The new Italian regulation of port concessions: some ideas on the centrality of the theme of "sustainability"
And on the authorization mechanism in the event of a change of controldi Giacomo Falsetta and Andrea Cuneo
Genoa – On 31 December 2022, the interministerial decree n. 202/2022 with which the Regulation containing the discipline for the issue of concessions of areas and docks (the "Regulation") was issued, in force starting from 15 January 2023.
The provision presents numerous profiles of interest.
In this brief contribution we will focus on two aspects of great impact on the port sector:
(i) energy and environmental sustainability as a criterion for attributing state concessions;
(ii) the introduction of the authorization mechanism in the event of a change of control of the concessionaire following an M&A transaction.
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The energy issue is more central today than ever. The most significant inputs to pursue the goals of energy and environmental sustainability came from the PNRR, in those measures that affect port infrastructures both from an economic point of view and from a point of view of simplification of the administrative process of management, attribution and implementation projects functional to the creation of green ports (think of Law Decree 36/2022 on the simplification of authorization procedures for cold ironing plants).
In this context, the Regulation places a further element in the process of including sustainability among the drivers that guide the administration - in this case - in the choice of concessionaires, and this consideration is particularly relevant if one considers that the ultimate purpose with which the The granting authority for the work is to guarantee the public interest in an adequate development of state-owned resources.
On this point, two different aspects stand out, both established by art. 2 of the Regulation, and in particular:
a) in the first paragraph, express mention is made of the "protection of the environment and energy efficiency" among the principles with which the activity of the granting authority must comply for the purpose of issuing state-owned concessions;
b) but even more incisively, the criteria are established which the granting authority must comply with in evaluating the applications received from the candidate concessionaires, who will mainly have to submit two documents:
a. an investment programme, where envisaged, aimed at enhancing the state-owned area covered by the concession, with the aim of increasing traffic and the productivity of the port;
b. an economic-financial plan which certifies the sustainability (this time with a purely economic meaning of the term) of the investment program presented.
Well, paragraph 4 provides that "when determining the parameters for assessing the applications" the granting authority must take into account, among other things, the "nature and significance of the infrastructure investments, as well as the systems, equipment and technologies aimed at developing port productivity, protecting the environment" and the "sustainability and environmental impact of the proposed industrial project".
Energy and environmental sustainability therefore become not only the inspiring principles of the activity of the granting authority, but also the driver of the choice of the candidate concessionaire to whom to entrust the development of the state-owned area.
The most significant element is indeed represented by another provision of the Regulation, and in particular by art. 5, which defines the criteria for determining the concession fee. The law provides that the amount of the fee is determined on the basis of a fixed and a variable component, the latter being "established through the application to the economic-financial plan of the concessionaire of indicators of the level of production, energy and environmental efficiency of the activity".
Energy efficiency therefore has a decisive influence on the quantification of the concession fee. Furthermore, with the presentation of the investment plan and the related indications in terms of energy efficiency and environmental protection, the candidate concessionaire assumes precise obligations towards the granting authority, which will be subject to the periodic review established by the art. 9 of the Regulation, with the consequence that, in the event of non-compliance with the provisions of the issue, the authority will be able to activate the revocation mechanism established by art. 47 of the Navigation Code.
All these elements further demonstrate the centrality of the theme of sustainability (including energy) in the port infrastructural development plan of our country, and the attribution to the granting authority of powers of assessment regarding this component of the offer of the candidate concessionaire is consistent with the need for the State to "lead" the energy transition and the pursuit of environmental sustainability at a systemic level.
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Moving on to the second argument, with the first paragraph of the art. 7 The Regulation governed the case of change of control of the concessionaire, establishing, in the first period, that "in the event that the concessionaire is a joint-stock company, in relation to the transfer of company shares which determines a change in the control of the concessionaire pursuant to article 2359 of the civil code, the shareholder who intends to transfer his shareholding is required to request prior authorization from the granting authority”. In essence, the granting Authority is given a dispositional power that goes well beyond the transfer of the rights and obligations established by the concession, extending to affect the negotiating autonomy of private subjects also in relation to more far-reaching operations.
However, the scope of the investigation by the granting Authority is limited to the "possible impact of the modification of the corporate structure on the implementation of the investment program and the activities presented by the concessionaire, as well as on the related economic-financial plan". In any case, clear margins of subjectivity and discretion remain. The outcome of the assessment must be communicated by the granting Authority within thirty days of the request; failing that, the silent consent mechanism established by the third sentence of the first paragraph of the art. 7.
In conclusion, the Regulation gives the granting Authority an effective tool to guarantee the profitable use of the concession in situations of potential change of control of the concessionaire with a view to protecting the competing public interest. On the other hand, however, the Regulation attributes to the granting Authority penetrating powers of control beyond the rights and obligations deriving from the granted concessions.
*Lawyers, LCA law firm
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