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On 23 January 2017, the Council of the European Union approved Regulation (EU) 2017/352 [1] (“Reg. 2017/352”), which “establishes a regulatory framework for the provision of port services and common rules on financial transparency of ports” [2].
Reg. 2017/352 [3], issued with the main aim of improving the efficiency of European ports of call by facilitating access to port services and issuing rules on financial transparency, has confirmed the European Union’s keen interest in maritime traffic, which is considered fundamental to the internal market, and in the efficient operation of the trans-European transport network [4].
The adoption of such legal instrument therefore stems from the need to: (i) make port services available, efficient and reliable; (ii) address aspects relating to the transparency of public funding and port charges, as well as administrative simplification measures in ports (including the simplification of customs procedures); and (iii) review restrictions on the provision of port services.
In order to meet the above-mentioned requirements, the European legislator has therefore chosen a “regulation” as the appropriate legal instrument.
It should be remembered that EU regulations are legislative acts having general application, binding in their entirety and, above all, directly applicable [5] in the Member States’ legal systems.
The general scope refers to the fact that regulations – unlike decisions – are not addressed to specific addressees, but to one or more abstractly determined categories of addressees: thus, the rules contained therein directly govern the matter covered.
Therefore, the direct and immediate effect of regulations means that they – unlike directives – do not – require the enactment of national implementing measures by the Member States, since they are, as mentioned, immediately applicable in the internal law of those countries. In other words, regulations are immediately effective in the legal systems of the Member States without the need to be transposed into national laws and/or further acts of transposition.
Reg. 2017/352, however, required (rectius: requires) the Member States to take certain steps for its proper implementation.
For example, Article 16 reads: “Each Member State shall ensure that an effective procedure is in place to handle complaints arising from the application of this Regulation for its maritime ports covered by this Regulation”.
The same article goes on to specify that there must be “effective functional separation between the handling of complaints, on the one hand, and the ownership and management of ports, provision of port services and port use, on the other hand”. Therefore, pursuant to Reg. 2017/352, complaint handling must be “impartial and transparent, and shall duly respect the right to freely conduct business”.
To date, however, the authority in charge of handling such complaints does not seem to have been identified in our legislation [6].
This is also relevant because – according to Article 16, paragraph 3, of Reg. 2017/352 – Member States should ensure that “port users and other relevant stakeholders are informed of where and how to lodge a complaint and which authorities are responsible for handling complaints”.
In view of such a “gap” in the proper implementation of Reg. 2017/352, we cannot exclude two possible scenarios:
1. the Commission might start an infringement procedure against Italy, i.e., the legal proceedings governed by Articles 258 and 259 of the Treaty on the Functioning of the European Union (TFEU), aimed at sanctioning any EU Member States responsible for failing to fulfil their obligations under EU law (e.g., non- and/or incomplete implementation and/or transposition of EU legislation);
2. the European Union might, through the European Commission, directly take action – if the Member State does not identify the competent authority – by virtue of the subsidiarity principle [7] under Article 5 of the Treaty on European Union (TEU).
This second scenario, in particular, might involve the risk that, in practice, the competence for the management of “complaints” arising from the application of Reg. 2017/352 be entrusted, by virtue of the principle of subsidiarity, to EU bodies with limited knowledge of the specificity of the complex regulatory framework governing our industry in the Italian legal system. In other words, there would be the risk of seeing any complaints managed by someone lacking the expertise and “sensitivity” that are required to properly understand the applicable regulatory, case-law and factual framework.
It is therefore reasonable to hope that our country will identify as soon as possible the authority to be entrusted with the handling of complaints and, to this end, to prepare adequate procedures in accordance with the parameters set out by the EU law makers.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Mattia Salvatori.
[1] Reg. 2017/352 was recently amended by Regulation (EU) 2020/697 of the European Parliament and of the Council of 25 May 2020 in order to enable port managing bodies or competent authorities to provide flexibility in respect of the levying of port infrastructure charges in the context of the economic emergency caused by the COVID-19 outbreak.
[2] For further insights on this topic, we invite you to catch up with the issues of our Shipping & Transport Bulletin of (i) October - November 2018; (ii) February - March 2019; (iii) April - May 2019 and (iv) June - July 2019, if you have not already read them
[3] However, by express provision of Reg. 2017/352, the same does not apply to port service contracts concluded before 15 February 2017.
[4] Indeed, as highlighted in whereas-clauses (1) and (2) of the Regulation, ports “contribute to the long-term competitiveness of European industries in world markets” and their full integration in 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”.
[5] See Article 288, paragraph 2, of the Treaty on the Functioning of the European Union (“TFEU”)
[6] According to Reg. 2017/352, Member States should have notified the Commission of the complaint handling procedure and the relevant authorities by 24 March 2019 (see article 16, paragraph 7). Moreover, it would also appear that the other Member States have not yet done so too, which is of no comfort at all.
[7] This is the principle whereby the European Union does not take action, except in the areas falling within its exclusive competence, unless its action is deemed more effective than action taken at national, regional or local level. The principle of subsidiarity is closely bound up with the principle of proportionality, meaning that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaties.
