It is known that Port Authorities’ planning choices may sometimes involve a review of the allocation of port space already leased to terminal operators.
In such cases, the main concern is about balancing the dynamic needs of Port Authorities associated to port traffic evolution (e.g. less bulk, more containers) with the long-‐established state of affairs arising from, on the one hand, the concessions granted over the years and port morphology on the other (considering that some areas may need to be even physically transformed in order to be put to a new and different use).
To overcome any empasse on this issue, Port Authorities sometimes propose the conclusion of ad hoc agreements (memorandums of understanding) whereby concession holders may be relocated to other areas within a port.
Well, what needs to be explored here is whether these memorandums of understanding may be entered into and under what conditions.
“Delocalisation” of concession holders – involving them being transferred from their terminal area to another location within the port – is allowed, but subject to complying with the general principles of equal treatment and transparency, the observance of which is mandatory even when delocalisation needs are justified by not only private (i.e. concession holders’), but also public (i.e. Port Authorities’) interests.
Failure to comply with such principles may indeed involve third-‐party competitors challenging any new concessions, with all the ensuing consequences for “delocalised” concession holders, who may well be in danger of having their concession cancelled and their investment for delocalisation nullified.
The Regional Administrative Court of Liguria recently held that «The [concession holder’s] right to be granted new concessions on the same terms and conditions of the previous ones cannot prima facie be recognised having regard to the well-‐ established context of our system » (Regional Administrative Court of Liguria, judgement No. 887/2014; in terminis, see Cons. di St., judgement No. 168 and Regional Administrative Court of Liguria, judgement, No. 225/2006).
Therefore, prior to implementing any delocalisation plan, Port Authorities should act in such a way as not to discriminate any operator who may be interested in a new area to which a delocalised concession holder is supposed to move.
This will involve Port Authorities having to launch a competitive bid in respect of the new areas, at the end of which a concession may be deemed duly granted to a delocalised concession-‐holder only insofar as the latter has been awarded the new areas (for being either the only competitor or the successful party in the bidding process).