Original news the Filt Cgil has expressed concern the sentence of the Regional Administrative Court of Campania - detached section of Salerno that it is published yesterday and that it has accepted the proposed recourse from the company of navigation Cartour (Caronte & Tourist) against the Authority of Harbour System of the Sea Tyrrhenian Central and towards the society terminalista Salerno Container Terminal for the annulment of the measure of the harbour agency of 27 January 2025 diniego of Salerno Cartour Deltabelonging to the Cartour that uses it on the route between the port of Messina and that of Salerno for the transport of passengers and vehicles.

In the decision the Tar recalls that the denial expressed from the AdSP "is motivated with the call, first of all, to a previous measure negative of July 2022, reported to the request of authorization ex article 16 of the law 84 of 1994 for the development of harbour operations in regime of self-production, provision whose legitimacy is confirmed from the Tar of Salerno, third Section, with the sentence number 676 of 2024" and that the harbour Authority "observes to the examination more The interested enterprise, not being able to carry out the entire cycle of harbour activities, would limit itself to ask for the authorization to the course of the activities of rezzaggio and derizzaggio, entrusting to other enterprise the remaining segments of the harbour cycle, comprising cargo, unloading and handling of the goods. This segment of activity would not be carried out by an enterprise structured in the port of Salerno but, mainly, with staff on board, except for the hypotensive hiring of two employees in part time. The enterprise would not have demonstrated the exclusivity of employment of the staff and could not be authorized as harbour enterprise without dispose of an organic and exclusive staff, dedicated to the activities in the reference port. The application would not conform even to the national collective contract of work of the marine ones that reserve the operations of rezzaggio and derizzaggio in priority to personnel of specialized land. The intention of the interested society to entrust to other enterprise almost totality of the cycle of the harbour operations would not conform to the paradigm of the harbour operations and would not allow to configure a harbour enterprise, being recognized such possibility to the dealers, ex article 18 of the law 84 of 1994, limited to complementary activities regarding those object of the concession. In addition, investment aimed at increasing traffic would not be specified in the operational programme, as well as environmental and safety protection. In essence, in view of the Authority, the application, although being formulated in the form of an application of authorization to the carrying out of the harbour operations pursuant to article 16, paragraph 3, of the law 84 of 1994, would be substantially attributable to a repeated application of authorization to the self-production, referred to in article 16, paragraph 4 bis, of the law 84 of 1994, already submitted and rejected with measure confirmed in judicial place from Tarrisdizionale".

"With the first plea - the judgment continues - the applicant party deducts the unlawfulness of the contested measure by breach of Article 16 of Law 84 of 1994. In view of the applicant, Article 16, paragraph 3 of the law recalled does not necessarily assume that the undertaking authorized to carry out the entire operational cycle of such operations. From this incorrect assumption would derive the considerations on the absence of an enterprise structured in the port of Salerno. But if the law wanted to exclude the possibility to authorize only a segment of the harbour activities, it would have done so expressly. This limitation would not be injected even by Article 5 and Article 8 of the Regulation approved by order number 1 of 2019. In any case, it should be privileged to interpret the law in accordance with the regulatory framework of European law which does not tolerate the existence of exclusive rights in the performance of port operations. Nor would the reference to article 18 of the law number 84 of 1994, which regulates the activities of the dealers of harbour terminals, limiting the possibility for these subjects to entrust to other enterprises part of the activities object of the concession. The absence in the proposed operating plan of investments other than the recruitment of two additional employees would be explainable with the absence of increments of the commercial traffics, dealing with transactions carried out exclusively in own account, from the enterprise on its own ship. The safety measures and technical capacity would however be duly compromised by the annexation of 18 documents, whose content has not been in any way contested by the harbour Authority".

The Court held that 'the first plea for appeal is founded. In principle, it must be prevented - the judgment explains - that the administrative jurisprudence is oriented in the sense that the imposition of an authorization system for the exercise of the activity of harbour operations, such as those regulated by Article 16 of Law No 84 of 1994, meets the conditions indicated by the Court of Justice, according to which the freedom to provide services, fundamental principle of the Treaty, can be limited only by rules justified by reasons of public interest, It must be remembered, in fact, that the law 28 January 1994, number 84, that the reorganization of the legislation in harbour matter, has been adopted following the sentence of the Court of Justice of the European Union of 10 December 1991, C179-90, port of Genoa, where the European Court has asserted the incompatibility with the Treaty of the norms of a Member State that confers to an enterprise established in this State the exclusive right of exercise of harbour operations and the power of The principle of law established by the Court of Justice of the European Union therefore prevents the imposition to any undertaking of the marine field of the obligation to, for the execution of the harbour operations, of exclusively local workers. In principle, therefore, an undertaking of marine transport should be authorized, in the absence of prevailing reasons of public interest, to carry out such operations by means of own workers. Coherently, the article 16, paragraph 3, of the law number 84 of 1994, subordinates the exercise of the harbour operations, also on own account, beyond that on behalf of third parties, to the release of a specific authorization from the Authority of Harbour System. Authorization assumes the verification of the possession of the requirements referred to in paragraph 4 of the same article 16. In order to issue the authorization referred to in paragraph 3, article 16 of the law, in paragraph 4, requires the Ministry of Transport to determine, by decree, the requirements of personal and technical-organizative character, of financial capacity, of professionalism adapted to the activities to be carried out, including the presentation of an operational program and the determination of an organic worker. The regulation for the discipline of the release, suspension and revocation of the authorizations for the exercise of harbour activities has been adopted by ministerial decree of the transports and navigation number 585 of 31 March 1995. The Regulation, in Article 3, lays down the requirements for the granting of authorization, referring to personal and professional suitability, the registration, in case of companies, in the register of companies at the civil court, technical capacity, organizational capacity, financial capacity, the presentation of an operational program, the employee's organization and the presentation of an insurance contract for the guarantee from any damages. In no provision of the regulation - evidences the sentence - it is established that the authorization should be released exclusively for the carrying out of the entire cycle of the harbour activities. It is therefore believed that in the law and in the regulation there have not been introduced obstative norms to the possibility of authorizing the development also of one part of the total cycle of the harbour activities. Nor can the article 5 of the regulation for the discipline of the operations of harbour services, adopted with ordinance of the Authority of Harbour System of the Tyrrhenian Sea number 1 of 2019, arises expressly in contrast with the interpretation here supported, where it limits to define the object of the authorization on behalf own as authorization that allows the enterprise to carry out habitually the harbour operations relative to the goods of which it has or is consigned, in such way not excluding that such authorization that such an object

"Differently - the pronunciation of the Tar continues - is governed the activity of the dealers from article 18 of the law number 84 of 1994, but such a different discipline is explained with the reason that the concession, selected for the development of the entire cycle of the operations and the harbour services instrumental to the concession of a portion of the port, must take care mainly and directly of such operations, except to resort to other enterprise in exceptional cases. Still different is the discipline of the authorization to carry out the harbour operations in regime of self-production, brought from paragraph 4 bis of article 16 of Law 84 of 1994. Regardless of the findings made by the Competition and Market Guarantee Authority, it must be noted that the judgment of the third Section of the Tar of Salerno, referred to an application for authorization to self-production previously submitted by the applicant, is not relevant in the present case, dealing with this place of application for authorization submitted pursuant to paragraph 3 of Article 16 of Law 84 of 1994. The interpretation here considered correct is consistent with the principles repeatedly affirmed by the jurisprudence of the Council of State (cf. judgment number 6523 of 2024) tending to limit dominant positions or exclusive rights for harbour operations, recognizing the possibility to the individual enterprises to carry out the harbour operations in regime of self-production. The European Court has clarified that the imposition of an authorization system for the exercise of the activity of harbour operations, such as those regulated by Article 16 of Law No 84 of 1994, meets the conditions indicated by the same Court of Justice, according to which the freedom to provide services, fundamental principle of the Treaty, can be limited only by rules justified by imperative reasons of public interest. In the case of species, it is not obvious a public interest that can justify the exclusion of the possibility of authorizing an enterprise to carry out on own only a part of the activities included in the cycle of the harbour activities, if such enterprise is in possession of the technical, operational and financial requirements for the development of the only segment of the cycle of the harbour activities of own interest. It follows - explain the magistrates of the Tar - that the contested measure is spoiled by the incorrect assumption for which the authorization referred to in paragraph 3 of the repeated article 16 can be released only for the carrying out of the entire cycle of the harbour operations. As a result, the further considerations contained in the contested measure, on the inadequacy of the staff, on the alleged deficiencies in the operational plan of the investments, on the lack of enterprise structured in the port are spoiled. Finally, it is just the case to note that the national collective contract of marine work, having no normative value, can not stand in contrast with the interpretation of the law considered correct".

"The second plea for appeal, with which the applicant, in a subordinate way, deducts the contrast of the national norm with the law of the European Union, for the hypothesis in which the article 16, paragraph 3, of the law number 84 of 1994 must be interpreted in the sense supported by the Resistant Authority - concludes the sentence - is absorbed by the ascertainment of the foundation of the first reason. The application, in conclusion, must be accepted, with the annulment of the contested measure.'

Commenting on the decision, the national Filt Cgil and the Filt Cgil Campania have manifested surprise and concern for "a similar change of orientation from the Tar, especially in the light of the numerous previous pronunciations, both in Salerno and in Naples, that they have constantly rejected the possibility of the harbour self-production, in the absence of the rigid preconditions previewed from the law 84/94. These decisions - note the two trade union organizations - appear even more incomprehensible in the light of the entry into force of the legislative decree 199/2023, so-called Gariglio decree, that it intervened precisely to clarify, normative and restrict the use to self-production in the ports, only in presence of specific requirements, including the impossibility to entrust the harbour operations to harbour enterprises or to supplier of temporary labor ex article 17, law 84/94, moreover in international consistency".

"We are sure - the national Filt Cgil and of Campania continues - that the Authority of Harbour System interested will proceed to hold the sentence of Tar Salerno, to defense of the legitimacy of own acts, of administrative transparency, of the correct management of the harbour system and of its total balance, increasingly exposed to risks of social dumping, unfair competition and compression of the rights of the workers. We are ready to intervene in support in the possible judgment of appeal, alongside the Authority of Harbour System, to protect the principle of legality, the safety in the places of work and the dignity of the harbour job. It is necessary to reiterate with force that any harbour activity must take place in full compliance with the regulations in force, to protect not only the fair competition between enterprises, but above all the safety and working conditions of the involved staff. The self-production, in fact, feeds a dangerous spiral to the lower of the overalls, the pay standards and the health and safety conditions of the harbour and marine workers".