Let's continue our analysis of the important circular No. 187 issued by the Italian Ministry of Infrastructures and Transports ("MIT") published in the Official Gazette of the Italian Republic on 5 February 2018.
This circular has laid down some specific parameters that the Italian Port System Authorities ("PSAs") must take into account when comparing applications for the renewal and/or issuance of concessions pursuant to Article 18 of Law No. 84/94.
In the last issue of our newsletter we commented the first of such parameters, which refers to the level of consistency of the above-mentioned applications with the National strategic plan for ports and logistics and with the other national planning instruments in force in the sector.
So, let's examine the second criterion set out in the said MIT circular:
"the capacity to ensure the widest access conditions to terminals for users and operators concerned".
The MIT circular provides that, in case of competing applications submitted pursuant to Article 18 of Law No. 84/94, the PSAs have to award those requests - and therefore the business plans filed with the above-mentioned applications - that are able to guarantee the widest access conditions to port facilities to users and operators concerned.
In these terms, the granting of concession for maritime State-owned properties would appear to play a central role to help the increase of competitiveness of the so-called "sea system" (that it is to be considered as an active instrument of economic-commercial policy in support of the country's production system)1.
The criterion under examination would be apparently linked to the so-called essential facility doctrine, whose rationale consists in avoiding that a company "takes advantage" of its market power to hinder competition through economically unjustifiable or unreasonable behaviours2.
The theory has been developed in relation to access to public utility facilities that can be hardly replicated - such as port facilities - for which there was a need for multiple access by several operators in order to ensure the plurality of the offer on the market of reference.
In this regard, in fact, it should be noted how the theory of the essential facility has mainly evolved in the legal framework of the U.S. antitrust case law and, subsequently, in the European- and domestic-based one3. All this in order to ascertain whether and when the refusal of a company to contract with others with respect to the access...