A recent decision of Italian Consiglio di Stato clarifies a point that is expected to have significant impact on the Italian maritime port industry. Among the questions addressed to the Supreme Administrative Court, some were about the existence of an obligation – on the part of the Port Authority – to clarify the basic mandatory requirements to be met by public authorities with respect to the publication of applications for renewal of existing maritime port concessions.
As is known, although case law – including at the EU level – clarified the need to publish any information about the availability of maritime port areas under concession in the EU Official Journal (typical is the case of a call for tenders for selecting a concessionaire or of an application filed by a private individual to obtain a concession for a maritime port area), it still remains to be clarified whether the Port Authority be entitled to use simplified forms of publicity (such as the publication of a private individual’s application in the Port Authority’s register) for an application filed by an outgoing concessionaire for renewal of its maritime port concession.
These are, in essence, the issues addressed by judgment No. 688 issued by Italian Consiglio di Stato, Fifth Chamber, on 16 February 2017.
In the case at issue, the judges of Palazzo Spada recognised the lawfulness of an award made by the Port Authority of Genoa, albeit not in the standard form required in bidding procedures for the award of public contracts, with predetermination of the bid evaluation criteria.
According to the Supreme Administrative Court, the transparency, impartiality and par condicio requirements imposed by domestic and EU law are met by implementing an efficient and effective preventive advertising mechanism for expiring concessions, in view of their renewal in favour of the highest bidder, as well as by imposing an increased burden on awarding authorities in terms of both preliminary investigation to be conducted at procedural level and the reasons to be provided in their final order.
After all, the specific nature of the contracts awarded by Port Authorities was also recognised at EU level, as proved by final closing by the European Commission of infringement procedure EUpilot No. 7019/14 Mark.
In that case, it was indeed expressly stated that maritime port concessions do not fall within the scope of the European directives on concessions (with a focus on Directive 2014/23/EU), which led to finding lawful the extension of expiring concessions ordered by the Port Authority without following the standard bidding procedures provided for by the Public Procurement Code.
Therefore, in order to prevent that the specific features of maritime port concessions may result in abuse by awarding authorities, a case-by-case assessment should be made to ascertain whether the investigation carried out by the authority concerned was such as to ensure that the contract be awarded to the tenderer who offered the «best guarantees for the profitability of the concession».
In other words, if on the one hand the operator concerned is not allowed to allege the Port Authority’s failure to publish in its Bulletin the application for a concession (or the renewal thereof) submitted by a private individual (nor its failure to publish any applications filed by competitors pursuant to Article 37 of the Navigation Code), having the burden of verifying the progress of the award procedure with the Authority itself, on the other hand, the greater technical and economic qualification to be documented will leave no room for the Port Authority’s arbitrary discretion in selecting a concessionaire.