The dynamics of port services, particularly in Italian ports, are often characterised by tough commercial “fights” among terminal operators.

It is known that such tough commercial fights often result in likewise tough legal battles.

The focus here is analysing some  interesting principles set out by the Consiglio di  Stato  -­‐  in  a case  involving   two   well-­‐known   terminal operators of the port of Leghorn  -­‐  and  their possible  impact  on  other  Italian  ports.

The case submitted to the Consiglio di Stato was centred on whether a terminal operator be entitled or not to provide the passenger services until then performed by the local cruise terminal embarking and disembarking passengers, catering and loading/unloading services).

The Consiglio di Stato ruled as follows:

  1. only two kinds of “port activities” are allowed in the port area: freight-­‐related operations (carried out by stevedoring companies and terminal operators under Article 16, paragraph 1, and Article 18 of Law No. 84/94) and  passenger-­‐related services (carried out by cruise terminals under Article 6 of the Law No. 84/94). No further “port activity” is allowed  under the law;
  2. the  fact  that  terminal  operators  are prevented from carrying out passenger services is substantiated by the reform of Article 18 of Law n.  84/94  –  which  sets out  the procedure for the  grant  of  port concessions  –  introduced  by  Law  No. 647/96.   In   particular,   the   Consiglio   di Stato held as follows: «On the other hand, the  stevedoring   companies   authorised   to carry out port operations under Article 16, paragraph  1,  first  period,  of  Law  n.  84/94 may be granted in concession State-­‐owned port areas and quays to  perform  port operations  as  set  out  in  Article  18  of  the same Law, which, as a result of the reform of  Article 2, paragraph 17, of Decree Law No.    535/96,   converted   into   Law    No. 647/96,    has   now   excluded   that    the companies  under Article 16, paragraph 3 authorised to   carry out port operations who have become   concession-­‐holders of port areas and quays may use them also to carry     out     any     activities related to passengers and/or to perform services of a primarily-­‐commercial   nature» (Consiglio di Stato’s judgement No. 4667/14).

Therefore, from the ruling of the Consiglio di Stato one may argue that passengers’ embarking and disembarking as well as catering or loading/unloading of provisions or store or equipment for use on board a vessel are allowed to be carried out by cruise terminals only, while being forbidden to terminal operators.

Although the above judgement relates to a case regarding cruise passenger traffic, it is reasonable to believe that it may apply, by way of analogy, to whatever passenger traffic such as the ro/pax or cruise ferry traffic.

It is known that the acronym ROPAX (roll-­‐on/roll-­‐ off passenger) describes a RO-­‐RO vessel designed for freight vehicle transport along with passenger accommodation. Technically, this  encompasses all ferries with both a roll-­‐on/roll-­‐off car deck and passenger-­‐carrying capacities, but practically, ships with facilities for more than 500 passengers are often referred to as cruise ferries.

This being said, it remains to be seen whether cruise terminals may be interested in starting a dispute with those terminal operators who handle ro/pax and cruise ferry passenger traffic without being entitled to.

Furthermore, considering that several Italian port authorities hold an interest in several cruise terminals, any dispute that may arise or any order that may be issued by port authorities might also have interesting antitrust implications…