The Italian Antitrust Authority (“AGCM”) has recently taken a stand on the granting of maritime state property concessions, with a particular focus on the principles to be taken into account by Port System Authorities during the performance of its activities.
It is worth recalling that the Antitrust Authority had already addressed such topic in the past, stating that public authorities should increasingly limit their administrative discretion and bear in mind the general principles of transparency and proportionality, which should inspire all their activities. Furthermore, according to the Antitrust Authority, public authorities should not ignore, but on the contrary should apply, the Community-inspired principles of competition and non-discrimination.
In the case under examination, AGCM was notified about a procedure, involving competing applications in respect of an identical port area, commenced by the Northern Tyrrhenian Sea Port System Authority. According to the Antitrust Authority, the procedure was commenced without “setting out in advance the awarding criteria on the basis of which competing applications would be assessed”. The Port System Authority alleged that said step was not necessary, as the only criterion set out in Article 37 of the Navigation Code for awarding concessions in case of competing applications is that of ensuring “the most profitable use of the concession” and “a use which, in the opinion of the authorities, meets a more relevant public interest”.
It is precisely such last statement that opened the way for the Antitrust Authority to express its view, taking the opportunity for an in-depth scrutiny of Italian law on maritime state property concessions. The emerging scenario was one of a regulatory system that is obsolete, synthetic not to say refractory and, especially, not fully conforming to the principles of transparency and proportionality in administrative action, as well as to the Community principles of protection of free competition.
More specifically, the Antitrust Authority noted that Article 37 of the Italian Navigation Code provides a guideline for selecting concessionaires, however stating at the same time – and here is the twist – that such general principle should be “specified on a case-by-case basis, by identifying objective, adequate and precise criteria [for the awarding of state concessions] to be disclosed to the parties concerned before they submit the technical and planning documentation under Article 18 of Law No. 84/94 and on the basis of which the preliminary review of competing applications must be carried out”.
Therefore, the Antitrust Authority “suggested” well-defined guidelines to Port System Authorities, which we summarise below:
- the criterion of the most profitable use of the concession and satisfaction of public interest under Article 37 of the Italian Navigation Code should apply on a case-by-case basis, that is to say, having regard to the area to be granted under concession and port traffic development needs;
- the criteria for selecting potential concessionaires should be objective, adequate and precise;
- such criteria should be disclosed in advance to prospective concessionaires in order for them to be able to decide whether or not to submit an application and how to better draft their technical and planning documentation for the use of the area.
Finally, it is precisely on the basis of the criteria set out before the commencement of the investigation that a Port System Authority should select concessionaires.
As far as selection criteria are concerned, the Italian Antitrust Authority specifies that – in all cases when there are competing applications for maritime state property concessions, regardless of whether a procedure is started automatically or on the initiative of the parties concerned – a Port System Authority should pre-establish and disclose the relevant technical and economic award criteria. In other words, the Authority should indicate the volume and/or traffic increase targets it wants the concessionaire to achieve and the type of investments it deems necessary for the functioning of the terminal and to achieve an increase in the traffic of the terminal and, in general, of the port.
The Antitrust Authority based its view on a previous decision of the Consiglio di Stato (Higher Administrative Court), which, basically equalling state concessions for provision of services and state property concessions, on the ground that maritime state concessions “provide a profit opportunity to market operators”, stipulated the need to impose on the authorities concerned the obligation to set out competitive procedures “in accordance with the constitutional and Community principles of protection of free competition“.
In application of the aforementioned principles, the Antitrust Authority thus ruled that any selection among applicants should come after assessment criteria have been set out and published to be applied by the Port System Authority during examination and comparison of competing applications.
In other words, the Antitrust Authority decided to open the way to a new approach whereby both national and EU principles of protection of free competition and, particularly, the principle of transparency in the activity of public authorities become a concrete criterion for verifying the activity of Port System Authorities. The application of the rules suggested by the Antitrust Authority should therefore affect the procedures of awarding or renewal of maritime state property concessions by involving a verification of lawfulness that so far has not been implemented.
A further and final point cannot be ignored. The principles to which Port System Authorities should conform are not new and are already broadly applied in the relations between the public and private sectors, so much so that the Antitrust Authority seems to underline the rather-obvious applicability of said principles also to maritime state property concessions.
How should, or could, the operators of the sector react in respect of maritime concession awarding procedures that have been already concluded and for which the procedure suggested by the Antitrust Authority was obviously not carried out, where they believe to have suffered damage precisely from non-compliance with the rules suggested by the Authority?