Last July 23, 2024, the Plenary of the Congress of Deputies aproved a modification of article 82 of the Ley de Puertos del Estado y la Marina Mercante, which introduces significant changes in the system of extensions of port concessionsthrough the Law 2/2024, de 1 de agosto, de creación de la Autoridad Administrative Independiente para la Investigación Técnica de Accidentes e Incidentes ferroviarios, marítimos y de aviación civil.”
This Law was published on August 2th 2024 and will enter into force 20 days after its publication in the BOE, therefore, on August 22th, 2024.
What concessions are affected by this modification?
In Catalonia, the Sixth Transitional Provision of the Law 10/2019 of 23 December, of ports and transport in maritime and continental waters, regulates the transitory regime of the concessions and authorizations granted under the previous regulation to this Law, and makes a remission to the legislation of Puertos del Estado, in relation to the term of the concessions and its extensions.
Therefore, this modification that has been approved by article 82 of the Ley de Puertos, affects the licences and permits granted prior to the Law 10/2019.
Ordinari extensions
In relation to the extension provided for in section b) of article 82, a new feature introduced is the compatibility between the extension initially foreseen in the title and the ordinary extension due to relevant investment not initially foreseen in the concession. relevant not initially planned in the concession.
It will be considered relevant investment if it is of interest to improve productivity, energy efficiency or the environmental quality of the port operations, or if it involves the introduction of new technologies or processes that increase its productivity and that, in any case, is higher than 20% of the updated value of the investment initially foreseen in the title. In these cases, the term of the extension may not exceed a maximum total of 50 years.
The amendment to Article 82, with respect to ordinary extensions, also introduces as a novelty that when the granting title has not provided for the extension or, having provided for it, the possibilities contemplated in the title have been exhausted, the amendment allows that the total sum of these extensions may be up to one and a half times the initial term..
That is to say, the term of each of the extensions granted may not exceed half of the initial term, but the regulation is modified in the sense that if there are several extensions, these added together may reach, at the most, a term not exceeding one and a half times the initial term of the concession.
Extraordinary extensions
As regards extraordinary extensions, there are more novelties to be highlighted. The amendment clarifies that both extraordinary extensions for investment and for contribution may extend their concession term up to 75 years.
Another significant change is that equates the criteria for extraordinary extensions for investment and for contribution. Both modalities now require that the concession is of strategic interest or relevance for the port or for the economic development of its area of influence, or that they imply the maintenance of competition in the port services market.
A further modification to be highlighted is that it introduces a new case of extraordinary extension for contribution, apart from what was already contemplated in the Law, which allows the financial contribution to be used to:
- The construction or improvement of basic port infrastructure consisting of shelter works, dredging, berthing works and esplanades.
- The construction or improvement of basic infrastructures and facilities for the supply of alternative fuels or electricity to the ships, will have their accommodation.
In relation to the minimum investment required for extraordinary extensions, a unified criterion is established, in the sense that in both cases -i.e. in the case of both extensions for investment and extensions for contribution-, or in the case of the sum of both, this minimum investment must be higher than 50% of the updated value of the investment initially foreseen in the concession title, not including replacement investments.
The amendment to article 82 also specifies that the economic contribution must be paid in full before the extension comes into force, with a maximum term of 6 months from its granting..
Since in both cases of extraordinary extensions the minimum investment must be 50% of the updated value of the investment initially foreseen, the new Article 82 eliminates, in the case of extraordinary extensions due to contribution, the requirement that was contemplated in relation to the amount of the economic commitment.
Some requirements have also been eliminated, such as the fact that at least one third of the term of the concession must have elapsed in order to request certain extensions.
These are, undoubtedly, modifications that provide more flexibility and legal certainty to the concessionaires. Therefore, we can understand that these changes provide a clearer and more flexible regulatory framework for port concessions.
If you have any questions or comments, please do not hesitate to contact us through the form on our website, by phone or email. We are at your disposal for any question you may have.
