The dynamics of port services, particularly in Italian ports, are often characterised by tough commercial “fights” among terminal operators.
It is known that such tough commercial fights often result in likewise tough legal battles.
The focus here is analysing some interesting principles set out by the Consiglio di Stato -‐ in a case involving two well-‐known terminal operators of the port of Leghorn -‐ and their possible impact on other Italian ports.
The case submitted to the Consiglio di Stato was centred on whether a terminal operator be entitled or not to provide the passenger services until then performed by the local cruise terminal embarking and disembarking passengers, catering and loading/unloading services).
The Consiglio di Stato ruled as follows:
- only two kinds of “port activities” are allowed in the port area: freight-‐related operations (carried out by stevedoring companies and terminal operators under Article 16, paragraph 1, and Article 18 of Law No. 84/94) and passenger-‐related services (carried out by cruise terminals under Article 6 of the Law No. 84/94). No further “port activity” is allowed under the law;
- the fact that terminal operators are prevented from carrying out passenger services is substantiated by the reform of Article 18 of Law n. 84/94 – which sets out the procedure for the grant of port concessions – introduced by Law No. 647/96. In particular, the Consiglio di Stato held as follows: «On the other hand, the stevedoring companies authorised to carry out port operations under Article 16, paragraph 1, first period, of Law n. 84/94 may be granted in concession State-‐owned port areas and quays to perform port operations as set out in Article 18 of the same Law, which, as a result of the reform of Article 2, paragraph 17, of Decree Law No. 535/96, converted into Law No. 647/96, has now excluded that the companies under Article 16, paragraph 3 authorised to carry out port operations who have become concession-‐holders of port areas and quays may use them also to carry out any activities related to passengers and/or to perform services of a primarily-‐commercial nature» (Consiglio di Stato’s judgement No. 4667/14).
Therefore, from the ruling of the Consiglio di Stato one may argue that passengers’ embarking and disembarking as well as catering or loading/unloading of provisions or store or equipment for use on board a vessel are allowed to be carried out by cruise terminals only, while being forbidden to terminal operators.
Although the above judgement relates to a case regarding cruise passenger traffic, it is reasonable to believe that it may apply, by way of analogy, to whatever passenger traffic such as the ro/pax or cruise ferry traffic.
It is known that the acronym ROPAX (roll-‐on/roll-‐ off passenger) describes a RO-‐RO vessel designed for freight vehicle transport along with passenger accommodation. Technically, this encompasses all ferries with both a roll-‐on/roll-‐off car deck and passenger-‐carrying capacities, but practically, ships with facilities for more than 500 passengers are often referred to as cruise ferries.
This being said, it remains to be seen whether cruise terminals may be interested in starting a dispute with those terminal operators who handle ro/pax and cruise ferry passenger traffic without being entitled to.
Furthermore, considering that several Italian port authorities hold an interest in several cruise terminals, any dispute that may arise or any order that may be issued by port authorities might also have interesting antitrust implications…