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The REGIONAL ADMINISTRATIVE COURT Liguria confirmation the allocation of the new container terminal of Genoa to Bettolo Descent to the Bettolo Consortium
Received the resource proposed against the Harbour Authority
May 25, 2012
The Regional administrative court for the Liguria, with sentence deposited yesterday that we publish below, has received the resource proposed from the Bettolo Consortium against the Harbour Authority of Genoa for the cancellation of the deliberation of the Harbour Committee of Genoa assumed in the sitting on December 22, 2009 with which the request introduced from the Bettolo Consortium was rejected for the concession of the new harbour area yields of the filling to Bettolo Descent that is about to completion between Bridge Paleocapa and Ponte Rubattino, where will rise an area dedicated to the traffic of the containers ( on 23 December 2009).
The Bettolo Consortium is participated with 65% from Marinvest, society of the shipowning group Mediterranean Shipping Company (MSC) guided by Gianluigi Aponte and with 35% from Se.be.r., society that takes part of the Group Harbour Investments (JEEP) guided by Luigi Negri who manages in the port of Genoa, through the Terminal Containers Port of Genoa Spa, the container terminal Southern European Container Hub (SECH) to Descent Health, that it is contiguous to the new area of Bettolo Descent.
The Harbour Authority of Genoa had rejected the request proposed from the Bettolo Consortium in order to obtain the amalgamation of the areas in concession with the next areas turning out from the tombamento of Bettolo Descent and those adjacent residuali. The REGIONAL ADMINISTRATIVE COURT Liguria evidences in the judgment as dissidio between the parts rispecchi the opposite interpretation that the Harbour Authority and the Bettolo Consortium annex respective to art. the 18, codicil 7, l. of harbour law 84/94 of reform: "for one - the judges explain - the norm places a real intended prohibition to do so as that to every concession it corresponds, in a relationship rigidly biunivoco, an only operator-concessionaire who must eserciate, directly and in exclusive way, the operations; for the other, vice versa, such prohibition not sussisterebbe at all, having itself rather to privilege the total ratio of the norm turns to safeguard the competition in the reference market".
The Regional administrative court, evidently inclined to a less rigid application of law 84/94, has found that, "in the new taxonomy of the assets publics, he is out of doubt that the harbour areas have a productive purpose. So that the economic and entrepreneurial activity, in preponderant measure regarding the state property regime, conforms the harbour discipline: "the increment of the traffics and the productivity of the port", in the formulation expressed to art. the 18, codicil 6, l. .cit, is the principles that address the activity of remitted regulation to the Harbour Authority".
ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for the Liguria
(Second Section)
it has pronounced anticipates
SENTENCE
on the resource number of general registry 179 of 2010, integrated from reasons added, proposed they give:
Bettolo consortium, represented and defended from the avv. Luigi Cocchi, Andrea Cugiolu, Gerolamo Taccogna, Alberto M. Rossi, with address which elected near Luigi Cocchi in Genoa, via Macaggi 21/5 - 8;
against
Harbour authority of Genoa, represented and defended from the avv. Alessandra Busnelli, with address which elected near Alessandra Busnelli in Genoa, via of the Merchandise, 2;
for the cancellation of the deliberation of assumed Harbour Committee 140/2/2009 in the sitting on December 22, 2009; of the note of the Harbour Authority in date 2-10/2009, prot. 190 - bringing answer to notes of the recurrent one in date 3/9/2009 and 10/4/2009, also as recalled in the deliberation as above, for concession question.
Seen the added and relative resource, reasons the attached ones;
Seen the certificate of incorporation in judgment of Harbour Authority of Genoa;
Seen the defensive memories;
Visas all the actions of the cause;
Reporter in the public audience of the day 15 March 2012 Dr. Oreste Mario Caputo and hearings for the parts the defenders as specified in the minutes;
Considered and considered in fact and right how much follows.
FACT
Bettolo consortium, to title in the port of Genoa of which extended state property concession to a portion of area, pairs to sqm 23.0619, of the immensest compendium than Dropped Bettolo, have appealled the opposite turndown from the Harbour Authority of Genoa (from now on APG), on the request understanding to obtain, for a back, the amalgamation to the concession of the next areas turning out from the tombamento of Bettolo Descent, of those adjacent residuali, already object of licences anniversaries, let alone the delay of the original term of fixed concession to 2020 until 2045; and, for the other, with specific reference to the modalities of exercise of the services connected to the concession, the authorization, according to the articles. 16 and 18 l. n. 84/94, to operate on behalf of a third party on the areas in concession.
To gears of the request, the Consortium has introduced the development plan, that is relative the conjectural document to the development of the enlivened traffics, to the programmed investments, the resources employees calibrated on the consequent regional planning to the amalgamation of the areas.
In the premises of the introductory action, it has specified in fact that:
to make given from on April 1°, 2004, regarding the original composition (called Consortium Grimaldi Group), it changed the order of the consortile compages: 65% of the quota currently are stopped by Marinvest s.r.l., society of group MSC, devoted to the management on the national territory of harbour terminals of the group; residual 35% are intestate to Seber s.r.l., take part, in its turn, of group SECH., to title of the insistent terminal on the areas of Descent Health, contiguous to that in concession to the Consortium;
the harbour town development plan discipline unitarally said areas (that is those consented in concession to the Consortium and group SECH) in the state property perimeter which marked from the S6 within, previewing for it, through the execution of works of tombamento of the watery mirror before Descent Bettolo, the objective of the constitution of according to pole the containers inside of the port of Genoa with an ability operatively to about 900.000 teus;
the forecasts of the harbour town development plan, coherently to the programmatico objective, design the future order of the infrastructural net with regard to the railway park, to the access ramps and to the edification of the pertinenziali works, goods a program which spelt in three units of participation having respective to object the complementary activities to the operativity of the terminal, the areas of I for vehicles accumulate commercial and the participations of edification;
in such frame, the concessionaires of the areas programming object and territorial zoning, have formulated two separated requests: the first in 2004 (in the composition of Consortium Grimaldi Group) in which they communicated to the APG the will of a unitary management of the pole containers after the realization of the tombamento works; the second one, substantially inevasa the first, in 2006, to changed consortile order, than specifically occupies some;
published in the ritual forms the request without observations or proposals by potential competitors had reached, the Conference of the directions and services of the APG in the sitting on January 7, 2008, preliminarily giving to account of the articulated preliminary investigation continuation from the offices on the specific participations contained in the request, it released to seem favorable to the introduced development plan "subordinating the release of the concessorio title to the presentation… of suitable legal solutions finalized to the unitary management of the compendium described in the development plan";
below, the harbour Committee, on the examination of the proposals formulated from the Consortium, contraddicendo how much previously asserted (reunion on January 24, 2008) whereby had guaranteed totally the conclusions reached from the Conference, with the appealled deliberation instead shared formally the content of the turndown expressed in the note on October 2, 2009, adopted from in charge of the procedure on sollicitation of the moment led in the formulated caveat former art. 328, codicil 2, c.p.
Consequent the compendiabili reasons of censorship in the multiple violation of the principle of loyal collaboration, of which to the articles. 97 cost., 6 and ss and 21 nonies l. n. 241/90; let alone in the violation of the articles. 5, 18, codicils 4 and 7, l. n. 84/94; excess to be able under several profiles.
The ATP has been formed asking the reiezione for the resource.
With added reasons the Consortium has deducted ulterior profiles of bastardy.
Arranged verification of the places, in outcome, to the public audience of the 15.03.2012 the cause, upon request of the parts, is withheld in decision.
STRAIGHT
Understanding is appealled the opposite turndown from the Harbour Authority of Genoa on the request proposed from the recurrent Consortium to obtain the amalgamation of the areas in concession, of the next areas turning out from the tombamento of Bettolo Descent and those adjacent residuali, already object of licences anniversaries, let alone the delay of the original term of fixed concession to 2020 until 2045.
Functional amalgamation to achieve, with specific reference to the modalities of exercise of the services connected to the amalgamation of the areas in concession, the authorization, according to the articles. 16 and 18 l. n. 84/94, to operate on behalf of a third party on they.
The censorships reach two orders of concurrent censorships: first, of nature preliminary investigation - procedimentale, denunciation the violation of the principle of loyal collaboration scrutinized according to the articles. 97 cost., 6 and ss and 21 nonies l. n. 241/90; the second, of substantial relief, complains, instead, the roved interpretation of art. the 18 l.n.84/94, since the APG, to warning of the recurrent Consortium, would have assumed a at all contrary address to the productive management of the harbour areas that of it would conform ratio and discipline.
The resource is founded.
The objective and absolute data from which moving in the cognition of the deducted dispute in cause it is that the harbour town development plan considers the areas stopped in concession from the Consortium and SECH and that turning out from the tombamento of the bordering watery mirror in unitary way, (rivers) comprising them in the which marked state property perimeter from the S6 within.
To the forecast (static) localizzatrice of the areas ago reply the location (dynamic) of the objective persecuted: the constitution of according to pole of handling of conteiners inside of the port of Genoa with an ability operatively to about 900.000 teus.
The connection between static profile (riperimetrazione of the areas) and that dynamic (increment of the terminalistica activity) also is returned evident by (crono-) the program of the previewed participations, spelt in three distinguished units disciplining respective the execution of the regarding works the complementary activities to the operativity of the terminal, the areas of I for vehicles accumulate commercial and the participations of edification.
After all, in the PRP and the annexed actions of program, the areas in concession and that gushing from the tombamento are considered instrumental to the conduction of an only terminalistico compendium able, for a back, considerably to implement the traffic of the goods inside of the port and, for the other, more and more to hold the competition in the reference market appanage of great terminals that offer services to competitive prices taking advantage of economies of scale.
The programmatico and pianificatorio design, as divisato with the recalled actions, postulates in parallel the entrepreneurial potenziamento of the called economic operators to giving performance to you.
To care, meaningfully, in the within of the respective competences, it is the Conference of the directions and services of the APG in the sitting on January 7, 2008 that the harbour Committee with the deliberation d. 24.01.2008, on the plan of former enterprise art. 18 codicil 6 l. n. 84/94, annexed to the demand of authorization, introduced from the recurrent Consortium, favorably they have been expressed finding that “… as a result of the created synergies, beyond the reliability of the consorziati subjects… (the plan) can be credibly developed on orders of magnitude of the traffic indicated with the relative investments and financial engagements”.
Sicché, acclarato that the c.d. “synergy between enterprises” is the foundation for the productive management of the compendium, controversial is the means by means of which in practice to pursue it in the respect of the field norm.
For the ATP: the Consortium would not have acquitted to the task to characterize (in order to resume the atecniche expressions employees in the recalled deliberations) “more suitable the legal instruments to the aim of traguardare the shown unitary management of currently separated state property withins”; to which it has then made followed the deliberation of the Committee that has subordinated the release of the authorization to the “constitution of the society that will have to think () to the unitary total management”.
On the proposed hypotheses, opposite the conclusion of the Consortium: the constitution of a consortium composed from the two concessionaires (that is Consortium Bettolo and SECH) to authorize itself according to art. the 16 l.n. 84/94 in order to operate inside of the only compendium, or, in alternative, the exercise in extension by SECH on the adjacent areas, that is to say that in concession to the Bettolo Consortium and that turning out from the tombamento, that it already reproduces a model employed in the port of Genoa for YOU module of Voltri, would satisfy in full load the requirement of an only cabin of direction of the terminalistico compendium.
In extreme synthesis the dissidio the opposite interpretation reflects that the APG and the Consortium respective annex to art. the 18, codicil 7, l. n. 84/94: for one, the norm places a real intended prohibition to do so as rigidly that to every concession it corresponds, in a relationship biunivoco, an only operator-concessionaire that must eserciate, directly and in exclusive way, the operations; for the other, vice versa, such prohibition not sussisterebbe at all, having itself rather to privilege the total ratio of the norm turns to safeguard the competition in the reference market.
The issue deserves a synthetic deepening.
In the new taxonomy of the assets publics, it is out of doubt that the harbour areas have a productive purpose. So that the economic and entrepreneurial activity, in preponderant measure regarding the state property regime, conforms the harbour discipline: “the increment of the traffics and the productivity of the port”, in the formulation expressed to art. the 18, codicil 6, l. .cit, is the principles that address the activity of remitted regulation to the harbour Authority.
The public belongings to the harbour Federal property of the areas in concession, according to the positive data as soon as recalled, in order to resume the periphrasis employed from the Supreme court, he is therefore closely inherent to the “perseguimento of the relative function and the relative interests to it connected” (Cass. sez. one, 14 February 2011 n. 3665).
Slowly systematic Sul, as for the specifically legal profiles, is paradigmatic art. the 1, 18° codicil d.l n. 194 of 2009 converted, with modifications, from the l. 26 February 2010 n. 25, than, with regard to the marine Federal property and to the modalities of access to the concessions by the operators, waiting for the review of the legislation in matter, preach the respect of the competition principles, of freedom of plant, guarantee of the exercise of the development, of the valorization of the entrepreneurial activities and protection of the investments.
That is of those same principles that, also in force of the assumed jurisprudential guideline from the administrative law, from beginning to end conform the confidence of the harbour areas.
In tuning, the state property concession has loosed the original print of unilateral transaction (with separated to discipline to accessivo) expression of a autoritativo power, in order to assume the connotations rather than a unitary conventional module.
The requirement to guarantee the equal opportunities of access to the harbour economic field, by means of extension of the public evidence, has sure contributed to assimilate the concession to the contract.
Nevertheless it is not revocable in doubt that also has taken knowledge of the fact that concession-I contract (of pubblicistica nature) answers to a more functional model, such to allow to pursue with the assent of the economic operator otherwise not approachable interests with the exercise of () only being able autoritativo.
It is with regard to meaningful art. the 18, codicil 4, l. cit, whereby, for the initiatives of greater importance, it previews that the President of the Authority can according to conclude substitutive agreements of art. the 11 l. 7 August 1990 n. 241.
In current the economic conjuncture, characterized from the recessività of the public controlled participation in the economy, the increment of the harbour traffic obtains with adapted investments, to which ago necessarily reply the potenziamento and the flexibility of the enterprise activity, than only the private operators can to the state voluntarily support, without (and are this the salient data), having itself to respect contractual the public evidence, are compromised or prejudiced in some way the competition in the market.
Anyway the outline of the entertained relationships if under investigation, articulated in encounters and progressive definitions of the content of the assumed engagements, he seems riconducibile, in substantial sense, to a pre-conventional module, rather than to the canonical relative procedure to the exercise of unilateral power.
The ascrizione of the state property concession to the contract (pubblicistico) answers therefore to a inemendabile requirement, and has which corollary the applicabilità, at least in abstract and where not various disposed, of the contained discipline in the code of contracts in topic of the subjects to which they can be entrusted contracts: stable consortia, temporary consortia and groupings, at least in thesis, can aspire, made blank the interests out of stock publics, to become concessionary partners.
Also the avvalimento, offers as typed model (taking to loan the lexicon employed in the deliberations recalled) of “synergy between enterprises”.
Neither osta art. the 18, codicil 7, l.cit., in the twofold letter insistently recalled from the resistant administration: the criterion of “a single concession to a same operator”; the paradigm of the direct and exclusive exercise of the terminalista of the authorized activities.
Under the first profile, the norm is limited to prescribe that the concessionary enterprises must operate in the spaces that have been assigned they and that they cannot obtain more in the same port than a concession for the same type of operations.
In reality, the most perceived doctrine, it has emphasized that the limitatezza of the spaces, united to the requirements of specialization of the single ones terminals, can be profitable much complex - and probably not even opportune as not necessarily answering to the interests of the users who prefer to make use of the services offered from operators specialized in handling of the several types of cargos - the presence in the same port more carrying out concessionaires the same activity in effective competition between they.
If of the condivisibile conclusion is draft that the norm aimed to prevent the concentration in head to a same entrepreneur of the availability of the excessive wide spaces in harbour within being declared the bastardy of the constitution or the strengthening of the dominant position considered from the naturally suitable legislator to ingender anti-competitive practices, prescinding from the practical assessment of the happened realization of the illicit ones.
As for according to profile the norm it does not place a prohibition. It is not at all () ontologicamente prohibitive from the moment that same it previews an exception (cfr. codicil 7 art. 18 l.cit.), mainly: “on motivated demanded of the concessionary enterprise, the conceding authority can authorize the confidence to other harbour enterprises, authorized according to art. the 16, of the exercise of some activities comprised in the operational cycle”.
It goes emphasized that the faculty recognized to the terminalista to entrust to authorized enterprises part of the carried out performances, is time to do so as that the concessionaire can terzializzare the accomplishment of some activities.
The law 8 July 2003 n. 172, integrating of art. the 18, than such faculty it has recognized, it comes encounter, second the doctrine that convincingly has taken care ex professo of the topic, to the requirement to return more flexible and more efficient the harbour enterprises asking for the risk, consequent to the rigid application of the obligation of the direct and exclusive exercise of the activity by the terminalista, than the organization of the harbour operators is frozen beyond measure penalizing, the necessary entrepreneurial dynamism.
Sicché the proposals formulated from the recurrent consortium on “an only cabin of direction” of the terminalistico compendium, one that it has specific with regard to the legal form that the concessionary compages are disposed to assume; the other typical one of the activity exercised from the concessionaire in extension (if under investigation by SECH), deserved a scrupulous one and seriates examination, not replaceable, as happened in the event that it occupies some, with stentorian and wearying the reference to a supposed prohibition, ex lege in reality not subsistent.
After all the appealled turndown is inficiato by a kind of at all contrary conceptual apriorismo to the dialectic preliminary investigation that must inform the procedure under investigation.
Anyway the arranged gudiziale verification, aloof the hurried not relevant legal affirmations, has assessed in fact that not sussiste some incompatible logistic situation with the only operating management as proposal from the Consortium.
It goes with regard to emphasized that the institutional autonomy and the specific competence of the harbour Authority nowadays demands a renewed ability to elaborate new operating solutions of management of the terminals to the step with the times and, goes emphasized, online with the positive hypotheses by right recalled.
The regulation of the field demands the coordination of the interests publics (in topic of safety of the conditions of job and respect of the out of stock public discipline) with those relative ones to the profitable activity of enterprise of the harbour operators.
Imposing if, of the case, prescription or conditions that such balance safeguards: the control power (cfr., for example: art. 5 d.m. 31 March 1995 n. 585; art. 16 l. cit on the subjective qualification to the harbour operations), fortified of sanzionatorio apparatus, of which the harbour Authority is invested facilitates and garrisons the task.
Conclusive the censorship (substantial is founded) that the roved interpretation complains of art. the 18, codicil 7, l.n. 84/94.
The same conclusion it must be reached in order the impugnation reason.
Sussiste the violation of art. the 3 l. n. 241/90 in joint provision to art. the 97 cost. the APG has deferred sine die the decision on the request under investigation, in order to assume it at last only after the recurrent Consortium, exasperated from unwarrantable diffuseness, it has formally distrusted former art 328 c.p.
Conclusive the resource must be received.
The innovation of the issues, in deducted fact and right in cause, justifies the integral compensation of the argument expenses.
P.Q.M.
The Regional administrative court for the Liguria (Second Section)
definitively pronouncing on the resource, as in proposed epigraph, it according to receives it of the motivation and, for the effect, it cancels the appealled actions.
Compensated expenses.
It orders that sentence anticipates is executed by the administrative authority.
So decided in Genoa in the Council Chamber of the day 15 March 2012 with the participation of the magistrates:
- Via Raffaele Paolucci 17r/19r - 16129 Genoa - ITALY
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Editor in chief: Bruno Bellio No part may be reproduced without the express permission of the publisher
The Regional administrative court for the Liguria, with sentence deposited yesterday that we publish below, has received the resource proposed from the Bettolo Consortium against the Harbour Authority of Genoa for the cancellation of the deliberation of the Harbour Committee of Genoa assumed in the sitting on December 22, 2009 with which the request introduced from the Bettolo Consortium was rejected for the concession of the new harbour area yields of the filling to Bettolo Descent that is about to completion between Bridge Paleocapa and Ponte Rubattino, where will rise an area dedicated to the traffic of the containers 
- Via Raffaele Paolucci 17r/19r - 16129 Genoa - ITALY
