Article 14, paragraph 1 bis, of Law no. 84/94 states that "the criteria and mechanisms for the creation of tariffs for pilotage, trailer, mooring, and baiting are established by the Ministry of Infrastructure and Transport on the basis of an investigation jointly conducted by the General Command of the Port Master’s Offices and the Unified Representations of the Port Authorities, Port Authority Service Providers and port users”.
Therefore, the abovementioned provision requires the administration to engage in the tariff approval procedure the companies benefiting from such services, through the associatiTherefore, in the light of the above it is clear that the simple reference to the numerical datum of associates or to national coverage is not sufficient to demonstrate the representativeness of an association, but that it is necessary to consider its substantial and effective presence on a given territory and/or the actual impact on the sector being considered from time to time.ons representing them.
In particular, the participation of the companies’ representation in the tariff creation and review procedure is crucial since it is functional in assessing the congruity of the relationship between cost items and price of the services normally provided by the tariff1, thus implementing the principle of transparency that must regulate the procedure in question.
This is one important reason to involve port users in the formation of nautical technical services tariffs. Indeed, according to case-law, tariffs approved without the involvement of port users are unlawful (for breach of law)2.
Since such involvement is usually achieved through the participation of the trade associations in the tariff creation/review procedure, it seems fair to consider that such associations must be actually representative of the port users. In addition, such effective representativeness shall have to be better evaluated in concrete with reference to the specific service and the specific port examined. Indeed, it is clear that each service and port has its own users and that it is therefore necessary to evaluate on a case-by-case basis the actual representativeness of the associations involved in the tariff creation/review procedure.
Even the Council of State ruled along the same lines3 confirming a judgement of the Regional Administrative Court of Campania4 that dealt with the determination of the most representative shipowners association in the port of Naples between Confitarma and Fedarlinea). In particular, the Council of State, stated that "the measure of the representativeness of the national category organizations, called for designation, must still be verified at local level (please see Council of State, Sixth Division, no. 646 of 3 February, 2000) ".
Moreover, the Regional Administrative Court of Naples had already established that "the fact that Confitarma is allegedly more representative than Fedarlinea at national level is not relevant, when Federlinea is able to be more representative in the context of the Neapolitan port area”. In the case at issue, both first and second instance Courts, considered correct the decision of the administration, which determined the most representative association in the port of Naples "analysing not only the mere count of the associations’ associates, but also breaking apart the numerical datum that takes into account traffic volumes and their respective incidents. "
Hence, the way-out of several shipping companies from the main Italian representative association of shipowners may induce to reflect on the actual representativeness of such association (and, in general, on the effective representativeness of all relevant trade associations) compared to the number of users of nautical technical services.