Some considerations on the debt of the contribution requested by the Italian Transport Regulatory Authority

Milan - With resolution no. 181/2021 of the Transport Regulatory Authority (better known as "ART"), approved, for the purposes of enforceability, by DPCM January 14, 2022, and supplemented by the decision of the Secretary General no. 27/2022 of March 15, 2022, the "Measure and method of payment of the contribution due to the Transport Regulatory Authority for the year 2022" have been defined.

Pursuant to Article 37, paragraph 6, lett. b) of the decree-law 6 December 2011, n. 201, converted with amendments by law 22 December 2011, n. 214 and subsequent amendments, as reformulated by article 16, paragraph 1, letters a-bis) and a-ter) introduced by law no. 130, converting the decree-law 28 September 2018, n. 109 (so-called Morandi Decree), "the economic operators operating in the transport sector and for which the Authority has concretely initiated, in the market in which they operate, the exercise of competences or the fulfillment of the activities envisaged" are required to pay of an annual contribution in favor of ART.

The contribution is fixed annually by the Authority - with an act submitted for approval by the President of the Council of Ministers in agreement with the Minister of Economy and Finance - to an extent not exceeding one per thousand of the turnover deriving from the exercise of activities carried out perceived in the last financial year.

The contribution arises from the declared need to guarantee the financial autonomy of the Authority and the regular performance of the tasks assigned to it by law.

Moreover, in the years following its establishment, the intention of the ART to expand the number of contributors as much as possible (most recently among these the operators who carry out "shipping agency / maritime reccomendation services") became quite evident.

Based on the provisions of art. 1 of resolution no. 181/2021 to date, the subjects required to pay this contribution are companies, with a turnover exceeding € 5,000,000.00 =, which carry out one or more of the activities listed below:
a) management of transport infrastructures (railways, ports, airports, motorways and bus stations);
b) management of railway service facilities;
c) management of goods handling centers (interports and logistics operators);
d) railway services (even if they do not constitute the minimum package of access to railway infrastructures);
e) port operations and services;
f) national, regional and local passenger and / or freight transport services, characterized by public service obligations, in any manner carried out;
g) taxi service;
h) passenger and / or freight rail transport services;
i) sea and inland waterway transport services for passengers and / or freight;
j) road passenger transport services;
k) air transport services for passengers and / or goods;
l) road freight transport services connected with highways, ports, rail freight yards, airports, interports (subject to exemption under Article 16 of the decree-law of 21 March 2022, n. 21); m) shipping agency / maritime reccomendation services.

Economic operators with a turnover exceeding € 5,000,000.00, regardless of any exclusions or deductions that exempt from the payment of the contribution, had to make a declaration to the Authority, by 29 April 2022, containing the personal and economic data requested through the online service made available by the Authority.

Also based on this resolution, the payment of the contribution for the year 2022 was set in two installments: the first (in an amount equal to two thirds of the amount) no later than 29 April 2022; the second (equal to the third residual) no later than 28 October 2022.

It should also be noted that as a result of art. 16 of the decree-law 21 March 2022, n. 21, the subjects providing road freight transport services registered in the Register of Road Haulers have been exempted from paying the contribution in relation to the year 2022 with reference to these services (without prejudice to the above declaration).

Now, as expected, since, among other things, it is not a negligible contribution (for 2022 it was set at 0.6 per thousand of the turnover resulting from the last approved financial statements as of 09.02.2022, without prejudice of course to the criteria for the determination of the relevant turnover for contributory purposes), the question of whether or not certain categories of companies were subjected to this burden was and remains a thorny and tendential questionially a harbinger of disputes, as well as repeated counter actions also by trade associations.

Moreover, also the determination of the contribution and the subsequent payment have led and will probably continue to lead to the proliferation of disputes, given the not always clear formulation of the criteria for the calculation of the relevant turnover and / or their cumbersome, with the risk - always looming - that in practice what occurs in resolution no. 181/2021 is repeatedly declared that the duplication of the contribution must not occur.

Now, having made these brief notes on the legislation, it seems to be able to affirm that, to date, despite the attempt by ART to extend the audience of contributors as much as possible and despite indistinct and generic requests by the ART to "economic operators" , the latter cannot and should not include either the pure shipper, who does not actually "exercise" any of the activities indicated, nor the shipper carrier who carries out road transport services for third parties, if, as often happens, this type of company does not have the availability of means or at least not to a significant extent and in any case with certain characteristics.

In this last regard, it should be noted that if among the subjects indicated in paragraph 1 of art. 1 of Resolution no. 181/2021, letter I), companies that carry out the activity of "road freight transport services connected with motorways, ports, rail freight yards, airports, interports" are subject to the contribution, paragraph 2 of the same article is however specified that, with respect to the category referred to in letter l), "transport companies that have, at 31 December 2021, available vehicles with load capacity, with a total mass over 26,000 (twenty-six thousand ) kilograms or tractors with towable weight over 26,000 (twenty-six thousand) kilograms".

If, therefore, a carrier shipper did not have in its availability, at the date of 31.12.2021, vehicles with these characteristics (therefore with load capacity or towable weight below 26,000 kg), but made use of the services and above all of vehicles of third-party carriers should not be required to pay the contribution.

Moreover, this appears to be in line with the principle of the prohibition of duplication of contributions.

Moreover, it is believed that the term "availability of vehicles" can only be understood in the sense of ownership or possession of the same.

In support of this interpretation, resolution no. 181/2021 (in the first "considered") where reference is made - for the identification of the subjects in question - to the classification referred to in resolution no. 5/2021 of 19 October 2021 of the President of the Central Committee.

Resolution no. 5/2021 bearing the title "Measurement of quotas due by road haulage companies for the year 2022" is aimed precisely at establishing the quotas due by road haulage companies whose measure", it reads,"must be determined in relation to the number, the type and capacity of the vehicles owned".

Now, in art. 2 of said resolution the type of contribution is established in the following terms:
- paragraph 1.1 establishes a fixed quota for all road haulage companies;
- paragraph 1.2 establishes an additional quota “due by each company in relation to the numerical size of its vehicle fleet, whatever the mass of vehicles with which they carry out the road transport activity”;
- paragraph 1.3 establishes a further "quota (in addition to those referred to in points 1.1 and 1.2 above) due by the company for each vehicle with a total mass exceeding 6,000 kilograms of which it is the owner". 

Without prejudice to this, prudentially, it is believed that operators will have to try, as far as possible, to set up internal systems which, given the criteria for calculating the relevant turnover, are able to separate what is requested by the Authority in order to counter any requests.

* Lawyer, Lca