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01/07/19 11:01

The Court of Genoa established that “Port authorities are undertakings”

Italian legal authorities acknowledged for the first time the EU’s positions regarding the role of Port Authorities as undertakings

Il Genoa Metal Terminal del porto di Genova

Following the opinion recently expressed by the European Commission about port Authorities being regarded as subject to taxation on their economic activity, Italian legal authorities intervened in support of this argument  for the first time.

The law firm NCTM explained that the Court of Genoa recently “established that, with regard to the concession of state areas against payment, an Italian Port Authority is to be regarded as a company for antitrust regulation purposes”. The law firm also observed that “this is the first time that the Italian case law acknowledges this”.

In an article entitled “Port Authorities are undertakings for antitrust regulation purposes”, lawyers Alberto Torrazza and Ekaterina Aksenova provided a detailed explanation, observing that in Europe there are no doubts about the fact that port authorities are to be regarded as undertakings, although Italy objected to this interpretation.

With referent to this judgement related to the proceedings involving the port Authority of Genoa and C. Steinweg – Genoa Metal Terminal (which initiated the proceedings and whose appeals were only partly accepted), NCTM lawyers explained that “Italy relied on the Law 84/94, providing that Port Authorities are non-economic public bodies and that they are merely 'regulatory authorities', thus preventing them from carrying out port activities”.

In this respect, there are significant precedents, although regarding subject matters which did not concern Port Authorities: “For instance, the judgement of the Plenary Session of the Court of Cassation recognized that the Land Registry Office is to be regarded as an undertaking with regard to the supply of services, consultancies and collaborations to third parties. The Court of Genoa referred to this precedent to point out that 'within the EU competition law the concept of undertaking includes any body which carries out an economic activity, regardless of its legal status and of the financing methods'”.

According to the principle established by the Supreme Court (and adopted also by the Court of Genoa), the concept of undertaking is more economic than legal, therefore its peculiarity lies in the organized and lasting exercise of an economic activity on the market, regardless of how the entity which carries out said activity is formally defined. In this perspective, the formal status of non-economic public bodies is irrelevant.

In fact, the EU Court of Justice had already pointed out that: “the concept of undertaking includes any body carrying out an economic activity, regardless of its legal status and of the financing methods, and any activity consisting in offering goods or services in a specific market is to be regarded as an economic activity”. Moreover, “the fact that, as concerns the exercise of part of its activities, a body enjoys the prerogatives of public powers does not prevent it from being regarded as an undertaking pursuant to the EU competition law with regard to the rest of its economic activities […]”, the NCTM law firm explained.

Having ascertained that the status of non-economic public body cannot prevent Port Authorities from being regarded as undertakings, it remains to be understood whether Port Authorities carry out an economic activity or not.

To that end, it is useful (following the reasoning of the Court of Genoa) to refer to the position of the European Commission, which holds that Port Authorities carry out economic activities and can be regarded as undertakings. According to the EU Commission, “the commercial exploitation of port infrastructures and the construction of similar infrastructures for commercial exploitation purposes amount to economic activities”, lawyers Torrazza and Akesenova observed.

The Commission pointed out that Port Authorities carry out economic activities because “they grant concessions or authorizations (use of assets against payment of a fee) to (usually) private companies for the commercial use of the asset (basic port infrastructure) and the supply of services (for instance loading, unloading, pilotage, towage) to shipping companies”.

In light of the above, the Court of Genoa established that a Port Authority must be regarded as an undertaking for antitrust regulation purposes since it grants areas under concessions against payment.

“Moreover, Port Authorities have a dominant position in the market of concessions against payment since they are monopolists by law. More precisely, the actual relevance of the judgement referred to above is significant”, NCTM’s article reads. “As a matter of fact, the law 287/1990 prohibits companies having a dominant position from abusing of it, burdening them with the 'special responsibility' to abstain, in particular, from behaviours which might have a distorting effect on competition”.

The judgement related to the object of the aforesaid proceedings concerned the appeal of a concessionaire which held that it had been discriminated by the Port Authority since the latter had carried out a series on infrastructure works to the benefit of a competitor concessionaire (Genoa Port Terminal of Spinelli’s Group), although the same works had been required also by the claimant concessionaire (GMT). According to the latter, therefore, the Port Authority adopted a discriminatory behaviour which unjustifiably altered competition within the port.

“This judgement of the Court of Genoa might be a further tool for concessionaires to enforce their rights and to object to discriminatory conducts or, however, conducts in breach of competition principles, on the Port Authority’s part”, NCTM lawyers concluded.  

N.C.

TAG : Ports
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