Paper adopted by the ESPO General Assembly
at its meeting in Valletta on 28 April 2005

ESPO remains convinced that a thorough debate on the actual priorities of a European seaport policy would be more beneficial than a hasty re-introduction of another port services Directive. This does not mean that it disputes the basic principles underlying the new Commission proposal. ESPO notably supports the overall aims of ensuring free and non-discriminatory access to the markets of port services, introducing principles of good governance and transparency as well as ensuring the neutrality of the managing body of the port towards port users.

Even though these aims can be achieved by individual Member States, a common legal framework on market access to port services could be useful in so far as it would clarify the application of EU Treaty rules, provide additional transparency and legal certainty to the managing body of the port, potential and existing service providers and their staff as well as port users.

Together with almost all other stakeholder organisations, ESPO however came to the conclusion that the new proposal is counterproductive in many areas and needs to be substantially reworked before it could have such added value. An internal impact assessment exercise carried out by ESPO demonstrated clearly that, in its present form, the Directive would have virtually no positive impact on the European seaport sector but would, on the contrary, might lead to a negative investment climate in ports, more bureaucracy, legal uncertainty and even create additional hindrances to market access.

ESPO believes in a constructive approach which is why it puts forward the present paper which introduces a series of building blocks for a common legal framework on market access to port services. At the same time it proposes alternative solutions to the critical areas of the Commission's proposal. The paper is intended to stimulate a debate with other stakeholder organisations and facilitate the upcoming discussions in the European Parliament and the Council of Ministers in view of a positive contribution to the development of a coherent and supportive policy for European seaports.

A European legal framework on market access to port services should be based on the following essential premises:

1.  A common framework should first of all be relevant, clarifying that the basic freedom to provide services enshrined in the EU Treaty should normally be applied to all services rendered in ports, unless specific reasons of common or general interest would limit its full application. The framework must explain under which conditions these exceptions would apply.
2.  Such a framework providing or authorising constraints or limitations on the freedom to port services should also be proportional, interfering only where there is a clearly identified and justified need.
3.  A common framework must also ensure a level playing field between ports. This is especially the case for cargo handling services for which the relevant competitive market in most cases extends beyond the port itself. Main determining factor here is whether service providers in one way or another may benefit from public funding that could be qualified as State aid.
4.  A common framework must encourage new investments in ports and development of ports in general. Service providers must be able to enjoy a normal return on the investments they make.
5.  A common framework must be simple and straightforward. Complicated concepts and exceptional regimes must be avoided as much as possible.
6.  Finally, a common framework must respect the diversity of European port management and organisation models but ensure an overall transparency of administrative, operational and financial relations within a port.

 

A common framework on market access to port services should apply to:

• all ports handling more than 1.5 million tonnes of cargo and/or 200.000 passengers annually;
• technical-nautical services (pilotage, mooring and towage) performed within the port and on maritime access routes to and from the port, port-specific cargo handling services (stevedoring and loading / unloading of ships) as well as passenger services (embarkation and disembarkation);
• exclude ports with a high seasonal character under certain conditions.

The managing body of the port should, in principle, be the competent authority for services provided within the port area. If appropriate, Member States can appoint a different competent authority for services provided on maritime access routes to and from the port.

In case the managing body of the port also provides port services:

1. Member States must designate an independent body which has, within a reasonably short period, to consider and decide on any appeals or complaints against the actions and decisions of the managing body of the port in relation to service providers.
2. The managing body of the port must be required to keep the accounts of its port service activities separated from the accounts of its other activities according to the provisions of article 19 of the Commission's proposal.

A common framework should under no circumstances undermine the prerogative of the managing body of the port to safeguard the general interest it has under its jurisdiction.

Potential service providers may gain access to the market in one or more of the following forms, depending on the national legal framework applicable;

1. by obtaining a concession for the use of public domain or a licence from the competent authority;
2. by successfully concluding commercial negotiations, including lease agreements, with the competent authority;
3. by taking over an existing company which holds a concession, licence or commercial agreement;
4. by taking over an existing concession, licence or commercial agreement;
5. by buying a piece of land within the port.

In cases a) to d), the service provider is deemed to implicitly have obtained an authorisation to provide the service under the conditions stipulated in the concession, licence, commercial agreement or act of sale. Apart from any commercial elements involved, these conditions must, where applicable, relate to the following criteria:

1. the professional qualifications of the service provider and of his personnel, his sound financial situation and sufficient insurance cover;
2. the presentation of an adequate business plan containing clear commitments related to the provision of the service;
3. relevant requirements in the field of safety, security and the environment.

The competent authority has to require potential service providers to obtain an explicit prior authorisation in case of public service requirements relating to maritime safety, regularity and continuity. In this case, the authorisation must be granted on the basis of particularly strict criteria with regard to these public service requirements.

Existing and potential service providers must comply with all relevant and applicable legislation of the Member State in which they operate or seek to operate, provided this legislation is compliant with European law and, in particular, the four basic freedoms of the Treaty.

Existing and potential service providers have the right to employ personnel of their own choice, provided that they respect the applicable social legislation of the Member State concerned, including relevant national rules on health, safety and employment of personnel as well as collective agreements. This legislation must be compliant with European law and, in particular, the four basic freedoms of the Treaty.

For reasons of transparency and objectivity, competent authorities should be encouraged to select potential service providers according to existing Community-wide selection procedures, using proportionate, non-discriminatory and relevant criteria.

A common framework should, in principle, make such a selection procedure mandatory:

• if the service concerned can, for reasons of public service requirements relating to maritime safety, regularity and continuity, only be performed by a single service provider ' in this case particularly strict selection criteria must be applied with regard to these public service requirements;
• if the service provider, directly or indirectly, enjoys public financial support which could be qualified as State aid under the EU State aid guidelines, either for the provision of the service itself or for the use of superstructure and infrastructure.

Concessions and licenses granted by the competent authority to service providers or commercial agreements between the competent authority and service providers must be concluded for a period which is in relation to the investments made by service providers, allowing a normal period of amortisation.

The following maximum durations are put forward:

1. in case of no significant investments: 10 years;
2. in case of significant investments in movable assets and training: 15 years;
3. in case of significant investments in immovable assets and comparable movable assets: 45 years.

These maximum durations should not apply in case the service provider owns the piece of land on which he operates.

For reasons of proportionality and subsidiarity, the conditions under which the basic right of port users to self-handle can be applied, be it on board of the ship or on land, are best set at local or national level.

A common legal framework on market access to port services cannot enter into force before State aid guidelines on seaports have been formally adopted.

The framework applies in first instance to new concessions, licenses and commercial agreements granted to or concluded with service providers but should also contain an adequate transitional regime for existing concessions, licenses and commercial agreements as outlined in the following paragraphs.

The competent authority should, within a period of one year following transposition of the legal framework, complete an assessment of all existing concessions, licenses and commercial agreements granted to or concluded with service providers and make their essential, non-confidential, characteristics public.

The competent authority must first of all check whether the durations of concessions, licenses and agreements correspond with the actual investments made by the service providers and whether these were concluded within the maximum durations set out in the framework. If both conditions are fulfilled, existing concessions, licenses and agreements can remain in force unchanged. If durations are not in relation to the actual investments made and/or exceed the maximum durations, these must be adapted accordingly.

The competent authority must further verify whether the service provider is adhering to the conditions under which the concession or licence was granted or under which the agreement was concluded. Apart from the commercial elements involved, the competent authority must especially check compliance with:

1.  the professional qualifications of the service provider and of his personnel, his sound financial situation and sufficient insurance cover;
2.  the business plan including the commitments made related to the provision of the service;
3.  relevant requirements in the field of safety, security and the environment.

In case of serious non-compliance, the competent authority must be able to revoke or vary the concession, licence or agreement.

Any need for compensation resulting from this transitional regime should be settled on a case by case basis.

The transitional regime would not apply in case the service provider owns the piece of land on which he operates.

Motivation

:  The proposed framework on market access to port services cannot function without State aid guidelines since the obligation to apply a public selection procedure for cargo handling services depends on them (cf. item 6 above). To avoid disruption of the market and discourage investments, the provisions of the framework should in first instance apply to new concessions, licenses or agreements. Non-confidential details of existing arrangements must be made public and a correction factor must be applied in case investments made are not in proportion to the agreed durations and/or where these durations exceed the maximum durations put forward by the common framework. The competent authority should also check whether existing service providers are meeting the conditions under which they gained access to the market. The transitional regime should not interfere with property rights of service providers which own the land on which they operate.