With a judgment published yesterday, the Council of State welcomed, declaring it permissible but rejecting it in the merit, the appeal lodged by the port and logistics group Spinelli against the judgment of the Regional Administrative Tribunal for Liguria which-recalls the judgment of the Council of State-declared inadmissible its appeal for the annulment of the acts with which the Port System Authority of the Western Ligurian Sea had authorized the change in the corporate control of Terminal Containers of the Port of Genova-SECH and the stock redevelopment of PSA Genova Pshall, already Voltri Terminal Europe, terminalist companies of the port of Genoa operating both in the container segment ( of the January 28 2022). The State Council recalls that with its own appeal the company Spinelli deduced that the corporate operation would involve the formation of a dominant position in the port of Genoa, in violation of the law January 28, 1994, no. 84 ("Reorder of port legislation") " for the effect of the assignment to a single economic subject of the use of areas intended for the area's terminalistic activity of approximately mq 1,400,000, equal to 62.6% percent of that overall available within the same stopover (mq 2,235,000) ".

The ruling also remembers that Tar had declared inadmissible the appeal " for a lack of interest in acting ex art. 100 cod. proc. civ. in view of the achievement of a legally relevant utility. This under the double-profile, inferred from the impossibility for the applicant to acquire the areas in concession to the counter-concerned ; and oppositive, in reason of the absence of prejudices on the economic activity exercised by the same recurrent. According to the judgment, the latter had therefore acted in the judgment of the protection of "a general interest ' in the legality of the administrative action," consisting of maintaining competitive assays between firms with the terminalist activity in the port of Genova ".

The judgment of the Council of State notes that " in the merit of the matter, the censorship censures of the disposition of the last mentioned law, which is also assumed to be applicable to operations of a corporate nature such as that subject matter, are reproposed. litigation, and that in thesis, through a prohibition of an absolute nature of "double concession", would have the purpose of avoiding that within each port, to be considered a relevant market, we form situations of concentration capable of employing an entrepreneurial entity a dominant position in the exploitation of benches and equipment deputies to the handling of goods transported by ships in approdo. In this regard, it would be mistaken, in contrast to the literal tenure of art. 18, paragraph 7, of the Law January 28, 1994, no. 84, the notice expressed by the General Avvocatura of the State in consultation with the Resistance Port Authority, according to which the relevant market would not be the single port but the geographical area of reference (c.d. catchment area), in the specific case identified on the basis of the addresses of the European and national antitrust authorities in the ports of Genoa, La Spezia, I'm going and Livorno. Moreover, it is added in this respect-no assessment of the reflections of the contested corporate operation in this different relevant market has nevertheless been carried out by the Resistant PortuXX_ENCODE_CASE_CAPS_LOCK_Off Authority. Thus summarizing the censorship of which the appeal is composed, those directed to challenge the declaration of inadmissibility of the appeal for a lack of interest to act are founded, in the opposite way of those of merit. "

The Council of State notes that the Tar's judgment for Liguria "is framed in error in not having the interest underlying the present appeal to oppose the corporate transaction which has concerned active terminally active undertakings." in the same port stopover in which the recurring company operates. It is evident in fact that in its capacity as an economic operator the latter is entitled and has an interest in countering corporate operations which, according to its prospecting, would result in a restriction of competition in the sector. entrepreneurial in which the same appellant carries out its business activity. The lesion against which this is intended to react in the present court is in the case of species referred to the effect of concentration in favour of a single operator, albeit formally articulated in two companies, of a relevant share of areas port intended for the activity of handling goods, and therefore of an essential infrastructure for the conduct of the undertaking. As therefore it infers the appeal, the ex-art interest. 100 cod. proc. civ. on the basis of the appeal is that of an oppositive nature that the economic operator boasts compared to initiatives that are capable of negatively affecting the reference market, in which the same carries out its economic activity ; and that specifically in case subject matter of this judgment finds recognition in the multiple times recalled art. 18, paragraph 7, of the port law, which in the applicable version ratione temporis prohibited in an absolute way that an already concessionary undertaking of one area of the port was issued in concession to another "demanial area in the same port" for therein you will carry out the same activity. In the merit, nevertheless, the censures based on the provision of law now recalled are unfounded, as mentioned above. It is the highlight, which is mentioned in the above mentioned opinion of the State of the State, according to which in matters of port concessions, the relevant market is no longer limited to the individual port, but to the geographical area in which this is located ".

"The change in the perspective of assessments of respect for competitive assays in the conduct of economic activities within the port infrastructure," the Council of State said, first found regulatory recognition, with the reformulation of art. 18 of the port law under the Law for Competition August 5, 2022, no. 118. As a result of the mentioned regulatory intervention, "in ports of international and national economic significance", the prohibition of 'double concession' is subject to a regime derogatory case by case, with assessment " remittance to the System Authority Port ", which must take into account" the impact on the conditions of competition ". As underlined by the resisting parties, the system focused on the absolute prohibition, established by law (the paragraph 7 in its original wording), has been replaced by an imperative on the assessment of administrative character, to be carried out in concrete. The change was in turn induced by the criticisms of the original wording of the same paragraph 7 on which the censores of the recurring company are based, which is mentioned in the opinion of the Avvocatura general of the state. "

" In the same direction, the ruling by the State Council-the companies concerned have produced a measure by the Supervisor of Competition and Market (n. 27917 of October 21, 2019), which in a similar case made mention of the practice prevalent at the European Commission, in which the concept of 'zone of attraction' (cd) is invaluable. catchment areas) ", in which the" interchangeable ports "are placed from the point of view of the supply of port services, in relation" to the geographical location of the same and to the territorial proximity, the presence of road links and to the related costs of land transport, the infrastructure present and their degree of efficiency, as well as the existence of transhipment services " (§ 19). In this perspective, the definition of the "relevant market in port operations relating to the handling of goods" on the basis of the infrastructural features mentioned above is given, in reason of which the area of attraction may include ports that "within the same type of freight traffic, are distant between them from 200 and 300 km" (§ § 36 and 37). The supremacy of European law therefore imposes significant emphasis not already on the port, as in the past, but on the geographical area of reference (c.d. catchment area), in accordance with the rest with the reorganization of the system of port government and the establishment of the Port System Authorities in place of the original preposed authorities at the individual port. In this matter, it should be pointed out that in the present case, in the case of the effect of the corporate operation adversarial in this judgment, no competition restriction profiles have emerged at the level of the geographical area of reference. Contrary to what the appellant supposes, the profile has been specifically examined by the State's Avvocation, with assessment shared by the Port Committee in the deliberation above ( of the July 23 2020, ndr ), presupposed by the Presidential Decree of Authorization of Corporate Redevelopment which concerned the companies concerned. "

" Therefore, the Council of State (Council of State) does not refer to the same applicant's assumptions that the regulatory evolution of the system would have regard to the market for maritime services, in which it has the geographical area, from which it is, however, would remain distinct to that of the economic operators active at the port infrastructure, necessarily placed in the individual stopover. The thesis is fringed on the normative change recalled above. This in turn constitutes the taking note of the technical and economic developments of the economic sector in question, with the connected infrastructure enhancement and integrated logistics, and the consequent redefinition of the axes competitive in a broader sense, within the framework of a single European market with which there is a tendency to ensure the movement of capital on a transactional basis, the competitiveness of companies in the sector, and therefore to foster related investments aimed at increasing the efficiency of the supply of port services aimed at maritime carriers and more generally of trade. The contentious issue is paradigmatic in this sense, since, as it emerges from the acts and the agressions of the counter-stakeholders, the company redevelopment operation adversarial by the recurring company is stated to be motivated from the need to rehabilitate a struggling economic operator (Company Terminal Container Port of Genoa, formerly Sech), through its inclusion in a large group capable of strengthening its industrial capacity and financing. This aspect has also been under consideration by the Port Committee in the multiple times recalled deliberation on whose basis the authorization under appeal has been issued in the present judgment. "

"In this context, the port no longer represents the horizon in which the System Authority introduced with the reform of the sector is required to assess the dual concession ban, which is the availability of the system," the court said in a statement. areas equipped with the conduct of an economic activity in the service of maritime trade, which permeated the ratio of the original prohibition ex art. 18, paragraph 7, of the Law January 28, 1994, no. 84, constitutes one of the elements that contribute to the offer aimed at the carriers but not the only one. The competition is therefore in a larger geographical scope than the single port airport, so contrary to the support in this appeal, the supply of port services is absorbed into the wider range of services. maritime. "

" The circumstance that the regulatory changes under consideration are subsequent to the time when the contested measures were adopted-the judgment concludes-does not ultimately prevent them from attributing them in retrospect, and therefore to enuclearise reasons of legitimacy of the same through an interpretation of the previously existing national law in accordance with the fundamental principles and freedoms of the European Treaties. The appeal must therefore be accepted only in the part with which the declaration of inadmissibility of the appeal of the first degree is challenged, which therefore must be reformed, in the sense that this must be rejected in the merit. "