Contribution by Davide Maresca *
* managing partner of the law firm Maresca&Partners
A widespread state of confusion in the legal system has recently emerged clearly, generating the need for a reflection, almost natural, that cannot be left unexpressed.
Starting from a recent article published in SHIPPING ITALY regarding the fulfillment of the business plans of port terminal operators, there is a need (for a scholar of the subject) to clarify some themes and underline a bicephaly of the legal system.
In 1994, spurred by the Community, the Port Authorities were born, which assigned concessions for the pure use of the asset (without a service component) with only one constraint: to promote as much as possible (traffic) to enhance the state-owned asset. A vision that led aspiring concessionaires to present business plans that presupposed a significant commercial effort to attract as much traffic as possible (the true driver of the system of law 84/94 and the navigation code).
Subsequently, the European Commission’s DG Comp and the EU Court intervened, applying competition rules to the Port Authorities due to the economic nature of the activities performed. Thereby, confirming the legitimacy of the “real estate” setup of concessions conceived as “use of the asset” and not as “a service outsourced by the State” nor as a service of general economic interest.
In the business plans, the traffic objectives were (and are) objectives and not constraints: the investments were (and are) tools functional to those objectives. And, in this sense, they constituted functional constraints (that is, they must be read in function of the traffic that one managed to attract and that it was possible to attract). Moreover, the Port Authority, besides being able to declare the forfeiture for those who failed to justify any substantial deviations (in its community meaning from the Pressetext jurisprudence), if it thought it could enhance the asset more, could (and can) even revoke the concession (provided that the compensation to be paid to the concessionaire was lower than the greater gain deriving from a new assignment).
However, Europe intervenes again and does not have a single voice. Exactly as in Italy, DG Comp (equivalent to our AGCM) does not always agree with the other Directorates of the European Commission which, instead, set public regulation objectives that are often in tension and contrast with the free competition guarded by DG Comp.
Even DG Grow, which guards the free access to the single market, has a very different approach from DG Comp: free access to the single market (Art. 26 TFEU et seq.) is an objective that presupposes regulation (e.g., the obligation to tender), which is by definition in contrast with the freedom of competition (Art. 101 et seq. TFEU), as the traditional doctrine on the subject has underlined in the main writings on the matter (Fox, Posner, Hawk, Patterson, Hylton, etc…).
In fact, an important component of the European Commission (especially the policy part of the DGs that have nothing to do with competition and the market, e.g.
the Move) influenced Member States’ decisions by linking port reform objectives (not always shared with other DGs) to the disbursement of PNRR debt tranches: a veritable sovereignty of debt disguised as virtuous Milestones.
Thus, precisely due to the push from DGs that do not protect competition, the implementation discipline of art. 18 of law no. 84/1994 was formed, namely the D.M. no. /2022 and the guideline D.M. no. /2023.
However, the contents are not legally grounded to implement the rules on competition protection according to the Court’s recent ruling: the concession framework based on a (tendential) equivalence between the cost of /equity and return, in fact, “flattens” industrial management, establishing a full identity between allowed profitability and allowed financial return. This is the farthest possible thing from promoting challenging traffic objectives. A sort of obligation to be satisfied with less.
Failure to comply with these financial constraints, in terms of extra profitability, entails a risk of non-compliance that is much stricter than the objectives of the old “ex legge 84” business plans.
A remuneration mechanism (the new one) borrowed from the scheme of the well-known Altmark judgment of the Court of Justice for public transport, a service of general economic interest, and based on art. 106 TFEU; a legal basis which, to date, is certainly not the same as that for port concessions.
Something that is a strong disincentive for attracting traffic but works, instead, for concessions where market demand is independent from commercial activity and traffic promotion (like public transport, highways, etc…).
Although many entities (both public and private) revel in the terminological confusion between market protection and competition protection (as if they were the same thing), the result that has been produced now poses concrete consequences that are plain for all to see: a two-headedness of concession objectives in complete tension with each other.
On one hand, “old” business plans based on challenging objectives that push the concessionaire company to seek traffic.
From other financial economic plans that, in order to be respected, push the company not to earn too much.
The delicate point of equilibrium should be “a matter for regulation”.
However, we have a regulatory discipline flattened on the second parameter which is improperly beginning to be used also to evaluate “old business plans”, not considering that a basic principle exists in the legal system: “tempus regit actum”, a corollary of legal certainty (the most important driver for attracting serious investors).
Therefore, although the verification of the investments foreseen by the (old-style) business plan is a very important task of the Adsp but linked to a technical assessment functional to the potential and achieved traffic, the verification of compliance with the new Pef is something much more rigid and which can be appreciated simply by reading some numbers (something which is not possible with the old business plans).
In this context, it is necessary to avoid the risk of describing the old system (which must still be described) with the criteria of the new system.
Furthermore, it is also necessary to avoid the risk of describing the new system as something automatically virtuous: probably, the excessive freedom of the previous model (with a clear lack of uniform, objective control criteria) has produced a current excess of “financial vision” (perhaps because it is the only one controllable with unequivocal numbers) with the risk of legally transforming ports into “highway yards”.
Whether this will be a winning choice or not, history will tell: daily operators (like the undersigned) can only take note of it and do their best so that, in this objective and objective legal-economic bicephaly, companies and public administrations can still carry out their work, always aimed at circulating goods and services, without ideological preconceptions.
