The Council of State, with a ruling published yesterday, accepted the appeal brought by the terminal operator Company Port of Genoa Container Terminal (SECH) of the PSA Italy group against the Port System Authority of the Ligurian Sea Western is the port and logistics group Spinelli. The sentence recalls that "the appellant is authorized to carrying out port operations related to embarkation, disembarkation and the handling of containers in the quay of Calata Sanità (in the port of Genoa, ed.) granted to it in concession. The Port Master Plan divides the Genoese port into areas and, as far as specific interest, includes the Calata quay Healthcare in the S6 area whose characterizing function is "C1 - port operations relating to containers" (so-called "full container"). The other party Spinelli s.r.l. operates in the nearby S3 area (where it manages Genoa Port Terminal, ed.) whose characterizing function is "C2 - port operations relating to conventional cargo" (so-called "multipurpose"). Function C1 is also contemplated in the S3 context, but simply as a function allowed".

The sentence published yesterday then recalls that "first of all, the appellant claimed that Spinelli carried out mainly port operations for "full container", although its terminal was included in the scope of S3 characterized by the "multipurpose" function. Resulting in an alleged transfer of its customers, it had proposed a request for access to documents concerning, among other things, the other, the state concession issued to Spinelli. The request was only partially accepted by the Authority of Port System that issued a copy of the concession, but not of the business plan to which it refers. On the basis of this position, a first appeal was filed, pursuant to Article 116 of the Code of Civil Procedure, accepted by the Liguria Regional Administrative Court with sentence no. 233 of 18 March 2019. In execution of the judgment, the Port System Authority provided for the display of the business plan attached to the concession. However, in the opinion of the appellant herself, this document did not contain a specific indication of the trafficking which Spinelli was authorised to carry out in its terminal, so that the concession granted to the same company had to be considered unlawful as lacking in the object or, in particular, alternative, since it allowed prevalent "full container", in contrast with the destination imprinted on the area from the port master plan".

The Council of State therefore recalls that, "on the merits, the judge of first instance considered the appeal unfounded, considering that it was not the thesis according to which the concession granted to the was unlawful because it did not indicate the port operations that could be carried out in the terminal Absent. And indeed art. 4.1. State concession Maritime Law no. 28 of 12 March 2018 authorised the concessionaire the operation of port operations and services having as their Subject: the trades described in more detail in the programme of activities annex sub C. That programme therefore supplemented the concession challenged from the reading of the same, it is found that it was container traffic, with the relative quantities, rolling stock and various goods. The concession could therefore not be said to be unlawful due to failure to define the purpose or activities Allowed. The second ground of appeal was also not upheld by the court of first instance, on the ground that compliance with the "characterising functional destination", given that the concession of Spinelli included only part of the area S3, should not be verified in relation to the single portion or compendium granted in concession, but to the entire scope in which they are included. It follows that, even if we want to admit the prevalent handling of containers by the other party by virtue of the concession title, That circumstance would not in itself be sufficient to demonstrate the violation of the provisions of the plan port regulator, where the complex of activities established in the specific area are characterized by the prevalent handling of conventional goods. In any event, the notion of characterizing destination seems referable, not to the quantities of goods handled, but to the extension of the area intended for the Specific function. Finally, the third ground of appeal was rejected. an appeal alleging infringements of competition between operators in as lacking legal relevance".

Terminal Container Porto di Genova had appealed against this judgment appeal. In the judgment published yesterday, the Council of Stato notes that "the performance of the activity subject to must be fully compliant with the provisions of the port plan for the area concerned; This constitutes the basic prerequisite, aimed at ensuring the operation in of the planning choices of port governance, fundamental elements for the development of a relevant context such as the one consisting of one of the main Italian ports". Furthermore, it is noted that "with the act challenged at first instance the prevailing performance by the original counterparty of container activities in the area inconsistent with the choices of port planning, in as much as they are characterized by a different pre-eminent activity so as provided for in the fundamental act", and specifies that " It has therefore been ascertained that the contested concession, issued (in consistency with the activity characterizing the area concerned) for the performance of full traffic to a very large extent container, is not consistent with the characterizing function the S3 multipurpose port area; in fact, in the S3 context of the port of Genoa the concessionaire can operate a terminal and, therefore, carry out, at least in a completely prevalent way, - in the sense of characterizing - activities of this kind and not, instead, mainly port operations for full containers, to which the terminals in the various S2 and S6 (in which the latter party operates)'.

"The critical observation must also be shared - specifies moreover, the sentence - for which the operation of the whole prevalent in full container traffic by a terminal operator in the multipurpose area, not subject to investment charges and operating costs typical of container terminals, results in a clear distortion of the competitive structure as regulated by the port plan, to the detriment not only of private interests competitors but also of the public interests underlying the port planning".