L’evoluzione dell'istituto della concessione nelle infrastrutture di trasporto

According to administrative tradition, concession is an instrument that allows individuals to use a public good for a particular purpose. This general definition, which includes two adjectives, such as public and particular, reflectes the multifaceted issue of the instrument to fulfill at the same time a public need and an eminently private exigence. This study examined different historical periods and various currents of thoughts, to identify distinctive traits of the concession in Italian legal system, especially focusing on the concession of the infrastructure management of airports and railways. In the background of the tension between two extreme poles of the definition, the notion of public good is believed to be discussed and revisited. Furthermore, the research illustrated the main regulatory framework of port concessions, which were radically changed after the new port law no. 84/1994. According to the new land-lond ports in which port authorities were in charge of coordinating, promoting and planning the port activities with a specific prohibition of any direct involvement, port operations have been awarded to private companies entitled to operate under a concession. Two main port actors became the port authority and the port facilities and terminal operating company, who are the only ones able to manage a terminal and to handle cargoes. The criteria to award port concessions are set out in the article 18 of Law no. 84/1994 as far as concessions of port terminals to stevedoring companies are concerned. The paper explained both issues of renewal and extension of port concession, whose maximum duration cannot exceed the period necessary for the recovery of investments made by the concessionaire, as resulting from the operational and business plan. Moreover, the investigation reconstructed the development of the motorway concessions sector in Italy, starting from their birth, through the privatisation in the 1990s, to finally analyze the debate on a possible re-publication following the collapse of the “Ponte Morandi”. In the research the Author also highlighted the relative constituent elements of the scope, i.e. the specific features of the motorway concession regime compared to the ordinary one, the growing presence of an independent governance, as well as the peculiar modalities of tariff determination through the price cap parameter, revealing that the main interventions of Italian Legislator were inspired by the contingent needs and not by the pursuit of an organic design. Dissertation thesis also analysed the role of Transport Regulation Authority (ART), whose main mission is economic regulation in the field of transport and access to related infrastructures and services. Further, ART is competent for defining the quality levels of transport services and the minimum content of the rights that may be claimed by users against infrastructure managers. The Authority is an indipendent administrative authoriy and operates in full autonomy, in accordance with EU legislation and in compliance with the subsidiarity principle.