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Editor in chief: Angelo Scorza
07/01/19 10:49

Antitrust Authority supporting Transport Regulation Authority as concerns maritime tender regulation

According to the Authority, the Italian liberalization of passenger cabotage services is merely formal. Port Authorities and Coast Guards were criticized for their lack of transparency on moorings

The application of community principles which should have ensured the liberalization of maritime passenger transport services within the Italian territory is more formal than substantial and the current competitive structure “is the result of the methods used to privatise the Tirrenia group”, with the incumbent operators’ supremacy and “monopoly on various routes”.

In sum, this is the analysis carried out by Competition and Market Authorities about Italian maritime cabotage, before the opinion about the regulation procedure that ART (Transport Regulation Authority) is defining with regards to call for tenders for the awarding of maritime passenger transport services and their related agreements.

Although, as it did in the past, the Antitrust Authority is now criticizing situations about which, when they first developed, it did not intervene in any way (such as Tirrenia’s privatisation), its opinion concerning public administration is peremptory and strict: it makes “low-quality legislations and regulations” that do not comply with the community requirements governing competition in maritime services.

The list of criticisms begins with “the absence of the previous market test which should be carried out before subjecting services to Public Service Obligations, either addressed to all the interested shipowners or to a single operator. Moreover, where the administration opted for the awarding of a public service contract through a tender, the outcomes of the procedures were not always positive, given that some procedures were non-responsive, in some cases only the incumbent operator submitted an offer and in other cases the level of compensation was not consistent with the number of possible participants”.

The second part of the findings raised by the Antitrust Authority concerns transparency and information asymmetry problems characterizing the procedures for the award of public contracts related to maritime cabotage services, since for the purposes of the proper application of the European regulation the administration needs “a wide range of information”, with regards to both demand and offer.

According to the Authorities, the awarding administration needs adequate tools to know “revenues, costs and qualitative indicators related to the services provided by the current operator/s”, as well as “full transparency concerning the methods used by Port Authorities and Maritime Authorities to regulate moorings”. The latter is “particularly needed, also in light of a rather old and defective regulation concerning this issue”.

Having explained the problems, the Antitrust Authority “provided a positive assessment of the content of the Regulation draft, as it can be an important tool to tackle the main competition problems referred to above”. It subsequently suggested a series of improvements, focusing in particular on the information asymmetry issue.

Therefore, as concerns the demand issue, they suggested “the introduction of a centralized database including notices and information about all maritime transport services from, between and to all the islands to be awarded for the first time or by way of renewal”, which would provide “also non-local shipowners, both Italian and foreign, with more chances to evaluate the possibility to enter a market”.

As concerns the offer, having emphasized the “lack of transparency of the regulation provided for by the competent Maritime Authorities”, they suggested to “clarify and standardize the procedures adopted by competent Authorities (Port Authorities, Maritime Authorities etc…) in the various local ports to award moorings, as well as increase transparency about the actual capacity of each port”.

Finally, the Antitrust Authorities also referred to the so called “social clauses” (hiring obligations imposed on those who take over a subsidised service), observing that the community law provides that “member States must not impose tailor-made obligations for specific companies in order to prevent other shipowners to enter the market, especially as concerns the obligation to take over vessels and the imposition of conditions related to crews that are not limited to the essential obligations for public service needs”.