With a judgment published yesterday, the Fifth Section of the Council of State has accepted the appeal proposed by the System Authority Port of the Central Tyrrhenian Sea against the judgment of the Court of First Instance Regional Administrative Committee for Campania which had cancelled the denial of authorization to carry out the operations of lashing and unlashing required by the company Cartour navigation. The latter in 2021 had requested, pursuant to paragraph 4 bis of art. 16 of Law no. 84/1994, the authorization for the self-handling of lashing operations and which consist of fixing and unlocking the vehicles loaded on board, carried out on your Cartour ship Delta in the port of Salerno. The denial opposed by the Port Authority of the Tirreno Centrale had been confirmed by the Regional Administrative Court with sentence no. 676/2024, which became final due to lack of appeal. In 2024, the company had substantially re-proposed the same request, this time, however, invoking paragraph 3 of the same article - the general provision governing the authorization to carry out port operations "for or on behalf of third parties". The System Authority Portuale had also rejected this second request, considering it a repetition that evades the previous refusal and in any case devoid of requirements, since the navigation was not able to carry out the entire cycle of port operations by entrusting the remaining phases - loading, unloading, handling - to the terminal operator Salerno Container Terminal and intended to make use mainly of cabin crew, with the hiring of only two part-time workers. The TAR of Salerno had upheld Cartour's appeal, taking the view that neither the nor the implementing regulations precluded the issuance of an authorization limited to a single segment of the cycle port operations, and that this reading was consistent with the principles pro-competitive conditions affirmed by administrative case law in self-production.

The Port Authority had therefore appealed the ruling of the Regional Administrative Court by articulating Three complaints: the substantially reiterative nature of the application compared to the one already definitively rejected in 2021; the erroneous interpretation of art. 16, paragraph 3, as regards the presumed segmentability of the authorization; the illegitimacy qualification as "derivatives" of the additional reasons obstacles to the denial (insufficient staff, lack of stable organizational capacity, in contrast with the CCNL of sector).

The central interpretative knot, on which concentrates the motivation of the Council of State, concerns the possibility of obtaining, pursuant to paragraph 3, an authorization referring not to the entire cycle of operations but to a single segment of it. The panel of judges starts from the criterion of literal interpretation, recalling the Constant jurisprudence of legitimacy on the primacy of this criterion in the hermeneutical hierarchy established by art. 12 of the pre-laws. On a textual level, art. 16 clearly distinguishes two Categories: "port operations" (loading, unloading, transshipment, storage, handling of goods) and the "services port services" (specialized, complementary and ancillary to the cycle of operations). Only for the latter the paragraph 3 uses the expression "one or more services port ... to be identified in the authorization itself", lexical signal that the legislator has not reproduced for the port operations.

From this textual difference, the Council of State draws its conclusion that the authorisation pursuant to paragraph 3 for the should concern the cycle as a whole, so that as defined by art. 2, paragraph 2, of Ministerial Decree no. 132/2001 ("set of operations... aimed at passage of cargo... from one ship to another or to another mode and vice versa"), and cannot be divided into individual segments.

The sentence of the Council of State then dwells on the clarification of the relationship with its previous no. 6523/2024, which the judge of first instance and the defendant company had invoked in support of the opposite thesis. The Council of State specifies that that ruling concerned a different case: an undertaking already holding a general authorisation pursuant to paragraph 3, for which it was stated that the guarantees of safety and professionalism already verified at the time of issuing the also covered the self-production on board of their ships, without the need to comply with the further limits of paragraph 4 bis. The position is different of the undertaking - such as Cartour - which does not own any general authorisation pursuant to paragraph 3 and who intends to carry out only a part of the cycle in self-production: for this situation recourse to the special authorisation referred to in paragraph 4 bis (now paragraph 4 ter as regards the regime of the maximum number of securities), which dictates more stringent conditions precisely because the "full" assessment of the operational requirements that paragraph 3 presupposes. Read in these terms, the regulation of the paragraph 4 bis retains an autonomous scope of application and is not emptied of meaning: if one admits the segmentability of the general authorisation, the undertaking which does not meet the requirements for "full" self-production could easily circumvent the limits of paragraph 4 bis by requiring, for the same activity, a partial authorization pursuant to paragraph 3.

Finally, with the sentence, the Council of State also rejects the request, re-submitted by Cartour, for a preliminary reference to the EU Court of Justice on the compatibility of art. 16, paragraph 3, with arts. 49 and 56 TFEU. Recalling the Siderurgica judgment Gabrielli (C-179/90) - who had criticised the previous system of exclusive reserve for port companies composed only of National workers - The Board observes that Law no. 84/1994 has fully implemented those principles, opening the development of the port operations, on their own behalf or on behalf of third parties, to any has the requirements. The need to obtain an authorisation referring to the overall cycle, rather than individual segments, does not create dominant positions or rights of and is justified by the needs of of the port area.