The availability of an efficient rail connection is, for any terminal operator company, one of the main conditions to stay on the port services market. Having made this (too trivial) statement, it is certainly interesting to note that such concept is also shared by national case law.
By noteworthy judgment no. 564 of 5 November 20141, the Regional Administrative Court (“TAR”) of Friuli Venezia Giulia ruled on the legality of a resolution of the Port Committee of the Port Authority of Trieste, whereby the Port Authority assigned to a terminal operator a state property area corresponding to areas of the port railway park, providing limitations to the general use of such infrastructure.
In addition to complaints relating to the procedure for the adoption of the contested measure, it should be noted that the claimant (one of the companies affected by such a measure) also argued the infringement, in particular, of Article 106 of TFEU2, since the contested measure allegedly resulted in a restriction of competition in port terminal services in the port of Trieste.
We anticipate the ending: the TAR upheld the action, deeming "decisive and founded" the violation of free competition, the basic principle of European and national legal order, because the grant gives a competitive advantage to a company in the use of infrastructure (railway) of public interest, by unjustifiably favoring the same.
In reaching such conclusion, the administrative judge set and reaffirmed some principles that should be kept in mind.
Firstly, the TAR acknowledged the claimant’s capacity to submit its petition, although in the absence of a formal concession (what is contested, in this case, is the preliminary resolution of the Port Committee), as the award of the concession by the Port Authority is in itself likely to harm its interests. Since the decision to enter into the grant is accompanied by all the essential elements of the future granting decision, the formal signing of the concession merely constitutes a consequential act and is therefore not decisive for the occurrence of the violation.
Secondly, the judge reiterated what administrative case law had previously affirmed in other judgments (and given the large number of episodes in the opposite direction, it hit the mark), namely the need for a public selection procedure before the grant of a state concession that assigns an exclusive use to the concessionaire.
Finally, with reference to competition rules, according to the TAR, the area of the railway park by its very nature must not only be available to all operators, but said operators must be placed on equal terms and not be discriminated in any way.
Hence, the grant of a concession that provides a privileged use of rail infrastructure results in a decisive competitive advantage over other operators, which has a discriminatory effect.
On closer inspection, because of its significance this last principle may be extended to other cases in which port infrastructures are at stake – especially railway – along with the principles of competition concerning the access to such infrastructures, for example when they are subject to measures (or activities) of the Public Administration, which have a selective and discriminatory effect.
In this sense, it seems reasonable to believe that, in cases where the Port Authority carries out rail infrastructures upgrading works selectively in favor of a terminal operator, excluding other operators from such benefit, this determines an alteration of the relationship between competitors, in breach of the principles established to protect competition. The Public Administration would thus unfairly favor a terminal operator company, assuring a trade advantage difficult to recover by its competitors, considering the needs of prompt-ness and efficiency required by the market, which only an adequate logistics supply can ensure.
Practical experience shows several cases in which the principles laid down by the TAR of Friuli Venezia Giulia in the recalled case should be stringently applied to those situations in which only one of the terminal operators is put in the condition to use railway infrastructures, while others must resort to alternatives often much less competitive or give up certain trades in favor of competitors who have been benefited by the choices of the Public Administration.