Independent journal on economy and transport policy
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The TAR dismissed the Spinelli group's appeal on the merger between the Genoese terminal companies PSA Genova Pra' and SECH
Declared inadmissible for lack of interest in bringing proceedings
January 28, 2022
Spinelli challenged the measure with which the Authority of Sistema Portuale has authorized the change of control corporate and the share reorganization agreed by PSA Genova Pra' and SECH. The capital of the first - formerly called Voltri Terminal Europa (VTE) - is divided between the Genoese Group Port Investments (34.67%) and PSA Investments (65.33%) which makes part of the PSA terminalista group in Singapore, while SECH is 100% owned by the company Seber, in turn 60% owned by Gruppo Investimenti Portuali and 40% by PSA Investments. The agreement between the two companies provides for the formation of a new company under Belgian law called MergeCo, later renamed PSA Genoa Investments, 62% owned by PSA Investments and 38% by GIP, and the transfer to PSA Genoa Investments of the investments held by PSA Investments and GIP in the companies Seber and PSA Genova Prà. In deference the clauses contained in the respective concessions, SECH and PSA Genova Prà have asked the System Authority Port the authorization to change its corporate structures, while GIP and PSA Investments have notified the transaction to the Presidency of the Council of Ministers which decided not to exercise the special powers provided for by the rules on golden power.
In the judgment, the TAR for Liguria recalls that the operation of concentration was also examined by the Authority Competition and Market Guarantor who considered that there is no were the conditions for its prior communication and that this was therefore not subject to the consent of the AGCM itself. In addition, the TAR recalls that the Port System Authority has requested an opinion from the State Attorney General on the matter interpretation and applicability to the present case Article 18(7) of Law No 84 of 1994, in part in which it provides that in each port an undertaking concessionaire of a state-owned area "cannot be at the same time concessionaire of another state-owned area in the same port, unless that the activity for which it applies for a new concession is different from that referred to in the concessions already existing in the same state-owned area".
Precisely on Article 18(7) of Law No 84 of 1994, prohibiting the granting of two licences to the same operator for state-owned areas that are located in the same port, you are focused on the action brought by the Spinelli group. In the judgment of the TAR it is specified that "it is not understood what utility legally appreciable the plaintiff can derive annulment of the contested act, within the time limits of removal of an injury caused by this to a "pretensive" interest the attainment of a good of life or an interest "oppositional" to its maintenance: in hindsight, in fact - specifies the sentence of the Regional Administrative Court - by a the act does not affect the concessions granted to the applicant, on the other hand, it could not in any case obtain the concession of the spaces currently allocated to the counterparties, which would remain in their availability even in the absence the disputed transaction; nor is it specifically deduced what is the injury and the operation itself it determines the applicant's economic activity. Indeed, from the very prospect of the plaintiff part it is clear that this actually intends to assert - in a way, in fact, inadmissible - a "general" interest in legitimacy of administrative action, as it complains of the compromise of "competition between terminal operators, with serious prejudice to the port system and its competitiveness" (p. 2 of the application) and the interest of 'any port operator [...] that the activity of competing undertakings is allowed and is carried out in compliance with the rules", arguing whereas the damage resulting from the prohibition of double concession would be in re ipsa (p. 4-5 of the replicas); completely unproven, finally, is that, as a result of and as a result of the merger, the applicant was forced to reduce the fees charged for the port services of the 50% (p. 7 of the replies)'.
By dismissing the action, the TAR specifies that it must 'be declared inadmissible on the ground of lack of interest in bringing proceedings.'
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Spinelli challenged the measure with which the Authority of Sistema Portuale has authorized the change of control corporate and the share reorganization agreed by PSA Genova Pra' and SECH. The capital of the first - formerly called Voltri Terminal Europa (VTE) - is divided between the Genoese Group Port Investments (34.67%) and PSA Investments (65.33%) which makes part of the PSA terminalista group in Singapore, while SECH is 100% owned by the company Seber, in turn 60% owned by Gruppo Investimenti Portuali and 40% by PSA Investments. The agreement between the two companies provides for the formation of a new company under Belgian law called MergeCo, later renamed PSA Genoa Investments, 62% owned by PSA Investments and 38% by GIP, and the transfer to PSA Genoa Investments of the investments held by PSA Investments and GIP in the companies Seber and PSA Genova Prà. In deference the clauses contained in the respective concessions, SECH and PSA Genova Prà have asked the System Authority Port the authorization to change its corporate structures, while GIP and PSA Investments have notified the transaction to the Presidency of the Council of Ministers which decided not to exercise the special powers provided for by the rules on golden power.
- Via Raffaele Paolucci 17r/19r - 16129 Genoa - ITALY
