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The Italian Government signs the Ministerial Decree on port concessions

At the end of 2022, a ministerial decree has been signed, implementing art. 18, paragraph 2, of Law no. 84 of 28 January 1994, in the new wording introduced by article 5, paragraph 2, of Law no. 118 of 5 August 2022, about concessions of state-owned areas and docks.

In fact, the regulation establishes that the criteria for identifying and assigning port concessions are to be defined by ministerial decree, which had not yet been adopted almost three decades later.

The decree, signed by the Minister of Infrastructure and Transport and by his colleague from the Ministry of Economy and Finance, had already been submitted to the attention of the Consultative Section for Regulatory Acts at the Council of State, which, despite making some observations, had expressed itself favourably in its note transmitting the report prot. no. 34054 of 14 October 2022.

Palazzo Spada’s observations have contributed to the drafting of a text that, while remaining in line with the drafts already presented, treasures the suggestions received.

The discipline is largely oriented towards compliance with the principles of transparency and publicity that must be followed at all stages of the procedure, from the publication of notices or calls to tenders (depending on whether the procedure is initiated ex officio or at the request of a party), modifications of concessions, and the monitoring of them.

The core of the decree is represented by the voluminous Article 2, which describes the procedure for assigning concessions and lists the criteria in compliance with which this must take place.

Article 5 of the decree represents a novelty as it identifies the criteria for the determination of the fee, in fact, a fixed component and a variable one are envisaged. Another relevant novelty is that included in Article 6, which limits the extension of the concession to the period of time necessary to recover the investments related to the interventions needed to adapt the port structures or to maintain the functionality of the concession and in any case no longer than five years.

Also of significance is article 9, which regulates the way the granting authority performs the verification activity, providing for an annual verification for each concession, a more in-depth analysis every five years for concessions over five years, and the adoption of a permanent monitoring plan also using the data in the Maritime State Property Information System.

The text of the decree reveals a clear intention to limit the much-criticised discretionary power with which the granting authorities could operate in the past, establishing procedures that respect the principles of publicity and transparency, with the aim of better exploiting state resources.

The impact that the decree will have on the discipline of concessions can only be evaluated in hindsight. For the time being, however, it can be noted how a long-awaited intervention has been welcomed in the hope that it will bring clarity to a sector where there was little transparency.

Below is the link to the full text of the decree (in Italian):
https://bit.ly/3GCqvpq 

Stefano Romano

stefano.romano@mordiglia.it