Law No. 84 of 1994, which reorganises Italian port legislation, qualifies technical-nautical services such as pilotage, towing, mooring and boating as services of general interest aimed at ensuring safety of navigation and docking.
Precisely in light of their general-interest nature, technical-nautical services have historically been provided under a monopolistic regime, albeit in a context increasingly focused on the implementation of EU-derived principles of protection of competition and freedom to provide services. The monopolistic regime has also been endorsed by prevailing case law and legal commentaries, but encountered opposition from the Italian Competition Authority, which in a number of rulings denounced the failure to apply competition principles to shipping ancillary services
Article 14, paragraph 1 bis, of Law No. 84/94, requires that the criteria and methods for setting rates for port operations services be established at a State level, which means, in Italy, by the Ministry for Transport and Infrastructure. To date, individual Port Authorities have no discretional power in setting such rates in the ports managed by them.
Therefore, under Article 14, the rate for port operations services must be set out at a State level and as a result of preliminary investigation jointly conducted by the Harbour Master and the organisations representing Port Authorities, providers of port operations services and port users.
The validity of such mechanism has been recently confirmed in a judgment of the Regional Administrative Court of Veneto, dismissing a petition of the Port Authority of Venice seeking recognition - and therefore, in essence, the attribution under a court ruling – of some discretionary power to individual local Port Authorities in setting rates for port operations services in their respective ports.
The Administrative Court stated: "The regulation of the rate-setting process is actually divided into two distinct phases: the first phase, at a State level, involves the development of general criteria for setting rates, based on preliminary investigation involving the representatives of all the categories concerned, including the organisations representing Port Authorities, providers of port operations services and port users".
What most attracts the attention is the preliminary investigation process, which, under the statutory provisions as interpreted by case law, should involve the participation of all the representatives of port users.
The above is provided for in implementation of the principle of transparency and the obligation to state reasons in State bodies’ decisions, enshrined in both European and national legislation. By a judgment of 1994, the European Court of Justice expressly stated that rates for port operations services should be structured in such a way as to enable users to verify the impact of the various cost items (i.e., of the individual services provided) on the overall price of the service.
In Italy, as a matter of fact, users of port operations services are represented, at the preliminary investigation stage, only by Confitarma, Fedarlinea and Federagenti, which are associations of Italian ship owners and shipping agents.
It is also well known that cruise ships, ferries and ships engaged in local and cabotage services are not among regular users of certain services such as, in particular, towing services, while organisations such as Fedarlinea and Confitarma primarily represent ship owners using such vessels for their business.
Therefore, in certain cases, the towing service rate is set and determined by involving entities that, in reality, do not represent the ships concerned.
In ports such as Gioia Tauro, Taranto, Trieste and La Spezia, the situation is quite emblematic in that the ship owners interested in towing services do not take part, through their representative associations, in the setting of the rates concerning the services provided.
In this regard, administrative case law is unequivocal in stating that the principle to be followed in relation to the setting up and composition of settlement boards is the democratic principle of representativeness, and that the actual capacity of associations involved in national and local decision-making processes should always be ascertained.
Concerning specifically the setting of port operations rates, as regulated by Law No. 84/94, the Italian Competition Authority, as a result of a special fact-finding investigation, issued a decision that clarified its view on the matter, stating that "the consultation process (under Article 14, paragraph 1 bis of Law 84/94, as amended) involving business associations of service users not only appears to be ineffective, but also questionable in terms of competition protection. Indeed, such associations do not ensure that all potential users of the service are represented".
Can lack of representativeness lead to declaring the invalidity of the rates set out by involving entities not representing users as would be required under the law?
While waiting for an answer, we can only hope that, at the next stage of the process for setting rates for port operations services in Italy, the principle of the strict representativeness of the entities participating in the procedure will be attended to with no exception, so as to avoid any further uncertainty or even illegality.