The Regional Administrative Court for the Lazio has accepted the appeal proposed by the Grimaldi Euromed of the Neapolitan shipowning group Grimaldi canceling the authorization to the concentration in the port of Genoa realized with the acquisition of the entire social capital of the genoese terminalista Terminal San Giorgio (TSG) from the society armatrice and terminalista Ignazio Messina & C. that had been granted from the Authority of the Competition and the Market n.

In the judgment the TAR recalls that the "Ignazio Messina - whose joint control is regulated by a social pact between the two members Group Messina and Marinvest (detentors respective of 51% and 49% of the share capital) - mainly exercises the activity of marine transport of goods through container and rotabili. Moreover, it manages a multipurpose terminal located in the port of Genoa (the Ronco bridge) and operates in the intermodal logistics as well as in the services of repair and maintenance accessories to the logistic and transport activities" and that "the society Terminal san Giorgio, instead, exercises the terminalistica activity multipurpose account thirds always in the port of Genoa, being specialized in the handling of goods on rotabili and in secondary measure in the handling of container and solid bulk. In detail, the company has in concession the management of the Somalia bridge".

It is also remembered that the two societies, "constituted in temporary association of enterprises (a.t.i.), are concessionaries of the areas relative to the Libya and Canepa bridges" and that "the society Marinvest (which participates in the control of the Ignazio Messina) controls other societies operating in the port of Genoa including, in particular, Great fast ships s.p.a. (Gnv) active in the transport of passengers and goods by means of ro-pax ships (i.e. charging both rotabili, and passengers) or ro-ro (that charge and download only rotabili - to "merci (on) rotabili" means the goods transported on trucks, autoarticolati and semi-rimorchi loaded on ships roll on - roll off) and marine stations s.p.a. Marinvest is then indirectly controlled by the anonymous Swiss company Mediterranean shipping company (Msc)".

"The recurrent society, Grimaldi Euromed, instead - continues the document - exercises the activity of transport goods by means of ships ro-ro, operating in the port of Genoa mainly on the bridges managed from the society Terminal san Giorgio".

specifying how the AGCM, "after a long exposure of the relevant markets affected by the operation, has evidenced how competitive concerns have emerged only in relation to the incidence of the operation in the terminalistico business of the goods on rotabili", excluding "the incidence of the concentration on the market of the container", the TAR for the Lazio has explained that, holding the measure of the authority antitrust, Grimaldi Euromed, has complained in the first place " Moreover - it remembers the sentence - the absence of further terminals for rotabili in the port of Genoa would demonstrate - especially if compared with the operation carried out by Msc in the port of Trieste - how the feared dangers for the competition exist". Moreover, referring to the horizontal effects of the concentration, the judgment dwells on the assumption - contested by the applicant - "according to which the saturation of the other ro-ro terminals present in the genoese port of call would not constitute irrelevant circumstance in the determination of the prices of terminalistic services: In fact, the latter would be just one of the many aspects, however not directly, that the Agcm should have evaluated; In fact, the obvious zeroing of competition between terminals in the port of call, expected that all, more or less directly, would be controlled by Msc would constitute evidence of prejudices for competition. As for the vertical effects, the applicant shares the assessment of the dangers exposed by the Authority in the measure, but argues that the measures imposed are sufficient to overcome the competitive criticalities". In addition, Grimaldi Euromed denounces "the formal approach followed by the Authority that would not sufficiently investigate Msc's interest in the concentration: In fact, the Swiss group would be the real dominus of the entire operation that would as a consequence manifest the reduction of competition in the genoese port of call".

In relation to the AGCM measure, the TAR notes that, firstly, it is 'shared (and not contested) is the delimitation of the relevant product market: In fact, the focus solely on that of the rotabili, in line with the preceding mentioned in the provision (excluding that of the container), including both the pure ro-ro terminals, and the mixed ones, that is to be able to accommodate also the ro-pax ships, appears fully consistent with the aims pursued by the Authority. Conversely - the Court states - contradictory is the geographical delimitation of the relevant market: first, the inclusion of the quota referred to the port of Marina di Carrara is dubious and perplexed. In addition, the elements collected during the investigation do not demonstrate in a unique way how the landing at the Tuscan port can be a valid alternative competitive at the port of Genoa". The TAR also observes that, "better understandable is the inclusion in the relevant market of the port of Savona/Vado ligure: in fact, it is incongruous to consider it replaceable with that of Genoa in reason of its evidenced saturation". The decision then points out that "the arguments developed by the other procedural parts do not appear then able to explain the reasons for the inclusion (especially) of the port of Savona/Vado ligure in the analysis of the Agcm".

However, in view of the TAR, "the greater contradiction emerges from the examination of the effects of the operation" r the AGCM: "beginning from horizontal ones - clarifies the Court - it must be observed how the Authority appears to argue that before the concentration Terminal Saint George operated on a guise of monopolist, not undergoing in any way competitive pressures. Consequently, the acquisition of the company by its next competitor (i.e. Marinvest, controlling Maritime Stations), considered the measures imposed, would simply replace an enterprise with another, allowing the Terminal San Giorgio (now controlled by the Messina Group under the changes of the business terminal) to continue to act without under any pressure. This would exclude any type of horizontal effect in the market of terminalistic services per rotabili, also considered the market share post-concentration. On this point, however, it also affects the previous quota regarding the definition of the relevant market: In fact, in the measure it is read that the quota held by the controllers of Ignazio Messina would oscillate between [55-60%] and the [60-65%] of the rotabili traffics (depending that Marina di Carrara is included or not in the relevant market). However, by virtue of the implementation of the measures imposed by the Authority, the actual market share of the Messina Group would reach [25-30%] about the rotatable freight traffic, thus attesting below the threshold of relevance indicated by the European Commission in the "Orients relating to the evaluation of horizontal concentrations": However, the percentage just exposed would inevitably be destined to rise in the hypothesis in which the examination was circumscribed to the only rotabili traffic of the port of Genoa, excluding those of Savona/Vado ligure (and Marina di Carrara)".

"Moreover, always on the subject of horizontal effects - the TAR still finds - it must be evidenced that the Authority has confined the examination only to the element of the price, without checking the consequences from the disappearance of an operator independent from the market: Indeed, the acquisition by Ignazio Messina - beyond the absence of direct control by Marinvest - appears to carry the St George Terminal in the orbit of Msc, circumstance whose effects do not appear to have been sufficiently investigated by the Agcm. In any case, the assumption appears spoiled that the operation would determine the replacement of a competitor with another: in fact, it appears manifest that before the acquisition in the port of Genoa there were three terminalisti (Marittime Stations, Terminal San Giorgio and Ignazio Messina), which become two (Marittime Stations and Ignazio Messina) after the concentration".

Communicating the acceptance of Grimaldi Euromed's appeal, the TAR explains that "the authorisation to concentration was cancelled" and that, "following, a regression of the procedure is determined to be completed by the Authority through the adoption of a new purified measure of the vices indicated in the statement".