March 23, 2021
- The Antitrust exhorts see again the norms on the harbour concessions and to remove the restrictions to the self-handler
- Sent a signalling to the government
- The Guarantor Authority of the Competition and the Market, in a today's signalling to the government, has formulated various proposals of competitive reform, between which some for the harbour field. In particular, the Antitrust, evidencing the uncertainty regime that characterizes the modalities of confidence of the harbour concessions, has emphasized the necessity of "an participation in via norm to the aim reaching a modality of allocation of the harbour concessions that you limit the current excessive discrezionalità of the competent authorities with respect to the release modalities/I renew of the concessions and that it guarantees the participants on the respect of the communitarian principles of transparency, publicity and not discrimination".
- Moreover the AGCM has found the necessity to strengthen "the instrument of the revocation of the concessions where the affidatari does not respect the conditions defined in the confidence contract, to the aim to stimulate the efficiency of the concessionaires and to increase the contendibilità of the assets". The Authority therefore has wished "a reformulation of art. the 18 of the law 28 January 1994, n. 84, in the sense to characterize sure, clear, transparent and not discriminatory criteria for the release of the harbour state property concessions, let alone for the definition of their duration and the modalities of revocation".
- Moreover the AGCM has proposed, "in an optical of development and increase of the harbour field, than codicil 7 of art. the 18, of the 28 law January 1994, n. 84 are reformulated, previewing an application of the cumulus prohibition of concessions for the same activity only for the ports of reduced dimensions, to whose inside is easier that situations of being able of market are created, and/or for those types of activities that preview limited competitive dynamics to the single port".
- The Antitrust is taken part also with respect to the limitations to the activity of self-handler in the harbour operations, remembering to have "recently had a chance for represent that the introduction of cited codicil 4 second - in so far as previews that the activity of self-handler of the operations and of the harbour services it can be carried out single in case in which not is the necessary equipments or work force in the berthing port - the possibility for the marine carriers reduces drastically to resort to the self-handler of the harbour operations (that it becomes merely residuale hypothesis)". Specifying that the exhortation has the aim to value the exercisable competitive tie from the self-handler, the AGCM therefore has proposed "the abrogation of the norm of which to codicil 4 second of art. the 16 of the law 28 January 1994, n. 84, waves to strengthen competitive dynamics and of market in the exercise of the harbour activities, to the aim to increase the attrattività, also international, of the harbour section in Italy".
- Within some considerations turned last November to the members of the parliament and the government in merit to some competitive criticalities deriving from the modifications brought to article 16 of law 84/94, the AGCM had found moreover that "the disposition of which to the codicil 4-second of article 16 of the cited law n. 84/1994, for a back, alter the competition between Italian ports and ports of other Member States, discriminating first where it is not more possible to carry out in self-handler the harbour activities and, for other back, it is set in opened contrast with the purpose of the norm of I throw again of the harbour field. There the Italian ports, in fact, could be penalized from the choice of the marine carriers not to call you, not being able to carry out the harbour operations in self-handler, with consequent reduction to cascade also of the induced returns of the relative ones".
- Guarantor authority of the Competition and the Market
- according to the articles. 21 and 22 of 10 the law October 1990, n. 287
- with respect to:
- Proposals of competitive reform,
- to the aims of the Law Anniversary for the Market and the Competition
- year 2021
- correspondent to
Prime Minister of the Ministers
- Participations proposed in matter of:
- B. Infrastructures and harbour activity
- The increment of the competitiveness of national the harbour system is a strategic factor for the increase of the Country. The intercontinental commerce by sea has seen during the last few years, the development of a number limited of great shipowning enterprises and the phenomenon of the so-called naval gigantism, that is the tendency of the naval companies much to equip of fleets composed of ships door-container with particularly elevated abilities and dimensions. This has demanded (and still demands) the adaptation of infrastructures of our ports and the necessity that some of they assume the harbour connotation of hub for the development of the activity of transhipment. Moreover, the specialization of the marine commerce on container vessels of great dimensions, involving a discouragement of the navigation costs, stretches to from one another aggravate the competition between ports situated also to hundred of kilometers, rewarding that best equipped and with inferior harbour costs34. The tendency assumes relief also, on a global scale, to a progressive vertical integration of the great enterprises of navigation in harbour infrastructures, as testified, on a national level, also from some recent operations notified to Authority35.
- In such perspective, a greater competitiveness of the ports of the Country regarding those of the bordering Countries will be able to allow to intercept always greater quotas traffic - it is of type hinterland is of type transhipment. Moreover, the increase of the main national ports of call will also allow to value at best the important infrastructural investments faces to supply adequate logistic support to the retroportuali activities (railway connections, highway centers of logistic exchange, connections, etc). In the delineated context, the realization of investments you turn to increase the competitiveness of the national ports of call, above all in terms of attainment of adapted levels of efficiency of infrastructures, and the processes of dynamic competition can turn out limited from some enforced norms and/or regulations partially. Therefore, the Authority considers an participation of the legislators necessary on the normative aspects in the continuation described.
- General participations in matter of harbour concessions
- The current procedure for the allocation of the marine state property concessions in harbour within is that previewed from art. the 37 of the Navigation code and from art. the 18 of its regulations of performance (d.P.R n. 328/1952). Art. the 37 of the Navigation code establish that, in the hypothesis in which more questions reach the Authority premail (the Authorities of Harbour System) than concession in relation to a same good of the marine Federal property, the petitioner must be favorite whom "she offers put up guarantees of profitable use of the concession and she is proposed to make use of this for a use that, to judgment of the administration, answers to a more important public interest". In this normative context a lot going back, in 1994, has joined art. the 18 of the law 28 January 1994 n. 8436, bringing "I reorder of the legislation in harbour matter", than to codicil 1 it previews that the Authority premail entrusts in concession the state property areas and the docks comprised in the harbour within to the enterprises that are authorized to the accomplishment of the harbour operations, sending back, to a next one decree ministerial the definition of adapted criteria in order to establish the forms of publicity for the procedures of confidence of the concessions, the choice of the concessionaire, the duration of the concessions, the powers of vigilance and control of the conceding authorities, the modalities of renew of the concession that is cession of the systems to new concessionaire, i limits minimums of the canons to pour and the criteria for the release of the concessions.
- The competent Ministry, in three distinguished occasions has managed a rough draft of Decrees implementing of art. the 18, codicil 1, of the law n. 84/1994; in all and the three cases the Council of State has returned an own opinion on the outline of provision37; however, as also evidenced from the Authority in the 201838, this I decree never is not approved of and this has caused in the years a regime of uncertainty with reference to the modalities of confidence of concessions39.
- In the last occasion in which it has had to express itself on a rough draft of I decree implementing, the Council of State, not sharing the solutions proposed in the provision outline (that they were still rigidly aligned to former procedures art. 37 of the implementing regulations and Navigation code its), has declared that “cannot be accepted that all the procedure continuous to take the movements from the request of the same interested subject to the release of the state property concession (or to I renew of the same one, as is the typical case), granting to the other subjects only the possibility, in a term that can to go from thirty to ninety days, to introduce observations or eventual concurrent questions […] He does not turn out, that is, acceptable that, instead favouring the new national strategic lines of planning and programming of the role of the single ports, more not considered entity to himself, the procedure of allocation of the concession of the area or the single dock moves exclusively from the request of the interested one, without a programming action that it leads then in a ban and one, even though upstream peculiar, procedure of contest to public evidence for the concession of the good, where the strategic appraisal is not moved at the next moment of the verification of coherence of the request introduced for the concessions longer duration, and of the eventual concurrent requests, with the action of national planning. ” 40. To this position of the Council of State in advisory center then ART) 42 have joined to the participations of the Ministry of Infrastructures andthe Transports41 and the Authority of Regulation of the Transports (, that they go in the direction to increase the efficiency, the transparency and not the discriminatorietà of the procedures.
- All this considered, 1 ' Authority considers an participation in via norm to the aim reaching a modality of allocation of the harbour concessions necessary that you limit the current excessive discrezionalità of the competent authorities with respect to the release modalities/I renew of the concessions and that it guarantees the participants on the respect of the communitarian principles of transparency, publicity and not discrimination43.
- Also in the knowledge of the specificities that characterize the harbour field - than they do not allow an easy and immediate transposition of the procedures of selection previewed from the Code of contracts publics for the confidence of the harbour concessions - is considered in any case necessary to preview forms of confidence that they allow, in the respect of the field best practice, to the Authorities of Harbour System, in quality of appointed subjects to characterize the requirements of development of the harbour areas, to put in competition between they concurrent questions to the development of determined state property areas and assets and to estimate them on the base of parameters technical, economic and financial objective and conoscibili former before. At the same time, one considers that it would go strengthened the instrument of the revocation of the concessions where the affidatari do not respect the conditions defined in the confidence contract, to the aim to stimulate the efficiency of the concessionaires and to increase the contendibilità of the assets.
The Authority wishes a reformulation of art. the 18 of the law 28 January 1994, n. 84, in the sense to characterize sure, clear, transparent and not discriminatory criteria for the release of the harbour state property concessions, let alone for the definition of their duration and the modalities of revocation.
- In coherence with the demand to preview more competitive criteria for the process of confidence of the harbour concessions in state property within, an participation is considered opportune on art. the 18, codicil 7, of the law n. 84/1994. The norm - that it inside establishes that a same subject cannot be to title of two or more state property concessions concerning the same type of economic activity of same port44 - was born with antitrust purposes in a market context (than today it appears exceeded in various cases) in which every port it represented a distinguished important market. In such context, it was considered necessary to prohibit the cumulus more concessions in head to the same subject to the aim to contrast situations of being able of excessive market that could turn out harmful for the harbour user.
- The continuous evolution of the harbour field has changed - in particular for some activities that are carried out in the ports of call of greater dimension, as for example the terminal services container45 - the competitive perimeter in which the harbour operators are confronted, that they must be more and more efficient and adequate to the characteristics of the represented question, side sea, from the total shipowning large groups and, side earth, from the shippers, the marine agencies and the operators of logistics on earth. In the activity consisting in intercepting the great flows of the total commerce, can be between they sostituibili situated ports also to remarkable, advanced distances to the 200-300 km46.
- In this context, at least for the national ports of greater dimension47, the current normative prohibition of which to art. the 18, codicil 7 of law 84/1994 can represent an obstacle to the development and to the competition with the ports of other bordering countries that they appear on the Mediterranean, as well as to limit the possibility to realize projects of increase of the operators, faces to the attainment of economies of scale, propedeutica to I confront with more and more large and globalizzati operators of the transport.
- At the same time, the grandmother of which to art. the 18 codicil 7 could more conserve own antitrust function in ports reduced dimensions and with reference to activities carried out on state property assets in concession that still conserve a limited competitive dimension to the single port (thinks to the fuel distribution for the yachting or, in some contexts many little ones, to the bunker for the ships).
The Authority proposes, in an optical of development and increase of the harbour field, than codicil 7 of art. the 18, of the 28 law January 1994, n. 84 are reformulated, previewing an application of the cumulus prohibition of concessions for the same activity only for the ports of reduced dimensions, to whose inside is easier that situations of being able of market are created, and/or for those types of activities that preview limited competitive dynamics to the single port.
- Limitations to the activity of self-handler in the harbour operations
- An other issue of relief in the harbour, susceptible field of impattare on the competitiveness of the same one, is relative to the recent limitations to the activity of self-handler deriving from the adoption of codicil 4 second to art. the 16 of the law 28 January 1994, n. 84, introduced from art. the 199 second of the d.l. 19 May 2020, n. 34, as converted with law 17 July 2020, n. 77, bringing: “Urgent measures in matter of health, support to the job and the economy, let alone of connected social policies to the epidemiologica emergency from COVID-19”. With regard to the Authority it has recently had a chance for represent that the introduction of cited codicil 4 second - in so far as previews that the activity of self-handler of the operations and of the harbour services it can be carried out single in case in which not is the necessary equipments or work force in the berthing port - the possibility for the marine carriers reduces drastically to resort to the self-handler of the harbour operations (that it becomes merely residuale hypothesis) 48. Moreover, the resource to the self-handler is subordinated to the possession of which requisitioned launches, between which the availability of suitable staff of the marine, additional carrier regarding the organic one of the table of safety and exercise of the ship, let alone dedicated exclusively to the development of such operations. To warning of the Authority, the resource to the car-production can be an element important in order to contain the eventual one to be able of market of the harbour companies and to stimulate the efficiency in the supply of the harbour services. There moreover, the norm in question appears susceptible to reduce the competitiveness of the Italian ports regarding the bordering ports of other Member States, being able to penalize the harbour field whereby affects the choice of the marine carriers not to berth in the Italian ports, not being able to carry out in self-handler the harbour operations.
The Authority, to the aim to value the exercisable competitive tie from the self-handler, proposes the abrogation of the norm of which to codicil 4 second of art. the 16 of the law 28 January 1994, n. 84, waves to strengthen competitive dynamics and of market in the exercise of the harbour activities, to the aim to increase the attrattività, also international, of the harbour section in Italy.
- 34 “Until a recent past, the choice of the port by the user (shipping, operating harbour and shippers) depended in prevalence from the geographic factor. The general improvement of retroportuali infrastructures [...] has progressively reduced the importance of the localizzativo factor respect to other characteristics [...]. The current competition sees identified ports for basin of infuence [N.d.r catchment area], less and less determined from the vicinity or geographic proximity, while I assume greater importance other making factors head to the inspired economic paradigm to the concept of chain of the value”. It is seen, Authority of Regulation of the Transports - AIR Relation, attached to the deliberation n. 40/2017.
- 35 Cfr. provv. C12225- Terminal Investment Ltd/CSG Italy-Gate on July 17, 2019, in Boll. 31/2019 and provv. C12255 - Marinvest-Group Messina Ignazio Messina & C. - Ro-Ro Italy on September 25, 2019, in Boll. 42/2019
- 36 The law n. 84/1994 recently are interested by a deep review, arranged to the necessity to verify some interpretative parameters to important valley actions and sentences of matrix EU. In particular, the law 28 January 1994, n. 84, have been object of reform to means of the d.lgs. 4 August 2016, n. 169, and, last, of the d.lgs. 13 Decembers 2017, n. 232. Main objective of the been necessary normative participations during the last few years has been the overcoming of the operating fragmentation of national the harbour system: this to the aim to increase to the efficiency and competitiveness of c.d the national system-sea in order to adapt to international the dynamic new of the commerce and marine circuits, developing is the activities inside of the state property areas that those afferent ones to the ports, in particular the logistic row. In the specific one, the operating reorganization has previewed the passage from 24 competent Harbour Authorities on 43 ports to 15 Authorities of Harbour System (ASP). In this perspective, new ASP represent strategic Decision-Making Centers, in a position to operating on a national basis in an integrated system and, for how much more it interests here, they turn out to be the directly competent agencies to the consent of concessions in harbour within.
- 37 Cfr. the Opinions n. 95/1998 n. 20/2001 and, last, n. 1505/2016.
- 38 Cfr. Signalling AS1550- Competitive concessions and criticalities on December 12, 2018, in Boll. 48/2018.
39 Cfr. Signalling AS1457 - Release marine state property concession in the port of Livorno for Multipurpose Terminal, 8 November 2017, in Boll. 49/2017 in which one asserted that “[...] in all the cases of competition of questions of marine concession state property, [...] the Authority premails would have - before to start the comparazione procedure - to establish and to be profitable you notice the technical and economic criteria (with indication of the relative score) of award on whose base to proceed according to the appraisal of art. the 37 of the Navigation code, assigning to the parts a consistent term for the warehouse of all the documentation according to the art.18 of the law n. 84/94”; Signalling is also seen AS1235 - Harbour authority of Genoa. Procedure of allocation 28, dry docks October 2015, in Boll. 45/2015.
- 40 Cfr. Advisory Section, Council of State for the normative actions, to seem n. 1505/2016.
- 41 MIT, harbour Concessions of marine state property areas and docks in the ports center of Authority of harbour system, DGVPTM/DIV.2/PS, 5 February 2018. In the Ministry Circular it is made specifically anticipates that the appraisal of the best one offered in case than concurrent requests goes carried out by the competent authority on the base of some predetermined parameters of appraisal, faces in the first instance to stimulate a efficient organicity of the development of portualità and logistics.
- 42 Cfr. Deliberation n. 57/2018 on May 30, 2018, “Approval of methodologies and criteria in order to guarantee the fair and not discriminatory access to harbour infrastructures. First measures of regulation”. Such deliberation, than is shown in coherent continuity with the recommendations expressed from the Council of State about the necessity to recognize an active role to all the subjects eventually interested from the concession procedure, has supplied to define the modalities of allocation of the concessions in the better way answering to criteria than efficiency, transparency and not discrimination of the procedures.
- 43 With regard to the cited one to seem of the Council of State n. 1505/2016 are clear in asserting that also in the cases of concession of state property assets (or however in the cases explicitly excluded by the within of the Code of Contracts Publics) “, cannot, parimenti, than to already recall the principles in more occasions expressed from the jurisprudence of this second, Council of State which the principles of communitarian derivation to protection of the competition (impartiality, transparency, parity of treatment, discrimination) are not applicable also to the concessions of assets publics, acting as parameter of interpretation and limitation of the insistence right. Communitarian indifference to the nomen of the fattispecie, and therefore to its internal requalification in pubblicistici or privatistici terms, does so as that the sottoposizione to the evidence principles finds its sufficient foundation in the circumstance that with the concession of marine state property area is supplied an occasion of gain to operating subjects on the market, such to last impose a competitive procedure inspired to the remembered principles of transparency and not discrimination (, Cons. Is been, YOU, 7 March 2016, n. 889)”.
- 44 Cfr. art. 18, codicil 7, law n. 84/1994
- 45 The terminal services container are distributed by the c.d terminalisti, enterprises that have in concession harbour areas or docks in order to carry out the operations of cargo, drainage, transfer, warehouse and cargo handling object of the transport on ship. It is seen, Authority of Regulation of the Transports - Analysis of Impact of the Regulation, attached to the deliberation n. 40/2017, having to object “Methodologies and criteria in order to guarantee the fair and not discriminatory access to harbour infrastructures”.
- 46 Cfr. C12225Terminal Investment Ltd/CSM Italy-Gate, in Boll. 31/2019, where the consolidated praxis of the EU commission and the Authority becomes clear that “Under the geographic, second profile, the geographic important market of the handling services goods through container is determined based on the so-called ‘areas of attrattività '' or catchment area’, each of which it represents the within that the terminal container generally servants”.
- 47 There are several modalities in order to distinguish the ports on the base of their dimension. On the data base Assoporti it is possible for example to characterize the 15 national ports that in the 2018 have enlivened about i175% of the total of the goods (liquid bulk, solid bulk, container, Ro/Ro, other goods). Draft of the ports of Trieste, Genoa, Livorno, Cagliari Sarroch, Gioia Tauro, Ravenna, Venice, Messina-Milazzo, Augusta, Naples, Taranto, La Spezia, Savona-Go, Salerno, Ancona-Falconara.
- 48 Signalling AS1708- I decree I throw again - art. the 16 modifications to codicil 4-second of law 84/1994 in harbour matter, on October 27, 2020, in Boll. 45/2020.