Articles
05/08/2020

The conversion into Law of the so-called “Decreto Rilancio” and the struggle on self-handling

On 17 July 2020 the so-called “Decreto Rilancio[1] (literally, “Relaunch Decree”) was converted – with amendments – into Law [2].

As far as our industry is concerned, the expectation for this conversion law has been marked – in particular – by a lively debate between port companies and shipowners on the subject of self-handling.

It was well known, indeed, that a significant modification of article 16 of Law 84/94 (“Port Law”) was at stake, aimed – de facto – at limiting the right to self-handling, binding its exercise under strict conditions.

More in detail, the proposed amendment was intended to limit the possibility of self-handling for shipping companies to cases where port operations “cannot be solved through the use of one of the companies authorized in the same port in accordance with articles 16 and 17 (of Port Law, n.d.r.)” and in any case subject to (i) payment of a daily fee (from Euro 1,000 to Euro 1,500 according to the tonnage of the ship) and (ii) deposit of a bank or insurance guarantee for a minimum amount of Euro 75,000.

The purpose of the amendment concerned, as outlined in the attached explanatory report, was to pursue the “efficiency of the national port system” in compliance with the “logic of security at work and for work”. In practice, this was achieved through a clear distinction of roles and tasks between the different actors operating in the port, i.e. port companies, seafarers, terminal operators and shipowners.

Despite the fact that the stated aim of the amendment could essentially be legitimate and acceptable (albeit abstract), the category of shipowners certainly did not welcome the proposed constraints through which the promoters of this amendment had intended to achieve the above purpose.

Indeed, shipowners saw in this proposal of modification of article 16 of Port Law a substantial denial of the right to self-handling.

Now that the conversion law of the so-called Re-launch Decree has been published, we can examine in what terms the law on self-handling has actually been modified and carry out some considerations on the subject.

Article 199 bis of Law No. 77 of 17 July 2020 – insofar as relevant for the purposes of our analysis – has introduced in article 16 of Port Law, in particular, paragraph 4 bis. Such provision sets forth that – “if it is not possible to satisfy the demand for the carrying out of port operations” either through authorized undertakings in accordance with article 16 of Port Law or through the use of undertakings in accordance article 17 of the same law – the ship is authorized to carry out the operations on a self-handling basis provided that, inter alia, “the consideration has been paid and a suitable security deposit has been provided”.

The same article 199 bis of the above-mentioned law provides that, by decree of the Minister of Infrastructure and Transport, the implementing provisions of paragraph 4 bis above will be laid down, “also with regard to the determination of the consideration and security deposit”.

So, in essence, it may seem legitimate to believe that the demands of port companies prevailed, but is this a real victory or could it be deemed as a “Pyrrhic victory”?

Without wanting to stand on one side or the other of the chessboard, let’s try to carry out a legal and therefore “neutral” analysis of the matter.

Hence, let us start with the very concept of self-handling and the relevant regulatory framework.

Self-handling represents, in practice, the phenomenon whereby an entity “self-produces” a certain service (thus becoming “independent” from the offer of third-party producers of that service). The right to self-handling is provided in the first instance by article 9 of Law No. 287 of 10 October 1990 (so-called Antitrust Law) [3].

The same standard mentioned above also sets a limit to self-handling, excluding the possibility of self-handling whenever there is a legal reservation for reasons of public order, public security and national defence.

In terms of port operations, the right to self-handling is referred to, as we have witnessed, by article 16 of Port Law, which – in turn – refers to Ministerial Decree No. 585 of 31 March 1995, for its detailed regulations (whose merits remain outside the scope of this paper for the sake of synthesis).

Having briefly outlined the legal framework, it is a fact that case-law has defined the right to self-handling as a “subjective, perfect, exercisable, enforceable and protectable right on an erga omnes basis, which confers powers and faculty freely enforceable by private individuals” [4].

According to the Italian Antitrust Authority (“AGCM”), furthermore, the exercise of the right to self-handling – on the one hand – is intended “to give immediate and full title to its holder, allowing the same certain possibilities of conduct and claims without, consequently, allowing conditioning of discretionary powers” and – on the other hand – is “left to the initiative of the holder, who, if encountering delays or obstacles, shall apply to the court for the ascertainment of its right and the removal of the illegal intrusion that compromises its enjoyment” [5].

From this standpoint, the complaints of shipowners appear “understandable”, who have regarded the modification of the discipline of self-handling of port operations as – de facto –an attempt to stifle this right.

The criticism seems to us legitimate, in particular, in so far as the right to self-handling would in practice be restricted by a rule which would admit it only when the service of interest cannot be obtained otherwise. Indeed, in these terms, the very essence of the right to be independent from third parties seems to be lost. In practice, the shipowner would not have the right to self-handle a certain service “by choice”, but only “by necessity”, having moreover to fulfil additional conditions (see “consideration” and “security deposit”).

On the assumption that the requirements of efficiency of the system and safety at work were already safeguarded by the previous discipline, a framework like the one described above seems to us to be too tight for an absolute right.

With specific reference to the issue concerning consideration and security deposit, it is clear that these conditions may potentially affect the actual possibility of exercising the right to self-handling, although we believe that the degree of actual impact on this right can be assessed in practice only in the light of what will be provided for in this regard in the implementing decrees (namely, at least, the amount of the consideration and security deposit).

Even if in this “battle” port companies seem to have prevailed over shipowners, the latter – in our opinion – could have the weapons for a possible (and probable) counterattack.

In the first instance, shipowners could obviously take the path of appeals – at national level, but also at Union level – against a regulation which, for the reasons briefly set out above, seems in fact to have possible criticalities in point of law (especially in the light of European Union law and, lastly, the rules set forth by Regulation No. 352/2017) [6].

It is clear that a period of appeals and conflict would not benefit our industry.

In the second instance – and this is perhaps the most relevant issue – one can imagine that, in order to cope with the tightening of the conditions of access to self-handling, port terminals correlated to a ship-owning company (getting more and more numerous) will further develop to serve autonomously all the ships of their own reference company. In very practical terms: shipping companies will turn only to their “own” terminals, which will be equipped with the necessary staff and means to be self-sufficient, without having to resort – by way of example – to port workers of undertakings in accordance with article 17 of Port Law.

In this way, the requirements of efficiency and safety at work would certainly be satisfied, but – to remain within the example – the aforesaid port workers would run the risk of remaining cut off and therefore of not benefiting, in concrete terms, from the limitations to self-handling set forth by the reformation of article 16 of Port Law.

In conclusion: this battle has apparently been won by port companies, but the war (unfortunately) could still be a long one.

 

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 your counsel.

 

 

[1] Decree-Law No. 34 of 19 May 2020 on urgent measures on health, support for work and the economy, and social policies related to the epidemiological emergency by COVID-19.
[2] Law no. 77 of 17 July 2020 (published in the Italian Official Gazette no. 180 of 18 July 2020, SO no. 25/L.).
[3] Pursuant to article 9 of Law No. 287 of 10 October 1990, “The legal reservation to the State or to a public body of the market monopoly, as well as the legal reservation to an undertaking entrusted with the management of activities of provision of goods or services to the public for consideration, does not imply a prohibition for third parties to produce such goods or services for their own use, or for the use by the parent company and subsidiaries. Self-handling is not permitted in cases where, on the basis of the provisions laying down the reservation, said reservation is established for reasons of public order, public security and national defense and, unless granted, for the telecommunications industry”.
[4] Council of State, Section II, Opinion of 30 August 1996, in Dir. mar. 1998, p. 1127.
[5] See. ex multis, AGCM measure No. 52 of 13 March 1991, in Bull. No 2/91.
[6] This Regulation is inspired by principles of openness and non-discrimination that seem to go in a different direction from the changes now made to article 16 of the Port Law.

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