Commission Communication: Reinforcing quality service in sea ports: A key for European transport.
Draft Directive on market access to port services.
Commission staff working document on public financing and charging practices in the community sea port sector.
||Article 80(2) EU; co-decision; qualified majority voting
||(a) 13 February 2001
(b) 14 February 2001
|Forwarded to the Council:
||16 February 2001|
|Deposited in Parliament:
||9 March 2001|
||Transport, Local Government and the Regions
|Basis of consideration:
||EM of 22 March 2001
|Previous Committee Report:
||None; but see (18751) 13615/97: HC 155-xvi (1997-98), paragraph 7 (11 February 1998) and HC 155-xxx (1997-98), paragraph 9 (10 June 1998)
|To be discussed in Council:
||(Both) Not cleared; further information requested
7.1 In December 1997 the European Commission
published a Green Paper on Sea Ports and Maritime Infrastructure.
It was intended to launch a debate on policies for ports which
would increase port efficiency, integrate ports into the trans-European
transport network and ensure free and fair competition in the
port sector. The Green Paper envisaged, among other measures,
developing a framework for port charging, reviewing the rules
on state aids for ports, and developing a regulatory framework
aimed at liberalisation of the port services market in the main
ports. The Government supported the funding of ports on a commercial
basis, with full cost recovery, and liberalisation and competition
in the provision of port services, while stressing the need to
avoid complex and unnecessary regulatory burdens.
7.2 In February 2001 the Commission issued a
Communication on sea ports, including a proposal for a Directive
on market access to port services (e.g. pilotage, towing and mooring).
This was accompanied by a staff working document on public financing
and charging practices in the EU sea port sector. The Commission
reports its main conclusions as follows:
90% of the Community's
maritime trade is estimated to be handled in ports where investment
and other decisions are, to varying extents, made or at least
influenced by public bodies;
public investments in port projects represent
between 5 and 10% of all Community transport infrastructure investments;
the transparency of public financial flows
charging and cost recovery systems vary considerably,
and cost recovery is not always the main objective; and
access to the port services market is increasing,
but selection procedures where the number of service providers
is limited are unclear and unsatisfactory.
7.3 The Commission believes that application
of the Transparency Directive (2000/52/EC, relating to public
undertakings) and the requirement for separate accounts included
in the proposed Directive on market access to port services will
lead to considerable improvement in transparency in the public
funding of ports. As regards state aids to ports, the Commission
argues that any attempt at clarification would at present be a
theoretical exercise and that clarification should be achieved
through case law, though it will continue to carry out case-by-case
7.4 The Commission says that, while restrictions
on provision of port services have gradually been removed in many
areas, this is not the case for port pilotage, towing and mooring,
and consultations have indicated widespread support for a regulatory
framework at Community level with more systematic rules on access
to the port services market. A formal framework of competition
for the provision of port services is proposed where practical
constraints justify limiting the number of service providers in
a port. The Directive would cover all commercial port services,
and would apply to all EU ports open to general commercial traffic
handling an average of over 3 million tonnes and/or 500,000 passenger
movements in the past three years.
7.5 The Explanatory Memorandum from the then
Minister for Shipping and Ports at the Department of the Environment,
Transport and the Regions (Mr Keith Hill) summarises the main
provisions of the Directive as follows:
must designate 'competent authorities' to implement the Directive.
The competent authority would be responsible for deciding whether
or not the number of service providers should be restricted, considering
applications for authorisations and deciding the outcome of any
competitive tendering process.
Member States would have an obligation to
ensure that providers of port services and self handlers have
access to the port facilities they need for their activities.
Member States may require providers of port services and self
handlers to obtain prior authorisation. Eligibility criteria can
best be summarised as aiming to ensure fitness for purpose. The
authorisation may also impose public service requirements relating
to issues such as safety and quality.
Where no restriction is placed on the number
of service providers in a port, existing concessions would be
left undisturbed. All new concessions would be subject to a maximum
period of 25 years.
The competent authority may decide to limit
the number of service providers in any port should there be good
reason in terms of constraints on space, capacity and/or maritime
safety. In such cases there must be a minimum of two providers
for each category of cargo handling unless there are exceptional
circumstances relating to traffic volume or type.
The competent authority must run an open
and accountable tendering process to select such restricted service
providers. This must be publicised in the Official Journal. All
concessions would be subject to a maximum period of 25 years.
As long as opportunities are advertised the Commission sees no
problem if the offer to tender for provision of specific port
services is not taken up.
Where the number of port service providers
is to be limited by competitive tender; transitional rules would
apply to protect the interests of existing providers who have
made significant investment in moveable and immovable assets.
There is no bar to port authorities being
designated as the competent authority and/or for acting as a service
provider. However, if the competent authority wishes to limit
the number of service providers and the port authority wishes
to tender to provide the services, the port authority cannot be
the competent authority deciding the outcome of the competition.
A comprehensive appeals procedure must be
put in place. This must allow recourse to a national court or
independent public authority. All decisions made by appeal bodies
must be subject to judicial review should this be required.
Port authorities which provide port services
would be expected to keep separate accounts for each service.
These accounts must be subject to independent scrutiny."
The Government's view
7.6 The Minister states that:
"The proposed Directive
raises a range of important issues for ports and their users.
In particular, if the number of service providers is limited in
a port, it would appear to introduce a 'landlord and tenant' structure
with tendered concessions. This may not take sufficient account
of the structure of the majority of the UK ports industry or the
special circumstances of ports in peripheral areas serving lifeline
ferry service and related routes. It seems likely that the most
significant impact of the proposals would to be where the number
of service providers is limited in this way. Where the number
of service providers is not limited, it appears that the rules
on competitive tendering and selection would not apply, and the
proposals might have little impact.
"Considerable clarification of the proposed
Directive, and the intention behind specific requirements, will
be needed before an accurate assessment can be made of the full
potential impact on the port sector and its users. The principles
underlying the proposal broadly concur with the Government's position
on market liberalisation and competition in the provision of services,
subject to appropriate safeguards and standards."
7.7 The Government planned widespread consultation
on the proposed Directive within Government, the port sector,
its customers, service providers, trade unions, trade associations
and other interested parties. It also notes that there would be
regulatory costs for Government and industry, including the costs
of setting up and managing an appeals process, and that a Regulatory
Impact Assessment would be produced in the light of the information
received from those consulted.
7.8 The proposals are clearly of considerable
importance to the UK ports industry. We note the Government's
support for the principles underlying the proposals, including
market liberalisation and competition in the provision of services,
and also its caution about some of the detailed provisions and
the possible cost. We ask the Minister to send us information
on the result of the consultation and a copy of the Regulatory
Impact Assessment when they are available. In the meantime, we
hold the documents under scrutiny.
40 (18751) 13615/97; see headnote to this paragraph. Back