We are finally ready for the analysis of the articles of Regulation (EU) 2017/352 "establishing a framework for the provision of port services and common rules on the financial transparency of ports".
In this issue, we start examining the "rules" that the European Union wanted to impose on the Member States – although, as noted, foreseeing a number of "freedoms" – concerning the regulation and operation of port services [1].
The aim underlying the European legislator’s approach in regulating port services is the need to balance the protection of the rights of port service providers with the efficiency and productivity that national port managing bodies and authorities (in Italy, Port System Authorities) are required to ensure.
Indeed, if, on the one hand, concerning said services, reference is made to general principles – set out in the European Union Treaties – according to which providers of port services should be free to operate in all European maritime ports, it is on the other hand stressed that managing bodies have the power to impose certain conditions on the exercise of this freedom [2].
Article 3 of the Regulation, entitled "Provision of port services", provides that access to the market for the provision of port services in ports may be subject to certain conditions. The first two are (i) minimum requirements for the provision of port services and (ii) limitations on the number of providers.
However, Member States are free, under their national law, not to apply the conditions set out above.
The imposition of minimum requirements for the provision of port services stems from the EU legislator’s belief that it can contribute to a high quality of port services, though without introducing market barriers.
Article 4 sets out the minimum requirements for the provision of port services, specifying that they may only relate to the aspects specified.
Let us therefore look at some of such requirements, which, of course, must be complied with until the right to provide a port service expires:
First of all, it is clear that the EU legislator has several objectives: (i) to ensure that the managing body of the port be able to verify in advance the existence of the aforementioned requirements ((a), b) and c)); (ii) to ensure the maximum possible efficiency of port activity, making the use of port services available to users without interruptions (d)); (iii) protect the rights of maritime workers by requiring compliance with national social and labour regulations (g)).
Looking at the provisions of the Regulation, it is not clear whether the European legislator will try to have a greater impact on the national procedures for selecting providers of port services on the basis of the "minimum requirements", since, so far, it imposes the publication of the minimum requirements and the selection procedure by the management body concerned by 24 March 2019. It might reserve such function for itself after an initial trial period for implementation of the Regulation.
In any event, Article 5 of the Regulation sets out – actually by general provisions referable to the principles of European Union law – the "procedure to ensure compliance with the minimum requirements", stating that the managing body of the port must give port service providers a transparent, objective, non-discriminatory and proportionate treatment.
In particular, the provision that the management body must justify the decisions it takes in relation to providers of port services is very interesting and innovative.
Even more significant are the two different provisions applicable depending on the relationship between the managing body and port services providers: (i) where the managing body refuses the right to provide port services, its refusal shall be justified on the basis of the lack of "minimum requirements" referred under Article 4, i.e. professional qualifications, financial capacity, equipment needed and constant operational availability; (ii) where the managing body limits or terminates the right to provide a service of a port service provider, any such decision shall be justified in accordance with Article 5, first paragraph, that is to say, by acting in a transparent, objective, non-discriminatory and proportionate manner.
The second provision seems, actually, a little more "hermetic" and less capable of protecting the rights of port service providers than the first one.
Concerning the limitation on the number of providers of port services, the Regulation provides for the right of port managing bodies to limit their number for reasons such as the scarcity or reserved use of land or waterside space or certain characteristics of the port infrastructure or the nature of the port traffic that are such as to prevent the operation of multiple providers of port services in the port. Another case (which will be examined in the next issue) is when the absence of such a limitation is in conflict with the performance of public service obligations.
In particular, in case of scarcity or designation of port areas or spaces for other purposes, any limitation must necessarily be in accordance with any decisions or plans (e.g. in the case of Italy, the Port Regulatory Plan) agreed by the management bodies of the port, that is to say, which are part of the already-agreed and approved planning of the port activities.
Particularly significant, for the purpose of limiting the service providers operating in a port, is also the concrete consideration of the size - and importance at European level – and the catchment area of a port.
As far as the selection of providers of port services is concerned, the managing body of the port shall publish any proposal to limit the number of the operators at least three months before adopting the actual decision, in order to enable the interested parties to submit any comments within a reasonable period. Then, the managing body of the port shall publish the decision to limit the number of providers of port services, according to a transparent and non-discriminatory selection procedure, which shall be open to all the interested parties.
In the next issue we will analyse the rules on the provision of port services and then begin the examination of the articles of the Regulation concerning financial transparency and autonomy.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Barbara Gattorna.
[1] According to Article 1 of the Regulation, "This Regulation applies to the provision of the following categories of port services ("port services"), either inside the port area or on the waterway access to the port: (a) bunkering; (b) cargo-handling; (c) mooring; (d) passenger services; (e) collection of ship-generated waste and cargo residues; (f) pilotage; and (vii) towage".
[2] More specifically, as mentioned in previous issues, in the opinion of the European legislator, "in the interest of efficient, safe and environmentally sound port management” the managing body/authority of the port should be able to require that port service providers are able to demonstrate that they meet "minimum requirements for the performance of the services in an appropriate way".
