Our analysis of Regulation (EU) 2017/352 ends with this article. As we have seen, the Regulation contains the "rules" that the European Union has sought to impose on the Member States in respect of port services and the financial transparency of the port management bodies.
First, we see how the European Union legislator intends to protect employees’ rights (Article 9).
The Regulation provides as follows: “In the case of a change of provider of port services that is due to the award of a concession or public contract, the managing body of the port, or the competent authority, may require that the rights and obligations of the outgoing provider of port services arising from a contract of employment, or from an employment relationship as defined in national law, and existing on the date of that change, be transferred to the newly appointed provider of port services” [1].
The above-mentioned provision first mentions the rights which, according to Directive 2001/23/EC [2], workers may enforce in the event of transfers of undertakings based on a collective agreement until its renewal [3](as expressly mentioned in Article 9.3).
Moreover, the above-mentioned Directive contains provisions having a direct impact on both "outgoing" and "incoming" operators, providing that the national law of a Member State may provide that - even after the date of the transfer - the transferor and the transferee shall be liable for the obligations which arose before the date of transfer from an employment contract or an employment relationship existing on the date of the transfer [4].
In favor of "incoming" operators, Directive 2001/23/EC provides that the above provision shall not apply in respect of employees’ rights vis-à-vis a new employer concerning old age, disability or survivors’ benefits under supplementary occupational pension schemes agreed with the previous operator/employer and falling outside the statutory social security schemes in Member States [5].
Then, the subject of the so-called "exemptions” is dealt with.
Article 10 provides that all the rules concerning the minimum requirements for the provision of services, limitations to the number of providers of port services, public service obligations and employees’ rights, shall not apply to cargo-handling, passenger services or pilotage.
With reference to pilotage, an exemption is allowed in consideration of the high level of specialisation of those carrying out pilotage services and of the fact that the same are carried out in close collaboration and coordination with public authorities, to the extent of amounting, sometimes, to a sort of "first intervention".
We continue our analysis by giving some general outlines of the complex issue of the economic-and-financial autonomy of port management bodies as well as of the autonomy granted to them in the management of the areas falling within their competence.
The first principle established by the Regulation relates to the transparency required in the financial relations between the State and local public management bodies (hereinafter “Public Authorities", according to the definitions of the Regulation) and the port management bodies that are beneficiaries of public funding.
Such relations must be faithfully reflected in the management bodies’ accounting system, with separate indication of the public funds made available to port managing bodies directly by public authorities and through public undertakings or public financial institutions.
Furthermore, the actual use of any public funds granted should at any time be reflected and recorded.
Moreover, where a managing body provides dredging services within a port area, the accounts for such services shall be kept separate from general for its further activities in such a way as to clearly show all the costs and revenues arising from the performance of said services [6].
So, the EU legislator provides for a double form of control of management bodies’ accounts.
In the event of a formal complaint and upon simple request, the port managing body shall make available any relevant information to the authority of the Member State concerned as well as any additional information that may be required to assess compliance with “this Regulation in accordance with competition rules”.
The European Commission may likewise, upon simple request, obtain the aforementioned information [7].
In this sense, one may say that the European Union legislator has sought to provide an optional form of double control, first by the Member State – envisaging a first “in house” correction of accounting errors or problems, always subject to the principle of free competition – and a second one, involving the European Commission, where a problem is not solved by Member States in respect of ports which – due to their dimensions and traffic volumes – fall within the category of the so-called ports "of European relevance".
To conclude, the Regulation set out some rules regarding the use of port infrastructure.
After providing that the EU Member States shall guarantee the collection of charges for the use of port infrastructure, the EU legislator highlights the right for individual providers of port services to collect separate charges for any services carried out autonomously. Nothing more is said, either in the articles or in the recitals.
Concerning the charges collected or to be collected directly by the management body, it is rightly provided that said charges shall be set in accordance with the port’s own commercial strategy as well as with the general national ports policy, in compliance with the principle of free competition.
Furthermore, in accordance with the principle of transparency, the Regulation provides that port users shall be notified by the managing body of any change in the nature and level of port infrastructure charges at least two months in advance of the date when the change comes into effect [8].
Moreover, again in this context, the EU legislator makes reference to environmental protection, providing for the possibility to reduce charges in order to attract vessels with high levels of environmental performance and energy efficiency in EU ports.
With this issue, we have concluded our (unavoidably) brief overview of Regulation (EU) 2017/352. It remains now to be seen how the rules examined will be interpreted in practice and applied by the Member States.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Barbara Gattorna.
[2]Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings.
[3]Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.
