The New Italian Law on Ports in the European Perspective ADRIATIC MARITIME LAW CONFERENCE PORTOROŽ, 26-28 May 2016   The New Italian Law on Ports in the European Perspective Stefano Zunarelli .

Art. 18 L. n. 84/1994 1. The Port Authorities [ Art.18 L. n. 84/1994 1. The Port Authorities [...] award concessions for state-owned port areas and for docks to [ …], for the performance of port operations [...] The concessions are issued, after determination of the fees due, the amount of which is related with the size of port traffic, on the base of appropriate forms of public tenders, provided by a Ministerial Decree of the Ministry of Infrastructures and Transports, together with the Ministry of Finance. With the same decree shall also be indicated: a) the duration of the concession, the powers of supervision of the competent Authorities, the procedures for the renewal of the concession or for the assignment of the plants to the new concessionaire; b) the minimum amount of fees that concessionaires have to pay [...] 3. With the decree mentioned in paragraph 1, the Ministry of Infrastructures and Transports adjusts the rules on concessions related to port areas and docks to the EU legislation.

6. In order to award the concession referred to in paragraph 1 is provided that the interested aspiring concessionaires: a) provide, at the time of the application, a program of activities, with adequate warranties […] meant to increase the traffic and the performance of the port; b) possess adequate technical and organizational facilities [...]; c) provide for a staff of employees appropriate for the program of activities mentioned in subparagraph a).

NEW REGULATION FOR THE CONCESSIONS Goals: provide a complete and accurate regulatory framework; in line with EU principles; suitable to create conditions for the realization of the needed investments for the development of ports; Enhancing the role of the Authorities of the port system, but with a strengthening (at the national level) of the role of coordination and supervision of the Ministry of Infrastructures and Transports

Features of the procedure: Compliance (as provided for by Art.18, Law no. 84/1994) with the traditional procedures for public tenders provided by the Italian Navigation Code Coordination with the principles set by the discipline related to the award of concession contracts contained in EU Directive 2014/23/EU, whose, provisions, however, are not directly applicable: Preamble: “Whereas” n. 15: “In addition, certain agreements having as their object the right of an economic operator to exploit certain public domains or resources under private or public law, such as land or any public property, in particular in the maritime, inland ports or airports sector, whereby the State or contracting authority or contracting entity establishes only general conditions for their use without procuring specific works or services, should not qualify as concessions within the meaning of this Directive”.

The proceedings start "at the request of the aspiring concessionaire"; The aspiring concessionaire is required to submit: an investment program with the specification of the type and characteristics of the activities to be performed and their management A business plan, upheld by a bank, with specific reference to the financial capacity of the aspiring concessionaire Public tender procedure, starting with the publication of the application for the concession award, strongly inspired to the so called “participatory principle”, with the possibility of submission of competing applications and of observations. Check of the consistency of the single application and of the other competing applications with the Port Master Plan and the Ports and Logistics National Strategic Plan (2015), through the acquisition, for the most relevant concessions, of the opinion of the Ministry of Infrastructures and Transports. The applications not consistent with the Port Master Plan, or with the Ports and Logistics National Strategic Plan, are ruled out of the procedure.

Comparative assessment of competing applications: specification of the public interests to be considered in the choice of the concessionaire (goal: combine transparency and flexibility): degree of coherence with the Ports and Logistics National Strategic Plan (2015); ability to guarantee the wider conditions of access to the terminal to the shipping lines and shippers concerned; nature and importance of investments in infrastructures, such as plant, equipment and technologies for the development of port productivity, and for the environmental protection and safety, including the assessment of the financing structure in their regard; targets of traffic volumes and of development of the port and backport logistics and railway mode; employment plan, including guidance on the use of temporary labor; ability to ensure adequate operational continuity of the port; sustainability and environmental impact of the proposed industrial project, level of technological innovation and industrial partnerships with universities and research centers

Changes: the “AdSP” can allow (minor) changes in the extension of the concession area or in the mode of use of the area. Limit: in case of relevant changes in the content of the concession, the Port Authority must start a new awarding procedure. Renewal: the concessionaire can request the renewal of the concession with a justified request. The Port Authority, checked the consistency of the request with its strategic plans, with the PRP and with the Port and Logistics Nationa Strategic Plan 2015 (evaluation by the Ministry of Infrastructures and Transports for the most important renewals), gives public notice of the request and starts the usual procedure for the public tender. It also takes in consideration the investments already made by the concessionaire in the area of the concession and the past performances of the concessionaire in the port activity concerned.

Compensation for the benefit of the outgoing concessionaire to be provided by the Port Authority in case the concessionaire has constructed or purchased non-removable assets to operate the concession, in addition to those included in the program of investments, and duly authorized by the Port Authority and not yet amortized. Verification activities: the Port Authority carries out every two years verification activities on the actual implementation of the investment program and reports to the Ministry the outcome of the audit. In the case of underutilization of the area, due to negligence or lack of entrepreneurial skills bu the concessionaire, notwithstanding the presence of positive market dynamics, the Port Authority may decide to start the procedure for the termination of the concession.

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