In the February/March 2017 issue of our newsletter, we made some preliminary considerations on Regulation (EU) 2017/352 “establishing a framework for the provision of port services and common rules on the financial transparency of ports” (the “Regulation”).
At the time, however, the Regulation had just been approved by the Council and the European Parliament and – there being not enough space on these pages – we limited ourselves to providing a brief description of its provisions, accompanied by some initial remarks.
Since the Regulation today represents – for the reasons that will be outlined below – a fundamental regulatory text for our industry, we have decided to give it the necessary time and space – in our newsletter – to go into its details, while giving our comments and insights on each single provision.
Hence, from the next issue of our Shipping and Transport Bulletin we will go through the provisions of the Regulation one by one. We will provide an in-depth analysis, divided into “episodes” – and it could not be otherwise, due to the aforesaid reasons of space –, which will allow us to get into the details of each single provision, reasoning on its content and practical effects – as is our style –.
At the end of such “journey”, we will have analysed what is now undoubtedly the key reference text on the subject – crucial to our industry – of the provision of port services and transparency of financial relations between public authorities and port management bodies, with a focus on port service charges and the rights for use of port facilities.
As noted, today the Regulation represents a set of governing rules around which all other Regulations on the same issues must revolve. So, let’s start this new journey by clarifying the reason for all this.
The reason is actually simple: EU Regulations are binding legislative acts with specific characteristics, which can be summarised as follows: (i) they have a general scope, (ii), they are binding in all their elements and, especially, in so far as is relevant, and (iii) they are directly applicable to all Member States as soon as they enter into force and do not need to be transposed into national law.
In addition to the above, mention must be made of the well-known principle of primacy of EU law over national law, which gives some idea why Regulation (EU) 2017/352 is so important.
Indeed, such principle means that Community binding acts (such as Regulations) prevail over national laws of Member States, with the consequence that any provision of national law in conflict with Community law must be set aside.
This is an undisputable principle that has also been reiterated by Italian case law.
In this regard, one of the most relevant precedents is the so-called Granital case, where the Italian Constitutional Court set out principles that – still – influence the legal relationships between national law and directly-applicable EU law.
In a nutshell, the Italian Constitutional Court found that – given the primacy of EU law over domestic law – “when there is an unavoidable conflict between the provision of municipal law and the Community rule, the latter must prevail in all circumstances” and “A Community regulation shall, therefore, apply in any event, whether it follows or precedes in time the national statute incompatible with it”.
The real innovation in such ruling is the fact that the Constitutional Court has expressly acknowledged the power of Italian ordinary judges to disregard – without submitting the matter to the Constitutional Court – whatever national statutory provision that may be in conflict with a Community Regulation.
In light of the above, the reason why Regulation (EU) 2017/352 is today so important to our industry is abundantly clear. Indeed, when looking at its scope, not only its provisions constitute applicable law in Italy (as in other Member States) but even the “strongest” law, which is allowed to prevail of over national law in all cases of conflict.
In this regard, the provisions set out in the Regulation may (or rather, must) also serve as a benchmark for our lawmakers and for all Italian authorities with regulatory powers (such as Port System Authorities), who in their laws and regulations are obliged to comply with Regulation (EU) 2017/352 both in letter and in “spirit”. Indeed, as noted, any provision to the contrary and/or inconsistent with the Regulation might be immediately disregarded by Italian ordinary judges.
Having clarified the importance of the Regulation in our legal system and, therefore, the reasons why it should be analysed in detail, we invite you to tune in for the next issue of our Bulletin to start getting through and commenting on its provisions – one by one –.