We continue the analysis of the regulation of port services established by Regulation (EU) 2017/352 with particular reference - first of all - to the topical issue of the faculty, given to managing bodies of the port, to limit the number of providers of port services in the port falling within their competence. We will then deal with the issue of "public service obligations".
In Article 6 of the regulation, the European legislator indicates some reasons, already mentioned in the previous issue of our newsletter that, alone or jointly, enable the managing bodies of the port to limit the number of providers with reference to a specific port service.
The aforementioned reasons include, first of all, the scarcity or reserved use of port areas [1], provided that the limitation complies with the programming plans already adopted by the managing body of the port or with plans adopted by "any other public authorities competent in accordance with the national law". This formula is not exactly clear, but certainly seems to limit at least formally the discretionary power of the managing body of the port [2].
Nevertheless, the rule provides that the limitation of the number of operators can be implemented by the managing body when its absence would, de facto, run counter to the need to ensure "safety" and "environmental sustainability" of port operations [3]. It should be noted that this provision seems to leave a rather wide discretionary power to managing bodies, also by virtue of the fact that the concepts of safety in port and environmental sustainability are not defined or described by the regulation itself, but left "open".
Moreover, the reasons justifying the limitation of the number of providers of a specific port services, include the case in which the dimensions of the port infrastructure and the volumes of port traffic generated by it are such that the operations of multiple providers of port services in the port would not be possible [4].
However, this provision must be coordinated with the subsequent provision of the same article being commented [5], dealing with the case in which the managing body of the port [6], due to its dimension and the limited volumes of traffic generated, provides port services itself.
Given that, in the latter case, a natural monopoly is generated [7], the rule requires that, in such small-scale realities, the Member States "shall take such measures as are necessary to avoid conflicts of interests".
Should the managing body of the port intend to apply limitations in the permitted cases, it shall submit a “reasoned”[8] proposal to limit the number of providers, after which the subjects involved will have a deadline of 3 months to file their remarks. At the end of this period, the managing body is authorized to publish the decision to actually proceed to the limitation and therefore to follow an open selection procedure, which must necessarily be transparent and non-discriminatory [9]. Hence, the type of service requested and the information deemed essential by the managing body for the purpose of submitting the application should be made public.
With regard to public service obligations, we will first examine how the regulation "authorizes" the Member States, in particular through the managing bodies of ports, to impose on port services operators the obligation to operate certain port services in the form of "public services". Given that the European legislator has defined the public service obligation as "a requirement defined or determined in order to ensure the provision of those port services or activities of general interest” we can consider the services in question as those activities that, reasoning according to organizational or commercial convenience, the operator - if not "obliged" - would not provide or in any event would not provide under the conditions that may be imposed on him [10].
This obligation, however, should not be understood as the European legislator’s aspiration that European ports - through the use of their operators – undertake a real public and general obligation for the provision of port services, but rather as a commitment, shared by managing bodies and operators, aimed at ensuring, for example, the availability of port services in a non-discriminatory way for all users and on an ongoing basis (day and night) or, again, aimed at ensuring economic accessibility to services transport to certain categories of users. The European legislator also mentions the need for port services operators to supervise the entry, mooring and stay of ships in compliance with EU environmental regulations, choosing, also in this case, not to define specific duties.
To the exact opposite of an imposition, the aspiration of the Union seems therefore that to raise standards and share the so-called good practice: the regulation requires that if a Member State decides to adopt a public service obligation in all the national ports, it shall notify said obligation to the EU Commission.
In the next issue, we will focus on workers' rights, financial transparency and autonomy of port managing bodies, thus completing our overview of Regulation EU 2017/352.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Barbara Gattorna.
[6]or a legally distinct entity which it directly or indirectly controls
