Article 17, paragraph 1, of the Regulation implementing the Italian Navigation Code 1 provides that «concession holders shall secure the performance of the obligations arising from their concession grant by a deposit, whose amount shall be determined on the basis of the scope, extent and number of installments of the concession fee, the nonpayment of which shall trigger termination of the concession pursuant to Article 47, d), of the Code»
Furthermore, the article provides that the deposit shall in no way be less than «a two years’ concession fee»2.
On perusal of the above provision, it emerges that the deposit is provided as a security for performance of the obligations undertaken by a concession holder and, particularly, as a security for payment of the concession fee.
The discipline on State concessions has been supplemented further to introduction of Law No. 84/1994.
Article 18, paragraph 6, of the Port Law indeed provides that «in order to obtain the concession under paragraph 1, prospective concession holders shall:
a) submit, together with the application, an operative plan, supported by appropriate guarantees, including sureties, aimed at increasing the traffic and productivity of the port ; […]».
Therefore, since 1994, in order to obtain a concession, upon submitting application, an operative plan must be submitted as well, setting out the targets in terms of increment in port’s traffic and productivity that a terminal operator commits to deliver. The program shall be «supported by guarantees, including sureties».
From this, a doubt arises: should the guarantee now cover not only the payment of the concession fee, but also any failure to increase traffic?
What happens when a terminal operator fails to meet the targets set out in its operative plan or fails to complete all the planned investments?
Shall a terminal operator assume liability for nonperformance of its obligations by providing a deposit or surety?
If the answer to these questions were «yes», then the issue would arise in determining the amount of the deposit required, possibly deductible from the guarantee provided.
In the absence of precedent on this matter, we can only hypothesize. Basically, it is a matter of determining the possible damage incurred by the Port Authority as a result of failure to fulfill the traffic targets set out in the Concessionaire’s operative plan. Such an exercise is quite hard, since there is no regulation providing a formula for the determinations of such damage.
On the other hand, it is not quite clear how such damage must be determined. Should reference be made to loss of revenues, i.e. anchorage dues, port dues, customs duties, etc. or not?
Can loss of revenues be accurately determined? A precise calculation is not possible with one or more key elements missing: how many vessels and what types of goods operated by a terminal should be considered for calculation?
The lack of accurate data on the damage that a terminal operator would be liable for would demand the provision for a “general” (omnibus) guarantee, given the impossibility to envisage a maximum guaranteed amount.
However, it is now a well-established principle of case law that such guarantees must be deemed null and void1.
Finally, a further question remains on whether it is fair to provide for terminal operators to be unlimitedly liable, with no limitation of liability applying to them.
So, should one conclude that, since a terminal operator cannot be subject to unlimited liability, the required deposit cannot (or rather, must not) be related to the traffic targets set out in the operative plan?
Considering the current port legislation, the answer can only be affirmative.