With a recent decision, the Court of Genoa has recognized that the Italian Port System Authority (hereinafter, "PSA") is an “undertaking” for the purposes of the antitrust law with respect to the activity of granting concessions against consideration. It is an "innovative" court decision to some extent as it is the first time that the Italian case law reaches the aforementioned conclusion.
The foregoing despite the fact that at the European level – for some time now – there have been no doubts regarding the nature of the managing entities of the ports.
In Italy, in fact, we were anchored to the formal idea according to which – pursuant to Italian Law 84/94 – the PSAs are deemed as non-economic public entities, to which the aforementioned law only confers functions of “regulating entities”, precluding them from carrying out port activities.
On this point, to date, we had important precedents related (however) to cases that do not involve the PSA. We refer, for example, to the verdict of the Joint Sections of the Italian Court of Cassation which has recognized that the Italian “Agenzia del Territorio” is an “undertaking” for the purposes of the antitrust law with respect to the activity of providing services and advices to third parties. The Court of Genoa correctly referred to this precedent to highlight that “the concept of an undertaking, within the scope of the European Union competition law, covers any entity engaged in an economic activity, regardless of its legal status and the method of financing”.
In other words, according to the principle established by the Supreme Court (and shared by the Tribunal of Genoa), the notion of an undertaking is of more economic than legal nature, with the consequence that its characteristic trait should be found in the organized and lasting exercise of an economic activity on the relevant market, regardless of how the subject who carries out this activity is formally qualified. In this perspective the formal qualification of PSAs as non-economic public bodies, would be therefore irrelevant.
This approach is the one already followed by the European Court of Justice, which had already clarified that:
Having therefore established that the qualification as a non-economic public entity cannot represent an obstacle in itself to the recognition of PSAs as undertakings, it must be understood whether or not the PSAs carry out an economic activity.
In this sense it is useful to refer once again (following the reasoning of the Court of Genoa) to the constant interpretation of the European Commission, according to which the Port System Authorities carry out economic activities and are therefore qualified as undertakings. According to the EU Commission, in fact, "the commercial exploitation of port infrastructures and the construction of similar infrastructures for the purpose of commercial exploitation are economic activities" .
The same Commission then specified that the Port System Authorities carry out an economic activity inasmuch as they "issue concessions or authorizations (use of an asset against payment of a fee) to (generally) private companies for the commercial use of the asset (infrastructure basic port) and the provision of services (for example loading, unloading, piloting, towing) to shipping companies" .
In light of the above, the Court of Genoa has held that a PSA may (rectius) must be considered an undertaking for the purposes of the antitrust law with respect to the activity of granting concessions against consideration.
In addition – with regards to the market of granting concessions against payment of a fee – the PSAs clearly cover a dominant position, being in fact monopolists ex lege. It is therefore clear that the relevance, from a practical standpoint, of the examined court decision is not of little account.
As is known, in fact, the Italian law 287/1990, forbids undertakings in a dominant position to abuse said position, being on the contrary burdened (as also stated by the Italian State Council ), by a “special responsibility” that imposes them - in particular - to refrain from behaviors that could have a distortive effect on the competition.
So much so that the case decided with the court decision in question had as its object precisely the claim of a concessionaire that believed to have been discriminated by the PSA inasmuch as the latter had carried out a series of infrastructural interventions for the benefit of a concurrent concessionaire (despite having received the same requests for intervention also from the claimant). According to the claimant’s thesis, therefore, the PSA would have carried out a discriminatory conduct such as to unjustifiably alter the competitive balance within the port.
This decision of the Court of Genoa could therefore represent an additional tool in the hands of the concessionaires to assert their rights and oppose conducts of PSAs which could appear discriminatory or otherwise prejudicial to the principles of competition.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Alberto Torrazza or Ekaterina Aksenova.
[1]Italian Supreme Court, United Sections, judgment no. 30175, 30/12/2011.
[2]Judgement of the European Court of Justice, 18 June 1998, C-35/96, Commission v. Italian Republic, point no. 36.
[3]Judgment of the European Court of Justice, 1 July 2008, C-49/07, MOTOE v. Elliniko Dimosio, point no. 25.
[4]Decision of the European Commission State Aid SA.38399 (2018 / E) - Taxation of Ports in Italy. For a review on the matter vds. vds. Shipping & Transport Bulletin June - July 2018.
[5]Decision of the European Commission State Aid SA.38399 (2018 / E) - Taxation of Ports in Italy. For a review on the matter vds. vds. Shipping & Transport Bulletin June - July 2018.
