is once again delegated to individual Port System Authorities. Such approach therefore perpetuates the current situation in national ports, where the concession fee was, is and - at this stage realistically - will remain an element of potential distortion of competition, both in the individual port and among the different national ports.The current situation - even if in certain cases clearly distorting competition - is, furthermore, crystallised by the provision of Article 18, paragraph 2, of Law No. 84/1994 (in the version proposed by the Competition Bill), which reads: “The fees established by Port System Authorities for concessions already been granted as of the date of entry into force of this law, shall remain valid until the concession expires”.As already noted with regard to the preceding point, we believe that it is necessary to provide for “rules of the game that are the same for everyone”, including concerning concession fees, which are equal to all national ports, so as to prevent abuse and/or distortion of competition.

• Provision for compensation by the newcomer to the incumbent for the investments made.

Article 18, paragraph 1, of Law No. 84/1994 (in the version proposed by the Competition Bill) reads: “Notices shall also set out the terms for the expiry of the concession, including in relation to any compensation payable to the outgoing concessionaire”.The provision for such compensation is fully in line with the discipline provided for at the time by the Transport Regulation Authority by Resolution No. 57/2018.Like in the discipline drafted by the Transport Regulation Authority, the subject of such “indemnity” is still unclear. Does the indemnity cover infrastructural investments and/or also investments for superstructures and equipment?Furthermore, the limits of such indemnity are unclear: should it only compensate for the unamortised part of the investments or should it compensate also for something else?In our opinion, such provision remains very generic and ripe for abuse. It would have been appropriate to provide for predetermined, objective and transparent criteria for determining the indemnity.

• Applicability of the provision of Article 18, paragraph 7, of Law No. 84/1994 to minor ports only.

The Competition Bill accepts the proposal of the Italian Competition Authority (“AGCM”)^[3] that “in a perspective of development and growth of the port sector, paragraph 7 of Article 18 of Law No. 84 of 28 January 1994 should be reworded, preventing cumulation of concessions for the same activity only by minor ports, where situations of market power are more likely to be formed, and/or for those types of activity where competitive dynamics are limited to the single port”.As a matter of fact, in our opinion, (even recent) experience shows that the Italian Competition Authority’s statement does not reflect the actual situation. Regardless of the size of a port, it is clear that the space within a single port of call is limited, as is the number of operators who can have access it. Abolishing the prohibition of double concessions would therefore risk creating dominant positions which might lead to abuses, both in minor ports and in ports with Port System Authorities.It should also be recalled that, over the years, Article 18, paragraph 7, of Law No. 84/1994 has always been interpreted in such a way as to ensure that Port System Authorities may act “in compliance with the principles of competition, freedom of establishment, guarantee of the development, enhancement of entrepreneurial activities and investment protection”^[4].Furthermore, this is a rule which - as we have highlighted -, according to case law^[5], could be “managed” by Port System Authorities with a view to ensuring competition within a port (given that competition is precisely the “asset” that such rule intends to guarantee) but in the context of a scenario always aiming at the “increase of the traffic and productivity of the port”, as provided for by Article18, paragraph 6, of the Law No. 84/1994.

• Failure to provide for certain long-awaited and hoped-for measures in the field of (a) financing of concessionaires’ investments and (b) enhancement of the procedures for verification of compliance with business plans.

By the looks of it, the chance has once again been blown, since neither (a) the long-awaited measures concerning the financing and/or bankability of concessionaires’ investments nor (b) any procedures for monitoring compliance with business plans have been implemented.As regards financing, those working in the sector have repeatedly stressed the difficulty of obtaining financing from lenders because of unclear rules governing forfeiture (e.g. forfeiture for misuse of the concession[6]).The Competition Bill could have been the right opportunity to better regulate the forfeiture procedure, so as to reassure both lenders and concessionaires themselves, removing the absolute discretion of the Port System Authority in making such decision.Concerning procedures, the Italian Competition Authority had already suggested the actual implementation of the procedures aimed at verifying the fulfilment of the commitments undertaken (first and foremost through their own business plans) by the concessionaires at the time of the application and granting of concessions. Although already provided for by Article 18, paragraph 8, of Law No. 84/1994, the assessments concerning actual compliance with business plans are not always carried out.It cannot be denied that the verification of the actual fulfilment - by the concessionaire - of its commitments is crucial to detect any inefficiencies in using State-owned areas. Indeed, considering the limited number of State-owned areas, it is in the general public interest that concessions be entrusted to subjects capable of ensuring their profitable and efficient use.The Competition Bill could have provided new impetus to this important issue. Furthermore, it would have been appropriate to emphasise how, in accordance with the business plan, it is important to verify not so much the implementation of investments - which are certainly relevant and preliminary to achieving traffic objectives - but the actual attraction and development of traffic. It is traffic indeed which generates port taxes and anchorage fese, thus supporting, along with the payment of the State fee, the Port System Authorities and the overall transport system.All the above is said, of course, bearing in mind that concessions are in any event agreements, whereby both parties are obliged to respect their commitments (therefore, not only concessionaires, but also granting authorities, e.g. in terms of carrying out the works provided for by the concession, on which any concessionaire may have legitimately relied when drafting its business plan).*.*.*.*In February there were several Senate hearings on the Competition Bill attended by plenty of representatives of maritime and port players. Some of the participants expressed the same concerns and worries set out above. We do hope that, in approving the competition law, the Parliament will take into account the views of the various players in the maritime and port sector.We will go back and analyse the final version of the Annual Competition Law once it is approved, so as to assess its effect on the maritime and port sector. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Alberto Torrazza and Ekaterina Aksenova.  [1] See Shipping and Transport Bulletin of April-June 2021.[2] Article 3 of the Competition Bill provides for the replacement of Article 18 of Law 84/1994 as follows:“Article 3. (Concession of State-owned port areas) - 1. Article 18 of Law No. n. 84 of 28 January 1994, is replaced by the following article:  Art. 18. - (Concession of areas and quays)

1. The Port System Authority and, where not established, the Maritime Authority shall grant under concession the state-owned areas and quays included in the port area to the companies mentioned in Article 16, paragraph 3, in order to carry out port operations, without prejudice to the use of buildings by public authorities for performance of functions related to maritime and port activities. Equally subject to concession by the Port System Authority, and where not established, by the Maritime Authority, shall be the construction and management of works related to maritime and port activities located in sea waters outside breakwaters, likewise to be deemed port area for such purpose, provided that they are affected by port traffic and the provision of port services, including for construction of facilities for loading and unloading operations in accordance with the functions of the port. Concessions are granted, subject to prior determination of the relevant fees, also in proportion to the amount of the relevant port traffic, based on public procedures, started also at the request of the party concerned, by publication of a notice, in compliance with the principles of transparency, impartiality and proportionality, thus ensuring conditions of actual competition. Notices shall define in a clear, transparent, proportionate and non-discriminatory manner the eligibility requirements for participation and the criteria for selecting applications as well as the maximum duration of concessions. Notices shall also set out the terms for the expiry of the concession, including in relation to any compensation payable to the outgoing concessionaire. The minimum time limit for submission of the applications shall be 30 days from the date of publication of the notice.
2. The fees established by Port System Authorities for concessions already granted as of the date of entry into force of this law shall remain valid until the concession expires.
3. The reserved use of functional operational areas for the performance port operations by other companies without a concession shall comply with the principles of transparency, fairness and equal treatment.
4. Concessions for the installation and management of warehouses and plants referred to in Article 52 of the Navigation Code and the works necessary for their supply, declared strategic pursuant to Law 239 of 23 August 2004, shall have a term of at least ten years.
5. Concessions may also cover the realisation of infrastructural works.
6. For the purposes of granting the concession referred to in paragraph 1, the participants in the concession procedure shall be required to: a) provide, at the time of the application, for a business plan, supported by suitable guarantees, including sureties, aimed at increasing the port’s traffic and productivity; b) have adequate technical and organisational equipment, suitable also from a safety point of view for complying with the requirements of a continuous and integrated production and operating cycle on their own account and on behalf of third parties; c) provide for a workforce in accordance with the business plan referred to in a).
7. In each port, the undertaking holding a concession for a State-owned area shall directly carry out the activity for which the concession was granted and shall not at the same time be the concessionaire of another State-owned area in the same port, unless the activity for which a new concession is applied for is different from the one of the existing concessions in the same State-owned area, and shall not carry out port activities other than those for which the concession was granted. The non-cumulation mentioned in the first sentence shall not apply to ports of international and national economic relevance, identified pursuant to Article 4, and in such case exchange of labour shall be forbidden between the different State-owned areas granted under concession to the same undertaking or to subjects in any event referrable to the same company. On a reasoned request by the concessionaire undertaking, the granting Authority may allow other port undertakings, authorised under Article 16, to carry out certain activities included in the operational cycle.
8. The Port System Authority or, where not established, the Maritime Authority, shall carry out yearly assessments aimed at verifying whether the concessionaire still meets the requirements met at the time when the concession was granted, and is implementing the investments provided for by the business plan referred to in paragraph 6 a).
9. In the event that the concessionaire fails to comply with the obligations undertaken or fails to achieve the objectives set out in the business plan referred to in paragraph 6, a), without justified objective reasons, the Port System Authority or, where not established, the Maritime Authority shall declare the forfeiture of the concession agreement.
10. The provisions of this article shall also apply to warehouses and facilities for oil and liquid chemicals as well as for other similar products, located within the port”.

[3]https://www.agcm.it/dotcmsCustom/getDominoAttach?urlStr=192.168.14.10:8080/C12563290035806C/0/914911A1FF8A4336C12586A1004C2060/$File/AS1730.pdf[4] See Regional Administrative Court (TAR) of Liguria, Second Division, 24 May 2012, No. 747.[5] See Order of the Court of Genoa of 18 September 2009.[6] Article 47 of the Navigation Code provides that “[the] Administration may declare forfeiture of a concessionaire: [...omissis...] b) for non-continuous use during the period set for this purpose in the concession deed, or for misuse; [...omissis...]"

• move towards opening up to the market and hence to competition, without excluding the possibility of entrusting several operators with the waste collection service in a given port;
• act in harmony with the national legislation and Regulation (EU) 2017/352[2] “establishing a framework for the provision of port services and common rules on the financial transparency of ports” (the “Regulation”) - including also the service for the collection of ship-generated waste and cargo residues.

As regards the assignment of the waste collection service to several operators, the Directive states that the waste collection service falls within the scope of application of the Regulation, so that the limitation on the number of providers of the service for the collection of ship-generated waste is only possible and, therefore, justified exclusively by ascertaining the existence of certain stringent requirements, duly assessed on the basis of an appropriate procedure pursuant to Articles 6 et seq. of the Regulation[3].The possibility of having a plurality of service providers is confirmed by the latest developments in the case law regarding the collection of waste on board ships[4], which shows that, pending the preparation of public tender documents for the assignment of said service, the service may even be provided also by companies listed in the register pursuant to Article 68 of the Navigation Code[5] that meet the necessary requirements[6].Without going into the detail of the case here, it is reasonable to believe that this view can fully guarantee competition between operators, through the opening to the market, on the assumption that the selection of the service operator is entrusted “to the party who will enjoy the service and to whom the relevant costs are charged, under a competitive regime”[7].The above in order to avoid the presence of only one service provider which, by virtue of its position, could apply excessively onerous conditions in a given port, with the consequent risk of being considered as a practice restricting competition.As regards Regulation (EU) 2017/352, the transposition decree should - in our opinion - be clear and comprehensive with regard to the concrete application of the principles of transparency, proportionality and reporting referred to in the Regulation also for the sector in question[8].Even in the light of the above-mentioned principles, Article 8 of the Directive, entitled “Cost recovery system”, provides that Member States shall ensure that the costs of operating port reception facilities for the reception and treatment of waste from ships, other than cargo residues, are covered through the collection of a fee from ships[9].With particular reference to the design and operation of such cost recovery systems, Article 8(2) of the Directive expressly provides - inter alia - that:

• ships shall pay an “indirect fee”, irrespective of delivery of waste to a port reception facility;
• the “indirect fee” shall cover: a) the indirect administrative costs[10]; b) a part of the direct operating costs[11] (equal to at least 30% of the total direct costs for actual delivery of the waste during the previous year, with the possibility of also taking into account costs related to the traffic volume expected for the coming year);
• in order to provide for a maximum incentive, for the delivery of MARPOL annex V[12] waste other than cargo residues, no “direct fee” shall be charged[13];
• the “indirect fee” shall not include the waste from exhaust gas cleaning systems, the costs of which shall be covered on the basis of the types and quantities of waste delivered.

Moreover, with specific reference to the coverage of a part of the direct operating costs, equal to at least 30% of the total direct costs for actual delivery of the waste during the previous year, in our opinion it should be avoided, where the service provider in a given port is inefficient, that said percentage could in practice amount to 100% of the total direct costs.In this latter regard, the adoption of a fee regime applying in all ports the same unit of measurement for the pricing of quantities (volume, weight, etc.), while ensuring adequate cost recovery systems as per Article 8 of the Directive, could hopefully reduce any possible unjustified and excessively onerous costs for users[14].Therefore, the provision of an ad hoc procedure defined at inter-ministerial level and aimed exclusively at establishing adequate “criteria and mechanisms” for the fixing of fees, taking into account what has already been provided for the determination (and updating) of tariff criteria and mechanisms for technical nautical services, could also guarantee that the fee is

• determined as a result of an open procedure, in which it is possible to ascertain the various cost (and profit) items in order to provide the service;
• structured in such a way as to enable users to verify the impact of the individual cost items and, therefore, of the individual services rendered, on the total price of the service.

In said context, Article 9 of the Directive expressly provides that ships engaged in scheduled traffic shall be exempted, by way of example and without limitation, from the obligations relating to the cost recovery system where there is sufficient evidence that a number of conditions are met, such as, inter alia, “an arrangement to ensure the delivery of the waste and payment of the fees in a port along the ship’s route which is evidenced by a signed contract with a port or a waste contractor and notified to all ports on the ship’s route”.Finally, when the decree to be enacted will come into force, considering moreover the difficulty of entering into such an agreement, ships engaged in scheduled traffic should, in our opinion, be given a period of grace to enable them to comply effectively with the stringent exemption requirements under the Directive.In conclusion: given the temporary silence of the legislator and of course without prejudice to all the contingent situations of each port, it is evident how a targeted and careful opening up to competition of the service for the collection of ship-generated waste and cargo residues can only increase competitiveness and attractiveness of the individual Port System Authorities and their respective related industries on the national and international market. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Luca Cavagnaro and Emanuele Rinaldi.  [1]  The main objective pursued by the Directive is to reduce discharges at sea of ship-generated waste and cargo residues from ships calling at EU ports. Last but not least, to improve the availability and use of port reception facilities for said waste and residues.[2] For an overview of the Regulation, you can consult some articles published in our Shipping&Transport Bulletin: “Regulation (EU) 2017/352 on port services and financial transparency: provision of port services (first part)“ (December – January 2019); “EU Regulation 2017/352 on port services and financial transparency: ”limitations” to the number of providers of port services and public service obligations (second part)“ (February – March 2019); “Regulation (EU) 2017/352 establishing a framework for the provision of port services and common rules on the financial transparency of ports: employees’ rights, financial transparency and autonomy of port management bodies“ (April – May 2019).[3]   In other words, the rule underlying the Directive seems to be the plurality of providers and the freedom to provide services in ports, with the result that, instead, the derogation from the competitive market and any intention to limit the number of port services providers would be an exception subject to the formal procedure provided for by the Regulation.[4] Cfr. ex multis: Council of State, Fifth Division, No. 3049/2020; TAR Sardinia, Second Division, No. 282/2021.[5] Those who carry out an activity within the port, other than port operations or services (Article 16 of Law 84/94), are subject to registration in the register referred to in Article 68 of the Navigation Code, whereby “Those who carry out an activity within ports and in general within the public maritime domain are subject, in the performance of such activity, to the supervision of the port master. The Head of the Department, after consulting the trade unions concerned, may impose on those who carry out the aforesaid activities the registration in special registers, possibly limited in number, and other special restrictions”.[6] On this point see the article “Ship waste collection and barge bunkering services: major steps towards market opening“, in our Shipping&Transport Bulletin (November-December 2020).[7] Council of State, Fifth Division, No. 3049/2020, recital (10).[8] Recital (36) of the preambles to the Directive states that: “This Directive goes beyond the framework provided by that Regulation by providing more detailed requirements for the design and operation of the cost recovery systems for port reception facilities for waste from ships and the transparency of the cost structure”.[9]   The Directive also specifies that cost recovery systems shall provide no incentive for ships to discharge their waste at sea.[10] Annex 4 to the Directive defines as indirect administrative costs those costs arising from the management of the system in the port, such as, by way of example and without limitation, cost items inherent to the “development and approval of the waste reception and handling plan, including any audits of that plan and its implementation”.[11] Annex 4 to the Directive defines as direct operational costs those arising from the actual delivery of waste from ships, such as, by way of example and without limitation, cost items relating to the “provision of port reception facilities infrastructure, including the containers, tanks, processing tools, barges, trucks, waste reception, treatment installations”.[12] The International Convention for the Prevention of Pollution from Ships (“MARPOL Convention”) was developed by the International Maritime Organization (“IMO”) with the aim of preventing and minimizing pollution from ships, both accidental and resulting from routine operations, and is accompanied by six technical annexes covering marine pollution. In particular, Annex V contains the rules on the prevention of pollution from ship waste.[13] Article 8 (2)(c) of the Directive specifies that the aim of the provision is “to ensure a right of delivery without any additional charges based on the volume of waste delivered, except where the volume of waste delivered exceeds the maximum dedicated storage capacity mentioned in the form set out in Annex 2 to this Directive [..]”.[14] Hence, in our opinion, the foregoing could not be achieved without an appropriate involvement of the users themselves (and therefore also of national trade associations) in all the preparatory and subsequent phases of the preparation of waste collection and management plans in the port area, as well as in the determination and/or updating of the relevant fees for the provision of the service.

• The PSAs allege infringement of Article 107(1)[2] of the Treaty on the Functioning of the European Union (hereinafter, the "TFEU"), namely due to misinterpretation and misapplication by the Commission of the concept of "undertaking", as well as infringement of Article 296(2) TFEU[3].
• The PSAs allege that the Commission misinterpreted and misapplied the concept of “transfer of State resources”.
• The PSAs challenge the assessment of “selectivity” and “advantage” carried out by the Commission in the challenged decision.
• Finally, the PSAs allege that the Commission misinterpreted the concepts of “distortion of competition” and “effect on trade between Member States”.

The subject-matter of the dispute is indeed a tax exemption (rectius, a “State aid” within the meaning of the EU legislation), whose beneficiary is basically a State entity (the individual PSA) and whose benefited activities are carried out in a competitive market both at national and at least at European level, the legitimacy of which is challenged by the European Commission.Given the complexity of the matter, and since it is not possible here to deal comprehensively with all the rebuttals made by the European Commission to the individual grounds of appeal taken by the PSAs referred to above, we extracted from the Counter-Appeal the maxims that we consider most relevant to the issue.

• “The qualification of an entity as an undertaking depends on the nature of the activities it carries out"^[4] or "The legal status of an entity is irrelevant for the purposes of qualifying that entity as an undertaking"[5].

Following the interpretative approach of the European Commission, the legal nature of an entity does not appear to be a decisive aspect for the purposes of the matter under discussion, but rather what must be assessed is the nature of the activities carried out by the PSAs.The non-applicability of Article 107 of the TFEU would apply only to all the activities carried out by the State as an expression of its imperial power. Accordingly, whenever the State "carries out an economic activity that can be dissociated from the exercise of public authority, the public entity will act as an undertaking with reference to such activity".As likewise stated in EU case law, the concept of an undertaking is regardless of its legal status and the way in which it is financed, thus encompassing any entity engaged in an economic activity[6].Therefore, when it is established that certain entities carry out economic activities, they will to all intents and purposes be "undertakings" - within the meaning of antitrust law - with respect to the economic activities duly carried out by them.

• "The concept of economic activity is an objective concept, based on factual elements"[7].

As stated by the European Commission itself, an entity which enjoys a legal monopoly may very well offer goods and services on a market and therefore be an undertaking within the meaning of Article 107 of the TFEU. The factual element that qualifies the concept of economic activity is in fact the existence of a market for the services concerned (a circumstance that is purely objective) and not, therefore, the individual subjective interpretation adopted by a Member State.

• The fact that the PSA cannot carry out, "either directly or through affiliated companies, port operations and activities closely connected thereto does not mean that the PSA cannot carry out any economic activity"[8].

The European Commission firmly supports the existence of a market for the management of State-owned port property and the relevant infrastructure, in which the individual PSA is in fact in competition with other PSAs or with entities governed by private law. In other words, according to the Commission, a port infrastructure is in fact used for commercial purposes and not made accessible (to anyone who actually wants to use it) free of charge.

• “The provision of services against remuneration established by law is not in itself sufficient to consider that the activity in question is non-economic"[9].

The Commission, making explicit reference to EU case law, points out that, regardless of the denomination that the individual Member States have adopted or adopt at a national level, in the case of revenues (known to third parties as "fees", "port dues" or "port taxes") which are collected by the PSAs as a counter-performance, for example, of the right of access of ships to port infrastructures, such revenues cannot but constitute remuneration for a service carried out in a synallagmatic relationship.Indeed - the Commission continues - even in case of "fees" entirely determined by law, there would be no impact on the economic activities actually carried out by PSAs (such as, without limitation, the issue of concessions or authorisations against payment of a State fee to generally private companies for the commercial use of the asset and the provision of services to shipping companies).In other words: the principle of legality - the basis of the enforceability of the fee – appears not to be relevant for the purposes of the legal qualification of the activities carried out by PSA.

• "If Article 74[10] of the Consolidated Income Tax Act ("TUIR") applies tout court to the PSA, even when they carry out economic activities, there will be discrimination between companies that carry out economic activities"[11].

From the time when "the State and public entities carry out economic activities - as mentioned above - they qualify as undertakings, limited to the performance of such activities, and the Union State aid rules will therefore apply to them".Such provision would not, therefore, allow the application of Article 74 of the Consolidated Income Tax Act (tax exemption for State bodies) to the entire income generated by the PSAs, since such article "does not constitute the reference system" and "exemption from corporate income tax exclusively concerns the exercise of State functions and other activities carried out on an institutional basis".In other words: whenever PSAs collect State fees - not being in the same legal and factual position as the State and public entities in the exercise of public utility functions -, such activities shall be subject to corporate income tax.

• "An entity that has a legal monopoly can certainly offer goods and services in a market and, therefore, be an "undertaking" within the meaning of Article 107 TFEU"[12].

As stated above, the services offered by the PSAs are therefore in competition with those offered by other PSAs and other transport service providers in Italy and even in other Member States (particularly on the North-West Italy/South France axis).More specifically, as set out in Whereas Clause (143) of the challenged decision, the circumstance that PSAs are in fact the only entities competent to manage port infrastructures would in no way adversely affect the existence of a competitive market "wider than transport services and narrower than port services".Conclusion: while waiting for both a ruling from the European Court and a hoped-for position of the Italian Government on this issue, there may be a valid and further opportunity to carefully reflect on what could be the best governance model for the Italian ports and, at the same time, for the whole Industry. We will keep you updated on this very important issue.As we mentioned in our previous articles, the qualification of the PSAs as companies would lead to the application of the antitrust law to them, which would limit - if not exclude - the administrative discretion from which they have always benefited. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Alberto Torrazza e Ekaterina Aksenova.  [1] See “Never Back Down”: Italian Port System Authorities do not give up and consider challenging the European Commission’s decision on taxation of Italian ports” (January-March 2021).[2] Article 107 (1) TFEU reads: “Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market”.[3] Article 296 TFEU reads: “Where the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of proportionality. Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties. When considering draft legislative acts, the European Parliament and the Council shall refrain from adopting acts not provided for by the relevant legislative procedure in the area in question”.[4] Whereas Clause (37), page 11, of the Counter-Appeal.[5] Whereas Clause (49), page 16, of the Counter-Appeal.[6] In Whereas Clause 39, the Commission itself classifies the following activities carried out by PSA as economic activities: “(i) provide a general service to the users of the  ports, by giving access to port infrastructure to ships in return for remuneration (commonly referred to as "port fees"); as well as (ii) make certain port infrastructure and land available to third-party companies in return for remuneration”.[7] Whereas Clause (53), page 17, of the Counter-Appeal.[8] Whereas Clause (56), page 18, of the Counter-Appeal.[9] Whereas Clause (65), page 21, of the Counter-Appeal.[10] Article 74 TUIR reads: “1. State bodies and administrations, including autonomous administrations, and, where they have legal personality, municipalities, consortia of local bodies, associations and bodies administering public property, mountain communities, provinces and regions are not liable for corporate tax. 2. The following activities shall not constitute commercial activities: a) the exercise of State functions by public bodies; b) the exercise of social security, welfare and health activities by public bodies established exclusively for such purpose, including local health authorities, as well as the exercise of social security and welfare activities by private compulsory social security bodies.”[11] Whereas Clause (93), page 30, of the Counter-Appeal.[12] Whereas Clause (115), page 36, of the Counter-Appeal.

(i) will only be able to maintain such registration – and benefit from the benefits deriving therefrom – if, during the reference year, it has demonstrated that more than 50% of the towage activity carried out by that tug has been classified as “towing transport” (as defined above);

(ii) will in any case benefit from the facilitative measures granted by the “International Registry” only to the extent provided for by the applicable legislation and in any event only with reference to the “towing transport” activity effectively carried out. For the remaining part of towage activities, i.e. “port towage” (including assistance activities at one of the “other berthing places” referred to in Article 14, paragraph 1c, of the Harbour Law), the company will not be eligible for benefiting from the above-mentioned facilitative measures [5];

(iii) will have to cancel such registration – and will have to consider itself obliged to return the amount received – if the aforementioned threshold of 50%, for the purposes of aid eligibility, is not exceeded at the end of the reference year.

(i) the importance of verifying, also in the individual local contexts, that the activity effectively carried out during the year by the tugboats registered in the “International Register” consisted of «maritime transport» activities for more than 50%; and that

(ii) the registration of the vessel in the “International Register” may be suspended if the 50% threshold is not exceeded.

On 23 January 2017, the Council of the European Union approved Regulation (EU) 2017/352 [1] (“Reg. 2017/352”), which “establishes a regulatory framework for the provision of port services and common rules on financial transparency of ports” [2].

Reg. 2017/352 [3], issued with the main aim of improving the efficiency of European ports of call by facilitating access to port services and issuing rules on financial transparency, has confirmed the European Union’s keen interest in maritime traffic, which is considered fundamental to the internal market, and in the efficient operation of the trans-European transport network [4].

The adoption of such legal instrument therefore stems from the need to: (i) make port services available, efficient and reliable; (ii) address aspects relating to the transparency of public funding and port charges, as well as administrative simplification measures in ports (including the simplification of customs procedures); and (iii) review restrictions on the provision of port services.

In order to meet the above-mentioned requirements, the European legislator has therefore chosen a “regulation” as the appropriate legal instrument.

It should be remembered that EU regulations are legislative acts having general application, binding in their entirety and, above all, directly applicable [5] in the Member States’ legal systems.

The general scope refers to the fact that regulations – unlike decisions – are not addressed to specific addressees, but to one or more abstractly determined categories of addressees: thus, the rules contained therein directly govern the matter covered.

Therefore, the direct and immediate effect of regulations means that they – unlike directives – do not – require the enactment of national implementing measures by the Member States, since they are, as mentioned, immediately applicable in the internal law of those countries. In other words, regulations are immediately effective in the legal systems of the Member States without the need to be transposed into national laws and/or further acts of transposition.

Reg. 2017/352, however, required (rectius: requires) the Member States to take certain steps for its proper implementation.

For example, Article 16 reads: “Each Member State shall ensure that an effective procedure is in place to handle complaints arising from the application of this Regulation for its maritime ports covered by this Regulation”.

The same article goes on to specify that there must be “effective functional separation between the handling of complaints, on the one hand, and the ownership and management of ports, provision of port services and port use, on the other hand”. Therefore, pursuant to Reg. 2017/352, complaint handling must be “impartial and transparent, and shall duly respect the right to freely conduct business”.

To date, however, the authority in charge of handling such complaints does not seem to have been identified in our legislation [6].

This is also relevant because – according to Article 16, paragraph 3, of Reg. 2017/352 – Member States should ensure that “port users and other relevant stakeholders are informed of where and how to lodge a complaint and which authorities are responsible for handling complaints”.

In view of such a “gap” in the proper implementation of Reg. 2017/352, we cannot exclude two possible scenarios:

1. the Commission might start an infringement procedure against Italy, i.e., the legal proceedings governed by Articles 258 and 259 of the Treaty on the Functioning of the European Union (TFEU), aimed at sanctioning any EU Member States responsible for failing to fulfil their obligations under EU law (e.g., non- and/or incomplete implementation and/or transposition of EU legislation);

2. the European Union might, through the European Commission, directly take action – if the Member State does not identify the competent authority – by virtue of the subsidiarity principle [7] under Article 5 of the Treaty on European Union (TEU).

This second scenario, in particular, might involve the risk that, in practice, the competence for the management of “complaints” arising from the application of Reg. 2017/352 be entrusted, by virtue of the principle of subsidiarity, to EU bodies with limited knowledge of the specificity of the complex regulatory framework governing our industry in the Italian legal system. In other words, there would be the risk of seeing any complaints managed by someone lacking the expertise and “sensitivity” that are required to properly understand the applicable regulatory, case-law and factual framework.

It is therefore reasonable to hope that our country will identify as soon as possible the authority to be entrusted with the handling of complaints and, to this end, to prepare adequate procedures in accordance with the parameters set out by the EU law makers.

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Mattia Salvatori.

• may not carry out, either directly or through investee companies, port operations and activities closely related thereto;
• may, however, regulate the performance of activities and services of common interest and useful for the most effective performance of the functions assigned to them, in collaboration with the Regions, local authorities and public administrations; and furthermore,
• may hold minority shareholdings in initiatives aimed at promoting logistic and intermodal connections, functional to the development of the port system.

Accordingly, the TAR Lazio[12] has held that PSAs have a role as a «public body (significantly) "without economic interests", required to carry out - not economic-entrepreneurial activities but - regulatory functions on the services and operations taking place in the port (or ports) within its sphere of competence, for the best fruition of the port infrastructure by all the users and for the optimal development of the port system under its control». For all of the above, the TAR Lazio has ruled that «the very prerequisite for the applicability of the principles and the rules to protect competition, that is a competitive economic relationship between entrepreneurial subjects operating in the same market segment, is no longer valid».So, the TAR Lazio decided that antitrust laws are not applicable to PSAs, considering that a “public body without economic interests” cannot be considered an undertaking for the purposes of antitrust law.However, this approach is in stark contrast - as we have seen also in our previous articles on the subject[13] - with the approach of the European Union, which does not consider the formal classification of a body, but rather deems it necessary to consider the activities concretely carried out by the same.The EU Court of Justice has made it clear on several occasions that “the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, and that any activity consisting in offering goods and services on a given market is an economic activity”[14].Moreover, “the fact that, for the exercise of part of its activities, an entity is vested with public powers does not, in itself, prevent it from being classified as an undertaking for the purposes of Community competition law in respect of the remainder of its economic activities (…). The classification as an activity falling within the exercise of public powers or as an economic activity must be carried out separately for each activity exercised by a given entity”[15].Therefore, under EU law, it is necessary to ascertain whether the activity of the body can be defined as an 'economic activity', given the irrelevance of its classification as public body provided by each national legislation.Nevertheless, it is worth noting that the Port System Authorities carry out economic activities and, therefore, can be classified as undertakings according to the established guidance of the European Commission.Indeed, the European Commission has repeatedly stated that “the commercial exploitation of port infrastructures and the construction of similar infrastructures for the purposes of commercial exploitation constitute economic activities” and more precisely it was considered that Port System Authorities exercise economic activity because “they grant concessions or authorizations (use of an asset in exchange for the payment of a fee) to (generally) private companies for the commercial use of the asset (basic port infrastructure) and the provision of services (e.g. loading, unloading, pilotage, towing) to shipping companies”[16].In the light of the above, the repercussions are evident that one or the other approach may have on Port System Authorities and, above all, consequently, also on the approach to the relations that said Body has with its concessionaires.Moreover, it must be said that national and European law are not on the "same level" so that national Courts are unlikely to be able to avoid having to consider the prevailing EU framework [which, in the meantime, appears increasingly “firm” with regard to the classification of PSAs as undertakings (all the more so since this aspect is exactly the basis from which the European Commission’s request (with regard to Italy) concerning the taxation of PSAs originated)][17].In conclusion, the importance of the correct classifications of PSAs as undertakings for the purposes of antitrust laws is particularly important as it may confirm, inter alia, the applicability of antitrust laws to concessionaire relations and, therefore, also the right of concessionaires not to be discriminated against (and to claim damages), given that PSAs clearly occupy a dominant position, being ex lege monopolists in the management of State-owned areas.Given the importance of this issue, we will continue to monitor developments in case-law. [11] See TAR Lazio, Third Division, 6 March 2020, No. 3030.[12] See TAR Lazio, Third Division, 6 March 2020, No. 3030.[13] See. Shipping & Transport Bulletin June-July 2019.[14] See ECJ, case C-35/96, Commission/Italy, par. 36.[15] Decision of the Court of Justice of the European Union of 1 July 2008, Case C-49/07, MOTOE v Hellenic State, paragraph 25.[16] Ex multis see decision of the European Commission "State aid SA.38399 (2018/E) - Taxation of Ports in Italy”. For a comment on the case see Shipping & Transport Bulletin June-July 2018.[17] For a comment on the case see Shipping & Transport Bulletin June-July 2018.