LeX-Ray

The full integration of ports in seamless transport and logistics chains is needed to contribute to growth and a more efficient use and functioning of the trans-European transport network and the internal market. This requires modern port services that contribute to the efficient use of ports and a climate favourable to investments to develop ports in line with current and future transport and logistics requirements.

Ports contribute to the long-term competitiveness of European industries in world markets while adding value and jobs in all Union coastal regions. In order to address the challenges facing the maritime transport sector and to improve the efficiency and the sustainability of transport and logistics chains, it is essential that the actions on administrative simplification set out in the Commission’s communication of 23 May 2013 entitled ‘Ports: an engine for growth’ be implemented in tandem with this Regulation.

In its communication of 3 October 2012 entitled ‘Single Market Act II — Together for new growth’, the Commission recalled that the attractiveness of maritime transport is dependent on the availability, efficiency and reliability of port services and the necessity of addressing questions regarding the transparency of public funding and port charges, as well as administrative simplification efforts in ports, and of reviewing restrictions on the provision of services at ports.

Facilitating access to the port services market and introducing financial transparency and autonomy of maritime ports will improve the quality and efficiency of the service provided to port users and contribute to a climate that is more favourable to investment in ports, thereby helping to reduce costs for transport users and contributing to the promotion of short sea shipping and a better integration of maritime transport with rail, inland waterway and road transport.

The simplification of customs procedures can create significant economic advantages for maritime ports in terms of competitiveness. In order to promote fair competition and to reduce customs formalities, it is important that the competent authorities of the Member States adopt a proper and effective risk-based approach. In this context, it is necessary that the Commission consider the need for appropriate measures to reduce reporting formalities in maritime ports and to tackle unfair competition.

The establishment of a clear framework of transparent, fair and non-discriminatory provisions relating to the funding of and charges for port infrastructure and port services plays a fundamental role in ensuring that the port’s own commercial strategy and investment plans and, where relevant, the general national ports policy framework comply fully with competition rules. In particular, the transparency of financial relations allows a fair and effective control of State aid, hence preventing market distortion. To that end, the Council conclusions of 5 June 2014 called upon the Commission to explore State aid guidelines for maritime ports, with the aim of ensuring fair competition and a stable legal framework for port investment.

The overwhelming majority of Union maritime traffic transits through the maritime ports of the trans-European transport network established by Regulation 2013/1315 of the European Parliament and of the Council ( 4 ) . In order to achieve the aim of this Regulation in a proportionate way without imposing any unnecessary burden on other ports, this Regulation should apply to the maritime ports of the trans-European transport network, each of which plays a significant role for the European transport system, either because it handles more than 0,1 % of the total EU freight or the total number of passengers, or because it improves the regional accessibility of island or peripheral areas. However, this Regulation should give Member States the possibility to decide whether or not to apply this Regulation to maritime ports of the comprehensive network located in the outermost regions. Member States should also have the possibility of introducing derogations in order to avoid disproportionate administrative burdens for those maritime ports of the comprehensive network annual freight traffic of which does not justify the full application of this Regulation.

Deep sea pilotage services do not have a direct impact on the efficiency of ports as they are not used for the direct entry and exit of ports and therefore do not need to be included in this Regulation.

This Regulation should in no way prejudice the rules in Member States governing the system of property ownership applicable to maritime ports, and should allow for different port structures in Member States.

This Regulation does not impose a specific model for the management of maritime ports and does not affect in any way the competence of Member States to provide, in conformity with Union law, non-economic services of general interest. Different port management models are possible, provided that the framework for the provision of port services and the common rules on financial transparency set out in this Regulation are respected.

In accordance with the general principles set out in the Treaties, providers of port services should be free to provide their services in maritime ports covered by this Regulation. However, it should be possible to impose certain conditions on the exercise of that freedom.

This Regulation should not limit the managing body of the port, or the competent authority, in setting up its charging system, as long as port infrastructure charges paid by the operators of waterborne vessels or cargo owners are transparent, in particular easily identifiable, and non-discriminatory, and contribute to the maintenance and development of infrastructure and service facilities and to the provision of services that are needed to perform or to facilitate transport operations within the port area and on the waterways giving access to those ports that fall within the competence of the managing body of the port.

In the interest of efficient, safe and environmentally sound port management, the managing body of the port, or the competent authority, should be able to require that providers of port services are able to demonstrate that they meet minimum requirements for the performance of the service in an appropriate way. Those minimum requirements should be limited to a clearly defined set of conditions in so far as those requirements are transparent, objective, non-discriminatory, proportionate and relevant for the provision of the port service. In accordance with the general objectives of this Regulation, the minimum requirements should contribute to a high quality of port services and should not introduce market barriers.

It is important that all providers of port services, at the request of the managing body of the port, are able to demonstrate their ability to serve a minimum number of vessels, making available necessary staff and equipment. They should apply the relevant provisions and rules, including the applicable labour law and relevant collective agreements and the quality requirements of the port concerned.

In deciding whether a port service provider satisfies the requirements of good repute, the competent authority, or the managing body of the port, should consider whether there are any compelling grounds to doubt the reliability of the provider of port services, such as convictions or penalties for serious criminal offences, or serious infringements of applicable Union and national law.

Member States should be able to require compliance with obligations in the field of social and labour law for the operation of port services in the port concerned.

Member States should inform the Commission prior to any decision to impose a flag requirement for vessels predominantly used for towage and mooring operations. Such a decision should be non-discriminatory, should be based on transparent and objective grounds and should not introduce disproportionate market barriers.

Where compliance with minimum requirements is required, the procedure for granting the right to provide port services should be transparent, objective, non-discriminatory and proportionate, and should allow the providers of port services to start the provision of their port services in a timely manner.

Since ports are constituted of limited geographical areas, the number of providers of port services could, in certain cases, be subject to limitations relating to the scarcity of land or waterside space, the characteristics of the port infrastructure or the nature of the port traffic, or the need to ensure safe, secure or environmentally sustainable port operations.

Any limitation on the number of providers of port services should be justified by clear and objective reasons and should not introduce disproportionate market barriers.

The managing body of the port, or the competent authority, should publish its intention to conduct a selection procedure for the provision of a port service, including on the internet and, where appropriate, in the Official Journal of the European Union . Such publication should contain information on the selection procedure, the deadline for the submission of tenders, the relevant award criteria and information on how the relevant documents necessary to prepare an application can be accessed.

In order to ensure transparency and equal treatment, amendments to the provisions of a contract during its term should be considered to constitute a new award of a contract when they render the contract materially different in character from the original contract and, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract.

This Regulation should be without prejudice to the right of Member States to impose public service obligations related to port services.

The Union has a wide variety of maritime ports with different models for the organisation of port services. Accordingly, imposing a single model would not be appropriate. The managing body of the port, or the competent authority, should be able to limit the number of providers of a given port service, where justified for one or more reasons.

Article 34 of Directive 2014/25 of the European Parliament and of the Council ( 5 ) provides that contracts intended to enable certain types of activity to be carried out shall not be subject to that Directive if the Member State or the contracting entities can demonstrate that, in the Member State in which the activity is performed, the activity is directly exposed to competition in markets to which access is not restricted. The procedure for establishing whether this is the case should be that set out in Article 35 of Directive 2014/25. Consequently, if it is established through that procedure that a port sector or subsector, together with its port services, is directly exposed to such competition, it is appropriate that it should not be subject to the rules framing the market access limitations under this Regulation.

Except where a competitive market derogation applies, any intention to limit the number of providers of port services should be published in advance by the managing body of the port or the competent authority and should be fully justified, in order to give the interested parties the opportunity to comment.

If the managing body of a port, or the competent authority, provides port services itself or through a legally distinct entity which it directly or indirectly controls, measures should be taken to avoid conflicts of interests and to ensure fair and transparent market access to port services when the number of providers of port services is limited. Such measures could, inter alia, take the form of entrusting the adoption of the decision limiting the number of providers of port services to a relevant national authority which is independent from the managing body of the port or from the competent authority.

The possibility to impose minimum requirements and limit the number of providers of port services that Member States continue to enjoy should not prevent them from ensuring an unrestricted freedom to provide services in their ports.

The procedure for choosing providers of port services and its result should be made public and should be non-discriminatory, transparent and open to all interested parties.

The only justification for recourse to public service obligations leading to a limitation on the number of providers of port services should be reasons of public interest in order to ensure the accessibility of the port service to all users, the availability of the port service all year long, the affordability of the port service to a certain category of users, the safety, security or environmental sustainability of port operations and territorial cohesion.

While public service obligations are determined and imposed by national authorities, a general obligation set by Union or national law for a port to accept any vessel physically capable of entering and mooring without discrimination or hindrance should not be understood to be a public service obligation for the purposes of this Regulation.

This Regulation should not preclude competent authorities from granting compensation for actions taken in fulfilment of the public service obligations provided that such compensation complies with the applicable State aid rules. Where public service obligations qualify as services of general economic interest, it is necessary to ensure compliance with Commission Decision 2012/21/EU ( 6 ) and Commission Regulation 2012/360 ( 7 ) , as well as observance of the Commission’s communication of 11 January 2012 entitled ‘European Union framework for State aid in the form of public service compensation’.

Where there are multiple providers of port services, the managing body of the port, or the competent authority, should not discriminate between providers of port services, and especially not in favour of an undertaking or a body in which it holds an interest.

The managing body of a port, or the competent authority, should have the choice of deciding whether to provide port services itself or to entrust the provision of such services directly to an internal operator. When there is a limitation on the number of providers of port services, the provision of port services by the internal operators should be limited to only the port or ports for which those internal operators were designated, except where a competitive market derogation applies.

Member States should retain the power to ensure an adequate level of social protection for the staff of undertakings providing port services. This Regulation should not affect the application of the social and labour rules of the Member States. It is appropriate to clarify that in cases where Council Directive 2001/23 ( 8 ) does not apply, where the conclusion of a port service contract entails a change of port service provider, the managing body of the port, or the competent authority, should nevertheless be able to require that the rights and obligations of the outgoing provider of port services arising from a contract of employment, or from an employment relationship, existing on the date of that change be transferred to the newly appointed port service provider.

Whenever measures provided for in this Regulation entail the processing of personal data, such processing should be carried out in accordance with the applicable Union law, and in particular GDPR of the European Parliament and of the Council ( 9 ) .

In a complex and competitive sector such as port services, initial and periodic training of staff is essential to ensure the quality of services and to protect the health and safety of port workers. Member States should therefore ensure that providers of port services provide adequate training to their employees.

In many ports, the market access for providers of cargo- handling and passenger services is granted by means of public contracts. The Court of Justice of the European Union has confirmed that the competent authorities are bound by the principles of transparency and non-discrimination when concluding such contracts. Therefore, while Chapter II of this Regulation should not apply to the provision of cargo-handling and passenger services, Member States should remain free to decide to apply the rules of Chapter II to those two services or to keep their existing national law on market access with regard to cargo-handling and passenger services while respecting the main principles set out in the case-law of the Court of Justice.

According to Resolution A.960 of the International Maritime Organization, each pilotage area needs highly specialised experience and local knowledge on the part of the pilot. Moreover, pilotage is generally mandatory and often organised or provided by the Member States themselves. Furthermore, PSCD of the European Parliament and of the Council ( 10 ) entrusts a role to pilots in reporting to competent authorities apparent anomalies which may prejudice the safe navigation of the waterborne vessel, or which may pose a threat to or may harm the marine environment. In addition, where safety conditions allow it, it is important that all Member States encourage the use of Pilotage Exemption Certificates, or equivalent mechanisms, in order to improve efficiency in ports, in particular to stimulate short sea shipping. In order to avoid potential conflicts of interests between such public interest functions and commercial considerations, Chapter II of this Regulation should not apply to pilotage. However, Member States should remain free to decide to apply Chapter II to pilotage. If they decide to do so, the Commission should be informed accordingly, in order to ensure the distribution of relevant information.

Without prejudice to Union competition rules, this Regulation should not interfere with the right of Member States, where applicable, to regulate charges in order to avoid over-charging of port services in cases where the situation of the market in port services is such that effective competition cannot be achieved.

Financial relations between maritime ports in receipt of public funds and providers of port services, on the one hand, and public authorities, on the other hand, should be made transparent in order to ensure a level playing field and to avoid market distortions. In this respect, this Regulation should extend to other categories of addressees the principles of transparency of financial relations set out in Commission Directive 2006/111 ( 11 ) without prejudice to the scope of that Directive.

Rules on the transparency of financial relations need to be introduced in this Regulation to prevent unfair competition between ports in the Union, particularly since ports in the trans-European transport network are eligible to apply for Union funding through the Connecting Europe Facility established by CEFR of the European Parliament and of the Council ( 12 ) .

In order to ensure a level playing field and transparency in the allocation and use of public funds and to avoid market distortions, it is necessary to impose on the managing body of the port in receipt of public funds, when it is also acting as a service provider, an obligation to keep accounts for publicly funded activities carried out in its capacity as managing body of the port separate from accounts for activities carried out on a competitive basis. In any event, compliance with State aid rules should be ensured.

With a view to ensuring transparency, when a port or another entity provides dredging within a port area, the accounts for dredging should be kept separate from those for other activities.

Without prejudice to Union law and to the prerogatives of the Commission, it is important that the Commission identify, in a timely manner and in consultation with all interested parties, which public investments in port infrastructure fall within the scope of Commission Regulation 2014/651 ( 13 ) (General Block Exemption Regulation), and which infrastructure does not fall under the scope of State aid, taking into consideration the non-economic nature of certain infrastructure, including access and defence infrastructure, provided that they are accessible to all potential users on equal and non-discriminatory terms.

Port service charges applied by providers of port services under public service obligations and the charges for pilotage services which are not exposed to effective competition might entail a higher risk of price abuse in cases where monopoly power exists. For those services, arrangements should be established to ensure that the charges are set in a transparent, objective and non-discriminatory way and are proportionate to the cost of the service provided.

In order to be efficient, the port infrastructure charges of each individual port should be set in a transparent way in accordance with the port’s own commercial strategy and investment plans and, where relevant, with the general requirements laid down within the framework of the general ports policy of the Member State concerned.

This Regulation should not affect the rights, where applicable, of the ports and their customers to agree commercially confidential discounts. This Regulation is not intended to require the disclosure to the public or to third parties of any such discounts. However, the managing body of the port, or the competent authority, should at least publish standard charges before any price differentiation.

The variation of port infrastructure charges should be allowed in order to promote short sea shipping and to attract waterborne vessels which have an environmental performance, energy efficiency or carbon efficiency of transport operations, in particular offshore or onshore maritime transport operations, that is better than average. That should help to contribute to the attainment of environmental and climate change policy goals and the sustainable development of the port and its surroundings, in particular by contributing to the reduction of the environmental footprint of the waterborne vessels calling and staying in the port.

Depending on the economic strategy of the port, port spatial planning policy or port commercial practices and, where relevant, the general ports policy of the Member State concerned, the variation of port infrastructure charges may result in rates being set at zero for certain categories of users. Such categories of users could include, among others, hospital ships, vessels in scientific, cultural or humanitarian missions, tugs and floating service equipment of the port.

The Commission, in cooperation with Member States, should elaborate guidance on common classification criteria for vessels for the purpose of voluntary environmental charging, taking into account internationally agreed standards.

It is necessary to ensure that port users and other stakeholders be consulted on essential issues related to the sound development of the port, its charging policy, its performance and its capacity to attract and generate economic activities. Such essential issues include the coordination of port services within the port area, the efficiency of the connections with the hinterland and the efficiency of the administrative procedures in ports, as well as environmental issues. Such consultations should be without prejudice to any other specific competence related to those issues, as well as to the possibility for Member States to hold those consultations at a national level. The managing body of the port should in particular consult port users and other relevant stakeholders regarding port development plans.

In order to ensure the proper and effective application of this Regulation, Member States should ensure that an effective procedure is in place to handle complaints.

Member States’ authorities should cooperate when handling complaints in disputes involving parties established in different Member States and should exchange general information on the handling of complaints in order to facilitate a uniform application of this Regulation.

Since the objectives of this Regulation, namely ensuring a framework for the provision of port services as well as an appropriate framework to attract necessary investments in all the maritime ports of the trans-European transport network, cannot be sufficiently achieved by the Member States because of the European dimension or the international and cross-border nature of port and related maritime business, but can rather, by reason of the need for a European level playing field, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

The EU Sectoral Social Dialogue Committee in the Port Sector provides the social partners with a framework to develop a joint approach to the social challenges related to port labour relations, including working conditions, health and safety questions, training requirements and professional qualifications. That framework should be developed in particular, in the light of market-based and technological developments, and should enhance the attractiveness of the sector for young workers and female workers, while taking into consideration the importance of safeguarding the competitiveness of European maritime ports and promoting good working conditions. With full respect for the autonomy of the social partners and taking into account technological progress and advances in transport logistics, the EU Sectoral Social Dialogue Committee in the Port Sector is invited to develop guidelines on the development of training requirements in order to prevent accidents in the workplace and to ensure the highest level of health and safety for port workers. Social partners should also explore different models for the organisation of maritime port labour that secure quality jobs and safe working conditions and that address fluctuations in the demand for port work. It is important that the Commission support and facilitate the work of the EU Sectoral Social Dialogue Committee in the Port Sector.

This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union,