Methods and criteria to ensure fair and non-discriminatory access to Italian port infrastructures: between established practices and regulatory changes

Administrative and competition matters related to the issuance and/or the renewal of public concessions for State-owned maritime areas and quays – notoriously areas of primary importance in the port field, attracting considerable private investment – are representing a debated topic in Italy for over twenty years. In fact, Article 18, paragraphs 1 and 2, of Law No. 84/1994 (“Port Law”) provides that a decree by the Minister of Transport and Navigation (now Ministry of Infrastructures and Transport) in agreement with the Minister of Finance has (rectius: should have had) to lay down, inter alia, i) the procedures for the renewal of concessions or for the transfer of the facilities to a new concessionaire, and ii) the criteria to be followed by Port System Authorities when granting concessions in order to reserve in the port area operational spaces for the carrying out of port operations by other non-concessionary companies. Despite the content of this provision, any kind of regulation implementing Article 18 of Italian Port Law has been adopted by the competent public authorities for more than twenty years. In the course of time, such a regulatory gap was sometimes filled by case law, through the reference to established practices and – lastly – by the intervention of the independent authorities empowered in the field of port concessions. At the end of 2017, the Italian Transport Regulation Authority issued the decision No. 156/2017, calling a public consultation concerning “Methodologies and criteria for ensuring fair and non-discriminatory access to port facilities”, and highlighting the importance of the predetermination of objective criteria to guarantee to the users the fair access to port infrastructures. In this evolving scenario, the Ministry of Infrastructures and Transport, on the 5 February 2018, issued a circular aimed at establishing some specific economic and technical criteria that the Italian Port Authorities must take into account in the proceedings for the issuance or renewal of concessions pursuant to Article 18 of the Italian Port Law. Furthermore, with the resolution No. 57/2018 of the 31 May 2018, the Italian Transport Regulation Authority approved the document called “Methodologies and criteria to guarantee fair and non-discriminatory access to port infrastructures. First regulatory measures”, aimed at contributing to the efficiency of port management and the containment of the costs for users, businesses and consumers. The aim of this study is to analyse the current legal framework on access to Italian port infrastructures in the light of the main principles of equal treatment, proportionality and non-discrimination, underlining the main problematic issues and the possible future legislative trends.