Independent journal on economy and transport policy
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The Antitrust invites the government to make more on the liberalizations and to return the Authority of the transports immediately operating
For the ports it is necessary "to reach to the total separation of the harbour role of enterprise from that of regolator and controller of the port"
October 2, 2012
The analysis and the proposals of the Guarantor Authority of the Competition and the Market for the harbour system
What is made and current degree of opening of the markets
The analysis of the problematic ones of competitive development of the harbour field can be led back to the conditions of offer of harbour services (harbour operations and commercial other asset technical-nautical and services), with specific reference to the enforced dispositions in matter and the role of the harbour Authorities against that of costituenda the Authority of regulation of the transports.
What remains to make
1) Clear division between the Authorities of regulation and control With the institution of the new Authority of the transports, the harbour Authorities will be held to carry out own functions (characterized to article 6 of the law 28 January 1994, n. 84) having account of the competences attributed to the new organism. If the classified functions and competences to the marine Authorities according to article 14 of the law ex lege are considered also n. 84/94, appear obvious the necessity to characterize mainly suitable a normative solution to guarantee clearly share of competences between the several subjects of regulation and control, more clearly inspired to competitive principles.
2) Modality of management of the harbour services The commistione between regulation and harbour operations management constitutes, still today, in spite of the modification of the operated normative picture from the law n. 84/94, one of the main problems in a position to originating not only conflicts of interest, but also and above all obstacles to the competition, whereby new enterprises intend to enter on the market of the harbour services. Permanere of the double role (regolator/enterprise) by the harbour, favorite Authority from the possibility for the same one to constitute or to participate to society shopkeepers accessory or instrumental activities regarding the institutional tasks entrust them, has stopped the development of the competition. It appears, therefore, necessary to reach to the total separation of the harbour role of enterprise from that of regolator and controller of the port, limiting exclusively to this last function operating of the harbour Authorities.
In the optical to in competition widen the number of subjects in the supply of harbour services, it moreover appears opportune to modify codicil 7 of article 16 of the law n. 84/94 previewing the introduction of an advisory mechanism of the Authority of the Transports in relation to the maximum number of authorizations to release for the exercise of such services taken into consideration the requirements of functionality of the port and the traffic.
3) Modality and duration of the concessions of the areas and docks in harbour within Al fine to obtain a effective opening to the competition of the management of the areas and docks in harbour within is necessary to record on how of confidence of the concessions of the same ones with the modification of article 18 of the law n. 84/94, previewing in particular the resource to procedures of selection of the operators with public evidence and, at the same time, the abrogation of every eventual incompatible disposition.
Online more general, moreover, the duration of the concessions of the areas and docks in harbour within would have to be rigorously defined in economic-financial way to pursue the balance of the investments of the concessionaire, without but to send back for excessive long times I confront competitive.
4) Modality of management of the technical-nautical services In order to the technical-nautical services, being given the competences of the marine Authorities and the Ministry of Infrastructures and the Transports in relation to the obligatory nature previewed in some harbour withins, appear opportune to signal that the inherent motivations to guarantee safety of the development of the harbour operations would not have to constitute excuse in order to maintain situation rents in favor of subjects that they lend such services in withins of legal reserve.
In this perspective, it appears necessary to modify article 14 of the law n. 84/94, delimiting the withins of legal reserve to the specific cases in which it turns out absolutely indispensable and leaving that in all the others operate the competition. Once carried out this examination, for the situations that involve the necessity to manage the service in legal regime of reserve, appears opportune that, not being able itself to inside carry out the competition of the market, is entrusted to us however to the competition for the market. The confidence of the classified activities would have to happen with public procedure, time to maximize the efficiency and to diminish the rates, data necessary requirement of safety. Only whereby the two cited modalities, competition in the market and competition for the market, are not realizable, will have to take part a regulation of detail of the level of the rates.
In this context it appears, moreover, favorable that the mechanism of determination of the rates is characterized, instead of the system based on the historical costs of the active enterprises in the market (installments of return), in the so-called price CAP, mainly suitable system to induce the enterprises monopolists to increase own productivity gain and, consequently, to transfer them to advantage of the final users.
Operating proposals
It is proposed to modify law 28 January 1994, n. 84, in the sense of:
to modify article 6 and 14 so as to guarantee clearly I share of competences between the marine Authorities and the harbour Authorities, more clearly inspired to competitive principles;
to modify codicil 6 of article 6 being introduced a prohibition for the Authorities harbour to carry out, directly or through society participated, besides the harbour operations, also every industrial and commercial other asset in the ports;
to modify article 16 previewing an advisory mechanism of the Authority of the Transports in relation to the maximum number of authorizations for the exercise of the harbour services;
with regard to the concessoria activity of areas and docks in harbour within, to modify article 18 introducing an express norm that previews the resource to procedures of selection of the operators (awardees of the areas pertaining to the harbour within) to public evidence, with the contextual abrogation of every incompatible disposition;
to modify article 18 being limited the duration of the concessions, than would not have to exceed that coherent one with the entity of the previewed investments;
to modify the codicil 1-second of article 14 being previewed for-competitive modalities of management of the technical-nautical services, limiting the resource to the management in legal reserve only to the hypotheses in which it turns out absolutely indispensable; in such circumstances, to preview mechanisms of competition for the market to the aims of the location of the manager that is, in the final analysis mechanisms of determination of the rates of the based ones on the principle of the ‘price CAP’.
The Guarantor Authority of the Competition and Market (AGCM), in the signalling sent to the parliament and the government upon request of the same executive in sight of the anticipated predisposition of the bill anniversary for the market and the competition, evidences that the process of liberalization of the markets has shown, during the government Monti, fast accelerations, but a lot still remains to make.
For the Authority Antitrust, from the transports to energetic infrastructures, from the postal services to the assurances, from the services local publics to those professional ones until the health, there are still you space for ulterior openings of the markets and proconcorrenziali measures. Some principles - the AGCM specifies - are cross-sectional. Whereby the services are carried out in concession, the duration of the same concessions go reduced, proportioning it to the times of re-enter of the investment: once expired they go riaffidate with transparent and competitive procedures of contest. The rates must be oriented to the efficiency recovery, rather than to the inflation, based on price-CAP mechanisms.
For all the fields of the transport and, in particular, for that of the rail shipment, the prompt Authority Antitrust the immediate start of the operativity of the Authority of regulation of the transports, "as - the AGCM explains - the development of the tasks to it attributed by a subject third independent one turns out essential in order to reach to a full opening of the field of the transports and that railway one. In absence of such timely start the node of the separation remains, moreover, unsolved owner between manager of the infrastructure and erogatrice enterprise of the services of rail shipment”. According to the AGCM, “it is necessary to conjugate the requirement of the economic balance of the manager of the public service with the income of other operators, being instituted a royalty at the expense of these last ones: it would come so guaranteed the income of the competitors in the fallen back more profitable fields without negative on the accounts of the public manager. Such contribution would go poured to the agency that subsidizes the activity of universal service”.
In the highway field, the Authority considers necessary to introduce “dispositions that procedures of competitive selection privilege mechanisms of attribution of the concessions second, to place in being timely regarding the ordinary expirations and avoiding to resort to delays; it also appears necessary - specific the AGCM - to guarantee that, until the constitution of the Authority of regulation of the transports, the carried out activity directly from the competent ministry of Infrastructures and of the Transports, it is addressed to without delay stimulate the competition and the efficiency in the field, putting into effect the review of the mechanism of tariff definition of the services basing it on a formulation of type “price CAP””.
In the airport field, the Authority considers “the effective implementation of the model to management total opportune, from the moment that - it remembers - in the majority of the cases the share capital of the concessionaire almost regularly turns out left again between a pluralità of riconducibili subjects to local the public dimension; to the aim to obtain a effective opening of the management of the airports to competitive private subjects it is necessary, therefore - second the Antitrust - to affect the management of national the airport system, journeying a greater number of ports of call to managements totals assigned competitively”. Online more general, moreover, the Authority evidences the necessity “to reduce the duration of the concessions, to define itself rigorously for the period closely necessary to pursue the balance economic-financial of the investments of the concessionaire; let alone to avoid illegitimate exceptions to the immediate performance of the new communitarian discipline of which to directive 2009/12/CE, concerning definition of the airport fees on the base of I confront between airport managers and users”.
For the harbour, second field the Antitrust “is necessary: to characterize a normative solution mainly inspired to competitive principles and suitable to guarantee clearly I share of competences between the several subjects of regulation and control (new Authority of the transports, Harbour Authorities and marine Authorities); to reach to the total separation of the harbour role of enterprise from that of regolator and controller of the port, limiting exclusively to this last function operating of the Harbour Authorities; to in competition widen the number of subjects in the supply of harbour services, previewing the introduction of an advisory mechanism of the Authority of the Transports in relation to the maximum number of authorizations to release for the exercise of such services taken into consideration the requirements of functionality of the port and the traffic; to the aim to obtain a effective opening to the competition of the management of the areas and docks in harbour within - the AGCM emphasizes - to preview the resource to procedures of selection of the operators with public evidence and, at the same time, the abrogation of every eventual incompatible disposition”. “Also in this field - for the Authority Antitrust - the duration of the concessions of the areas and docks in harbour within must rigorously defined in economic-financial way to pursue the balance of the investments of the concessionaire, without but to send back for excessive long times I confront competitive”.
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Editor in chief: Bruno Bellio No part may be reproduced without the express permission of the publisher
The Guarantor Authority of the Competition and Market (AGCM), in the signalling sent to the parliament and the government upon request of the same executive in sight of the anticipated predisposition of the bill anniversary for the market and the competition, evidences that the process of liberalization of the markets has shown, during the government Monti, fast accelerations, but a lot still remains to make.
- Via Raffaele Paolucci 17r/19r - 16129 Genoa - ITALY
