The new parameters for evaluating applications for the granting of concessions for maritime State-owned areas enacted by the Italian Ministry of Infrastructures and Transport
With a circular published in the Official Gazette of the Italian Republic at the beginning of February, the Italian Ministry of Infrastructures and Transport (“MIT”) intervened in the granting of concessions for State-owned maritime areas and quays, by determining some specific technical and economic criteria that the Port System Authorities (“PSAs”) must take into account when comparing applications for the renewal and/or issuance of concessions pursuant to Article 18 of Law No. 84/94.
The MIT circular comes in the wake of other interventions aimed at increasing competitiveness of the port system and, in a wider perspective, of the so-called “sistema mare” (“sea system”), to be understood as an active instrument of economic-commercial policy in support of the Country’s production system.
As is known, the circular on the granting of concessions for maritime State-owned areas gains a role of primary importance within the port community, as area attracting huge private investments.
But we cannot forget that the circular tries to fill a gap of more than twenty years in the adoption of the regulation implementing Article 18 of Law No. 84/94. Said regulatory gap was sometimes filled by case law and most recently also by the Italian independent authorities, highlighting the need to identify objective, adequate and accurate criteria to be brought to the attention of stakeholders before the submission and evaluation of any applications.
As a matter of fact, the circular, although lacking the form and peculiarity of a regulatory act, seems nevertheless a good attempt to take stock of the actual scenario in light of previous case law and, perhaps, it is also the counterpoint to initiatives launched by other independent authorities (in particular the Italian Transport Regulation Authority).
Hence, with the circular at issue, the MIT has decided to better clarify to all Port System Authorities some criteria to be taken into consideration when starting the procedure for the issue and/or renewal of the State-owned maritime properties concessions pursuant to Article 18 of Law No. 84/94, that must be disclosed before starting the comparison procedure. All this, in order to ensure compliance with the principles of equal treatment, proportionality and non-discrimination.
In specific terms, the evaluation parameters for the applications that Port System Authorities must take into account are: (a) the level of coherence of the PSNPL and of the other national sector planning instruments in force; (b) the capacity to ensure the widest access conditions to the terminal for users and operators concerned; (c) the nature and relevance of infrastructural and superstructural investments; (d) traffic and development targets; (e) the occupational plan; (f) the capacity to ensure the adequate operational continuity of the port; and (g) the environmental sustainability of the proposed project as well as the level of technological innovation and industrial partnership with universities and research centres.
So, what are the practical implications for concessionaires?
With its circular, the MIT intended to specify, trying to extend their scope, criteria that – although, on the one hand, already partly regulated by port regulations, and, on the other hand, implemented in practice, – are as much objective as possible and allow Port System Authorities to evaluate in the best possible way the “best offer” in the event of competing applications. Obviously, such an evaluation could be difficult in the specific case for PSAs because, de facto, these parameters always leave a certain discretion to the competent Authority, which could certainly give greater importance to one criterion rather than to another when making the final decision.
However, it should be noted that the criteria set out above must be considered as aimed at improving the competitiveness of the entire port system as a whole at national level and therefore such criteria should not be exclusively referred to individual local port communities.
Concessionaires could therefore positively welcome the MIT’s circular because, although not substantially changing the kind of documentation that has to be submitted for the renewal/issue of the concession title pursuant to Article 18 of Law No. 84/94, said circular seems to provide greater certainty with regard to the criteria that the Port System Authorities must take into account when assessing competing applications, also providing the concession holder with additional indications in order to evaluate in the best way how to submit the relevant application for the concession title.
On our part, given the clear relevance – on a practical level – of the aforementioned parameters, we have decided to comment them one by one in our newsletter starting from the next issue.
Indeed, in our opinion, each parameter specified by the MIT, besides deserving attention per se, provides further insights of study and reflection on the main issues of the port world.
 Circular issued by the Italian Ministry of Infrastructures and Transports published in the Official Gazette of the Italian Republic on 5 February 2018.
 It is useful to state (in chronological order) the interventions referred to above: the first one is the National strategic plan for ports and logistics (“Piano strategico nazionale della portualità e della logistica” (“PSNPL”)), adopted by decree of the President of the Council of Ministers of 26 August 2015, aiming to: (i) improve competitiveness of the port and logistic system, (ii) promote the growth of traffic, (iii) encourage the intermodality of cargo traffic. The second one concerns, instead, the reform of Italian port law, which has updated the previous, outdated, regulations restructuring the governance of the Italian port system, set out in Legislative Decree No. 169/2016 that amended Law No. 84/94, in order to make it more competitive with the other European countries. Finally, the third one is the Ports Corrective Decree – introduced by Legislative Decree No. 232 of 13 December 2017, – published in the Official Gazette of the Italian Republic on 9 February 2018, which modified the Italian port reform.
 Pursuant to Article 18, paragraph 2, of Law No. 84/94: “The decree indicated in paragraph 1 lays down also the criteria to be followed by Port or Maritime authorities when granting concessions in order to reserve in the port area operational spaces for the carrying out of port operations by other non-concessionary firms”.
 Indeed, the Italian Antitrust Authority has ruled on the matter at issue many times, lastly in 2017 with its opinion S2809/2017.
 Please see in this regard decision No. 156/2017 of December 22, 2017, whereby the Italian Regulation Authority (“ART”) has called a public consultation on “Methodologies and criteria for ensuring fair and non-discriminatory access to port facilities ” underlining the importance to predetermine objective criteria to ensure users the fair access to port infrastructures.
 It should be further noted that with regard to such criteria, to which other ones may be added as specifically indicated by the competent Port System Authorities, the MIT specifies in its circular that the PSA concerned shall have to assign a score to each criterion that will be disclosed before the start of the procedure for the granting of the concession title.
 By way example, systems, equipment and technologies aimed at the development, among others, of port productivity.
 With particular reference to the Italian port law, it should be noted that some of the aforementioned criteria referred to the circular under examination are already mentioned in Article 18, paragraph 6, of Law No. 84/94, according to which: “For the purposes of granting concessions under paragraph 1, the beneficiaries of the concessionary act are required to: (a) submit, upon application, a program of activities, supported by suitable guarantees […] aimed at increasing traffic and productivity of the port; (b) possess adequate technical and organizational facilities, suitable also in terms of safety to meet the requirements of a continuous and integrated productive and operational cycle either on their own or on behalf of third parties; (c) provide an adequate staff of workers in relation to the program of activities under letter a).”