Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on Market Access to Port Services
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
and in particular Article [80(2)] thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the Economic and Social Committee,
Having regard to the opinion of the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251
of the Treaty,
Whereas:
- The objective of Article 49 of the Treaty is to eliminate
the restrictions on freedom to provide services in the Community;
in accordance with Article 51 of the Treaty, that objective must
be achieved within the framework of the common transport policy.
- Through Council Regulations (EEC) No 4055/86 of 22 December
1986 applying the principle of freedom to provide services to
maritime transport between Member States and between Member States
and third countries and (EEC) No 3577/92 of 7 December 1992 applying
the principle of freedom to provide services to maritime transport
within Member States (maritime cabotage) that objective has been
attained with regard to maritime transport services as such.
- Port services are essential to the proper functioning of maritime
transport since they make an essential contribution to the efficient
use of maritime transport infrastructure.
- In the Green Paper on Sea Ports and Maritime Infrastructure
of December 1997 the Commission indicated its intention of proposing
a legislative framework in order to achieve access to the port
services market in Community ports with international traffic.
Therein, port services should be defined as those services of
commercial value that are normally provided against payment in
a port.
- Facilitatingaccess to the port services market at
Community level should remove prevailing restrictions that hamper
access for port service operators, improve the quality of service
provided to users of the port, increase efficiency and flexibility,
help reduce costs and thereby contribute to promoting short sea
shipping and combined transport.
- Where the authorisation under this Directive takes the form
of a contract falling within the scope of Directives 92/50/EEC,
93/36/EEC, 93/37/EEC and 93/38/EEC, these latter Directives apply.
Equally, where applicable, Directives 89/48/EEC, 92/51/EEC and
99/42/EC on the mutual recognition of professional education and
training apply.
- Diverse national legislations and practices have led to disparities
in the procedures applied and have created legal uncertainty regarding
the rights of providers of port services and the duties of competent
authorities. It is in the Community's interest, therefore, to
establish a Community legal framework which lays down basic rules
on access to the port services market, the rights and obligations
of current and prospective service providers, the managing bodies
of the ports, as well as on the procedures accompanying the authorisations
and selection processes.
- In accordance with principles of subsidiarity and proportionality
as set out in Article 5 of the Treaty, the objectives of the proposed
action, which is the access for any natural or legal person, established
in the Community, to the market for port services, cannot be sufficiently
achieved by the Member states because of the dimension of that
action and can therefore be better achieved by the Community.
This Directive confines itself to the minimum required in order
to achieve that objective and does not go beyond what is necessary
for that purpose.
- The Community legislation on access to port services does
not exclude the application of other Community rules. Competition
rules have already been applied to port services and are relevant
in particular to monopoly situations.
- In the interest of an efficient and safe port management,
Member States may require that service providers obtain authorisations.
The criteria for granting such authorisations must be objective,
transparent, non-discriminatory, relevant and proportional. They
must be made public.
- Since ports are made up of limited geographical areas, access
to the market may, in certain cases, meet capacity and available-space
constraints and traffic-related safety constraints for technical-nautical
services. In such cases it may therefore be necessary to limit
the number of authorised providers of port services.
- The criteria for any limitation must be objective, transparent,
non-discriminatory, relevant and proportional. In the case of
cargo handling, and unless exceptional circumstances prevail,
the number of service providers for each category of cargo handling
must not be limited to fewer than two completely independent providers.
- Service providers should have the right to employ personnel
of their own choice.
- Where the number of providers of port services is limited,
these will need to be selected by the competent authority, according
to a transparent, objective, open and fair selection procedure
with non-discriminatory rules.
- In order to ensure that decisions and procedural measures
under this Directive are taken, and are seen to be taken, by neutral
bodies, the position of the managing body of a port which is itself,
or wishes to become, a provider of a port service should be defined.
It must be subject to the same conditions and procedures as other
service providers whilst remaining in a position to ensure the
functioning of the port. Therefore any decision on limiting the
number of service providers and the selection itself must be entrusted
to a neutral body and the managing body of a port shall not discriminate
between service providers and between port users.
- It is therefore necessary to ensure non-discrimination between
the managing body of the port and independent operators, as well
as between managing bodies of different ports.
- In the financial field it is necessary to impose the obligation
for managing bodies of ports covered by this Directive, which
are also acting as service providers, to keep accounts for activities
carried out in their function as managing bodies separate from
those carried out on a competitive basis.
- Commission Directive n° 2000/52 of 26 July 2000 lays
down, for a certain number of undertakings, the obligation to
maintain separate accounts which only applies to undertakings
whose total annual turnover for each of the last two years exceeded
EUR 40 million.
In the light of the introduction of the freedom to provide port
services in the Community, it is necessary to ensure that the
principle of separation of accounts applies to all ports falling
within the scope of the present Directive and to impose on ports
transparency rules that are not less strict than those laid down
in the Commission Directive n° 2000/52.
- The requirement to keep accounts for port service activities
should apply to all undertakings which have been selected to provide
such services.
- Self-handling should be allowed and any criteria set for self-handlers
should not be stricter than those set for providers of port services
for the same or a comparable kind of service.
- Authorisations granted through a selection procedure should
be limited in time. It is reasonable to take into account, when
determining the period of authorisation, whether the provider
has had to invest in assets or not and, where this is the case,
whether these assets are moveable or not. Although such procedure
should lead to an adequate outcome, it is nevertheless necessary
to set maximum periods of authorisation.
- The current situation in the Community ports, with its multitude
of authorisation and selection methods and periods, requires that
clear transition periods be determined. These transition rules
should distinguish between ports where the number of service providers
is restricted and those ports where it is not.
- Where the number of service providers is not restricted, there
is no reason to change the existing authorisations, whilst future
ones should be granted in accordance with the Directive's rules.
- Where the number of service providers is restricted, the transitional
periods should distinguish between authorisations granted in accordance
with a public tender, or an equivalent procedure, or not; between
situations where the service provider has made significant investments
or not; and where these investments were made in moveable or immovable
assets. The interests of legal certainty require that, in each
case maximum periods be fixed, whilst leaving national authorities
a substantial margin adequately to take into account the specificities
of each case.
- Member States should determine the competent authorities responsible
for the implementation of this Directive.
- Appeal procedures against decisions of the competent authorities
should be in place.
- Member States must ensure an adequate level of social protection
for the staff of undertakings providing port services.
- The provisions of this Directive in no way affect the rights
and obligations of Member States in respect of law and order,
safety and security at ports as well as environmental protection.
- This Directive does not affect the application of the rules
of the Treaty; in particular the Commission will continue to ensure
compliance with these rules by exercising, when necessary, all
the powers granted to it by Article 86 of the Treaty.
- On the basis of Member States' reports on the application
of this directive, the Commission should make an assessment accompanied,
if appropriate, by a proposal for the Directive's revision,
HAVE ADOPTED THIS DIRECTIVE:
Article 1 - Objective
Freedom to provide port services shall apply to Community providers
of port services under the provisions set out in this Directive.
Providers of port services shall have access to port installations
to the extent necessary for them to carry out their activities.
Article 2 - Scope
1. This Directive applies to those port services set out in the
Annex which are provided inside the port area for users of the
port.
2. This Directive applies to any sea port or port system located
in the territory of a Member State and open to general commercial
maritime traffic , provided that the port's average annual throughput
over the last 3 years has not been less than 3 million tonnes
or 500.000 passenger movements.
3. Where a port reaches the freight traffic threshold referred
to in paragraph 2 without reaching the corresponding passenger
movement threshold, the provisions of this Directive shall not
apply to port services reserved exclusively for passengers. Where
the passenger movement but not the freight traffic threshold is
reached, the provisions of this Directive shall not apply to port
services reserved exclusively for freight. The Commission shall
publish for information, in the Official Journal of the European
Communities and on the basis of information provided by Member
States, a list of the ports referred to in this Article. The list
shall first be published within three months following the entry
into force of this Directive, and thereafter annually.
4. Member States may require that the providers of port services
be established within the Community and that vessels used exclusively
for the provision of port services shall be registered in, and
fly the flag of a Member State.
Article 3
1. This Directive is without prejudice to the obligations for
competent authorities which flow from Directive 92/50/EEC, Directive
93/36/EEC, Directive 93/37/EEC and Directive 93/38/EEC.
2. Where one of the Directives referred to in paragraph 1 makes
the tendering of a service contract mandatory, Articles 8(1,2,3,4
and 5), 12(1and 2), and 13 of this Directive shall not apply to
the award of that contract.
3. This Directive is without prejudice, where applicable, to the
obligations of competent authorities which flow from Directives
89/48/EEC, 92/51/EEC and 99/42/EC on a mutual recognition among
Member States of professional education and training.
Article 4 - Definitions
For the purposes of this Directive:
(1) 'sea port' (in this Directive referred to as 'port')
is an area of land and water made up of such improvement works
and equipment as to permit, principally, the reception of ships,
their loading and unloading, the storage of goods, the receipt
and delivery of these goods by inland transport, the embarkation
and disembarkation of passengers;
(2) 'port system' means two or more ports grouped together
to serve the same city or conurbation;
(3) 'port authority' or 'managing body of the port' (hereafter
referred to as 'managing body of the port') means a body
which, whether or not in conjunction with other activities, has
as its objective under national law or regulation the administration
and management of the port infrastructures, and the co-ordination
and control of the activities of the different operators present
in the port or port system concerned. It may consist of several
separate bodies or be responsible for more than one port;
(4) 'port services' means the services of commercial value
that are normally provided against payment in a port and which
are listed in the Annex;
(5) 'provider of port services' means any natural or legal
person providing, or wishing to provide, one or more categories
of port services;
(6) 'public service requirement' is a requirement adopted
by a competent authority in order to secure adequate provision
of certain categories of port services;
(7) 'self-handling' means a situation in which a port user
provides for itself one or more categories of port services and
where normally no contract of any description with a third party
is concluded for the provision of such services;
(8) 'authorisation' means any permission, including a contract,
allowing a natural or legal person to provide port services or
to carry out self-handling.
Article 5 - Competent authorities
Member States shall designate the competent authority or authorities
for the purpose of implementing articles 6, 7, 8, 10, 11, 12 and
19 of this Directive.
Article 6 - Authorisation
1. Member States may require that a provider of port services
obtains prior authorisation under the conditions set out in par.
(2), (3), (4) and (5). Authorisation shall be automatically granted
to service providers selected under Article 8.
2. The criteria for the granting of the authorisation by the competent
authority must be transparent, non-discriminatory, objective,
relevant and proportional. The criteria may only relate to the
provider's professional qualifications, his sound financial situation
and sufficient insurance cover, to maritime safety or the safety
of installations, equipment and persons. The authorisation may
include public service requirements relating to safety, regularity,
continuity, quality and price and the conditions under which the
service may be provided.
3. Where the required professional qualifications include specific
local knowledge or experience with local conditions, the competent
authority must provide adequate training for applicant service
providers.
4. Criteria referred to in paragraph (2) shall be made public
and providers of port services shall be informed in advance of
the procedure for obtaining the authorisation. This requirement
applies equally to an authorisation linking the provision of service
to an investment into immobile assets which will revert to the
port upon expiry of the authorisation.
5. The provider of port services has the right to employ personnel
of his own choice to carry out the service covered by the authorisation.
Article 7 - Limitations
1. Member States may only limit the number of providers of port
services for reasons of constraints relating to available space
or capacity or, for technical-nautical services, to maritime traffic-related
safety. The competent authority must:
(a) inform interested parties of the category or categories of
port services and the specific part of the port to which the restrictions
apply as well as the reasons for such restrictions;
(b) allow the highest number of service providers possible under
the circumstances.
2. Where constraints relating to available space or capacity exist
and, for as long as there are no exceptional circumstances in
relation to the volume of traffic and categories of cargoes, the
competent authority shall authorise at least two service providers
for each category of cargo, which shall be completely independent
of each other.
3. Where the competent authority deciding on limitations in relation
to the port in question is the managing body of that port and
where the managing body itself or a service provider over which
it has direct or indirect control or is involved in, is, or wishes
to become, also a service provider in that port, Member States
shall designate a different competent authority and entrust it
with the decision, or approval of a decision, on limitations.
This newly designated competent authority must be independent
of the managing body of the port in question and must not:
(a) provide port services similar to those provided by any of
the service providers in the port in question; and
(b) have any direct or indirect control over, or be involved in,
any of the service providers in the port in question.
Article 8 - Selection procedure
1. Where the number of providers of port services has been limited
in application of Article 7, the competent authority shall take
the necessary measures to ensure a transparent and objective selection
procedure, through tendering, using proportionate, non-discriminatory
and relevant criteria.
2. The competent authority shall publish in the Official Journal
of the European Communities an invitation to interested parties
to participate in the selection process.
This publication may refer to the competent authority's or the
port's own internet web-site or, where there is no such web-site,
any other appropriate manner which makes the necessary information
available in a timely way to any person interested in the process.
3. The competent authority shall include in its publication
(a) authorisation and selection criteria that define the authority's
minimum requirements;
(b) award criteria that define the grounds on which the authority
will choose among offers meeting the selection criteria; and
(c) conditions setting out the service requirements that the contract
will cover and identifying any assets to be placed at the disposal
of the successful tenderer together with the relevant terms and
applicable rules.
4. The procedure shall provide for an interval of at least 52
days between the dispatch of the call for proposals and the latest
date for receipt of them.
5. The competent authority shall include in the information it
supplies to potential providers all relevant information it holds.
6. Where the competent authority carrying out the selection procedure
in relation to the port in question is the managing body of that
port and where the managing body itself or a service provider
over which it has direct or indirect control or is involved in,
is, or wishes to become, a service provider in that port, Member
States shall designate a different competent authority and entrust
it with the selection procedure in question. This newly designated
competent authority must be independent of the managing body of
the port in question and must not:
(a) provide port services similar to those provided by any of
the service providers in the port in question; and
(b) have any direct or indirect control over, or be involved in,
any of the service providers in the port in question.
Article 9 - Duration
Providers of port services shall be selected for a limited period
of time to be determined in accordance with the following criteria:
1. In cases where the service provider will make no or insignificant
investments in order to carry out the provision of services, the
maximum duration of its authorisation shall be 5 years.
2. In cases where the service provider will make significant investments
in
(a) moveable assets, the maximum period shall be 10 years;
(b) immovable assets, the maximum period shall be 25 years, irrespective
of whether their ownership will revert to the port.
Article 10 - Accounting provisions
The competent authority shall oblige the selected service providers
to keep separate accounts for each port service in question. The
compilation of the accounts must accord with current commercial
practice and generally recognised accounting principles.
Article 11 - Self-handling
1. Member States shall take the necessary measures to allow self-handling
to be carried out in accordance with this Directive.
2. Self-handling may be subject to an authorisation for which
the criteria must not be stricter than those applying to providers
of the same or a comparable port service.
Article 12 - Managing body of the port
1. Where the managing body of the port provides port services,
it must fulfil the criteria set out in Article 6 and separate
the accounts of each of its port service activities from the accounts
of its other activities. The compilation of the accounts must
accord with current commercial practice and generally recognised
accounting principles to ensure that:
(a) the internal accounts corresponding to different activities
are separate;
(b) all costs and revenues are correctly assigned or allocated
on the basis of consistently applied and objectively justifiable
cost accounting principles;
(c) the cost accounting principles according to which separate
accounts are maintained are clearly identified.
2. The auditor's report on the annual accounts must indicate the
existence of any financial flows between the port service activity
of the managing body of the port and its other activities. The
auditor's report must be kept by the Member States and made available
to the Commission upon request.
3. Where as a result of a selection procedure under Article 8
no suitable service provider could be found for a specific port
service, the competent authority may, under the conditions of
paragraph (1) of this Article, reserve the provision of this service
to the managing body of the port for a maximum period of 5 years.
4. The managing body of the port shall not discriminate between
service providers. It shall in particular refrain from any discrimination
in favour of an undertaking or body in which it holds an interest.
5. The provisions of this Directive in no way affect the rights
and obligations of Member States in respect of the Transparency
Directive n° 2000/52/EC.
Article 13 - Appeals
1. Member States shall ensure that any party with a legitimate
interest has the right to appeal against the decisions or individual
measures taken, under this Directive, by competent authorities
or the managing body of the port.
2. Where an application for access to provide port services under
this Directive is rejected, the applicant(s) shall be informed
of the reasons for not having been authorised or selected. Such
reasons must be objective, non-discriminatory, well-founded and
duly substantiated. Appeal procedures must be made available to
the applicant. It must be possible to bring the appeal before
a national court or a public authority that is independent in
its organisation, funding, legal structure and decision-making
of the competent authority or managing body of the port concerned
and from any service provider.
3. Member States shall take the necessary measures to ensure that
decisions taken by appeal bodies are subject to judicial review.
Article 14 - Safety, security and environmental protection
The provisions of this Directive in no way affect the rights and
obligations of Member States in respect of law and order, safety
and security at ports as well as environmental protection.
Article 15 - Social protection
Without prejudice to the application of this Directive, and subject
to the other provisions of Community law, Member States shall
take the necessary measures to ensure the application of their
social legislation.
Article 16 - Transitional measures
1. Where the number of providers of port services in a port is
not limited by constraints relating to available space or capacity
or maritime safety, existing authorisations may remain in force
unchanged until such time as the number becomes limited. New authorisations
must comply with the provisions of this Directive.
2. Where the number of providers of port services in a port is
limited, the rules of points (a) to (e) apply.
a) Where an existing authorisation was granted after a public
tender or an equivalent procedure and is otherwise in conformity
with the rules of this Directive, the authorisation may remain
in force unchanged.
b) Where an existing authorisation was not granted in conformity
with the rules of this Directive and where the service provider
has made no or insignificant investments, a new authorisation
procedure in conformity with the rules of this Directive must
be carried out within 2 years of the date of transposition of
this Directive in the case of a sole service provider and within
4 years in all other cases.
c) Where in the context of an existing authorisation a service
provider has made significant investments in moveable assets,
the following shall apply:
(i) Where the authorisation was not granted in conformity with
the rules of this Directive but was preceded by a public tender
or an equivalent procedure, the maximum duration of the existing
authorisation shall be 10 years;
(ii) Where the authorisation was not granted in conformity with
the rules of this Directive and was not preceded by a public tender
or an equivalent procedure, a new authorisation procedure in conformity
with the rules of this Directive must be carried out within 3
years of the date of transposition of this Directive in the case
of a sole service provider and within 5 years in all other cases.
d) Where in the context of an existing authorisation a service
provider has made significant investments in immovable assets,
the following shall apply:
(i) Where the authorisation was not granted in conformity with
the rules of this Directive but was preceded by a public tender
or an equivalent procedure, the maximum duration of the existing
authorisation shall be 25 years;
(ii) Where the authorisation was not granted in conformity with
the rules of this Directive and was not preceded by a public tender
or an equivalent procedure, a new authorisation procedure in conformity
with the rules of this Directive must be carried out within 5
years of the date of transposition of this Directive in the case
of a sole service provider and within 8 years in all other cases.
e) Where in the context of an existing authorisation a service
provider has made significant investments in moveable and immovable
assets, point (d) shall apply.
Article 17 - Information report and revision
Member States shall send the Commission a report on the application
of this Directive no later than 3 years after the date of transposition.
On the basis of the Member States' reports, the Commission will
make an assessment of the implementation by Member States of the
Directive accompanied, where appropriate, by a proposal for its
revision.
Article 18 - Implementation
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this Directive
not later than one year from the date of its entrance into force.
They shall forthwith inform the Commission thereof.
When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a reference
on the occasion of their official publication. Member States shall
determine how such reference is to be made.
2. Member States shall communicate to the Commission the text
of the main provisions of national law which they adopt in the
field covered by this Directive.
Article 19
This Directive shall enter into force on the twentieth day following
that of its publication in the Official Journal of the European
Communities.
Article 20 - Addressees
This Directive is addressed to the Member States.
Done at Brussels, [
]
For the European Parliament For the Council
The President The President
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ANNEX
LIST OF PORTS SERVICES CONCERNED BY THIS DIRECTIVE
(1) Technical-nautical services
(a) Pilotage
(b) Towage
(c) Mooring
(2) Cargo handling including
(a) stevedoring, stowage, transhipment and other intra-terminal
transport;
(b) Storage, depot and warehousing, depending on cargo categories;
(c) Cargo consolidation.
(3) Passenger services (including embarkation and disembarkation)
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