Italy: "I Just Called To Say"… The Italian Transport Regulation Authority, Following The Call For Input, Approves The First Regulatory Measures On Fair And Non-Discriminatory Access To Port Facilities

Last Updated: 14 August 2018
Article by Ekaterina Aksenova
Most Read Contributor in Italy, July 2019

Let's go back to a topic already dealt with in the previous issues of our Bulletin, namely the call for input called by the Italian Transport Regulation Authority (hereinafter "TRA") on "Methods and criteria for ensuring fair and non-discriminatory access to port facilities. First regulation measures"1.

The TRA was established by Decree Law No. 201/2011 and aims to "ensure, according to methods that encourage competition, efficiency of production of the issues and cost containment for users, enterprises and consumers, fair and non-discriminatory access conditions to railway, port, airport facilities and motorway networks (...) as well as in relation to the mobility of passengers and goods at national, local and urban level also connected to stations, airports and ports".

Following some reports by several operators engaged in various port areas, that exposed problems related to the access to port facilities and distortions of competition, the TRA – in full compliance with its prerogatives2 – decided to call a consultation aimed at issuing a regulatory act that identified precisely the first methods and criteria aimed at limiting – if not at completely eliminating – distortions of the normal competition game.

After having carried out consultations with stakeholders and having examined the opinions expressed by the Italian Antitrust Authority and the National Anti-Corruption Authority, TRA has implemented, clarified and modified some of the regulatory measures proposed with the call for input.

In particular, following the public consultation, the Authority decided to examine in-depth some issues including: the identification of the essential facilities and the obligations connected to their management; principles and methods for granting concessions, as well as publicizing the related results; parameters for determining the duration of the concessions and the level of the concession fees; intermediate updates for longer-term concessions; assessment of the requirements and application of the criteria for the issuance of authorizations for the carrying out of port operations and services; fixing of rankings in case of applications exceeding the maximum number allowed; applicability of the measures.

But let's proceed with order. The leitmotiv of the first regulatory measures is the compliance, during all the stages of the granting procedure, enjoyment and conclusion of the concession and of the authorizations for the performance of port operations and services, with the principles of economic viability, effectiveness, impartiality, equal treatment, transparency, non-discrimination and proportionality. Moreover, these principles have been reiterated and further strengthened also by the European legislation with the adoption of Regulation (EU) No. 2017/3523.

With these first regulatory measures, the TRA decided to focus on:

  • Concessions of port areas and quays: focusing on the issues related to the scope of the same, the duration, the concession fees, the methods of granting, the subjective requirements for the participation in public procedures.With reference to the scope of the concessions, the TRA considers that the admitted activities must expressly and clearly be provided within the concession, both in relation to the types of traffic and in relation to the volumes. Therefore, no restrictions can be applied on the activities of the undertakings which are not objectively justified.The duration of concessions must be "proportional to the commitments in terms of volumes and types of investments and traffics contained in the activity programs".As regards concession fees, apart from being proportionate to the commitments undertaken by the concessionaire in terms of traffic and investments, they should be composed of a "fixed fee", which is proportional to the areas and reflects their "constraints/advantages", and of a "variable fee", which should be "determined through incentive mechanisms aimed at pursuing a better production, energetics and environmental efficiency of the management and the improvement of service levels, in particular transport and intermodal integration of the port, also in light of an annual updating on the basis of the results achieved".

    The methods for granting concessions must ensure the actual participation in the public procedure and should allow the knowledge of some elements including: (a) the maximum duration of the concession; (b) the predetermined selection criteria for applications; (c) the criteria and methods for proceeding with any intermediate updates for longer-term concessions; (d) subjective requirements for participation; (e) the procedures of granting to the new assignee upon conclusion of the previous concession durations, as well as the other aspects related to the end-of-concession allowance, such as the criteria for the assessment and identification of any relevant indemnities.

  • Authorizations to carry out port operations and port services: for such authorizations, the ART emphasized the importance of "identifying port operations and port services [...] of the activities subject to the authorizations referred to in the aforementioned Article 16 [editor's note: of Law No. 84/1994], and of the elements necessary to objectively deduce which types of activities not already included in said list may anyway fall among those that are permissible".In assessing the applications for the issue of authorizations, the Port System Authorities (hereinafter "PSAs") must refer to pre-determined qualitative and quantitative indicators, connected with the criteria envisaged pursuant to Article 16, paragraph 4, of Law No. 84/944.
  • Supervision of the tariffs of port operations and port services that require the use of essential facilities: the PSAs shall have to monitor the setting of tariffs for port operations and services that envisage the use of essential facilities, following criteria such as: relevance, adequacy, competence, recognition in the income statement, separation, comparability of values, verification of data.

This analysis, compulsorily concise, given the format of our publication, shows that all the provisions of the TRA basically consist in the predetermination of objective criteria that must then be applied to the different concrete cases. The predetermination and publicity of these criteria makes it possible to protect access to port facilities and competition since, on the one hand, it limits the discretion of the PSAs in their determinations and, on the other hand, it allows economic undertakings to have elements for the evaluation of both the opportunity to participate in public procedures and to verify the compliance of the same with the competition rules.

All that remains is to hope that the PSAs will adapt as soon as possible to the measures adopted by the TRA.


1 -alle-infrastrutture-portuali/

2 The Council of State with its opinion No. 2199/2017 of 24 October 2017 decided to "fully confirm the relationship between PSAs and the Italian Transport Regulation Authority which, among others, has allowed (and shall continue to allow) the latter Authority to usefully take both regulatory initiatives and investigations on the conditions of access to facilities and services, properly implementing its institutional mission which is rooted, for the transport sector, in the general pattern of the independent regulatory authorities referred to in Law No. 481 of 14 November 1995";

3 For more information, please follow the cycle of articles dedicated by our Shipping Bulletin to the Regulation (EU) No. 2017/352.

4 Pursuant to Article 16, paragraph 4, Law No. 84/94 "In order to obtain the authorizations set forth in paragraph 3 above from the relevant Authority, the Italian Minister of Transport and Navigation, with a decree to be issued within 30 days from the date of entry into force of this law, lays down: a) the requisites having a personal and technical-organizational nature, the requisites of financial capacities, of professional expertise of the applicant operators and firms, suitable for the activities to be carried out, including the presentation of an operational programme and the determination of a directly employed team of workers including management staff; b) the criteria, methods and terms of issue, suspension and annulment of the authorization, as well as the relevant controls; c) the parameters to define the minimum and maximum limits of annual fees and the deposit in relation to the duration and specific nature of the authorization, taking account of the volume of investments and the activities that need to be carried out; d) the criteria regarding the issues of specific authorizations and permits for running port operations, to be carried out on the arrival and departure of ships equipped with their own mechanical means and their own staff trained for these operations, as well as for determining a consideration and an appropriate deposit. These authorizations do not fall within the maximum number indicated in paragraph 7."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions