Cociancich decree almost ‘operative’ despite doubts about its effect
Although DG Competition keeps on hedging, the author of the law believes in silent approval. In this case, from June the 11st recruitment regulations for ro-pax would change
The so called Cociancich decree of November 2016, amending the law establishing the International Register, granted shipping companies 18 months from its implementation (December the 11th 2016) to conform to its provisions.
Said decree provides that, to be entered in the Register (thus benefiting from the related tax and social security contribution reliefs), a ro pax operating between Italian ports must have exclusively Italian or EU staff, and it is no longer allowed to derogate from said regulation in case of triangulation with foreign countries and trade unions' approval.
Therefore, crew regulations on Italian ferries might be revolutionized, putting aside the agreements that in the past 15 years allowed a few companies to recruit non-EU staff on intra-Italian lines.
However, as it deals with State aids, the effectiveness of the decree depends on “the authorization of the European Commission, pursuant to article 108, paragraph 3, of the Treaty on the Functioning of the European Union”. The Directorate-General Competition recently approved only the part of the decree related to the tonnage tax, not that related to crew recruitment regulations.
According to lawyer and Community law expert Giuseppe Giacomini, “paragraph 3 of article 18 of the Treaty on the Functioning of the European Union establishes that a member State cannot implement a measure under examination for said circumstance (State aids, ed.) until the Commission has concluded the related procedure issuing a 'final decision'. Therefore, the measure cannot be implemented until said moment. However, in the event that Brussels gives a favourable opinion, the 18 months should be regarded as elapsed, and the regulation should have its effects immediately, provided that it is not stopped by another regulatory intervention”.
On the other hand, former senator and author of the law Cociancich explained that “DG Competition and the Italian Government tried to explain every aspect of the decree, clarifying all Brussels' doubt. For this reason, and also because the regulation does not discriminate companies nor European workers, rather it rectifies a previous distortion, I believe that a failure on the DG Competition's part to issue a verdict should be interpreted as a silent approval”.
On the other hand, however, Cociancich has doubts about its immediate enforceability: “Ministerial sources explained to me that in the past 18 months companies did not conform to the provision, and that Coast Guards would find it difficult to implement the regulations immediately. Therefore, a grace period will probably be granted, followed by inspections and possible penalties”.
The DG Competition is not hedging only on the evaluation of the Cociancich decree, but it is also avoiding questions related to the examination of the decree and to the reasons for its delay.