Under Article 9-ter of Decree-Law No. 96/2025, converted into Law No. 119/2025, the Italian legislator established the role of Special Commissioner for these works, structurally redesigning the rules applicable to the construction and modernisation of sports infrastructure of national strategic interest.

In particular, the Commissioner is required to define one or more action plans, as well as the activities supporting them, based on the initiatives of private promoters and taking into account the operational solutions defined by the Inter-institutional Committee for Italy’s bid to host UEFA EURO 2032. The plans must be approved by decree of the Prime Minister or the political authority responsible for sport, in consultation with the Minister of Economy and Finance and the Minister of Infrastructure and Transport. 

It is clear from the new regulatory framework that stadium projects falling within the aforementioned plans may follow the special procedure governed by Article 9-ter, whilst for other sports facilities the provisions of Article 4 of Legislative Decree No. 38 of 28 February 2021, albeit simplified, continue to apply.

As regards powers, the Special Commissioner may issue an order, after consulting the competent authorities (which will have fifteen days to respond, failing which the mechanism of tacit consent will apply), in derogation from any provision of law other than criminal law, subject to compliance with anti-mafia legislation and the mandatory requirements arising from membership of the European Union. The Mayor of the municipality concerned may be appointed Deputy Commissioner, making use of municipal offices to carry out their duties.

The core of the entire regulatory framework is the procedure for issuing the single authorisation. Such authorisation, which brings together all acts of concession, authorisation, consent, agreement, opinion and clearance, however named, is issued by the Special Commissioner following a specific conference of services, convened in accordance with Articles 14-bis et seq. of Law No. 241/1990, in which all the competent authorities participate, including those responsible for environmental protection, landscape and territorial planning, cultural heritage, health and public safety. The single authorisation replaces, for all purposes, all other measures, however named, and constitutes a variation to existing urban planning instruments. It is equivalent to a declaration of public utility, non-deferrability and urgency of the works, and also serves as authorisation for the siting of the works and for the imposition of an expropriation restriction.

The purpose of the provision is clear: to establish a procedure aimed at accelerating the approval of projects relating to infrastructure of national strategic interest, in response to Italy’s widening gap vis-à-vis countries with lower sporting rankings, as Italy does not rank among the top ten European nations in terms of the number of stadiums built or modernised between 2007 and 2024. The regulatory framework grants the Commissioner special powers covering all administrative procedures relating to the approval of infrastructure projects, with a view to maximum simplification.

The powers of the Special Commissioner do not, however, appear to be limited to the stadiums already nominated for Euro 2032, but may extend to all works deemed necessary and strictly functional to the staging of the tournament, based on the initiatives of private promoters and the operational solutions of the Inter-institutional Committee for the Euro 2032 bid. 

As regards financial support, the legislator has provided for the establishment of the “Italian Sports Fund”, with the stated aim of supporting the promotion, hosting and organisation of major international sporting events and optimising investment in sports facilities, entrusting its management to the Institute for Sports and Cultural Credit S.p.A. (ICSC). The measure has a particularly broad scope: the Fund is intended not only to provide guarantees in respect of loans granted by banks or financial intermediaries, but also to provide direct or indirect financing, subscribe for equity instruments and award non-repayable grants. The operation of the Fund and the procedures for accessing its resources are governed by one or more Prime Minister’s Decrees, adopted in consultation with the Minister of Economy and Finance, upon proposal by the ICSC. By express provision of the law, the Fund may also provide financial support for private promoters in connection with public-private partnership transactions, pursuant to paragraph 5 of Article 9-ter of Decree-Law No 96/2025.

In conclusion, the legislator proceeds on the assumption that the revitalisation of sports infrastructure – and the associated urban regeneration – cannot be achieved without a decisive shift in the administrative procedures governing the approval of the relevant projects, capable of attracting private investment, including through public financial support.

Against this backdrop, in the wake of European initiatives and the recent strategy published by the Italian Ministry of Enterprises and Made in Italy (MIMIT) on 5 November to attract industrial investment in Data Centers (“DCs”) to Italy, the past few weeks have seen significant developments for the future deployment of such infrastructure across the country. 

In particular, reference is made to the recent conversion into law of Decree-Law No. 21 of 20 February 2026 (the so-called “DL Bollette”) (Law No. 49 of 19 April 2026 published in Official Gazette No. 90 of 18 April 2026 – the “Conversion Law”), which has reshaped the key permitting framework governing the construction and operation of DCs.

In this analysis – which was previewed in Quotidiano Energia on 28 April (https://www.quotidianoenergia.it/module/news/page/entry/id/531283) – we focus on the potential operational implications arising from the Conversion Law with respect to the development of DCs.

The single authorisation procedure for DCs 

Specifically, in order to streamline administrative procedures relating to the issuance of permits necessary for the operation of DCs, Article 8 of the Conversion Law introduces a single authorisation procedure.

Following the simplification measures adopted in recent years for renewable energy plants, a form of single authorisation or PAUR (Regional Single Authorisation Measure) is now also envisaged for DCs, aimed at streamlining and speeding up the process for obtaining all permits and authorisations required for the construction and operation of such projects.

In particular, pursuant to the provisions of Article 8 of the Conversion Law:

• authorisation for both the construction and expansion of DCs and their connected user networks (regardless of voltage) shall be granted as part of a single authorisation procedure by the authority responsible for issuing the integrated environmental authorisation. Consequently, for DCs with a capacity of up to 300 MW, the competent authority is the relevant Region (or delegated Province), whereas for higher capacities the competent authority is the Ministry of the Environment and Energy Security (MASE);

• in accordance with the principle of suitability, in case of procedures falling within the competence of the Region or the Province, the role of competent authority may not be further delegated or assigned to other sub-provincial bodies;

• the application for single authorisation must include all the documentation and design drawings required under applicable sector legislation for the issue of authorisations, agreements, licences, opinions, approvals, clearances and consents, including, where necessary, those relating to integrated environmental authorisation, environmental impact assessment, landscape or cultural heritage clearance, water use and air emissions permits, including verification of compliance with municipal planning regulations;

• the single authorisation shall be issued following a formal “conference of services” and the relevant procedure must be completed within ten months from verification of the completeness of the documentation attached to the application. Extensions are allowed only under exceptional circumstances and for a maximum period of three months;

• if the project is subject to an EIA screening and a full EIA is required, the relevant application must be submitted within a strict deadline of 90 days, after which the application is deemed withdrawn and the procedure closed;

• for DC projects declared by the Council of Ministers to be of overriding national strategic interest (and therefore having a total value of not less than one billion Euros), the relevant single authorisation is issued by a special government commissioner in accordance with the provisions of Decree-Law 104/2023;

• for DCs that, on the date of entry into force of the Decree, have already obtained the necessary permits (including environmental approvals) for the implementation of the initiative but not yet the authorisation for grid connection works, such authorisation must be issued by the competent Region. This applies only to grid works above 220 kV, excluding lower-voltage infrastructure. 

Preliminary considerations and future outlook

As expected, the Conversion Law contains a number of open issues that will need to be clarified during the subsequent stages of its implementation and, above all, in the course of its practical application by the public authorities involved.

First of all, it should be noted that the application for the authorisation must include, inter alia, verification of the project’s compliance with municipal planning regulations.

Therefore, unlike the framework applicable to the renewable energy sector, it would appear that the relevant “single authorisation” cannot, where necessary, constitute a variation to the applicable planning instruments. 

This circumstance, even in the absence of national legislation on suitable areas (as is the case for renewables), leaves local authorities with a considerable margin of discretion.

In practice, a preliminary analysis of municipal land-use plans and the relevant technical implementing provisions will therefore be crucial in order to verify the absence of zoning constraints or urban planning parameters that may hinder the development of DCs.

Furthermore, except for projects already authorised and requiring permits for grid connection works with a voltage exceeding 220 kV, no transitional provisions or grandfathering clauses are provided for projects already underway or in the start-up phase. As a result, the so-called “tempus regit actum” principle should apply, potentially giving rise to significant coordination and jurisdictional issues among the various competent authorities.

Moreover, unlike the approach outlined in the recent MIMIT’s strategy, there are no concrete references to any incentive schemes or attraction mechanisms aimed at effectively promoting the development of DCs, which appear more appropriate than ever in light of the significant increase in energy demand expected in the coming years (e.g., through the formal recognition of DCs as “energy-intensive users”, subject on the one hand to “green conditionalities”, but on the other benefiting from reductions in system charges and, more generally, in energy prices). 

DCs represent a crucial hub for the country’s effective digital transition and, while sector operators are willing to bear traditional market risks, they are far less willing to assume risks typically associated with the discretion of public authorities.

From this perspective, the Conversion Law represents a first, albeit modest, step towards enhancing the role of DCs within the national landscape. However, a genuine shift in paradigm will require the prompt adoption of supplementary and corrective provisions or, at the very least, implementing measures.

This would help mitigating the same obstacles and uncertainties that have characterised, in recent years, the development of other strategic infrastructures (notably renewable projects), for which “single authorisation procedures” have in recent years often been perceived by market players not as an incentive but rather as a barrier to investment. This is also evidenced by the legislator’s progressive expansion of simplified regimes, such as the “free activity” scheme and the PAS (Simplified Authorisation Procedure). 

Last but not least, due consideration must also be given to issues relating to the optimisation of the electricity grid. 

While the Conversion Law on the one hand introduces significant changes to the current national framework governing grid connection with regard to feed-in aspects (i.e. generation plants), on the other hand it does not address with the same level of detail consumption units (including DCs) and their future electricity withdrawals from the national grid.

In this respect, Terna’s grid code still presents several grey areas, without clarifying whether the comprehensive regulatory framework developed in recent years for generation plants may be applied by analogy to consumption units, and, if so, within what limits.

Yet, as mentioned, connection requests are increasing at a much faster pace than actual demand and are highly concentrated in specific market zones. As a result, it cannot be ruled out that the current grid architecture may face saturation issues, with potential negative impacts on the connection of new DCs and significant delays to ongoing investments.

The electrification of port quays, known as “cold ironing”, falls within the broader objective of “sustainable mobility” and aims to reduce the negative externalities arising from the use of fuels during the stationary phase of vessels in port.

An initial regulatory framework for the system was established by Article 34-bis of Decree-Law No. 162 of 30 December 2019, as subsequently amended by Law No. 214 of 30 December 2023, which defined cold ironing as “the set of structures, works and installations built on land necessary for the supply of electricity to vessels moored in port”, further qualifying it as a service of general economic interest.

Within this context, the recent Decree of the Minister of Infrastructure and Transport No. 10 of 22 January 2026 (hereinafter, the “MIT Decree”) was adopted to provide the Port System Authorities with specific guidance on the management of cold ironing services and to ensure full compatibility of the tariff relief measures with Article 107 of the TFEU, in compliance with the European Commission Decision of 17 June 2024, C/2024/3934.

2. On the authorization regime: the regional single authorization

Pursuant to Article 33 of Decree-Law No. 36/2022, port electrification projects have been classified as programs “of public utility,” subjecting their construction and operation to the issuance of a single authorization by the competent region, in compliance with the regulations in force concerning the protection of the environment, landscape and historical-artistic heritage, with the aim of simplifying the procedures for the construction of the infrastructure necessary for the system.

The single authorization is issued upon conclusion of the conference of services convened by the Port System Authority or the competent region, with the participation of all relevant administrations, within a maximum period of one hundred and twenty days, or one hundred and eighty days where an environmental impact assessment (“EIA”) procedure or a screening for EIA (“EIA Screening”) is required.

With regard to the applicability of EIA, it is considered that the project must follow the ordinary rules of the Environmental Code (Legislative Decree No. 152/2006), where the individual interventions fall within those listed in Annexes II, II-bis, III and IV to Part II of the same Code.

3. On the regulatory framework: system charges and the relief regime

The issue of general system charges (hereinafter, “GSCs”) represents the central element of the advantageous regime granted to the cold ironing system: by ARERA Resolution 492/2024/R/eel of 29 November 2024, the provisions of Article 34-bis, paragraph 1, of Decree-Law No. 162/2019 were implemented, concerning “reductions on general system charges for electricity drawn from cold ironing infrastructure”.

The extent of the reduction amounts, for consumption in the years from 2025 to 2029, to 100% of the GSCs owed by the Cold Ironing Infrastructure Manager (“IM”), with a proportional reduction in cases where the POD is not exclusively dedicated to the supply of cold ironing infrastructure. The MIT Decree further specified the operational modalities of the regime: from 1 January 2030, the relief measures shall be granted only to vessels and in ports not subject to the obligations respectively provided for by EU Regulation 2023/1804 and EU Regulation 2023/1805, in order to limit the incentive to those cases where it is necessary to steer the conduct of operators.

The relief measures must be transferred in full to the end users of the cold ironing service, and the IM shall recognize, on a final settlement basis, any credits not passed on through the tariff, in the form of an adjustment or discount on subsequent supplies. A safeguard clause on State aid is also provided: the relief measures may not be granted to undertakings in difficulty or subject to a pending recovery order, for which purpose a self-certification shall be obtained from the beneficiary.

4. On the Cold Ironing Infrastructure Manager (IM) and the procedures for the award of the service

The IM may be an undertaking or a temporary grouping of undertakings (RTI), whether already formed or to be formed, demonstrating proven experience in the management of complex energy infrastructure, electricity distribution networks, cold ironing installations or high-power charging stations, operating in compliance with technical and safety standards equivalent to European standards.

The IM is required to ensure fair and non-discriminatory conditions of access and supply, sharing in advance with the competent Port System Authority the conditions of access to the installations, which shall be published on the Authority's institutional website, and is further required to submit semi-annual reports to the Port System Authorities, communicating data relating to the relief measures granted, the energy supplied and the tariff plan applied.

The provision of the service constitutes a service of general economic interest, the managers of which are identified by the competent Authorities through a public tender procedure pursuant to Article 6, paragraph 10, of Law No. 84/1994 and Legislative Decree No. 36/2023 (the so-called Public Contracts Code).

The optimal areas for award (so-called clusters) are identified by the competent Directorate-General, with the possibility for the relevant Port System Authorities to regulate the organization of the award through collaboration agreements pursuant to Article 15 of Law No. 241/1990. The award entails the granting to the IM of a maritime State property concession pursuant to Article 36 of the Navigation Code, while the IM shall be required to submit a balanced economic-financial plan, with tariff revenues sufficient to cover the costs of the service, including a reasonable profit margin tending towards the weighted average cost of invested capital.

5. Conclusions: an evolving regulatory framework

The regulatory framework reconstructed herein presents itself as a regulatory arrangement still in a phase of consolidation, the full definition of which remains contingent upon factors of a technical, economic and institutional nature, operating at both the national and European level. Moreover, notwithstanding the significant progress achieved to date in the subject matter at hand, certain fundamental aspects – such as the definition of the award clusters and the selection criteria for managers, as well as the allocation of responsibilities within the electricity supply chain in the context of the cold ironing system – remain at the implementation stage, and the EU framework on the energy transition of the maritime sector is itself undergoing rapid evolution.

1. ^ This refers to the Direzione generale per i porti, la logistica e l’intermodalità del Ministero delle infrastrutture e dei trasporti, which forms part of the Department for Transport and Navigation (Dipartimento per i trasporti e la navigazione).

The financial allocation of EUR 900 million is divided into:

• 500 million euros for private parties, of which 150 million are allocated to companies.

• 400 million euros for Public Administrations (“PA”), of which 20 million are allocated to Energy Audits[3].

Compared to the Conto Termico 2.0, the new Conto Termico provides for:

• the extension of the scope of PAs that may access the mechanism (by way of a new definition under Article 2, lett. c) of the Decree).

• the expansion of eligible technologies (Articles 5 and 8 of the Decree).

• the eligibility for efficiency interventions also to private parties on buildings belonging to the tertiary sector (Articles 4 and 7 of the Decree).

• the advance payment for the preparation of the energy audit reserved for PAs and non-economic Third Sector Entities (“ETS”), equal to 50% of the expense to be incurred (Article 15).

• the possibility of accessing the mechanism through Renewable Energy Communities or self-consumption groups of which PAs, ETS or private parties are members (Article 13).

• the possibility of accessing the mechanism through a private party within the framework of a public-private partnership configuration, exclusively for PAs (Article 13).

• the increase of the incentivised quota to 100% of the expense, for interventions carried out on buildings owned by Municipalities with a population of up to 15,000 inhabitants and used by them (Article 11).

• the increase of the incentive for certain categories of energy efficiency interventions that use components exclusively produced in the EU or that provide for the installation of systems with photovoltaic modules registered in the “photovoltaic technology register”[4], without prejudice to compliance with the maximum incentive percentages of 65% or 100% mentioned above.

Types of Eligible Interventions

The types of interventions eligible for the benefits of the Conto Termico 3.0 are[5]:

1. Small-scale interventions for the increase of energy efficiency (Title II, Article 5, para. 1, lett. a)-h)), namely:

• Thermal insulation of opaque surfaces delimiting the climatised volume.

• Replacement of transparent closures including fixtures delimiting the climatised volume.

• Installation of shading and/or shielding systems and/or external solar filtering systems for transparent closures with exposure from ESE to W, fixed or mobile, non-transportable.

• Transformation of existing buildings into “nearly zero-energy buildings”[6];

• Replacement of existing lighting systems for interiors and external appurtenances with efficient lighting systems.

• Installation of automated management and control technologies (building automation) for thermal and electrical systems, including the installation of thermoregulation systems and heat accounting.

• Installation of infrastructure elements for private charging of electric vehicles, at the building and its appurtenances, carried out in conjunction with the replacement of existing winter air-conditioning systems with winter air-conditioning systems equipped with electric heat pumps.

• Installation of solar photovoltaic systems and related storage systems, at the building or in its appurtenances, carried out in conjunction with the replacement of existing winter air-conditioning systems with winter air-conditioning systems equipped with electric heat pumps.

2. Small-scale interventions for the production of thermal energy from renewable sources and high-efficiency systems (Title III, Article 8, para. 1, lett. a-g)), namely:

• Replacement of existing winter air-conditioning systems with winter air-conditioning systems, also combined for the production of domestic hot water, equipped with electric or gas heat pumps, using aerothermal, geothermal or hydrothermal energy (with nominal useful thermal power up to 2 MW).

• Replacement of existing winter air-conditioning systems with factory-made hybrid systems or bivalent heat pump systems (with nominal thermal power up to 2 MWt).

• Replacement of existing winter air-conditioning systems or heating of greenhouses and existing rural buildings or for the production of thermal energy for production processes or input into district heating and cooling networks with biomass-fuelled heat generators, including factory-made hybrid systems or bivalent heat pump systems (with nominal thermal power up to 2 MWt).

• Installation of solar thermal systems, also combined with solar cooling systems (with gross solar surface up to 2,500 m2).

• Replacement of electric and gas water heaters with heat pump water heaters.

• Replacement of winter air-conditioning systems with connection to efficient district heating systems (with nominal useful thermal power up to 2 MW).

• Total or partial functional replacement of existing winter air-conditioning systems with micro-cogeneration units fuelled by renewable sources.

It is noted that the incentives are determined according to the eligible expenses envisaged for the implementation of the intervention, in compliance with the specific caps for: (i) unit of surface; (ii) unit of power; (iii) producibility of the systems (i.e., “physical dimension” of the property subject to intervention, surface of the property or of the roof, floor or wall subject to intervention or of the heat/energy production system) with the consequence that in order to maximise the incentive that can be received (with favourable economy of scale) it is necessary to focus on medium/large-scale interventions which are numerically limited.

Overview of PPP in the Context of the Conto Termico 3.0

PAs may access the incentives by availing themselves of a private party that assumes the capacity of Responsible Party[7], with whom a public-private partnership contract (so-called PPP) has been entered into pursuant to Article 174 et seq. of Legislative Decree No. 36 of 2023 (Public Contracts Code), excluding the social partnership. The private party that will act as Responsible Party must meet the subjective requirements indicated from time to time by the award procedure initiated by the PA pursuant to Legislative Decree 36/2023 and, in particular:

• not to incur any of the grounds for exclusion referred to in Articles 94, 95 and 98 of Legislative Decree No. 36/2023.

• to be in possession of the economic-financial and technical-professional capacity requirements proportionate to the subject matter and value of the contract, pursuant to Articles 100 et seq. of Legislative Decree No. 36/2023.

• where the contract includes the execution of works, to be in possession of SOA certification in the relevant categories and classifications, where required by applicable law^[8].

The determination of the incentives, in terms of intensity and cumulability, is carried out within the limits of the expenses attributable to the PA within the framework of the PPP contract, both in the case where the PA is directly configured as the Responsible Party and in the case where the private party is identified as the Responsible Party. All eligible expenses pursuant to the Decree that are envisaged by the executive project approved pursuant to Legislative Decree No. 36/2023 are attributable to the PA, even if falling wholly or partly within the private party's investment, or that are indicated by the Financial Economic Plan (FEP) certified by a third party.

At the stage of submission of the application for the granting of incentives, the Responsible Party must provide:

• the PPP contract, duly signed by the parties and drafted pursuant to Article 174 et seq. of Legislative Decree 36/23, having the minimum requirements provided for by the implementing rules, namely:

  • the contractual relationship established between the public party and the private party must be long-term and aimed at satisfying a public interest, including in any case the energy refurbishment of the building subject to the intervention.

  • the coverage of the necessary financial needs must come to a significant extent from resources of the private party also by reason of the operational risk assumed.

  • the executive design, realisation and management of the project must be entrusted to the private party, whilst the public party is responsible for defining the objectives and verifying their implementation.

  • the construction and operational risk connected to the realisation and management of the project must fall predominantly on the private party.

  • a duration compatible with the achievement of the public interest underlying the award and, in any case, not less than the disbursement period of the incentive increased by five years, corresponding to the term for maintaining the requirements and preserving the documentation.

  • transfer of operational risk borne by the private party, on which the investment also falls in whole or in part, without prejudice to subsequent access to incentive mechanisms.

  • attribution to the private party of the task of realising and managing the work(s) subject to award, according to methods and requirements prescribed by the public party, which defines the objectives and verifies their implementation.

  • “termination clauses” which, in the event of early termination of the contract for reasons attributable to the private party, guarantee the restitution to GSE of the incentives already disbursed or the waiver of incentives not yet received;

  • the contract must be signed on a date prior to that of submission of the application for access to the incentives (in the case of interventions with direct access);

  • the contract must be effective, at the latest, on the date of acceptance of the application for access to the incentives.

• the executive project verified and approved pursuant to Legislative Decree 36/2023 with the indication of the eligible expenses for the purposes of the Conto Termico referred to in Articles 6 and 9 of the Decree, VAT and revenues including the Conto Termico incentive and finally the expected profit;

• the Financial Economic Plan (FEP) certified by a third party containing the total amount of expenses incurred for the realisation of the intervention by way of public-private partnership, with the indication of the eligible expenses for the purposes of the Conto Termico referred to in Articles 6 and 9 of the Decree, VAT and revenues including the Conto Termico incentive and finally the expected profit;

• the payment schedule envisaged by the contract;

• declaration containing the breakdown of eligible and non-eligible expenses, signed by the PA and the Private Party, drafted according to Model 10. The value of the eligible expenses indicated must correspond to that reported on the Portaltermico;

• in the case of multi-building contracts, allocation of costs for each individual building subject to the intervention, signed by both parties.

In order for an EPC to enable the ESCO to access, on behalf of the Eligible Party, the support mechanism of the Conto Termico 3.0, it must comply with the minimum requirements provided for in Annex 8 of Legislative Decree 102/2014 and must be consistent with the provisions of the Decree. In particular, the contract:

• must present the requirements referred to in Annex 8 of Legislative Decree No. 102 of 2014;

• must comply with the provisions of standard UNI CEI EN 17669:2023;

• must comply with the provisions of Article 2, paragraph 2, lett. n), of Legislative Decree No. 102 of 2014 and, therefore, be founded on guaranteed energy savings and not exclusively on economic effects;

• must provide for clear and consistent procedures for the determination of the energy baselines and for the identification of the normalisation methods of the boundary parameters;

• must provide for a measurement system that is clear and consistent with the algorithms of the savings to be determined and guaranteed;

• must refer to a single building or property unit on which the interventions are carried out, except for the exception provided for PAs (for which multi-building EPC is permitted);

• must provide for a contract duration compatible with the provisions of Article 13, paragraph 6, lett. a) of the Decree, (i.e., incentive period + five years following the disbursement period of the incentives);

• must be drafted in such a way that the link established between the parties is not fictitious, but must materialise with a periodic recognition of a fee, for the entire contractual duration, in consideration of a service/function to be maintained until the end of the contract;

• must provide for a clear and consistent indication of expenses, revenues and profit, in line with the provisions of Article 13, paragraph 6, letter b) of Ministerial Decree of 7 August 2025.

Although project financing (currently governed by Article 193 of Legislative Decree 36/2023), one of the methods of selecting the private partner in contractual PPPs, has been the subject of a recent ruling by the Court of Justice of the European Union which established the incompatibility of the right of pre-emption recognised as guarantor to the promoter, provided for by the previous Legislative Decree No. 50/2016[9] (but still reproduced in the current Legislative Decree No. 36/2023), and is (also in other respects) the subject of examination in an infringement procedure initiated by the European Commission on 8 October 2025, the conclusion of EPCs with public administrations is configured as an option which, whilst requiring careful planning and solid contractual structuring, appears destined to assume an increasingly central role in the coming years, alongside other instruments (such as, for example, the Energy Service Plus).

Indeed, the use of EPCs for the energy refurbishment of public buildings represents a significant economic driver for the supply chain of companies involved and, considering the extent of public real estate assets, an equally significant environmental driver, in terms of reduction of climate-altering emissions consequent to the achievable energy savings, as recently highlighted also by ENEA.

It must in fact be considered that Legislative Decree No. 36/2023 dedicates a specific provision to EPCs (Article 200), laying down detailed rules regarding certain contractual obligations and related methods of execution[10].

Moreover, access to the PPP instrument for the purposes of admission to the Conto Termico constitutes a further element of attractiveness, also in light of the joint preparation, by the National Anti-Corruption Authority, the State General Accounting Office and ENEA, of a standard energy performance contract or energy performance contract (EPC) for public buildings, pursuant to Article 200 of Legislative Decree No. 36/2023 and the related annexes (including the technical specification and the risk matrix).

This initiative assumes particular systematic importance: on the one hand, it promotes the homogeneity and standardisation of contractual clauses, reducing application uncertainties and structuring times for operations; on the other hand, it strengthens the bankability of projects, thanks to a clearer allocation of risks between the contracting administration and the economic operator, in consistency with the principles proper to PPP and provides a more stable and predictable regulatory framework for investors.

In order to make the structure and logic of PPP and EPCs consistent in the context of the Conto Termico 3.0, built on a logic of incentive referring to the individual intervention understood in the strict sense, it is necessary to adopt a different paradigm. In particular, it is necessary to enhance interventions, understood in the broad sense, of wider scope, which provide for a plurality of works and/or systems, and which are founded on an overall improvement of the energy performance of the system subject to intervention. Such performance, if realised in accordance with the contractual provisions and with equal cost of the energy vector, is capable of generating a measurable and advantageous saving both for the public administration and for the private partner.

In conclusion, the integration between the discipline of PPPs, the standard EPC scheme and the incentive mechanisms of the Conto Termico appears capable of promoting a wider dissemination of energy refurbishment interventions of public assets, with positive effects both on the financial and on the environmental level.

Terms of Payment of Incentives

Based on the Implementing Rules (Point 4.3), the incentive amounts are disbursed by the last day of the month following that of the end of the two-month period in which falls the date of completion of the Contract-Form[11], which coincides with the date of the communication by GSE to the Responsible Party of the provision for admission to the incentives referred to in the Decree.

For amounts up to EUR 15,000, the Decree provides for the disbursement of the incentive in a single instalment. Amounts exceeding this threshold are disbursed in constant annual instalments for the duration defined in Table 1 referred to in Article 11, paragraph 3 of the Decree (i.e., between 2 and 5 years)[12].

Pursuant to Article 11, paragraph 6 of the Decree, in relation to interventions carried out by the PA and Third Sector Entities (“ETS”), also through ESCOs or other authorised parties, disbursement in a single instalment is also provided for incentives of amounts exceeding EUR 15,000 when they opt for the direct access procedure (i.e., upon completion of the works) and not in the case of reservation (i.e., for works yet to be started or in the course of realisation, reserved for PAs and ETS).

For interventions carried out by economic ETS, also through ESCOs or other authorised parties, disbursement in a single instalment also for incentives of amounts exceeding EUR 15,000 is possible exclusively for Title III interventions[13].

Upon acceptance of reservation applications, GSE commits in favour of the requesting Responsible Party the sum corresponding to the maximum recognisable incentive. This amount is to be understood as a maximum estimated amount. The act of confirmation of the reservation issued by GSE represents a commitment to the disbursement of resources, without prejudice, in any case, to compliance with the eligibility conditions and the requirements provided for by the Decree.

The amount of the reserved incentive represents a maximum and may be subject to remodulation by GSE as a result of the investigative activities conducted on the declarations and documentation submitted by the Responsible Party for the purposes of the disbursement of the incentive.

In the case of access to incentives by way of reservation, also through an ESCO or other authorised party referred to in Article 13 of the Decree, where requested, the disbursement of the incentive may take place by way of:

• a down payment instalment[14], requested by the Responsible Party with the communication of the commencement of works.

• a possible intermediate instalment[15], which may be requested upon reaching 50% of the amount of the eligible expenses envisaged for the realisation of the intervention subject to the reservation.

• a final balance instalment, requested by the Responsible Party upon completion of the intervention, following the submission of the direct access application for accounting (so-called post-reservation).

The disbursement of the aforesaid instalments is carried out by the last day of the month following that of the end of the two-month period in which falls the date of activation of the contract, to be understood as the date of dispatch of the provision for admission to the incentives.

Where expressly provided for in certain of the contractual cases referred to in Article 14, paragraph 2, letter b) no. i., iii., iv.), namely: (i) presence of an energy audit and of a provision or other administrative act certifying the commitment to the execution of at least one of the interventions included therein; (ii) presence of an energy performance contract or another integrated supply contract for the energy refurbishment of the systems concerned; (iii) presence of a provision or other administrative act certifying the award of the works subject to the application-form, together with the minutes of delivery of the works drawn up by the works supervisor, the PA or the ETS may request that the sums reserved in its own favour be disbursed, also partially, by GSE to the ESCO signatory of the contract, under its own responsibility regarding the correct execution of the works and the quantification requested (subject to formal joint and several obligation between the parties).

It is noted that (i) a private party selected by the PA within the framework of public-private partnership forms that submits an application for a contribution under the Conto Termico - qualifying as the Responsible Party - on behalf of a PA, as well as (ii) an ESCO that submits an application for a contribution under the Conto Termico - qualifying as the Responsible Party on behalf of another party, through the signing of an EPC contract or Energy Service contract, cannot avail itself of the irrevocable collection mandate (Point 12.12.3.2. of the Implementing Rules).

It is specified, in fact, that the irrevocable collection mandate is an instrument by which payment for a good is effected, like a bank transfer receipt. In cases where the ESCO is configured as the Responsible Party, in fact, invoices and related bank transfer receipts must not be transmitted to GSE, and consequently the instrument of the irrevocable collection mandate cannot be adopted (Point 12.12.4 of the Implementing Rules).

The incentive will therefore be paid to the PA which will share it - if and to the extent agreed - with the ESCO but thereby rendering less attractive for financing entities such a type of financial structure.

On the other hand, the assignment of credit is permissible, exclusively for applications submitted in direct access mode and with instalment payment of the incentive and must relate to the totality of credits, present and future, held by the assignor against GSE by virtue of the Convention in force between the parties, until the expiry thereof or possible retrocession (Point 12.3.3. of the Implementing Rules). Furthermore:

• the credits must be assigned to a single assignee;

• the application for admission to the incentive must be made exclusively in Direct Access mode;

• the disbursement of credits must be in instalments;

  • it is necessary that the deed of assignment of credits be:

  • drafted on the basis of the standard GSE model in the form of a notarial deed or private deed authenticated by a notary and executed on a date subsequent to the acceptance provision issued by GSE.

  • complete with the Convention as an integral part of the deed of assignment of credits.

  • expressly accepted by GSE following notification, by registered letter with return receipt or certified email, to the principal and the agent.

The assignment of credit is valid until the acceptance, by GSE, of any deed of retrocession of the credit. The retrocession of the entire residual credit to the original assignor must take place in the same form, complying with the same conditions set out above, with which the deed of assignment of credits to which it refers was executed.

GSE will pay the residual credits to the original credit holder from the second month following the acceptance of the retrocession. GSE is not liable in the event of non-receipt, erroneous and/or delayed receipt of the deed.

The acceptance, both of the assignment and of the retrocession of credits, does not prejudice the power of GSE to oppose to the assignee the set-off that it could have opposed to the assignor.

[1] Pursuant to the Decree of the Ministry of the Environment and Energy Security of 7 August 2025 (“Ministerial Decree of 7 August 2025” or “Decree”) in force from 25 December 2025 (i.e., 90 days from publication in the Official Gazette). On 5 December 2025, GSE published the related implementing rules (the “Implementing Rules”).

[2] Insofar as they present technical, economic and procedural characteristics such as to justify a simplified authorisation and incentive regime, alternative to structural instruments (for large centralised production network energy infrastructures, complex industrial programmes) or complex incentives.

[3] Audits and preparation of the energy performance certificate are incentivised to the extent of 100% of the expense incurred by the public administration or by the ESCO that performs the intervention on its behalf, excluding housing cooperatives and social cooperatives.

[4] Referred to in Article 12 of Decree-Law 9 December 2023, No. 181, and in particular 5% for systems with photovoltaic modules produced in Member States of the European Union (“MS”) with module-level efficiency of at least 21.5% (lett. a); 10% for systems with photovoltaic modules with cells, both produced in MS, with cell-level efficiency of at least 23.5% (lett. b); 15% for systems with photovoltaic modules produced in MS, composed of bifacial silicon heterojunction or tandem cells produced in the EU with cell efficiency of at least 24.0% (lett. c).

[5] It is specified that the interventions referred to in points 1 and 2 must necessarily be carried out in existing buildings, parts thereof or existing property units.

[6] The nearly zero-energy building (nZEB) is defined as “a building with very high energy performance in which the very low or almost zero energy requirement is covered to a significant extent by energy from renewable sources, produced on site” by the EPBD Directive (2010/31/EU).

[7] Pursuant to Article 2, paragraph 1, letter tt) of the Decree, the Responsible Party (SR) is “the party that has incurred the expenses for the execution of the interventions referred to in this Decree and that is entitled to the incentive and enters into the contract with GSE. For the completion of the application-form and for the management of contractual relations with GSE, it may operate through a delegated party”.

[8] For the purposes of access to the incentives referred to in the Decree, where the PPP contract also provides for the management of energy savings on the building subject to the intervention, the party must be in possession of UNI CEI 11352 certification, issued by an accredited body, valid at the date of submission of the application to GSE. The certification must be maintained for the entire incentive period and for the five years following the disbursement by GSE of the incentive or of any last instalment of the recognised incentive. In the case of a temporary grouping of enterprises, consortium or special purpose company pursuant to Article 194 of Legislative Decree No. 36/2023, the provisions already specified for the ESCO apply with respect to the enterprise that must be in possession of UNI CEI 13352 certification.

[9] By judgment of 5 February 2026, the Court of Justice of the European Union declared, in Case C-810/24, the incompatibility of the right of pre-emption recognised to the promoter within the framework of the project financing procedure referred to in Article 183, paragraph 15, of the previous Public Contracts Code (Legislative Decree No. 50/2016) with European Union law and, in particular, with Directive 2014/23/EU on the award of concession contracts. Indeed, the censured right of pre-emption attributed to the promoter not awarded the procedure initiated by the contracting administration the power to adapt its own offer to that of the successful tenderer or, in the event of failure to exercise the pre-emption, to obtain reimbursement of the expenses incurred for the preparation of the proposal.

[10] In particular, Article 200 of Legislative Decree No. 36/2023 provides that in energy performance contracts or energy performance contracts (i) the management revenues of the economic operator are determined and paid according to the level of improvement of energy efficiency or other energy performance criteria established by contract, provided they are quantifiable in relation to consumption; (ii) the measure of improvement of energy efficiency, calculated according to the standards regarding certification of the energy performance of buildings and other energy-intensive infrastructures, is made available to the contracting entity by the economic operator; (iii) the measure referred to in the preceding point must be verified and monitored during the entire duration of the contract, also availing itself of appropriate IT platforms designed for the collection, organisation, management, processing, evaluation and monitoring of energy consumption.

[11] Contractual document to be executed between the Implementing Party and GSE and containing the contractual clauses that regulate the relationship between the parties in the incentive period relating to the interventions subject to the application for the granting of incentives referred to in the Decree.

[12] In the case of multi-intervention, the number of instalments is identified as the maximum value among the instalment values of the individual interventions referred to in the aforesaid Table 1, distributing equally among them the sum of the total incentive due.

[13] For such parties, where multi-interventions are carried out with a combination of Title II interventions (on buildings falling within the tertiary sector) and Title III interventions, the disbursement of incentives of amounts exceeding EUR 15,000 is carried out in multiple instalments and standardised to the maximum duration provided for by Title II interventions.

[14] The amount of the down payment instalment is equal to 50% of the benefit overall recognised, if the duration of the incentive is 2 years, it is equal to two-fifths of the benefit overall recognised, if the duration of the incentive is 5 years, in reference to the years indicated in Table 12.

[15] The amount of any intermediate instalment is quantified according to the maximum reserved incentive, with deduction of the down payment disbursed and distributing uniformly the remaining quota due, to the extent of 50%, between the intermediate instalment and the balance to be accounted for at the end of the works.

Accepting the objection raised by the counter interested party, the Regional Administrative Court ruled that pursuant to Article 119, paragraph 1(f) and paragraph 2 of the Code of Civil Procedure in judgments concerning disputes relating to measures concerning the procedures of occupation and expropriation of areas intended for the execution of public works or of public utility, all the ordinary procedural terms are halved (except, in first instance judgments, those relating to the notification of the appeal and the additional grounds), including the term for the transposition of the extraordinary appeal to the court by filing the notice of constitution pursuant to Article 48 of the Code of Civil Procedure, which constitutes a time limit of a procedural nature and must therefore be met under penalty of inadmissibility (see, ex multis, T.A.R. Veneto, Sec. II, 31 May 2024 no. 1251).

Pursuant to article 48, paragraph 1 of the Code of Civil Procedure, if the party against whom an extraordinary appeal has been filed lodges an opposition, the proceedings shall continue before the competent regional administrative court ‘if the appellant, within the peremptory term of sixty days from receipt of the notice of opposition, files with the relevant secretary's office the notice of appearance before the court, notifying the other parties thereof’.

It is, therefore, already with the opposition to the extraordinary appeal that the jurisdictional phase of the case opens, without the filing of the notice of appearance being considered as “service of the application initiating proceedings” - to which the shortened time limit would not apply -.

In fact, the notice of appearance is limited to re-submitting the appeal already lodged in the administrative proceedings, which cannot be supplemented or amended in its grounds and conclusions, and cannot, therefore, in any way be equated with the lodging of the appeal, which has already been lodged, with the result that, for matters subject to the special procedure under Article 119 of the Code of Administrative Procedure the filing of the writ of summons after the reduced term of thirty days from the date of opposition renders the appeal inadmissible due to the lateness of its filing for the purposes of transposition (see also Council of State, Section VII, 9 February 2023 no. 1443; Regional Administrative Court of Emilia-Romagna - Parma, 6 August 2024 no. 217).

Let's see, in a nutshell, its main contents.

***

Why issue guidelines?

To provide, while waiting for the approval of a punctual regulatory measure, uniform guidelines to municipal administrations, including from the urban and environmental point of view.

What are data centers?

They are rooms, buildings or physical facilities that house the IT infrastructure for the creation, execution and deployment of applications and services and for the storage and management of data associated with those applications and services.

How are data centers classified?

Based on size, energy requirements and computing power. Specifically, they are distinguished into:

• Hyperscale: large facilities, with energy requirements of more than 100 MW, that have, as a rule, phased development with successive implementation times dictated by the gradual growth of service requirements for end customers.
• Colocation: medium-sized facilities, with energy requirements of more than 5 MW.
• Edge: usually small facilities (sometimes just a container), with energy requirements of less than 1 MW.
• Pure crypto-mining ("mining"): small containers or buildings with high energy requirements, but operated with a few simple resources.

To the above must then be added HPCs (high performance computing), which can be of various sizes and with different energy requirements, but, in general, are facilities with high demands on computing capacity for purposes such as artificial intelligence, machine learning, and other complex computing operations.

What is the intended use of data centers?

Data Centers are compatible with manufacturing and office uses.

Where can Data Centers be located?

Municipalities can assess the suitability of the location of medium and large facilities based on the following criteria:

• presence of adequate infrastructure and availability of low-cost energy (preferably renewable energy) or self-generation of energy, with priority given to idle sites or brownfield areas, areas to be regenerated, areas with low density of facilities, areas where system economies can be realized, ecosystem facilities (district heating, CER, ...), climatically more suitable areas;
• environmental risk;
• landscape quality of different areas;
• possible impacts on ecological networks and green networks for use;
• presence, nearby, of infrastructure, such as roads, tpl, waterworks, power lines, sewers, technological pipelines, etc;
• presence of other data centers or to the presence of other activities that could benefit from the aforementioned settlement, also for the purpose of safeguarding employment and productive fabric.

What environmental permits are required?

• Where the nominal thermal power of the emergency power units is greater than 50 MW, one falls into an activity subject to AIA, such that it is necessary for the proponent to acquire in advance the measure of exclusion from EIA or, in the case of a total power exceeding 150 MW, the measure of environmental compatibility, in priority to the issuance of the AIA and any other authorization.
• For medium and large Data Centers, it is necessary to verify, based on the municipal planning, whether the intervention falls within the scope of SEA.

What is the impact on the permitting process?

Applications for medium- and large-scale facilities must be evaluated at a service conference where the Province or Metropolitan City territorially concerned will give an opinion on the compatibility of the intervention based on the provisions of these guidelines.

• “the greater the reduction of negative externalities related to freight transport in FVG, the greater the incentives that the multimodal transport operator will be able to obtain (albeit within the limits and purposes of the state aid regime for the different types of services offered by the multimodal transport operator)”.

In other words: FVG seems to have realized that one of the solutions to achieve as soon as possible an effective ecological transition in the transport sector within the FVG region (by significantly decreasing negative externalities due to CO2 emissions into the environment) is to actively support – through grants – multimodal transport operators that prefer an alternative transport solution to road transport.The European Commission appreciated such approach, considering the state aid scheme in question to be fully in line with the priorities and aims of the EU policy set out in the Strategy for Sustainable and Intelligent Mobility[5]  and the European Green Deal agenda[6].Here is a brief overview of the main features of the state aid scheme proposed by FVG (and approved by the European Commission).Aid will be granted in the form of direct grants based on the reduction of negative externalities related to freight transport[7].The eligible costs in the framework of the FVG state aid scheme correspond to the part of the so-called “external costs”[8] which the transport of an “Intermodal Transport Unit” (hereinafter, “ITU”) of 44 tonnes by rail or short sea shipping allows to avoid compared with road transport over a distance of 91 km.With regard to intermodal long-haul services[9], the baseline aid amount is set at EUR 50 per ITU transported.Such baseline aid amount may be adjusted by applying a coefficient that takes into account, for example, for intermodal rail transport services[10]:

• the distance of the route;
• the Alpine transit;
• the crossing of borders with Member States and non-EU countries; and
• the connection of regional logistical nodes and ports with other destinations in Italy, a Member State or a non-EU country.

With regard, on the other hand, to short-sea shipping transport services, the coefficient will also take into account any intermediate port calls.With regard to intermodal shuttle services within FVG, the baseline aid amount is set at EUR 50 per ITU transported (we refer, in particular, to non-exceptional transport operations).Even in such case, the baseline aid amount may be adjusted by applying a coefficient that takes into account, for example, for shuttle services by rail, the avoided alternative road leg[11].In its (positive) assessment of the state aid scheme in question, the European Commission therefore considered – inter alia – that the same:

• is proportionate because:(i) the resulting maximum permissible aid amounts stay below 50 % of the eligible costs[12];(ii) FVG undertakes to ensure that the final aid amount does not exceed 30% of the total costs of the rail or short-sea-shipping transport services alternative to road transport[13];
• does not have undue effects on competition and trade within the European Union[14];
• is necessary in order to pursue the objectives of reducing the environmental, health and social impact of road traffic envisaged by both FVG and the European Union;
• can produce a real incentive effect on multimodal transport operators so that they take concrete action for the development of intermodal transport in FVG, for the reduction of the negative externalities of heavy traffic, as well as for the achievement of the European Union’s priorities in the context of the European Green Deal.

In conclusion: considering the legal and development policy assessments set out in the Decision in question, a state aid scheme similar to the one authorised by the European Commission could be – in our opinion – a solution potentially applicable also in other Italian regions (obviously through the specific formal procedure for the examination of the regional aid in question – pursuant to Article 108 of the Treaty on the Functioning of the European Union – before the European Commission).In particular, with the aid measure in question FVG is supporting both an effective modal integration of the different transport systems and the increasing shift of freight traffic from road to alternative modes (rail and waterways).It would therefore be desirable for similar initiatives to be implemented also in the rest of Italy and – to this end – we hope that appropriate technical meetings can be set up as soon as possible (probably on a regional basis and perhaps also involving the reference stakeholders) to increase intermodality in Italy and enhance synergies with the so-called “dry ports” also through the use of special incentives already provided by national law (see, for example, the so-called Ferrobonus)[15].We believe that the efficiency of logistics services and the boost to intermodality (also through initiatives such as the one commented on here) can be important factors also for a concrete development of local and national ports.The development of rail transport systems would make it possible to “lighten” the pressure on the road network of ports and their territories and thus improve and make more efficient the entire logistics supply chain. This would also allow ports, in line with their Port Master Plans, to be prepared when major port infrastructure works will be ready (see, among others, Darsena Europa in Livorno and, above all, the new breakwater of Genoa). This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Alberto Torrazza and Emanuele Rinaldi.  ^[1] The aid scheme in question is based on the following FVG regional legislation:

• article 21 of Regional Law No. 15 of 24 May 2004, entitled “Regulatory reorganisation of the year 2004 for the sectors of civil protection, environment, public works, regional planning, transport and energy” as subsequently amended and/or supplemented;
• the Regulation implementing interventions for the development of intermodality adopted by Decree of the President of the Friuli-Venezia Giulia Region No. 256 of 28 August 2006 as subsequently amended and/or supplemented.

^[2] The scheme notified by the Italian authorities represents the continuation of two previous state aid measures (SA.18169, approved on 22 March 2006 and extended twice with numbers SA.29788 on 10 June 2010 and SA.45606 on 18 July 2016; SA.50115, approved on 20 December 2018), both expired in 2021. Such notified scheme provided for appropriate adjustments to bring the new measures in line with the objectives of the European Green Deal.^[3] As mentioned/specified in paragraph (35) of the Decision, multimodal transport operator means any private and public logistic company (registered in any Member State of the European Union) providing:

• intermodal long-haul services (i.e., those services operated between the regional territory and other national and international destinations such as intermodal rail transport service and intermodal short sea shipping service); and
• intermodal “shuttle” services within FVG (i.e. intra-regional railway “shuttles” and inter-port coastal “shuttles”).

In order to possibly be admitted to the State aid scheme (which in any case requires a specific admission procedure), multimodal transport operators must – inter alia – organise intermodal transport involving rail or short-sea shipping and at least one other mode of transport (road and short-sea shipping or rail respectively), as well as organise complete packages of intermodal transport services in a regime of free access by users, also taking care of the main part of the transport service.[4] See section 2.4.1. and 2.5. of the Decision. In particular, one of the three main objectives of FVG is to further promote and support intermodal transport operations on medium to short distance connections within the regional territory (between ports, logistic hubs and heavy industry production centres) in order to decongest roads and shift heavy goods traffic to more sustainable transport modes such as rail and waterborne transport.[5] By Communication COM(2020) 789 final of 9.12.2020, the Commission presented a set of measures that aim to set the European Union on the path to a future system of sustainable, intelligent and resilient mobility, making the main changes necessary to achieve the goals of the European Green Deal.[6] The European Green Deal is a package of strategic initiatives aiming to set the European Union on the path towards a green transition, with the ultimate goal of achieving climate neutrality by 2050.[7] Potential beneficiaries must submit their application (with the documentation provided for in paragraph (59) of the Decision) to the competent authorities by the end of March of the relevant year.[8] The categories of external costs are exemplified in paragraph 1.3.1. of the “Handbook on the external costs of transport”, (version 2019 – 1.1) commissioned by the European Commission DG MOVE and developed by a consortium led by CE Delft. Specifically, external costs are those related to accidents, air and noise pollution, climate change, traffic congestion, well-to-tank (WTT) emissions, damage to natural habitat, and other external cost categories (e.g. soil and water pollution).[9] For the sake of completeness on this point, as can be inferred from paragraphs 2.9.1. and 2.10.1. of the Decision, it should be emphasised – inter alia – that an “intermodal short-sea shipping service” is defined as a new service started from the date of publication of the amended implementing regulation referred to in footnote 7 above, on the maritime routes:

• connecting the three ports of the FVG region and the other national and international port destinations on the Adriatic Sea; and
• for which road transport is also possible.

[10] Such baseline amount may be increased by up to EUR 55 per ITU transported.[11] Such baseline amount may be increased by up to EUR 55 per ITU transported.[12] See paragraphs (51), (53) and (55) of the Decision.[13] See paragraph (45) of the Decision.[14] See paragraph (96) of the Decision.[15]  By Decree No. 24 of 7 March 2022, Ferrobonus, the national incentive to support combined and transhipment transport by rail, was extended for the year 2022.

a) the granting of concessions;b) the identification of the duration of concessions;c) the exercise of supervisory and control powers by granting authorities (i.e. Port System Authorities or, in their absence, Maritime Authorities);d) the identification of the modalities for renewal and for the transfer of the facilities granted under concession to a new concessionaire, upon the expiry of a concession;e) the identification of the limits of the concession fees payable by concessionaires;f) the identification of the modalities aimed at ensuring compliance with the principle of competition in ports of international and national relevance, identified pursuant to Article 4 of Law No. 84/1994 (see paragraph 2 of “new” Article 18 Law No. 84/94).

This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Ekaterina Aksenova and Luca Brandimarte.

1. Decision No. 170/2022 - Call for input on the Italian port industry

As mentioned above, ART has preliminarily launched an impact assessment of the first regulatory measures in the port sector that it adopted in 2018.According to the recitals to Decision No. 170/2022, said impact assessment revealed the “limited effects” produced by the first regulatory measures mentioned above. Such limited effects, in combination with the need to adapt said measures to the new market environment, apparently prompted ART to initiate a process for revising such measures.Hence the call for input initiative, whereby ART approved a document entitled “Determination of methodologies and regulatory criteria to ensure fair and non-discriminatory access to port facilities - call for input”.Said document covers all the “issues in the spotlight” in respect of which ART intends to collect comments from operators. For the sake of conciseness, that is required here, we are unable to go into all such issues in detail, so we will limit ourselves to outlining the ones we consider most relevant, which are the following:

• ART highlights the growing phenomenon of vertical integration between shipowners and port operators. Also in the light of this phenomenon, ART wishes to receive observations with respect to issues relating to the publication of tariffs and the supervision of their proper application, the effective contestability of areas, the compliance with business plans and the possible sanctioning mechanisms to be provided in case of non-compliance with the commitments made by the concessionaire[5]. Moreover, with specific reference to the aforementioned phenomenon of vertical integration, ART is considering the hypothesis of introducing a minimum percentage of terminal capacity dedicated to cargo handling on behalf of third-party ship owning companies (i.e. not belonging to the terminal group);
• duration of the concessions and end-of-concession indemnity: ART considers it useful to identify specific criteria in order to parameterize the duration of concessions to the investments planned by the concessionaire in its own business plan (also on the basis of the type of investment) and considers it appropriate to determine in advance the criteria for calculating any indemnity in favor of the outgoing concessionaire at the expiry of its concession;
• determination of concession fees: ART aims to identify incentive mechanisms for establishing the variable part of the concession fee, providing for a relevant annual update based on the results achieved by the concessionaire. This also by means of tools to measure the concessionaire’s performance;
• incidence of new infrastructures that might be built today with public funds (such as, first and foremost, the NRRP (National Recovery and Resilience Plan) funds) and that could favour only some concessionaires to the detriment of others;
• access to services (including also energy supply) and essential port facilities (including also last-mile rail infrastructure): ART is considering further measures to ensure fair and non-discriminatory access to said services and facilities. Moreover, in this context, issues related to self-handling operations and the discretionary power of the AdSPs (Port System Authorities) in defining port charges and fees also come to the fore;
• concessions granted pursuant to Article 36 of the Italian Navigation Code for cargo handling and passenger services in ports: ART is considering adopting, for concessions granted pursuant to Article 36 of the Italian Navigation Code, regulatory measures similar to those for concessions granted pursuant to Article 18 of Law No. 84/1994, where compatible.

The deadline for submitting to ART any comments on the issues in question - or other issues deemed, however, of interest - will expire on 6 December 2022. A further round of discussion is likely to follow, especially through dedicated hearings, before finalizing the new regulatory measures.ART has planned to conclude the revision process of the regulatory measures at issue by 29 July 2023.So, for those who wish to bring to ART’s attention their input on the best regulatory measures to be adopted in the port sector, now is the time. In our opinion, a broad participation in the call for input is certainly advisable to ensure that the regulatory measures can be actually in line with the needs of our industry.

2. ART Decision No. 157/2022 - Impact assessment of the regulation concerning the methodology for determining the reasonable profit margin in maritime cabotage services and road and rail LPT (local public transport) services

As already mentioned, the call for input on ports is not the only dialogue opened nowadays by ART with regard to our industry.Indeed, with Decision No. 157/2022, ART started the impact verification assessment of the regulation concerning the methodology for determining the reasonable profit margin in maritime cabotage services, referred to in Measure 10 of Annex A to Decision No. 22/2019, and in road and rail LPT services, referred to in Measure 17 of Annex A to Decision No. 154/2019.Again, we are talking about regulatory measures adopted in the last years (precisely in 2019) for which now ART deems it appropriate to assess the actual impact on the market with a view to their revision (also in the light – one more time - of the changed economic context).This impact assessment will end on 30 November 2022, hence, this is the deadline for sending any comments.

3. Decision No. 183/2022 - public consultation for the determination of the contribution for the operation of ART for the year 2023

This consultation is not only of interest to our industry, but to all entities regulated by ART. Such a consultation is, de facto, repeated every year, but it “touches” on a particularly sensitive topic (and in fact was the subject of numerous disputes over time): we are obviously referring to the fee for the operation of ART.Indeed, this year too, ART has decided to put out for consultation a document - called “Consultation document concerning the determination of the fee for the operation of the Transport Regulatory Authority for the year 2023” - in order to gather comments from those concerned.There is time until 4 November 2022 to make your voice heard.In this regard, finally, we wish to point out that ART has recently signed with the Customs and Monopolies Agency (Agenzia delle Dogane e dei Monopoli) an operational protocol (which follows the execution of a Memorandum of Understanding (Protocollo di intesa) signed in January 2021) aimed at optimizing the “monitoring of import/export activities through national port calls, as well as inspection supervision activities in port areas, with particular reference to the proper compliance with the provisions concerning the fee for funding the Authority, as well as in relation to the proper formation and updating of tariffs and fees, taking into account the principles and criteria indicated by ART”. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For any further information please contact Simone Gaggero.  [1] Pursuant to Article 37 of decree law No. 201 of December 6, 2011, converted, with amendments, by Law No. 214 of December 2011, 22.[2] See Article 37, paragraph 2, point a) of decree law No. 201 of December 6, 2011.[3] The impact assessment was started with Decision No. 153/2022.[4] The call for input was launched with Decision No. 170/2022.[5] ART is also considering the possibility of introducing a Service Level Agreement (SLA) system and other tools for measuring the concessionaire’s implementation of investments, with possible reward or penalty mechanisms.

For years, the European Union has been a leader in protecting the environment and fighting the climate change. In addition to the rules laid down by the IMO[1], the European maritime transport sector has long since been provided with a regulatory framework aimed at reducing its own environmental impact[2].During 2019, the European Commission (the “Commission”) submitted to the European Parliament the so-called “European Green Deal”, i.e. a set of initiatives and proposals aimed to make Europe climate neutral by 2050[3]. So, on 14 July 2021, in the context of the Green Deal, the Commission, adopted the so-called “Fit for 55 climate Package” (“Fit for 55”)[4], i.e. a set of proposals guiding EU policies on climate, energy, transport and taxation so as to reduce net greenhouse gas emissions by at least 55% by 2030 compared to 1990 levels. It is a package of proposals covering all sectors of economy and aiming to change and accelerate Europe’s decarbonisation trajectory, mainly through economic and fiscal leverage.

2. The Fit for 55 Package and the proposals for the shipping sector

In particular, four of the above proposals directly concern shipping (both at international and intra-European level).

a. Inclusion of maritime transport in the so-called “Emissions Trading System” (“EU-ETS” or “ETS System”), the EU emissions trading system

b. Imposition of greenhouse gases intensity requirements on marine fuels through the so-called “FuelEu Maritime” initiative

c. Revision of the so-called “Energy Taxation Directive” (“ETD”) proposing the removal of tax exemptions provided for fossil fuels used in maritime transport sector

d. Adoption of a new regulation for the deployment of alternative fuels infrastructure (the so-called “Alternative Fuels Infrastructure Deployment” or “AFID”).

3. Possible implications for the shipping sector

According to the initial estimates of specific industry studies, both the ETS proposal and the FuelEU Maritime initiative would impact slightly less than 70% of the annual CO₂ emissions due to EEA-related maritime transport, including the portions of international voyages to and from the ports of the EEA itself.With regard to the inclusion of the maritime transport sector in the EU-ETS, if, on the one hand, the allowances regime aims at a reduction of emissions through the economic leverage - according to “the polluter pays” principle - combined with a progressive decrease of available allowances (which will consequently increase in price), on the other hand, there is the issue that shipping companies, due to a technological and infrastructural framework beyond their control[9], might be unable to change their own energy plan and instead be subject to the mere payment of allowances. This would lead to a significant increase in transport costs, without any real benefit in terms of reducing emissions - at least in the short term. Therefore, it would be very difficult for shipowners to afford the investments needed for a real energy transition, with a negative impact on the competitiveness of said companies and other European maritime and port operators, such as port terminals.On the contrary, the FuelEU Maritime initiative could, in theory, be favourable to the maritime transport sector, insofar as it aims to encourage the adoption of alternative fuels to those derived from oil by imposing that fleets use gradually increasing percentages of low or zero carbon energy.Yet, the Commission’s proposed timetable, which assumes that the development of low-carbon fuels is currently unforeseeable, gives rise to some concern[10]. Indeed, if on the one hand incentives can be a valid support to speed up the process, on the other hand, the obligation to reach pre-established quotas of “alternative fuels” in the absence of technological and supply certainty would once again be “punitive” towards a sector that would be basically penalised for “faults” that at times are not its own, with further economic burdens to the detriment of the development and renewal of fleets.With regard to the last two proposals, first of all, it should be noted that the envisaged revision of the ETD would lead to the elimination of the exemption from payment of excise duties on marine fuels (which is still provided for), thus opening the way to the introduction of excise duties on marine fuels, with potentially serious repercussions on the costs of shipping companies and therefore of maritime transport as a whole. Instead, it would be appropriate to extend the exemption to include LNG, in line with the objectives of the EU Fuel Maritime initiative and AFID.Lastly, the initiative aimed at adopting the AFID Regulation could have positive implications for the shipping sector, given that the availability of an adequate distribution network for alternative fuels is a precursor to the effective - albeit progressive - de-carbonization of shipping.In this respect - even assuming that such a distribution network is closely linked to the choice of alternative fuels that will become available on the market and that therefore a careful reflection and planning will be required - it would be crucial that the implementation of the LNG distribution network, despite being a transitional fuel, be accelerated as much as possible. This would allow ships to use such fuel on a large scale as soon as possible. All this would be possible through an appropriate and efficient interface between shore-side electricity supply facilities for ships at berth in ports and the installation of “cold ironing” facilities on board. Likewise, it should be possible to compare the cost of shore-side electricity with that of self-generated electricity on board the ship, which is currently significantly lower.

4. Concluding remarks

The framework described above basically refers to possible solutions which, before being adopted, will have to be discussed with the European Parliament and the Member States, but which, in any case, could mark the start of more “aggressive” policies on emissions and the de-carbonization of the maritime transports sector. This, as we have seen, also through the imposition of unilateral measures on international shipping that are in potential conflict with the measures adopted by the IMO, which is the regulatory body responsible for international maritime traffic.There is no doubt that the real “battle” will be played out in Brussels, where the competent authorities at national level, as well as the stakeholders concerned, will most likely try to explain to Europe that initiatives such as those outlined here, which are more than worthy of support in their aims, must in any case also take into account the interests and needs of our sector. This, in order to avoid the adoption of solutions that entail the risk of triggering a process that is extremely detrimental to the maritime-port sector in our country. All the above, with the possible consequent alteration of the level of competition between transport companies operating in and with Europe and the other global companies which, by not calling European ports, would escape the new and more restrictive rules, thereby risking a significant reduction in traffic flows and port activities on the European continent and, in particular, in our Country. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Simone Gaggero, partner ADVANT Nctm, and Luca Brandimarte, Assarmatori.  [1]   First of all, one should consider, the adoption of the International Convention for the Prevention of Pollution from Ships (MARPOL) of 1973 which: (i) in 1997, was supplemented by Annex VI dedicated to the prevention of air pollution from ships; (ii) in 2011, introduced a chapter concerning mandatory technical and operational measures to improve energy efficiency, aimed at reducing greenhouse gases emissions from ships. Further measures, just as an example, were subsequently introduced by the IMO - starting from 2013 – in the so-called “Energy Efficiency Design Index” (EEDI) for all new ships and the so-called “Ship Energy Efficiency Management Plan” (SEEMP) for all ships in operation. Starting in 2023, new measures will be introduced that: (a) will require all existing ships to calculate their energy efficiency index (EEXI - “Energy Efficiency Existing Ship Index”), which shall comply with a specific baseline identified by IMO itself according to the type of ship, so that if the ship does not meet the requirements, specific technical solutions shall be adopted to improve its energy efficiency and bring the EEXI back to the expected value; (b) will require ships to provide their Carbon Intensity Indicator (CII) and CII rating on an annual basis. All this in order to achieve, by 2030, a reduction of at least 40% in carbon intensity and, by 2050, a reduction of at least 70% in carbon intensity and 50% in the absolute value of greenhouse gas emissions, with the stated aim of “zero emissions as soon as possible, by the end of this century”.[2] Other examples include, by way of example, action in the fuel and ships dismantling sectors. Indeed, since 1 January 2010, all ships, of all flags, docked in European Union ports must use fuels with a sulphur content not exceeding 0.1% and, since 31 December 2014, Regulation (EU) 1257/2013 on ship recycling has been in force, which applies to all ships of 500 gross tonnage or more, flying the flag of an EU Member State and to ships flying the flag of third-party countries calling at an European Union port.[3] See European Commission Communication of 11.12.2019, COM(2019) 640 final.[4] See European Commission Communication of 14.07.2021, COM(2021) 550 final, entitled: “Fit for 55: delivering the EU’s 2030 Climate Target on the way to climate neutrality”.^[5] Subsequently amended by Directive (EU) 2018/410.[6] Still with a gross tonnage of 5,000 gt or more.[7] See Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity.[8] All with a view to improving the provisions already laid down in Directive (EU) 2014/94 on the deployment of alternative fuels infrastructure.[9] Indeed, the ship is only the user of an alternative fuel that must first of all exist and be produced and distributed.[10] This is based on the assumption that the least carbon-intensive energy sources would currently consist of LNG only, which allows a drastic reduction in sulphur and nitrogen oxides and particulates emissions, but has also a significant effect, albeit more limited - until 20%, if particular conditions are observed - on the CO₂ emissions. Indeed, in practice, there are currently no “zero carbon” energy sources available for ships and industry studies predict that there will not be any for several years.

(i) will only be able to maintain such registration – and benefit from the benefits deriving therefrom – if, during the reference year, it has demonstrated that more than 50% of the towage activity carried out by that tug has been classified as “towing transport” (as defined above);

(ii) will in any case benefit from the facilitative measures granted by the “International Registry” only to the extent provided for by the applicable legislation and in any event only with reference to the “towing transport” activity effectively carried out. For the remaining part of towage activities, i.e. “port towage” (including assistance activities at one of the “other berthing places” referred to in Article 14, paragraph 1c, of the Harbour Law), the company will not be eligible for benefiting from the above-mentioned facilitative measures [5];

(iii) will have to cancel such registration – and will have to consider itself obliged to return the amount received – if the aforementioned threshold of 50%, for the purposes of aid eligibility, is not exceeded at the end of the reference year.

(i) the importance of verifying, also in the individual local contexts, that the activity effectively carried out during the year by the tugboats registered in the “International Register” consisted of «maritime transport» activities for more than 50%; and that

(ii) the registration of the vessel in the “International Register” may be suspended if the 50% threshold is not exceeded.

1. The new decrees issued by the Government

The new decrees extend and clarify the provisions set forth in Decree-Law 21 of 15 March 2012 (the “Golden Power Decree”), which governs, together with the secondary implementing legislation, the issue of special powers exercisable by the Government with regard to strategic assets in certain sectors of the economy.The legislation on investment control requires notification of the President of the Council of Ministers of the acquisition of equity interests in companies holding strategic assets, as well as notification of certain acts and transactions, essentially along two lines: i) the protection of the essential interests of defence and national security (Article 1) and ii) the protection of public interest with regard to the security and functioning of networks and systems and the continuity of supply (Article 2, with particular reference to energy, transport and communications).The Golden Power Decree has gradually been extended and its application has also been broadened to 5G networks and technologies [4] as well as to assets and relationships of strategic importance in the sectors referred to in Article 4, paragraph 1 of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 [5] (critical infrastructures and technologies and other sectors identified as significant such as health, finance, credit and insurance). [6]Decrees No. 179 and No. 180, which will enter into force on 14 January 2021, intervene in two respects.Firstly, with the adoption of Prime Ministerial Decree No. 179 of 18 December 2020, the assets and relationships of strategic importance to national interest are identified in the sectors indicated in Article 4, paragraph 1, of Regulation (EU) No. 2019/452https://www.gazzettaufficiale.it/eli/id/2020/12/30/20G00199/sgSecondly, with Prime Ministerial Decree No. 180 of 23 December 2020, the Government has identified assets of strategic importance in the energy, transport and communication sectors referred to in Article 2 of the Golden Power Decree, extending the scope of the previous secondary implementing regulations [7].https://www.gazzettaufficiale.it/eli/id/2020/12/30/20G00200/sg 

2. Goods and relationships of national interest in the sectors referred to in Article 4(1) of Regulation (EU) 2019/452

Accordingly, Prime Ministerial Decree No 179 of 18 December 2020 identifies goods and relationships of strategic importance to the national interest in the sectors referred to in Article 4(1) of Regulation (EU) No 2019/452, namely: a) in the energy sector; b) in the water sector; c) in the health sector; d) in the sector for the processing, storage, access and control of sensitive data and information; e) in the electoral infrastructure sector; f) in the finance sector, including the credit and insurance sectors and financial market infrastructures; g) in the fields of artificial intelligence, robotics, semiconductors, cyber-security, nanotechnology and biotechnology; h) in the sectors of infrastructure and non-military aerospace technologies; i) in the procurement of critical inputs and in the agri-food sector; l) in dual-use products, i.e. usable for both civil and military purposes; m) in the field of media freedom and pluralism.Pending the introduction of today's Prime Ministerial Decree, Decree Law No. 23/2020 “the Liquidity Decree”) imposed notification for the purchase of equity interests in companies operating generically in the sectors in question, without further specifications, resulting in legal uncertainty for operators, as well as a large number of notifications from companies, often for purely precautionary purposes.Of relevance, in addition to the list of significant assets in the above-mentioned sectors referred to in the 17 Articles of the Prime Ministerial Decree 179/2020, is the defining force established in Article 2, proposing definitions of “critical infrastructure”, “critical technologies” “critical information” and “economic activity of strategic importance”, all of which refer, albeit with some lexical nuances, to the concepts of maintaining the vital functions of society, the health, safety and economic and social well-being of the population and to technological progress.  In addition, for the economic activities carried out in certain fields, namely in the sectors of energy, water, health, finance, credit and insurance, quantitative turnover thresholds (300 million per annum of net annual turnover) and employees (an average annual staff payroll of two hundred and fifty units) are established, below which notification is not required. For economic assets involving dual-use products (i.e. products and technologies usable for both civil and military purposes) only the turnover threshold and not the payroll threshold applies [8].These developments have a clear deflationary goal, with the aim of reducing the number of transactions likely to fall under the Government's lens. In this regard, it suffices to note that, while in 2019 the Government recorded 83 notifications [9], from January to October 2020 alone, depending on the regulatory changes as they occurred, more than 200 notifications have been recorded. 

3. Strategically important assets in energy, transport and communications 

Prime Ministerial Decree No. 180/2020 also concerns the energy, transport and communication sectors, pursuant to Article 2 of the Golden Power Decree. The changes compared to the previous regulation are mainly apparent in the transport sector, where the Government has added road and motorway networks of national interest, national space ports and major national interport platforms as strategic assets.In particular, within the national energy system, the Prime Ministerial Decree identifies assets of strategic importance as energy networks of national interest, and in the related contractual relationships. These assets include: (a) the national natural gas supply network and related compression stations and dispatching centres, as well as gas storage plants; b) electricity and gas supply infrastructure from other States, including onshore and offshore LNG regasification plants; c) the national electricity supply grid and related control and dispatching plants; d) the management of core real estate related to the use of the networks and infrastructure referred to in points a), b) and c) above.As far as transport is concerned, strategic assets are identified as large networks and facilities of national interest, also intended to ensure the main trans-European connections, and in their contractual relations, namely (a) ports of national interest; (b) airports of national interest; (c) national space ports; (d) the national rail network of relevance for trans-European networks; (e) interport platforms of national significance; (f) road and motorway networks of national interest.Finally, Article 3 identifies strategic assets in the communications sector: i) dedicated networks and public access network to end users in connection with metropolitan networks; ii) service routers and long-distance networks; iii) the facilities used to provide access to end users of services covered by the obligations of universal service and broadband and ultra-fast broadband services, and their contractual relationships; iv) dedicated components, even where the use is not exclusive, for connectivity (voice, data and video), security, control and management relating to telecommunications access networks at fixed locations. 

4. Extension of the notification obligation to transactions executed by intra-EU entities and new notification forms

Under the Liquidity Decree, the Government extended the notification obligations, given the exceptional situation caused by the epidemiological emergency under Article 2 of the Golden Power Decree also to the purchase of equity investments in companies holding strategic assets “by foreign entities, including those belonging to the European Union”, until 31 December 2020.By law dated 18 December 2020 [10], this provision was extended for a further six months, until 30 June 2021.Therefore, until that date, with regard to the energy, transport and communication sectors and the additional strategic sectors referred to in Article 4 of Regulation 2019/452, transactions carried out with entities resident in the European Union will also continue to be subject to the reporting requirement [11].It should also be noted that the Government has recently launched new notification forms, which require very detailed information, to be drawn up in both Italian and English.http://www.goverNo.it/it/dipartimenti/dip-il-coordinamento-amministrativo/dica-att-goldenpower-moduli/9297 This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Francesco Mazzocchi and Luca Toffoletti.  [1] Regulation for the identification of goods and relationships of national interest in the sectors referred to in Article 4, paragraph 1, of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019, pursuant to Article 2, paragraph 1-ter, of Decree-Law No 21 of 15 March 2012, converted, with amendments, by Law No. 56 of 11 May 2012”).[2] Regulation for the identification of assets of strategic importance in the energy, transport and communication sectors, pursuant to Article 2, paragraph 1, of Decree-Law No. 21 of 15 March 2012, converted, with amendments, by Law No. 56 of 11 May 2012.[3] Conversion into law, with amendments, of Decree-Law 137 of 28 October 2020 [known as the Savings Decree], setting forth further urgent measures on the protection of health, support for workers and companies, justice and safety, related to the epidemiological emergency caused by COVID-19.[4] Article 1-bis of Decree-Law No. 21 of 2012, introduced by Decree-Law No. 22 of 25 March 2019, concerns the exercise of special powers with regard to electronic broadband telecommunications networks using 5G technology. In particular, a company that enters into, in any capacity, contracts or agreements for the acquisition of goods or services relating to the design, construction, maintenance and management of networks for electronic broadband communication services based on 5G technology, or acquires, in any capacity, technological components instrumental to the said creation or management, when established with parties outside the European Union, must therefore submit a notification pursuant to the Golden Power legislation.[5]See Decree-Law No. 105 of 21 September 2019, which has further extended the scope outlined in Article 2 of the Golden Power Decree by inserting in paragraph 1-ter the possible compromising of the safety and functioning of the networks and systems and of the continuity of supply including to assets and relationships of strategic importance to the national interest in the sectors identified in Article 4, paragraph 1, of Regulation (EU) No. 2019/452.[6] Article 15 of Decree-Law No. 23 of 8 April 2020 (the Liquidity Decree) provided that “Until the date of entry into force of the first Decree of the President of the Council of Ministers referred to in Article 2, paragraph 1-ter, of Decree-Law No. 21 of 15 March 2012, converted, with amendments, by Law No. 56 of 11 May 2012,, as replaced by paragraph 1, letter c), number 3), of this Article, without prejudice to the application of Articles 1 and 2 of the aforementioned Decree-Law, as amended by this Article, the notification referred to in paragraph 5 of Article 2 of the same Decree-Law No. 21 of 2012 shall be subject to the purchase for any reason of equity interests in companies holding goods and relationships in the sectors referred to in Article 4, paragraph 1, letters a), b), c), d) and e) of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019, it being understood that the finance sector includes credit and insurance, and the health sector includes the production, import and wholesale distribution of medical, medical-surgical and personal protection devices”.[7] Set forth in Presidential Decree No. 85 of 25 March 2014.[8] Pursuant to Article 12 of Prime Ministerial Decree 179/2020, “the assets and relationships referred to in Article 1 include economic assets of strategic importance relating to dual-use products indicated in Article 3(1) of Council Regulation (EC) No 428/2009 of 5 May 2009, carried out by companies with a net annual turnover of no less than €300 million”.[9] See Golden Power 2019 report.[10] See above Note 3.[11] And not only those implemented with parties outside the Union. Unlike the sectors referred to in Article 2 of the Golden Power Decree, with regard to 5G technology, significant transactions must only be reported when carried out with parties outside the European Union, while for transactions falling within Article 1 of the Golden Power Decree, the rules provided, ab initio, for notification including of intra-EU transactions.

• the concessionaire may not be the holder of two different concessions under Article 18 of Law No. 84/94 in the same port at the same time, unless the two concessions relate to different activities;
• the concessionaire may not carry out port activities in State-owned areas other than those granted under the concession.

Our focus here is on the first of the two prohibitions, which - as mentioned above - is referred to as the “prohibition of double concession”.The wording of the provision is objectively clear. So, from a “formal” standpoint, the prohibition of double concession would not be breached only if different activities were carried out in the two areas granted under concession within the same port.This is the so-called principle or criterion of specialisation.We have no interpretative or applicative issues with regard to said principle of specialization of trafficking.Instead, case-law has made logistical and geographic considerations, reaching the conclusion that the prohibition of double concession is not breached– not only in the (undisputed) event of specialization – but also when the two concessions concern contiguous State-owned areas[4] (given that evidently, if this were the case, in the end there would be only a single concession area).In what we would call “extreme” cases, the evolution of case-law has even gone so far as to consider that the prohibition is not breached whenever a dominant position is not created to the detriment of competition (as might also be the case, for example, if the same undertaking were allowed to enjoy “exceptionally large spaces[5]” in a given port).With respect to this latter case-law approach, we should make a very concrete consideration: if the legislator wanted to permit the overlapping of two concessions for the same activity, in the same port, to the same entity, it would have made it explicit in the rule being commented here (as he made explicit the principle of specialization).But the wording of the rule leaves no room for interpretation. It is a total prohibition. Let’s make an example: if a rule sets at 130km/h the maximum speed limit on motorways, that is the limit, even if a Formula 1 driver breaches it. There is no question of the ability of such a driver to drive safely even beyond said limit, but legal certainty requires that the prohibition is nevertheless to be deemed to have been breached.Likewise, we could say that today a double concession in the same port to a sole beneficial owner (except in the case of specialization) is prohibited regardless of whether or not it is likely to harm competition.This approach has been confirmed by the Italian Antitrust Authority (AGCM), which Indeed, although recognizing the rule as functional to the protection of competition and, in particular, aimed at preventing abuses of dominant position[6], has neither verified the potential impairment of competition nor carried out particular market analyses[7], limiting itself to pointing out that the prohibition of double concession is breached every time a subject - even through the intervention of third parties - controls two distinct State-owned areas, destined to port operations and/or services, in which the same activities are carried out[8].So, let’s get to the point that we wanted to stress.In our opinion, the current debate has not properly highlighted an aspect that we believe to be essential to the issue: who is to benefit from this rule, which we all agree is aimed at protecting competition? There can only be one answer: the rule is in favour of the users of the port and therefore, first and foremost, of shipowners.The reasons may seem even trivial. Indeed, it is undisputed that - in general[9] - (fair) competition between enterprises supports the entrepreneurial spirit and efficiency, ensures greater possibilities of choice on the part of consumers (meaning here the users of the port), favours the reduction of prices, the raising of services quality and therefore also a greater rate of innovation (all this, in the end, with a consequent increase in attractiveness and competitiveness also of the port wherecompetition is correctly promoted).After all, this was the approach that our legislator had clearly in mind from the outset. Indeed, in the preparatory works for the Italian Port Law, it is stated that “the port must, therefore, be open to more companies operating under arm's length conditions; a port policy aimed at containing costs and providing, at the same time, more and more articulated and complete services can only be achieved through continuous dialogue and competition”.Case-law and the AGCM were on the same wavelength too, and recently confirmed in substance that the granting of several concessions to a single entity has as a possible direct consequence that of reducing operators and consequently limiting the offer, exposing port users to potential abuses.The AGCM, in particular, had the opportunity to underline that any concerted activities between competing companies would lead to a de facto uniformity of the conditions of supply of services and therefore in practice to the elimination of competitive dynamics – in terms of choice by the consumers, but also in terms of quality and cost of services offered – with potential negative impacts on consumers/users.So, the principle that evidently inspired the legislator in the drawing up of Article 18, paragraph, 7 of the Italian Port Law has been established, as well as the relevance of the provision that, in our opinion, has not been duly highlighted in the ongoing debate.Given that ports represent a substantially closed market, characterised by huge barriers to access and a limited number of operators[10], it is necessary to avoid they becoming a place where competition is restricted through the concentration of port terminal undertakings (as well as, of course, as a result of any kind of abuse of a dominant position). This always bearing in mind that Article 18, paragraph 7, of the Italian Port Law aims to ensure competition certainly not in the interests of port undertakings, but of the users of the port (first and foremost of shipowners), who must have the possibility to choose between different offers of services within each port of call.Said competition, as stated above, will also potentially increase – in the future – the attractiveness and competitiveness of the port where it is correctly ensured.  [1] Reference is made to the possible operation that could lead the PSA group to control not only the VTE container terminal in Prà, but also the Sech container terminal in Sampierdarena.[2] Law No. 84 of 28/01/1994,[3] Back again to the prohibition on controlling two terminals in a port under Article 18, paragraph 7, of the Italian Port Law.[4] Incidentally, if we consider – for example – the operation concerning the VTE and SECH terminals, it is clear that we are referring to two terminals located in areas that are certainly not contiguous.[5] See ruling no. 747/2012 of the Liguria Regional Administrative Court (TAR).[6] It should be reminded that, however, Port System Authorities do not have a totally discretionary power to “manage” Article 18, paragraph 7, of Law No. 84/94, since their actions could be subsequently “censured” by the AGCM (which, in practical terms, may challenge, pursuant to Article 21-bis of Law No. 287/90, any actions adopted by a Port System Authority in breach of the principles set out in the regulations for the protection and promotion of competition).[7] See, most recently, measure AS1618 of 09.09.2019 (Port System Authority of Messina - State concession for the management of a fuel station for boats in the port of Milazzo).[8] The AGCM has carefully made it clear that the prohibition cannot be circumvented simply through formal contrivances. In very practical terms: it is not enough to see to it that the two concessions are formally (rectius: apparently) owned by two different companies, if they are controlled by a single entity and can therefore be related to a single centre of interest. Indeed, it should not be forgotten that abusive conduct may also derive from agreements restricting competition which would be clearly favoured by the fact that the two concessionaires belong to the same group (with the potential consequences, for example, also in terms of exchange of information as well as coordination of actions on the market). This is without prejudice to possible hypotheses of corporate segregation such as to exclude joint control of a terminal belonging to two separate companies, one or both of which already holding other concessions in the same port (exclusion ensured first and foremost, according to the AGCM, by the minority shareholder’s - already concessionaire – waiver of the right of veto on decisions concerning the submission of new applications for concessions or applications for the extension of existing concessions by the terminal in question).[9] We are well aware that there are situations in which, for various reasons, the presence in the same port of different concessionaires carrying out the same activity in competition with each other would not be the solution that best suits the interests of port users. This is a fact that we certainly do not intend to deny and that case-law has properly considered (see ruling No. 747/2012 of TAR Liguria), clarifying as well in what terms and under what conditions such a scenario may be admissible.[10] Although the range of users of the port is very wide.

1.Basic rules – strategic companies

1.1 Defence and national security

1.1.1 Extraordinary transactions

• impose specific conditions on the company that ensure adequate protection of theessential interests of defence and national security; or
• absolutely prohibit the transaction resolved upon, if there are no sufficient measures forallowing its implementation without hindering such overriding public interests.

Pending the time for the adoption of a decision by the Government, the effectiveness of the resolutions and acts will in any event remain suspended and, therefore, the company will be prohibited from implementing the same. If the prescribed period expires without the Prime Minister having notified the company of its decision to exercise the special powers, then the suspension will cease to have effect and the company will be allowed to proceed with the implementation of the transaction resolved upon.

1.1.2 Acquisition of shareholdings

• impose specific requirements or conditions on the purchaser related to security of supply,security of information, technology transfer, export control; or
• absolutely prohibit the acquisition.

Pending the 10-day time period for the notification of the acquisition and the 45-day time period for the notification of a decision by the Government, the exercise of voting rights and administrative powers attached to the shareholding acquired (in the unlikely event that the parties have not stopped at signing of a conditional contract but have consummated the closing) will remain suspended. If the 45-day period expires without the Prime Minister having notified the purchaser of the decision to exercise the special powers, even in the absence of an express provision to this effect, it is reasonable to believe that the suspension ceases to have effect and that the purchaser is allowed to exercise said rights and administrative powers.

1.1.3. Broadband telecommunications with 5G technology

1.2 Energy, transport and communications

1.2.1 Extraordinary transactions

• impose specific requirements or conditions on the company that ensure adequate protection of the public interests relating to the respective strategic sector; or
• absolutely prohibit the transaction resolved upon, if there are no sufficient measures that may allow its implementation without hindering such overriding public interests.

Pending the 10-day term for the notification of the resolution or transaction and the 45-day term for the notification of a decision of the Prime Minister, their effectiveness will in any event remain suspended and, therefore, the company will be prohibited from implementing such resolution or transaction. If the 45-day term expires without the Prime Minister having notified the company of the decision to exercise the special powers, the suspension will cease to have effect and the company will be allowed to proceed with the implementation of the transaction resolved upon.

1.2.2 Acquisitions of controlling interests

• require the purchaser to enter into commitments aimed at ensuring the protection of such interests; or
• absolutely prohibit the acquisition, in exceptional cases of risk to such interests that cannot be eliminated through the assumption of obligations by the purchaser.

Pending the 10-day period for the notification of the acquisition and the 45-day period for the notification of a decision by the Prime Minister, the exercise of voting rights and administrative powers attached to the acquired shareholding (in the unlikely event that the acquisition has already been consummated) will remain suspended. If the 45-day period expires without the Prime Minister having notified the company of its decision to exercise the special powers, even in the absence of an express provision to this effect in the Law-Decree, it is reasonable to believe the suspension ceases to have effect and the purchaser is allowed to exercise said rights and powers.

1.3 Sanctions

1.3.1 Invalidity of acts

1.3.2 Monetary sanctions

1.4 Exclusions

2. Law-Decree 23/2020

• extraordinary corporate transactions, including mergers, demergers, the transfer of businesses, business divisions or subsidiaries, the transfer of a company’s registered office abroad, resulting in change in ownership, control, availability or destination of assets and relationships in the above-mentioned sectors under Article 4, paragraph 1 of Regulation (EU) 452/2019;
• acquisitions of controlling interests in companies holding strategic assets in the energy, transport and communications sectors, or in those holding assets and relationships in the above mentioned sectors under Article 4, paragraph 1 of Regulation (EU) 452/2019, undertaken by foreign entities, including those belonging to the European Union;
• acquisitions of shareholdings in the same companies referred to in the previous point, undertaken by foreign entities not belonging to the European Union, as a result of which the purchaser ends up holding 10% of the voting rights or share capital, also taking into account the shareholdings already held directly or indirectly, provided that the total value of the investment is at least Euro 1 million. The rules will also apply where the thresholds of 15%, 20%, 25% and 50% are subsequently exceeded. In the calculation of the relevant percentage, shareholdings held by third parties with whom the purchaser has entered into shareholders' agreements are also taken into account.

It is worth noting that the mention of critical health infrastructure and technology is particularly important in light of the recommendation issued by the European Commission, in its communications dated 13 and 25 March 2020, to the governments of the Member States to utilize the special powers afforded to them under their respective legislation, in order to avoid the risk that foreign investors, taking advantage of the current health emergency, may acquire control and availability of strategic resources in the health sector.Finally, Law-Decree 23/2020 clarifies that, even in case of failure to notify by the parties concerned, the Government may exercise its veto and policy-making powers provided for by the special rules and, therefore, prohibit such extraordinary transactions and acquisitions or impose conditions on their implementation. This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Piero Corigliano. [1] Converted with amendments into Law No. 56 of 11 May 2012, as subsequently amended by Law-Decree No. 105 of 21 September 2019, converted with amendments into Law No. 133 of 18 November 2019.[2] See Decree of the President of the Council of Ministers No. 108 of 6 June 2014.[3] See Presidential Decree No. 85 of 25 March 2014.[4] See Presidential Decree No. 35 of 19 February 2014.[5] If it is necessary to request information from the purchaser or to transmit requests for preliminary investigation to third parties, the prescribed term will be suspended, only once, until the receipt of the same, which must be provided by the purchaser within 10 days or by third parties within 20 days. Any request for information and request for preliminary investigations to third parties subsequent to the first one will not suspend the running of time. For incomplete notices, the 45-day term will start to run from the receipt of additional information or details.[6] See Presidential Decree No. 86 of 25 March 2014.[7] Said rules also apply to companies having their registered office in a Member State, if there is evidence of their circumvention.[8] The considerations in footnote 5 above concerning term suspension apply here, mutatis mutandis.

1. 1. Threshold values and “weight” of technical and organizational requirements relevant to the quality of the service: the grids indicate the priority technical requirements that tugboats must have and the requirements relevant to the quality of the service, indicating the relevant scores to be assigned. Threshold values are also provided, that if not achieved will result in the exclusion of the bidder from the tender;
   2. Technical requirements of tugboats: both first and second lines [6] are evaluated from a technical point of view, calculating an overall average score for an “aggregate” evaluation of the fleet;
   3. Average age of the fleet: obviously a lower average age offers better guarantees of functionality and reliability. The age of a tugboat is calculated from the date of its first registration. Given that, unavoidably, the average age of the fleet increases during the period of validity of the concession, there is an obligation to “restore” said average age when it reaches about half of the term of the concession;
   4. Technical equipment that allows timely maintenance work on tugboats: to ensure maximum efficiency and continuity of service, it is essential that any maintenance work on tugs can be carried out in a short time. As a result, aspiring concessionaires who have the easiest access to the distribution network of engine parts and a warehouse, close the place where the service is provided, equipped to carry out on-site maintenance interventions on the fleets tugboats will be rewarded;
   5. Organisational-managerial characteristics of the aspiring dealer: still with a view to efficiency and continuity of service, the aspiring concessionaire with the greatest experience in the organization and management of towing activities and - as such - considered more prepared to deal with any emergencies or peaks in demand will be rewarded. To this end, the professional experience of the (deck- and car-) service managers and of the captains indicated in the organisation chart of each participant is also important.

With regard to the criteria for the evaluation of the economic offer, the guidelines highlight, first of all, how safety must be safeguarded in accordance with economic conditions that make the tariffs sustainable for service users. Consequently, it is provided that the call for tenders must specify the maximum cost value at which the tender can be awarded.In practice, two scenarios may occur: (i) the structure of the service remains substantially the same as that of the outgoing concessionaire, or (ii) the structure of the service changes with respect to that of the outgoing concessionaire [7].The methods for calculating the maximum cost of the service, which are different between the first and second scenario mentioned above, are quite complex and for the sake of synthesis a detailed analysis of said methods of calculation and consequent assessment of costs cannot be carried out herein.We will therefore merely point out that the first scenario is based on the premise that the two-year tariff increases established by Circular No. 16872 of 28.12.2012 (which provides for containment coefficients to be applied to increases above 9%) proved to be sustainable for users, leading in fact to an average of increases recorded of about 14%. This percentage is therefore taken as reference for the possible maximum tariff increase that could be incurred by the individual user of the service (and therefore for the calculation of the maximum cost of the service that can be offered in the tender).With regard to the second scenario mentioned above, it should be noted instead that - in accordance with the guidelines - the maximum cost for the award of the service must be determined on the basis of the tender strategy adopted by the Administration and, consequently, the tender documentation must provide all the information necessary for the drafting of bids. In this context, the economic-financial plan, which must be drawn up for the entire duration of the concession and updated every five years, is particularly important. Indeed, in practice, the cost of organising the service stems from this plan. In order for the plan to be reliable, the guidelines require it to include a series of cost items comprising (i) annual personnel costs, (ii) annual costs for each tugboat and its maintenance, (iii) annual overhead costs (insurance, legal and tax advice, utilities, etc.) and (iv) cost margin (which must take into account the expected return on investment and coverage of operational risk).After having briefly observed the criteria for evaluating offers, we conclude our analysis by examining the criteria for the determination and adjustment of tariffs.It is evident that prior knowledge of the criteria for determining and adjusting tariffs is essential - for aspiring concessionaires - in order to assess their business risk. Again, for the sake of synthesis, we cannot go into detail on the methods of calculation and therefore we limit ourselves to giving a general overview of the provision of the guidelines:

1. 1. First determination of the tariff: the tariff, which must allow a flow of revenues such as to cover the initial total cost, is established by referring to the previous tariff system and, in particular, by adjusting the percentage of the previous tariffs in order to align the revenue with the aforesaid initial total cost.
   2. Annual tariff adjustment: the tariff must be adjusted annually on the basis of the cost offered in the tender, revalued according to the ISTAT (FOI) index for the previous year and the actual cost for consumption and lubricants incurred in the previous year.
   3. Five-year tariff adjustment: every five years, the Maritime Authority must convene the Port System Authority, the concessionaire and the national representatives of the service providers and users to evaluate the economic-financial plan updated by the concessionaire on the basis of the forecasts relating to the services that may be provided in the next five years. Therefore, two hypotheses may arise:
      • Should no substantial change in performance be expected and a change in tariff within the limit 14% be, therefore, sufficient, the calculation methods specifically provided for in the guidelines shall apply. Should, instead, the expected tariff variation exceeds 14%, the Maritime Authority will evaluate the introduction of the so-called "availability tariff" [8] (or its increase if the same has already been applied). In the event that even the introduction or increase of the availability tariff cannot guarantee ex ante the economic-financial balance of the concession, it will be necessary to redefine the organisation of the service (reducing the operating structure of the concessionaire). If even the reorganisation of the service is not sufficient to achieve this balance, the concessionaire may withdraw from the concession (with no indemnity or compensation), without prejudice to the obligation to continue to provide the service pending the new tender procedure (for a maximum of twelve months from withdrawal);
      • Should, instead, substantial changes in performance be envisaged, the calculation methods specifically provided for in the guidelines shall apply (except for possible diversifications - in the application of the change - resulting from the assessments of the Maritime Authority). Also, in this case, if according to the concessionaire’s opinion the tariff solution does not allow the same to reach the economic-financial balance of the concession, the concessionaire may withdraw from the concession (with no indemnity or compensation), still without prejudice to the obligation to continue to provide the service pending the new tender procedure (for a maximum of twelve months from withdrawal).
   4. Extraordinary adjustment: in the event that, in the first four years of each five-year period of the concession, extraordinary events occur (for example, the opening or closure of a terminal) such as to affect for at least 1/3 the overall trend of trades subject to towage, the Maritime Authority will convene all the entities mentioned above to evaluate a possible new economic-financial plan that takes into account the extraordinary events occurred.

We have completed this preliminary analysis of the new guidelines for the award of concessions for port-towage. We will now see how these guidelines are actually applied. Certainly, at this stage, taking into consideration also of EU Regulation 352/2017 on provision of port services and financial transparency of ports, the regulatory framework for launching tenders has finally been laid down.   This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Simone Gaggero or Ekaterina Aksenova.   [5] Circular of the Ministry for Infrastructures and Transports No. 11 of 19.03.2019[6] For the distinction between first lines and second lines, please see the second part of this analysis, published in the September-October 2018 issue of our Shipping and Transport Bulletin[7] The provisions for this second scenario shall also apply to ports which – according to Circular No 1589 of 17.06.2003 – were considered to have low turnover[8] The availability tariff, which in practice has the purpose of "covering" the economic imbalance of the concessionaire, must be paid by all potential users of the service

Recitals of MIT Circular No. 11 of 03.19.2019

Procedure for identifying a concessionaire and awarding a concession

• “the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed” and “any activity consisting in offering goods and services on a given market is an economic activity” ;
• “the fact that, for the exercise of part of its activities, an entity is vested with public powers does not, in itself, prevent it from being classified as an undertaking for the purposes of European competition law in respect of the remainder of its economic activities” .

Having therefore established that the qualification as a non-economic public entity cannot represent an obstacle in itself to the recognition of PSAs as undertakings, it must be understood whether or not the PSAs carry out an economic activity.In this sense it is useful to refer once again (following the reasoning of the Court of Genoa) to the constant interpretation of the European Commission, according to which the Port System Authorities carry out economic activities and are therefore qualified as undertakings. According to the EU Commission, in fact, "the commercial exploitation of port infrastructures and the construction of similar infrastructures for the purpose of commercial exploitation are economic activities" .The same Commission then specified that the Port System Authorities carry out an economic activity inasmuch as they "issue concessions or authorizations (use of an asset against payment of a fee) to (generally) private companies for the commercial use of the asset (infrastructure basic port) and the provision of services (for example loading, unloading, piloting, towing) to shipping companies" .In light of the above, the Court of Genoa has held that a PSA may (rectius) must be considered an undertaking for the purposes of the antitrust law with respect to the activity of granting concessions against consideration.In addition – with regards to the market of granting concessions against payment of a fee – the PSAs clearly cover a dominant position, being in fact monopolists ex lege. It is therefore clear that the relevance, from a practical standpoint, of the examined court decision is not of little account.As is known, in fact, the Italian law 287/1990, forbids undertakings in a dominant position to abuse said position, being on the contrary burdened (as also stated by the Italian State Council ), by a “special responsibility” that imposes them - in particular - to refrain from behaviors that could have a distortive effect on the competition.So much so that the case decided with the court decision in question had as its object precisely the claim of a concessionaire that believed to have been discriminated by the PSA inasmuch as the latter had carried out a series of infrastructural interventions for the benefit of a concurrent concessionaire (despite having received the same requests for intervention also from the claimant). According to the claimant’s thesis, therefore, the PSA would have carried out a discriminatory conduct such as to unjustifiably alter the competitive balance within the port.This decision of the Court of Genoa could therefore represent an additional tool in the hands of the concessionaires to assert their rights and oppose conducts of PSAs which could appear discriminatory or otherwise prejudicial to the principles of competition.   This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Alberto Torrazza or Ekaterina Aksenova.   [1]Italian Supreme Court, United Sections, judgment no. 30175, 30/12/2011.[2]Judgement of the European Court of Justice, 18 June 1998, C-35/96, Commission v. Italian Republic, point no. 36.[3]Judgment of the European Court of Justice, 1 July 2008, C-49/07, MOTOE v. Elliniko Dimosio, point no. 25.[4]Decision of the European Commission State Aid SA.38399 (2018 / E) - Taxation of Ports in Italy. For a review on the matter vds. vds. Shipping & Transport Bulletin June - July 2018.[5]Decision of the European Commission State Aid SA.38399 (2018 / E) - Taxation of Ports in Italy. For a review on the matter vds. vds. Shipping & Transport Bulletin June - July 2018.[6]Italian State Council, judgment no. 1673, 8 April 2014.

• e) “employment level, including also instructions on the use of temporary labour”;
• f) “capability to ensure operational continuity of the port”;
• g) “sustainability and environmental impact of the proposed industrial project, level of technological innovation and industrial partnership with universities and scientific research centres included in the activity programme”.

As far as the parameter under e) is concerned, it should be noticed, in the first place, that the same refers to a topic (employment) that – given its undisputed public interest features – has always been of paramount relevance in every administrative procedure relating to the concession and/or renewal of concession and authorizations in the port sector.The above-mentioned parameter makes express reference to the use of temporary labour by the applicant concessionaire. The rationale of such a reference might relate to the provision set forth under Article 17, paragraph 15-bis, of Law 84/94 . Indeed, according to such provision, Italian Port System Authorities (“AdSP”) may allocate part of their income (arising out of taxes on loaded and unloaded goods) to the financing of training activities or to the relocation of the staff of enterprises providing temporary workforce for port activities. In times when many of these enterprises are in financial distress and should be destined to shrink in size, also in consideration of the technological development that nowadays urges towards fully automated terminals (consequently decreasing terminal operators’ need for workforce), it seems logical that the AdSP are interested in evaluating how much the entrepreneurial projects submitted by applicant concessionaires may “help” said enterprises, by providing job opportunities to their staff.Still with reference to the employment issue, it is appropriate to remind also the importance of the provisions laid down by European Regulation EU 2017/352 (see in particular Article 9.3) on the so-called “safeguard clause”. Said clause, quoted in the footnote for ease of reference essentially allows the managing entity of a port, in case of “change” of concessionaire, to demand that the rights and obligations of the outgoing concessionaire – arising out of a contract of employment and in force at the date of the “change” – be transferred to the incoming concessionaire.As far as the parameter under f) is concerned, it should be noticed instead that the provision seems to refer, in particular, to the hypothesis in which the operational plan submitted by the applicant concessionaire contemplates the carrying out of works and is therefore aimed at giving priority to applications (and the relevant underlying projects) that reduce to the minimum any interruption of port activities and interferences of said works with the proper port functioning.Accordingly, this parameter may seem an “instrument” to somehow favour present concessionaires. If it proves true that we can no longer talk of a “right of insistence” (which has been fully repealed by the law of the European Union), it is also true that such a criterion might seem to favour enterprises that are already concessionaires, for which no major issues as to operational continuity would arise. Therefore, the parameter being examined seems legitimate unless “fraudulently exploited” so as to revive the aforesaid right of insistence.Finally, as far as the parameter under g) is concerned, it should be noticed that said parameter - with a very broad content – makes reference to a set of elements that are somehow “new” or, at least, so far not “formally” acknowledged in a single legal provision.Such elements may be deemed of actual interest with respect to the pursuit of public interest. Let’s think, first of all, about environmental features, which certainly affect the sphere of public interest. From this standpoint, we assume that, by way of example, “green” solution projects for the actual performance of port activities (use of the latest generation means and equipment able to reduce to the minimum the environmental impact, use of renewable energies, new electrification sources from wharfs, electric systems, etc. etc.) may be positively evaluated.In this respect, also the reference to technological innovation prospects may be consistent with the logic to pursue the public interest, so much so in a context – such as the one we live in nowadays – where technological innovation (including for ports) seems concerned with the need for a stronger environmental protection. In such a scenario, the circular under analysis emphasizes the need for protection also by “rewarding” concessionaires entering into partnership agreements with research centres and universities, in order to foster the innovation process within port industries.So, we have concluded our examination of the parameters issued by the MIT to the AdSP in order to set the technical and economic criteria to be employed when comparing competing applications for the concession/renewal of maritime concessions under Article 18 of Italian law 84/94.All that remains is to wait and see how the AdSP will actually implement said criteria, keeping in mind – to ensure transparency and neutrality within the administrative action – that such criteria (and their relevant scorings) shall have to be disclosed by the AdSP before the beginning of the comparative processes among competing applications.   This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Simone Gaggero.   “In order to enhance employment, professional innovation and professional updating of the staff of enterprises or of agencies providing workforce, Italian port System Authorities may allocate part of its income, not exceeding 15 per cent of the income arising out of taxes on loaded and unloaded goods, to the financing of training activities, of staff relocation, including the redeployment of staff totally or partially unable to accomplish port operations and services on other different areas, and of early retirement incentive plans for workers of enterprises or of agencies under this article. In order to avoid a serious harm to the operativity of the port, Port System Authorities may fund operations aimed at restoring the economic balance of enterprises or of agencies providing workforce within the recovery plans signed by the same Authority.”Should the award of a concession or public contract result in the change of a port services provider, the managing body of the port, or the competent authority, may demand that the rights and obligations of the outgoing provider of port services arising from a contract of employment, or from an employment relationship as defined by the national law, and existing at the date of said change, be transferred to the newly appointed provider of port services. In such event, the staff previously engaged by the outgoing port services provider will be granted the same rights that they would have been entitled to in the event of transfer of undertaking within the meaning of Directive 2001/23/EC.

• firstly, there would be a duty of custody whenever a permanent guard service is provided at the port facility and when small boats, thus without crew on board, are involved;
• the obligation of custody could be considered “proven” also in the event that – as soon as an accident occurs – the staff of the port facility promptly intervenes to avoid damages to the boats (which, therefore, in this sense seems to be entrusted to the custody of the structure);
• given that in the winter season the boat site is generally used in a “static” way, that is in order to ensure the boat a stable shelter and allow the carrying out of the necessary maintenance works, during such season it would be legitimate to consider the unit entrusted to the custody of the port facility.

It should be noted that case law[5] has also stated that – if a mooring agreement provides, on the one hand, a day and night surveillance service and, on the other hand, that this service does not imply the assumption of any obligation of custody – the contradiction between these two clauses must be resolved in the sense that the custody of the unit falls within the scope of the services offered.So, in light of the above, the interpretation of a mooring agreement – in relation to the issue of custody, which normally represents its most critical aspect – seems not to be limited to the examination of the contractual clauses (provided that an agreement has been concluded), but requires on the contrary also an analysis of the factual current background.We therefore suggest – both to operators and enthusiasts – to keep in mind the indications coming from case law in order to avoid unpleasant surprises in the unlikely event that an accident occurs while the unit is moored at the quay.This article is for information purposes only and is not intended as a professional opinion.For further information, please contact Simone Gaggero.[1]  See, in particular, Italian Supreme Court decision No. 10484 of 1 June 2004.[2]  See, in particular, Italian Supreme Court decision No. 8224 of 3 April 2007.[3]  Indeed, there have been decisions that considered the surveillance and safety of the mooring even coessential to the scope of the mooring agreement (see decision of the Court of Appeal of Trieste of 28 July 1999).[4] See, in particular, the above mentioned Italian Supreme Court decision No. 10484 of 1 June 2004.[5] See Court of Trieste, No. 357 of 5 April 2006.