The ban for shipping companies to perform port operations (or at least parts of them) with onboard personnel in ports where authorized port companies are present is wavering.
This is established by a ruling from the TAR of Salerno, which upheld an appeal by Cartour (a company of Caronte&Tourist that operates the ro-ro connection between the Campanian port and Messina) against the denial by the Port System Authority of the request for authorization to perform lashing and unlashing activities on its own ships with onboard personnel and “two part-time employees.” A request, that is, for authorization to perform port operations (ex paragraph 3 of art.16 of the port law) and not to self-produce them (ex paragraph 4 bis).
The Adsp – the ruling reconstructs – observed that Cartour “had not demonstrated the exclusivity of employment of the personnel and could not be authorized as a port company without having a dedicated and exclusive staff for activities in the reference port. The request would also not be in compliance with the national collective labor agreement for seafarers, which reserves lashing and unlashing operations primarily for specialized shore-based personnel. The intention of the company in question to entrust almost the entire cycle of port operations to another company would not conform to the paradigm of port operations and would not allow for the configuration of a port company.” The request, that is, “although formulated under the form of a request for authorization to perform port operations pursuant to Article 16, paragraph 3, of Law 84 of 1994, would substantially amount to a repeated request for authorization for self-production” already rejected by the authority, with a measure confirmed by the very TAR of Salerno.
A thesis, however, that another section of the same Court has now dismantled, embracing Cartour’s argument.
An argument that starts from the Siderurgica Gabrielli ruling of 1991 (the one that triggered the drafting of the port law in force in 1994), according to which, the TAR of Salerno states, “the Court of Justice of the European Union therefore prevents the imposition on any company in the maritime sector of the obligation to use exclusively local labor for the execution of port operations. In principle, therefore, a maritime transport company should be authorized, in the absence of overriding reasons of public interest, to carry out such operations using its own workforce.”
Furthermore, neither in the law nor in the implementing regulation (the ruling refers to the one from 1995, overlooking the reform of Article 16 that occurred in 2020) have “rules been introduced that prevent the possibility of authorizing the performance of even just one part of the overall cycle of port activities,” the judges further observed, considering the aforementioned ruling “not relevant,” because it precisely relates to paragraph 4 bis and not to paragraph 3 as in this case.
In conclusion, the TAR also reiterated how “the European Court has clarified that the imposition of an authorization regime for the exercise of port operations activities, such as those regulated by art. 16 of Law no. 84 of 1994, meets the conditions indicated by the Court of Justice itself, according to which the free provision of services, a fundamental principle of the Treaty, can be limited only by rules justified by imperative reasons of public interest.
In the case at hand, no public interest can be identified that could justify excluding the possibility of authorizing a company to carry out on its own behalf only a part of the activities included in the cycle of port activities” in the presence of the required relevant requirements. And “it is hardly necessary to point out that the national collective maritime labor agreement, not having normative value, cannot conflict with the interpretation of the law deemed correct.”
A.M.
