In two recent notes, the Italian Ministry of Infrastructure and Transport took position on the still outstanding issue of the procedure for publication of port concession applications under Article 18 of Italian Port Law (Law 84/94), stating that publication of applications in the Municipal notice board (“albo pretorio”) of the city in which a port is located is sufficient to comply with applicable statutory disclosure requirements.
As is known, the procedure for the grant of State property concessions (under Italian law, ports and shorelines are regarded as State property) is subject to specific publicity and transparency requirements. This stems from the administrative nature of the procedure, which is required to comply with the general principles of impartiality and efficiency of the administrative function (Article 97 of the Italian Constitution).
Compliance with publicity and transparency principles becomes particularly relevant when the State property to be granted in concession includes port areas, given their importance to the Italian economy and the particular nature of the port services market, a conglomerate including different operators interconnected by delicate micro-economic balances.
Generally speaking, according to (former) Regulation for the Implementation of the Italian Navigation Code (Presidential Decree No. 328 of 15 February 1952), anyone willing to occupy, for any purpose whatsoever, maritime state property or territorial sea areas or appurtenances "shall submit an application" (Article 5 of Presidential Decree No. 328/1952). Furthermore, the Regulation provides that "in case of concessions particularly significant in light of their scope or purpose, the competent Maritime Authority shall order publication of the application in the Municipal notice board of the city where the property for which a concession is applied for is located and publication of an extract thereof in the Journal of Provincial Legal Notices" (Article 18 of Presidential Decree No. 328/1952).
The announcement/notice under Regulation No. 328/1952, which, according to the rationale of the aforementioned Regulation, is required for all maritime State property concessions, has two functions: to inform about the concession any parties interested in challenging it (notice ad opponendum) and to inform the market in order to solicit new bids. Only in case of a plurality of concession applications, the (Port) Authority shall be entitled, after comparing them, to directly select the candidate who seems the most likely to ensure the most profitable use of the property and/or to launch a public or restricted tendering procedure, if there are no specific reasons for preferring a specific application.
Port concessions applications in respect of port areas and docks under Article 18 of Italian Port Law (Law 84/94) are, obviously, deemed "particularly significant in light of their scope or purpose" and therefore, in principle, the procedure under Article 18 of Presidential Decree No. D.P.R. 328/1952 shall apply. However, as a result of the port regulation reform implemented by Italian Port Law (Law 84/94), doubt arose among legal commentators as to whether the mere publication of port concession applications in the Municipal notice board under Article 18 of Law No. 84/9 be sufficient to comply with the disclosure and transparency requirements imposed by the principles of administrative procedure. Numerous legal commentators indeed argued that applications should also be submitted to the Port Authority's website and/or published in the Regional Official Bulletin to ensure the publicity and transparency of the procedure as much as possible.
The notes of the Ministry of Infrastructure and Transport examined here confirm that the grant of port concessions requires a public tendering procedure to be followed. The “public” nature of the Stefano Testa Associate, Milan Telephone: +3902725511 E-mail: email@example.com 9 procedure involves a need for adequate publicity in terms of transparency, non-discrimination and equal treatment. The applicable statutory procedures, namely, publication in the Municipal notice board, is therefore deemed appropriate to meet the “public” requirement, without any further formalities being needed. A review of applicable European law on the other hand likewise leads to the conclusion that State property concessions not always require the implementation of a public tender, the European legislation limiting itself to recommending huge publicity and transparency in the administrative procedure for the grant of State property concessions.
While taking note of the formalistic position of the Ministry, it is however worth recalling that such a solution is disputed by recent case law, which, precisely in light of the same principles of publicity and transparency invoked by the Ministry, comes to the totally opposite conclusion that, in the current social-and-economic context, a “public tendering” procedure requires "the adoption of specific measures capable of ensuring actual competition such as appropriate forms of publicity or communication addressed to any parties, of whom the Authority is aware, that may be interested in taking part in the procedure” (Administrative Regional Court of Campania – Naples, Seventh Division VII, Judgment No. 10326 of 31 October 2007).
From this point of view, one may argue that the publicity tools related to port concession applications under Article 18 of Italian Port Law (Law 84/94) should not be limited to publication in the Municipal notice board, but also cover "appropriate forms of publicity". In particular, the publicity procedure should also involve publication on the Port Authority's website and/or in the Region Official Bulletin. On the other hand, the "enhanced procedure" is already being used by Italian Authorities in connection with major port infrastructure concessions (in respect of which the need for publicity and transparency of the procedure is stronger) and may well be implemented for all port concession applications under Article 18 of Italian Port Law (L. 84/94) to secure compliance with the principles of administrative procedure and the principles of transparency, publicity and free access to the European services market.
To conclude, although the mere publication of port concession applications under Article 18 of Italian Port Law (Law 84/94) in the Municipal notice board is deemed sufficient under the law in force, to better comply with the principles of administrative procedure (and prevent concessions from being challenged before administrative courts - by competitors - for non-compliance with the requirements for publicity of the procedure), the Port Authority should take action (and, possibly, the applicant should seek implementation of the "enhanced" publicity procedure) in order to disclose applications through the most appropriate means, in accordance with the principles of transparency and publicity of the administrative procedure, including, therefore, through Port Authorities’ websites and/or Region Official Bulletins.