# EUR-Lex - 52013PC0296 - EN

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# 52013PC0296

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a framework on market access to port services and financial transparency of ports /* COM/2013/0296 final - 2013/0157 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1         Background

Europe is one of the
most dense port regions worldwide. At the same time, the port sector is very
heterogeneous and characterised by a wide diversity in types and organisation. This
Regulation respects this diversity and does not seek to impose a uniform model
for ports.

Over 1.200 commercial seaports operate along
some 70.000 kilometres of the Union’s coasts. In 2011, around 3.7 billion
tonnes of cargo (more than 60 000 port calls of merchant ships) transited
through European ports.

While the EU is highly dependent on its ports
for its trade with the rest of the world, its ports also play a key role for
its own internal market. Thus short sea shipping represents 60% of the tons
handled in EU ports. Seaports are key nodal points of the EU intermodal
transport chains using short sea shipping as an alternative to saturated land
transport routes and as a way to connect peripheral or island areas.

In terms of passengers transport, EU ports handled 385 million maritime passengers in 2011.

Port activities contribute directly to
employment, inward investment and GDP growth. 2,200 port operators currently
employ around 110,000 port dockers. In total, ports represent up to 3 million (direct
and indirect) jobs in the 22 maritime Member States and are a major source of
tax revenues for local, regional or national governments.

96% of all freight and 93% of all passengers
through the EU ports transit through the 319 seaports identified in the
Commission's proposal for Guidelines on the trans-European transport network
(TEN-T)[1].

1.2         Challenges

While the need to
develop hinterland connections is well identified as a key challenge and
already addressed through the TEN-T policy, other key challenges for TEN-T ports
remain unresolved. First, there is the fact that today not all TEN-T ports are
offering the same high-level service. Second, the current port governance
framework is not in all cases attractive enough for investors. This together
relates to five specific challenges:

1.2.1      Sub-optimal port services
and operations in some TEN-T seaports

Efficient port services are crucial for the
performance of the TEN-T seaports. The Commission, together with the sector,
has identified three issues that may prevent port services from being organised
in an optimal way: (1) many of the port services are subject to a weak
competitive pressure due to market access restrictions; (2) monopolistic or
oligopolistic, although justified in a number of situations, may lead to market
abuses and (3) in some ports users are faced with too much administrative
burden due to a lack of coordination within ports.

1.2.2      Port governance frameworks are
not attractive enough for investments in all TEN-T
seaports

The investments
required to adapt the port capacities to changing needs are only possible only
in a stable policy and regulatory framework that will reduce economic
uncertainties and ensure a level playing field. This however does not seem to
be the case in all TEN-T ports. Several factors explain it: a) the legal
uncertainties created by the market restrictions described above and b) the
need for better infrastructure planning which can be tackled through stricter
TEN-T rules.

But two other fundamental issues explain this
current and overall unattractive investment climate in several TEN-T ports: (4)
unclear financial relations between public authorities, port authorities and
port services providers and (5) the weak autonomy of ports to define
infrastructure charges and non-transparent links with the costs related to
access infrastructure of ports.

1.3         Objective

The objective is to contribute to the goal of
a more efficient, interconnected and sustainable functioning of the TEN-T by
creating a framework which improves the performance of all ports and helps them
to cope with changes in transport and logistics requirements. The TEN-T ports must
help develop short sea shipping as part of intermodal routes, hence
contributing to sustainable transport, one of the key goals of the Transport White
Paper and contribute to the EU 2020 strategy for a resource efficient growth
which will stimulate growth of trade and cargo.

This initiative ensures a balanced approach
between legislative action and a soft approach, exemplified by the Social
Dialogue. This is the result of an intensive and pertinent consultation of the
stakeholders that allowed to focus the Regulation on measures with a high EU
added value. This Regulation will avoid additional burden for those ports
already functioning well and will create the conditions for the other ports to
deal with their structural challenges.

1.4         Consistency with other EU
policies and objectives

The proposal fits within the policy
announced by the Commission in the White Paper on Transport (2011) and has been
explicitly announced under the heading of a Single European Transport Area and
market access to ports. The White Paper clearly states the intention of the
Commission to review restrictions on provisions of port services and to enhance
the transparency on ports' financing, clarifying the destination of public
funding to the different port activities, with a view to avoid any distortion
of competition. The proposal has also been identified as one of the key actions
of the Single Market Act II and will contribute to the completion of the
European Single Market.

The proposal completes and supplements
on-going policies or proposals already made: the proposals on the trans-European
transport network guidelines and the Connecting Europe Facility which provides
a framework to support the development of hinterland connections to ports, the
proposal for a Directive on the awards of concession contracts which applies to
concession contracts in ports and the preparatory work on a Blue Belt initiative
aiming at simplifying the customs procedures applied to EU goods carried by
vessels calling at EU ports.

The proposal applies to all the ports of
the TEN-T since by their very nature they all play a significant role in the
European transport system either to facilitate the exchanges between Member
States or to improve the regional accessibility of island or peripheral areas.
It should however be stressed that the principles of non-discrimination and
freedom of establishment of the Treaty on the functioning of the European Union
and the competition rules also apply to the other ports, which although not in
the trans-European network may have an important role at local level or for
other sectors than transport like fishing or tourism. Member States may also
decide to apply the provision of this proposed Regulation to these ports.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

2.1         Consultation of interested
parties

DG MOVE has maintained
a dialogue with the national administrations in charge of the ports' policy
(Ministries of Transport). It held meetings with the main industry associations
in the port sector, inter alia: port authorities (ESPO), private terminal
operators (FEPORT), inland ports (EFIP), ship-owners (ECSA), pilots (EMPA), tug
owners and operators (ETA), mooring operators (EBA), ship's agents (ECASBA),
shippers (ESC), dredgers (EuDA) and logistic operators (CLECAT). DG MOVE also
held meetings with the two main Unions of port workers, the International
Dockers Council (IDC) and the dock workers' section of the European Transport
Workers Federation (ETF). A sectoral social dialogue committee could not be
consulted, as this is still in the process of being set up.

The preparatory work
was supported by an economic study on the quality and efficiency of European
ports (PwC). The work took account of extensive research on transport
economics, ports and logistics and involved several discussions with industry
and research experts.

Stakeholders were
consulted extensively through two on-line surveys and an open stakeholders'
two-day conference in Brussels (25-26 Sept. 2012). A final targeted public
hearing, presenting the key problems and discussing policy options and their
possible impacts was held on 18 January 2013. The main results of the consultation
process (2012-2013) can be summarised as follows:

–
All stakeholders stressed the need for a stable
and fair level playing field both for inter-port (competition between ports)
and intra-port (competition between providers of a same port service within a
port) competition in the EU. The need for legal certainty and a business
friendly environment with as less administrative burden as possible is a
priority for all stakeholders.

–
There is a major concern about unfair
competition between ports linked to public funding practices of port
infrastructures. Member States and port authorities request a tight control of
state aid.

–
A significant part of the users of port
services, shipping companies and export-import industries, consider that port
services in many EU ports are not satisfactory in terms of price, quality and
administrative burden.

–
30% of European port authorities do not consider
that the current situation is satisfactory. However, the majority of them
oppose the introduction of EU procedures limiting the capacities of public
authorities to grant contracts and permissions to operators of port services
through direct award. Applying EU concession rules to certain contracts granted
in ports is highly controversial in certain Member States.

–
Port workers' trade unions extremely oppose any
EU provision touching on the existing port labour regimes in certain Member
States . Representatives of pilotage services argue that pilotage, although
provided against remuneration, is not an economic service and should be
excluded from competitive pressure.

–
Most stakeholders agree that the EU port system
has to evolve and adapt to significant challenges in terms of scarce funding
resources, competitiveness vis-à-vis ports in neighbouring third countries and
other world regions, creation of added value and jobs as well as coping with
environmental impacts. They all agree on the importance to secure and, if
possible, increase, EU funding expenditure in support of ports and maritime
transport.

2.2         Impact assessment

The Impact Assessment identified five operational
objectives related to the two main challenges identified above.

2.2.1      Modernise port services and
operations:

First, by better optimising port services
and operations, a number of TEN-T ports should be able to handle or attract
more cargo and passengers with the existing infrastructure. This translates
into three operational objectives:

(1)
Clarify and facilitate access to the port
services market:

This should reduce access restrictions to
the port services market while clarifying and suppressing the current legal
uncertainties stemming from horizontal rules from the Treaty and on public
procurement.

(2)
Prevent market abuse by designated port service
providers:

This should ensure that designated service
providers offer their services in a cost-efficient manner while continuing to
fulfil their role and possible their mission of public service, notably in the
field of safety, security and environment.

(3)
Improve coordination mechanisms within ports:

This should facilitate smooth operations
for shippers, logistic operators and cargo-owners, reducing the time and money
required for using the port. The coordination effort should also benefit
operators established in the port, facilitating synergies and avoiding
duplication of efforts for serving the same customers.

2.2.2      Create framework conditions
to attract investments in ports:

Second, a greater financial transparency
and autonomy of ports should create a level playing field, encourage more
efficient charging, and eventually attract more investments. This in turn
translates in two additional operational objectives:

(4)
Make the financial relations between public
authorities, port authorities and providers of port services transparent:

This should ensure a financial transparency
between public authority functions and commercial operations in order to
prevent that ports and service providers benefit from unfair competitive
advantages.

(5)
Ensure autonomously set and transparent port
infrastructure charges:

This should achieve a more efficient use of
infrastructure and more economic rationality in the planning, investment,
maintenance, and operation of port infrastructures, while enabling
environmental and societal price signals.

On the basis of this 4 policy options where
considered:

(1)
Policy Package 1:
“Transparency”

Policy Package 1 (PP1) applies a soft measure
(non-binding communication) to clarify and facilitate the market access of
ports services. Binding provisions are however introduced in monopolistic or
oligopolistic situations: in those cases the services should be subject to
price supervision in order to avoid excessive or discrminatory charging. The
financing and setting of port charges is left over to the competent authorities
on the condition of basic transparency. Coordination of the services inside the
port is guaranted by a port users' committee.

(2)
Policy Package 2:
“Regulated competition”

Policy Package 2
(PP2) introduces the principle of freedom to provide services under a scheme of
regulated market access. Under this regulated market access, the freedom to
provide services can be restricted if it is warranted by the lack of space in
the port area or by public service obligations (availability, accessibility,
etc.). In such cases, newly attributed and designated services are made subject
to a public tendering procedure and in the case of in-house operations, the
service needs to remain confined. Services under a monopolistic or
oligopolistic situation are subject to price supervision. The transparency of
financial relations between public authorities, ports authorities and port
service providers is accommodated by separated accounts and rules link the
setting of the port infrastructure charges to actual costs. Coordination of the
services inside the port is facilitated by a port users' committee.

(3)
Policy Package 2a: “Regulated competition and port autonomy”

Policy Package 2a (PP2a) consists of PP2 with
the following differences:

The obligation to have recourse to public
tenders in case of space restrictions or public service obligations applies not
only to new contracts but also in the event of substantial changes to existing
contracts. The regulatory oversight of service providers in monopolistic
position is more limited in scope: it only applies to the markets which can not
be contested, i.e. the markets for which no public tender is organised. Greater
autonomy is given to ports: on infrastructure charging, instead of imposing
that charges are linked to actual costs, each port is given the right to set
itself the structure and level of port dues, provided that the charging policy is
transparent. The initiative also encourages a differentiation according to the
environmental performance of ships.

(4)
Policy Package 3: “Full
competition and port autonomy”

Policy Package 3 (PP3) builds on PP2a by
obliging additionally at least two competing and independent operators for
every port service where the number of operators is limited as a result of
space constraint. There would also be a functional/legal separation. This
separation would result in a multiplication of port actors: to ensure that the
port keeps functioning, strengthening the central coordination role of the port
authorities would be necessary. As in PP2a each port authority would be free to
determine the structure and level of infrastrustructure charges according to its
own commercial practices.

After analysis of the different options and
potential impact the Commission concluded that the best option should be PP2a
with a variant for cargo handling and passenger services. As regards the
measures related to the market access to cargo handling and passenger services,
there is no need to propose new legal provisions. Existing rules and
requirements will be clarified in a Communication. The rules on the regulatory
oversight of the price of the service providers in monopolistic or
oligopolistic position and on the transparency of accounts would however apply
to cargo handling and passenger services.

The impact assessment highlights the
potential benefits in terms of costs savings (€ 10 billion until 2030),
development of short sea shipping and reduction of road congestion and creation
of jobs. The impact assessment indicates that this proposal does not lead to
direct significant changes of the administrative burden in ports. The introduction
of the freedom to provide services will reduce the administrative cost for
ports, while the supervision of prices in certain cases and the consultation of
users may require new administrative efforts. However it should be stressed
that this proposal will indirectly contribute to the simplification by lifting
restrictions. Further simplification efforts will also be proposed in the forthcoming
initiative on the Blue Belt.

3.           LEGAL ELEMENTS OF THE PROPOSAL

3.1         Summary of the measures
proposed

The proposal contains the following main
elements:

–
The Regulation applies to all the seaports
identified in the Commission's proposal for Union Guidelines on the
trans-European transport network.

–
The freedom to provide services will be
applicable to port services. However managing bodies of a port may impose minimum
requirements on the providers of specific port services. When imposed, these
requirements shall only relate to professional qualifications, the necessary
equipment or maritime safety, general safety and security in the port and
relevant environmental requirements. These requirements should not be used as a
way of implicitly introducing market barriers and therefore the criteria should
be objective and proportionate ensuring a fair treatment of all operators,
existing and potential ones. Potential operators should have access to training
to acquire relevant specific local knowledge.

–
The above mentioned provision will not be
imposed to cargo handling services and passengers terminals. These services are
often organised by means of concession contracts falling in the scope of the
future Directive on the award of concession contracts proposed by the
Commission[2].
Moreover additional legal provisions could undermine efforts being made to
initiate a Social Dialogue at Union level. Contrary to pilotage services to
enter and exit ports, pilotage services performed in the deep sea have no
direct impact on the efficiency of port and therefore do not need to be
included in this Regulation.

–
Where relevant the stated freedom to provide
services could be subjected to a limitation of the number of service providers.
This restriction should be based on two elements: either in the case of space
constraints or reservation which if clearly documented in a formal port development
plan can justify to limit the number of operators active in the port perimeter or
in the case of a public service obligation imposed to an operator and for which
the intention should be clear and publicly available.

–
A Member State should have the possibility to designate
authorities competent to impose public service obligation, in line with the
applicable State aid rules. The obligations of public services must be clearly
defined transparent, non-discriminatory and verifiable and must relate to the
availability (no-interruption), the accessibility (to all users) or the
affordability (of certain categories of users) of the port service.

–
In the case of public service obligations being
imposed by a competent authority in a port or in several ports such an
authority will have the opportunity to organise and commercially exploit
specific port services itself under the condition that its activity remains
confined to the port or ports where it imposes public service obligations.

–
Employees' rights should be safeguarded and the
Member States should have the option to further strengthen these rights in the
event of a transfer of undertakings and the relevant staff working for the old
undertaking.

–
In those case where managing bodies of the port
benefit from public funds there shall be a transparent accounting in order to
show the effective and appropriate use of these public funds.

–
In those cases where designated port service
providers have not been subject to an open public tendering procedure and in
the case of internal operators, it should be ensured that the price for the
service is transparent, non-discriminatory and that it is set according to
normal market conditions, in particular in such way that the total charges do
not exceed the total incurred costs and a reasonable profit.

–
Managing bodies of the port shall define the
port infrastructure charges in an autonomous way and according to its own
commercial and investment strategy.

–
The port infrastructure charges may be varied in
accordance to commercial practices related to the frequent use of the port or
in order to promote a more efficient use of the port infrastructure, short sea
shipping or a high environmental performance, energy efficiency or carbon
efficiency of transport operations.

–
A port users' advisory committee shall be set up
in every port. This committee will bring together representatives of operators
of waterborne vessels, cargo owners or other port users which are requested to
pay a port infrastructure charge or port service charge. This committee shall
be consulted on the structure and the level of the port infrastructure charges
and in certain cases the port service charges.

–
The managing body of the port shall consult
stakeholders such as undertakings established in the ports, providers of port
services, and port users on issues like the coordination of port services,
hinterland connections or administrative procedures.

–
Member States shall ensure that an independent
supervisory body monitors and supervises the application of this Regulation. It
can be an existing body. The different national independent supervisory bodies
shall exchange information about their work and decision-making principles and
shall cooperate closely for the purpose of mutual assistance in their tasks.

3.2         Legal basis

The legal basis for this proposal is
Article 100 (2) of the Treaty on the Functioning of the European Union.

3.3         Subsidiarity principle

Articles 58, 90 and 100 of the Treaty on the Functioning
of the European Union extend to ports the objectives of a genuine internal
market in the context of the Common Transport Policy.

The overwhelming share of seaborne trade
handled in TEN-T ports results from trade between Member States or at
international level. Ports have a clear European function. approximately one out of every two tonnes of volume handled in ports
comes from or goes to, by sea or land, a Member State which is different from
the one of the port in which the goods transit[3]. Actions by Member States alone cannot ensure a level playing field
within the EU internal market, nor can they take actions to improve the
performance of ports located on the same trans-European corridor but in other
Member States.

Therefore, although the specific nature of
the port sector and its long-lasting local history and culture is recognised, because
of internal market reasons, network effects and the international dimension of
the port sector, the proposed initiative is in line with the subsidiarity
principle.

3.4         Proportionality principle

The Regulation only covers TEN-T seaports. This will ensure
proportionality insofar as it will avoid imposing unnecessary rules on very
small ports which do not have a significant role for the European transport
system. By contrast the TEN-T seaports deal with the overwhelming majority of
the traffic and by definition are essential for the international and
intra-European trade exchanges, and therefore for the European internal market,
and/or the cohesion within the EU. Moreover TEN-T ports are eligible to EU
funding.

The scope has not been further limited to the core ports in order
not to risk creating distortions of competition between core ports and other
TEN-T ports. Moreover an efficient functioning of the network requires both
core ports (typically hub) and non-core TEN-T ports for the regional
distribution.

3.5         Choice of instrument

Whilst the Member States, regional and
local public authorities have traditionally been the main actors involved in
port infrastructure development and management this situation has been
progressively changing. Transport operators, autonomous public bodies and
entities and other private and public entities have also become key actors in
the development, management and organisation of port. Therefore, it is
important to ensure that this legislation on market access to port services and
financial transparency of ports is generally applicable. Moreover, to ensure a uniform
implementation, enforcement and a level playing field in the internal market, the
legislation should be directly binding in its entirety. The Commission has
therefore chosen a Regulation as the appropriate legal instrument for this
proposal. This will also prevent additional administrative burden for Member States and the Commission.

3.6         European Economic Area

The proposed Regulation concerns an EEA
matter and should therefore extend to the European Economic Area.

2013/0157 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

establishing a framework on market access
to port services and financial transparency of ports

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 100 (2) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[4],

Having regard to the opinion of the
Committee of the Regions[5],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       The full integration of
ports in seamless logistic and transport chains is needed to contribute to
growth and a more efficient use and functioning of the trans-European transport
network and the internal market. This requires modern port services contributing
to an efficient use of ports and a climate favourable to investments to develop
ports in line with current and future transport and logistics requirements.

(2)       In the Communication on
the Single Market Act II Together for new growth[6],
the Commission has recalled that the attractiveness of maritime transport is
dependent on the availability efficiency and reliability of port services and
the necessity of addressing questions regarding the transparency of public
funding and port charges, administrative simplification efforts in ports and
reviewing restrictions on the provision of services at ports.

(3)       Facilitating access to the
port services market at Union level and introducing the financial transparency
and autonomy of seaports will improve the quality and efficiency of service
provided to users of the port and contribute to a climate more favourable to
investments in ports, and thereby help reduce costs for transport users and
contribute to promoting short sea shipping and a better integration of maritime
transport with rail, inland waterway and road transport.

(4)       The overwhelming majority
of Union maritime traffic transits through the seaports of the trans-European
transport network. In order to achieve the aim of this Regulation in a
proportionate way without imposing any unnecessary burden on other ports, this
Regulation should apply to the ports of the trans-European transport network,
each of which playing a significant role for the European transport system
either because it handles more than 0.1% of the total EU freight or the total
number of passengers or because it improves the regional accessibility of
island or peripheral areas, without prejudice, however, to the possibility of
Member States deciding to apply this Regulation to other ports as well. Pilotage
services performed in the deep sea do not have a direct impact on the
efficiency of the ports as they are not used for the direct entry and exit of the
ports and therefore do not need to be included in this Regulation.

(5)       The objective of Article
56 of the Treaty on the Functioning of the European Union is to eliminate
restrictions on freedom to provide services in the Union. In accordance with
Article 58 of the Treaty on the Functioning of the European Union should be
achieved within the framework of the provisions of the Title relating to
transport, more specifically Article 100 (2).

(6)       The self-provision of
service which entails shipping companies or providers of port services to
employ staff of their own choice and to provide themselves port services is regulated
in a number of Member States for safety or social reasons. The stakeholders
consulted by the Commission when preparing its proposal highlighted that
imposing a generalised allowance of the self-provision of service at Union level
would require additional rules on safety and social issues in order to avoid
possible negative impacts in these areas. It appears therefore appropriate at
this stage not to regulate this issue at Union level and to leave it to the
Member States to regulate the self-provision of port services or not. Therefore,
this Regulation should only cover the provision of port services for
remuneration.

(7)       In the interest of
efficient, safe and environmentally sound port management, the managing body of
the port should be able to require that port service providers can demonstrate
that they meet minimum requirements to perform the service in an appropriate
way. These minimum requirements should be limited to a clearly defined set of conditions
concerning the professional qualifications of the operators, including in terms
of training, and the equipment required insofar as these requirements are
transparent, non-discriminatory, objective and relevant for the provision of the
port service.

(8)       Having the necessary
equipment at his disposal should imply that the provider of the port service
owns, rents or leases it and that in any case it has a direct and indisputable
control of the equipment, in order to ensure that it can use such equipment whenever
needed.

(9)       The procedure to grant
with the right to provide port services when compliance with minimum
requirements is required should be transparent, objective and
non-discriminatory and should allow the providers of port services to start the
provision of their port services in a timely manner.

(10)     Since ports are constituted
of limited geographical areas, access to the market could, in certain cases, be
subject to limitations relating to the scarcity of land or in case the land is
reserved for certain type of activities in accordance with a formal development
plan which plans in a transparent way the land use and with relevant national
legislation such as those related to town and country planning objectives.

(11)     Any intention to limit the
number of port service providers should be published in advance by the
competent authority and should be fully justified, in order to give the
interested parties the opportunity to comment. The criteria for any limitation
should be objective, transparent and non-discriminatory.

(12)     In order to be open and
transparent, the procedure to select the providers of port services and its
result should be made public and full documentation should be communicated to
interested parties.

(13)     The selection procedure for
providers of port service in the case the number of those providers is limited
should follow the principles and approach determined in Directive ../../... [concession][7], including the threshold and
method for determining the value of the contracts as well as the definition of
substantial modifications and the elements related to the duration of the
contract.

(14)     The recourse to public
service obligations leading to a limitation in the number of providers of a
port service should only be justified for reasons of public interest in order
to ensure the accessibility of the port service to all users, the availability
of the port service all year long or the affordability of the port service to
certain category of users.

(15)     Where there is a need to
limit the number of port service providers, the decision on that limitation may
be entrusted by the Member state to a different authority in order to safeguard
competition. Any limitation in the number of providers of port services should
follow a procedure which is open, transparent and non-discriminatory. This
should however not be the case when public service obligations are to be
entrusted directly to a competent authority or an internal operator.

(16)     This Regulation does not
preclude the possibility of competent authorities to grant compensation for the
accomplishment of the public service obligations provided that it complies with
the applicable State aid rules. Where public service obligations qualify as
SGEI compliance should be ensured with Commission Decision of 20 November 2011 on
the application of Article 106(2) of the Treaty on the Functioning of the
European Union to State aid in the form of public service compensation granted
to certain undertakings entrusted with the operation of services of general
economic interest[8],
Commission Regulation (EU) No 360/2012 of 25 April 2012 on the application of
Articles 107 and 108 of the Treaty on the Functioning of the European Union to de
minimis aid granted to undertakings providing services of general economic
interest[9]
and the European Union framework for State aid in the form of public service
compensation[10].

(17)     The managing body of the port
should not discriminate between providers of port services, in particular in
favour of an undertaking or body in which it holds an interest.

(18)     The competent authorities
designated in a Member State should have the choice to decide to provide port services
with public service obligations themselves or to entrust directly the provision
of such services directly to an internal operator. In the case that a competent
authority decides to provide the service itself, this may cover the provision
of services through agents employed by the competent authority or commissioned
by the competent authority. When such limitation is applied in all the TEN-T
ports in the territory of a Member State, the Commission should be informed. In the cases where the competent authorities in a Member State prevail on such a choice, the provision of port services by the internal operators
should be confined only to the port or ports for which those internal operators
were designated. Moreover, in such cases, the port service charges applied by
such an operator should be subject to supervision by the independent
supervisory body.

(19)     Member
States should retain the power to ensure an adequate level of social protection
for the staff of undertaking providing port services. This Regulation shall not
affect the application of the social and labour rules of the Member States. In cases of limitation of the number of port service providers, where
the conclusion of a port service contract may entail a change of port service
operator, it should be possible for the competent authorities to ask the chosen
service operator to apply the provisions of Council Directive 2001/23/EC 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[11].

(20)     In many ports, the market
access for providers of cargo-handling and terminal passenger services is
granted by means of public concession contracts. This type of contracts will be
covered by the Directive ..../...[concessions]. Consequently, Chapter II of this
Regulation should not apply to the provision of cargo-handling and passenger
services, but Member States should remain free to decide to apply nevertheless the
rules of this Chapter to these two services. For other types of contracts used
by public authorities for granting market access to cargo handling and terminal
passenger services, the Court of Justice of the European Union has confirmed
that the competent authorities are bound by the principles of transparency and
non-discrimination when concluding these contracts. These principles are fully
applicable as regards the provision of any port service.

(21)     Financial relations between
seaports which receive public funds and providers of port services on the one
hand, and public authorities on the other should be made transparent in order
to ensure a level playing field and to avoid market distortions. In this
respect, this Regulation extends to other categories of addressees the
principles of transparency of financial relations as set out in Commission
Directive 2006/111/EC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain
undertakings[12]
without prejudice to its scope.

(22)     It is necessary to impose
on the managing body of the port which receives public funds, when it is also
acting as a service provider, an obligation to keep separate accounts for
activities carried out in their capacity as managing body of the port from
those carried out on a competitive basis in order to ensure a level playing
field, transparency in the allocation and use of public funds and to avoid
market distortions. In any case compliance with the State aid rules should be
ensured.

(23)     Port
service charges applied by providers of port services which are not designated in
accordance with an open, transparent and non-discriminatory procedure entail a
higher risk of price abuse given their monopolistic or oligopolistic situation
and the fact that their market cannot be contested. The same is true for
charges levied by internal operators in the meaning of this Regulation. For
those services, in the absence of fair market mechanisms, arrangements should
be established to ensure that the charges they levy reflect the normal
conditions of the relevant market and are set in a transparent and
non-discriminatory way.

(24)     In order to be efficient, the
port infrastructure charges of each individual port should be set in a
transparent and autonomous way in accordance with that port's own commercial
and investment strategy.

(25)     The variation of port
infrastructure charges should be allowed in order to promote short sea shipping
and to attract waterborne vessels having an environmental performance or energy
and carbon efficiency of the transport operations, notably the off-shore or
on-shore maritime transport operations, that is better than average. This should
help to contribute to the environmental and climate change policies and the
sustainable development of the port and its surroundings notably by contributing
to reducing the environmental footprint of the waterborne vessels calling and
staying in the port.

(26)     Adequate facilities should
be in place to ensure that the users of the ports which are requested to pay a
port infrastructure charge and/or a port service charge are regularly consulted
when the port infrastructure charge and the port service charge are defined and
changed. The managing bodies of the ports should also regularly consult other
stakeholders on key issues related to the sound development of the port, its performance
and its capacity to attract and generate economic activities such as the
coordination of port services within the port area and the efficiency of the
connections with the hinterland and of the administrative procedures in ports.

(27)     In order to ensure the
proper and effective application of this Regulation, an independent supervisory
body, which could be an already existing body, should be designated in every Member State.

(28)     The different independent
supervisory bodies should exchange information on their work and cooperate in
order to ensure a uniform application of this Regulation.

(29)     In order to supplement and amend certain non-essential elements of this
Regulation and in particular to promote the uniform
application of environmental charging, reinforce the Union-wide coherence of
environmental charging and to ensure common charging principles in relation to
the promotion of short sea shipping, the power to adopt acts in accordance with
Article 290 of the Treaty on the Functioning of the European Union should be
delegated to the Commission in respect of common classifications of vessels,
fuels and types of operations according to which to vary the infrastructure
charges and common charging principles for port infrastructure charges. It is
of particular importance that the Commission carry out appropriate consultations
during its preparatory work, including at expert level. The Commission, when
preparing and drawing-up delegated acts, should ensure a simultaneous, timely
and appropriate transmission of relevant documents to the European Parliament
and Council.

(30)     In
order to ensure uniform conditions for the implementation of this Regulation
implementing powers relating to appropriate arrangements for the exchange of
information between independent supervisory bodies should be conferred on the
Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011
of the European Parliament and of the Council of 16 February 2011 laying down
the rules and general principles concerning mechanisms for control by the
Member States of the Commission's exercise of implementing powers [13].

(31)     Since the objectives of
this Regulation, namely ensuring the modernisation of port services and the
appropriate framework to attract necessary investments in all the ports of the
trans-European transport network, cannot
be sufficiently achieved by the Member States because of the European
dimension, international and cross-border nature of port and related maritime
business and can therefore, by reason of the need for a European level playing
field, be better achieved at Union level, the Union may adopt measures, in
accordance with the principle of subsidiarity as set out in Article 5 of the
Treaty on European Union. In accordance with the principle of proportionality,
as set out in that Article, this Regulation does not go beyond what is
necessary in order to achieve those objectives.

(32)     This
Regulation respects the fundamental rights and observes the principles
recognised in particular by the Charter of Fundamental Rights of the European
Union.

HAVE ADOPTED THIS REGULATION:

CHAPTER I – Subject matter, scope and
definitions

Article 1
Subject matter and scope

1.           This Regulation establishes:

(a)
a clear framework for access to the market of
port services;

(b)
common rules on the financial transparency and charges
to be applied by managing bodies or providers of port services.

2.           This Regulation shall
apply to the provision of the following categories of port services, either
inside the port area or on the waterway access to and from the ports.

(a)
bunkering

(b)
cargo handling;

(c)
dredging;

(d)
mooring;

(e)
passenger services;

(f)
port reception facilities;

(g)
pilotage and;

(h)
towage.

3.           This Regulation shall
apply to all seaports of the trans-European transport network, as defined in
Annex I of Regulation XXX [regulation on the TEN-T Guidelines].

4.           Member States may also
apply this Regulation to other seaports. When Member States decide to apply
this Regulation to other seaports they shall notify their Decision to the
Commission.

Article 2
Definitions

For
the purpose of this Regulation:

1.           "bunkering" means
the provision of solid, liquid or gaseous fuel or any other energy source used
for the propulsion of the waterborne vessel as well as for general and specific
energy provision on board of the waterborne vessel whilst at berth;

2.           "cargo handling
services" means the organisation and handling of cargo between the
carrying waterborne vessel and the shore be it for import, export or transit of
the cargo, including the processing, transporting and temporary storage of the
cargo on the relevant cargo handling terminal and directly related to the
transporting of the cargo, but excluding warehousing, stripping, repackaging or
any other value added services related to the handled cargo;

3.           "dredging" means
the removal of sand, sediment or other substances from the bottom of the
waterway access to a port in order to allow waterborne vessel to have access to
the port and comprises both the initial removal (capital dredging) and the
maintenance dredging in order to keep the waterway accessible;

4.           "essential port facility"
means a facility of which the access is indispensable to perform a port service
and which cannot be replicated under normal market conditions;

5.           "managing body of the
port" means any public or private body which, whether or not in
conjunction with other activities, has as its objective under national law or instruments
the administration and management of the port infrastructures, port traffic, the
coordination and, where appropriate, the control of the activities of the
operators present in the port concerned;

6.           "mooring" means the
berthing and un-berthing services required for a waterborne vessel being
anchored or otherwise fastened to the shore in the port or in the waterways
access to the port;

7.           "passenger
services" means the organisation and handling of passengers between the
carrying waterborne vessel and the shore and also includes the processing of
personal data and transporting the passengers inside the relevant passenger
terminal;

8.           "pilotage" means
the guidance service of a waterborne vessel by a pilot or a pilotage station in
order to allow for a safe entry or exit of the vessel in the waterways access
to the port;

9.           "port infrastructure
charge" means a fee collected for the direct or indirect benefit of the
managing body of the port and paid by the operators of waterborne vessels or
cargo owners for the use of facilities and services that allow vessels entry
and exit in and out of the port, including the waterways giving access to those
ports, as well as access to the processing of passengers and cargo;

10.         "port reception
facility" means any facility, which is fixed, floating or mobile and
capable of receiving ship-generated waste or cargo residues as defined in
Directive 2000/59/EC of the European Parliament and of the Council on port
reception facilities for ship-generated waste and cargo residues[14];

11.         "port service
charge" means a fee collected for the benefit of the provider of port
services and paid by the users of the relevant service;

12.         "port service
contract" means a formal and legally binding agreement between a provider
of port service and a competent authority whereby this body designates a provider
of port service to provide port services following a procedure to limit the
number of providers of port services;

13.         "provider of port
services" means any natural or legal person providing, or wishing to
provide, for remuneration, one or more categories of port services listed in
Article 1(2);

14.         "public service
obligation" means a requirement defined or determined in order to ensure
the provision of those port services in the general interest that an operator,
if it were considering its own commercial interests, would not assume or would
not assume to the same extent or under the same conditions;

15.         “short sea shipping” means
the movement of cargo and passengers by sea between ports situated in
geographical Europe or between those ports and ports situated in non-European
countries having a coastline on the enclosed seas bordering Europe;

16.         "seaport" means
an area of land and water made up of such works and equipment so as to permit,
principally, the reception of ships, their loading and unloading, the storage
of goods, the receipt and delivery of these goods and the embarkation and
disembarkation of passengers; and any other infrastructure necessary for
transport operators within the port area;

17.         "towage" means
the assistance to a waterborne vessel by means of a tug in order to allow for a
safe entry or exit of the port by providing assistance to the manoeuvring of
the waterborne vessel;

18.         "waterway access to a
port" means water access to the port from the open sea, such as port
approaches, fairways, rivers, sea canals and fjords.

CHAPTER II – Market access

Article 3
Freedom to provide
services

1.           Freedom to provide services
in seaports covered by this Regulation shall apply to the providers of port
services established in the Union under the conditions set out in this Chapter.

2.           Providers of port services
shall have access to essential port facilities to the extent necessary for them
to carry out their activities. The terms of the access shall be fair,
reasonable and non-discriminatory.

Article 4
Minimum requirements for
the provision of port services

1.           The managing body of the
port may require that providers of port services comply with minimum
requirements to perform the corresponding port service.

2.           The minimum requirements
provided for in paragraph 1 may only relate, where applicable, to:

(a)
the professional qualifications of the port
service provider, its personnel or the natural persons who effectively and
continuously are managing the activities of the port service provider;

(b)
the equipment needed to provide the relevant
port service in normal and safe conditions and the capacity to maintain this
equipment at the appropriate level;

(c)
the compliance with requirements on the maritime
safety or the safety and security of the port or access to it, its installations,
equipment and persons;

(d)
the compliance with local, national, Union and international environmental requirements.

3.           The minimum requirements shall
be transparent, non-discriminatory, objective and relevant to the category and
nature of port services concerned.

4.           Where the minimum requirements
include specific local knowledge or acquaints with local conditions, the managing
body of the port shall ensure that adequate access to relevant training exists,
under transparent and non-discriminatory conditions, unless adequate access to
such training is ensured by the Member State.

5.           In the cases provided for in
paragraph 1, the minimum requirements referred to in paragraph 2 and the
procedure for the granting of the right to provide port services under those
requirements shall have been published by the managing body of the port by 1
July 2015 or for minimum requirements being applicable after that date at least
three months before the date on which those requirements would become
applicable. Providers of port services shall be informed in advance of any
change in the criteria and of the procedure.

Article 5
Procedure to ensure
compliance with the minimum requirements

1.           The managing body of the
port shall treat providers of port services equally and shall act in a
transparent manner.

2.           The
managing body of the port shall grant or refuse the right to provide port
services on the basis of the minimum requirements established in accordance
with Article 4 within one month from receiving a request for the granting of
such a right. Any refusal shall be duly justified on the basis of objective, transparent, non-discriminatory and
proportionate criteria.

3.           Any limit in the duration
of the decision issued in accordance with paragraph 2 may be justified only on grounds
related to the type and nature of the port service.

Article 6
Limitations of the number
of providers of port services

1.           By way of derogation from
Article 3, the managing body of the port may limit the number of providers of
port service for a given port service for one or several of the following
reasons:

(a)
the scarcity or reserved use of land provided
that the managing body can demonstrate that the land constitutes an essential port
facility to provide the port service and that the limitation is in accordance
with the formal development plan of the port as agreed by the management body
of the port and where appropriate any other public competent authorities
according to the national legislation;

(b)
the public service obligations as provided for
in Article 8, insofar as the absence of limitation can obstruct the performance
of the obligations assigned to the providers of port services.

2.           The managing body of the
port shall publish any proposal to apply paragraph 1 at least six months in
advance together with the grounds justifying it, giving any interested party
the opportunity to comment within a reasonable period.

3.           The managing body of the
port shall publish the adopted decision.

4.           When a managing body of a
port provides port services itself or through a legally
distinct entity which it directly or indirectly controls, the Member State may entrust the adoption of the decision limiting
the number of providers of port services to an authority which is independent
from the managing body of the port. If the Member State does not entrust the adoption
of the decision limiting the number of providers of port services to such an
authority, the number of providers shall not be less than two.

Article 7
Procedure for the
limitation of the number of providers of port services

1.           Any limitation of the number
of providers for a port service in accordance with Article 6 shall follow a
selection procedure which shall be open to all interested parties,
non-discriminatory and transparent.

2.           If the estimated value of
the port service exceeds the threshold defined in paragraph 3, the rules on the
award procedure, the procedural guarantees and the maximum duration of the concessions
as set out in Directive ..../.... [concession] shall apply.

3.           The threshold and the method
to determine the value of the port service shall be those of the relevant and
applicable provisions of Directive ..../.... [concession].

4.           The selected provider or
providers and the managing body of the port shall conclude a port service
contract.

5.           For the purposes of this
Regulation, a substantial modification within the meaning of Directive ..../... [concession]
of the provisions of a port service contract during its term shall be
considered as a new port service contract and shall require a new procedure as referred
to in paragraph 2.

6.           Paragraphs 1 to 5 of this
Article shall not apply in the cases referred to in Article 9.

7.           This Regulation is without
prejudice to Directive .../... [concession] [15],
Directive ..../....[public utilities][16]
and Directive .../... [public procurement][17]

Article 8
Public service obligations

1.           Member States may decide
to impose public service obligations related to port services on providers in
order to ensure the following:

(a)
the availability of the service without
interruption during the day, the night, the week and the year;

(b)
the availability of the service to all users;

(c)
the affordability of the service for certain
categories of users.

2.           The
obligations referred to in paragraph 1 shall be clearly
defined, transparent, non-discriminatory, verifiable and shall guarantee
equality of access to all port service providers established in the Union.

3.           The
Member States shall designate the competent authorities within their territory
to impose such public service obligations. The managing body of the port may be
the competent authority.

4.           When the competent
authority designated in accordance with paragraph 3 is different from the
managing body of the port, that competent authority shall exercise the powers provided
for in Articles 6 and 7 concerning the limitation of the number of providers of
port services based on public service obligations.

5.           If a competent
authority decides to impose public service obligations in all the seaports covered by this Regulation in a Member State, it shall notify these
obligations to the Commission.

6.           In the event of a
disruption of port services for which public service obligations are imposed or
when an immediate risk of such a situation occurs, the competent authority may
take an emergency measure. The emergency measure may take the form of a direct
award so as to attribute the service to a different provider for a period up to
one year. During that time period, the competent authority shall either launch
a new procedure to select a provider of port service in accordance with Article
7 or shall apply Article 9.

Article 9
Internal operator

1.           In
the cases provided for in Article 6 (1) (b), the competent authority may decide
to provide a port service under public service obligations itself or to impose
such obligations directly on a legally distinct entity over which it exercises a
control similar to that exercised over its own departments. In such a case, the
port service provider shall be considered as an internal operator for the
purpose of this Regulation.

2.           The competent authority shall
be considered as exercising a control of a legally distinct entity similar to
that exercised to its own departments only if it exercises a decisive influence
over both the strategic objectives and the significant decisions of the
controlled legal entity.

3.           The
internal operator shall be confined to perform the assigned port service only
in the port(s) for which the assignment to provide the port service has been
attributed to him.

4.           If a
competent authority decides to apply paragraph 1 in all the seaports covered by this Regulation in a Member State, it shall inform the Commission.

5.           This Article is without
prejudice to Directive ..../....[concession].

Article 10
Safeguarding of employees'
rights

1.           This Regulation shall not
affect the application of the social and labour rules of the Member States.

2.           Without
prejudice to national and Union law including collective agreements between
social partners, the managing bodies of the port may require the designated provider
of port services appointed in accordance with the procedure established by
Article 7, in the case where this provider is different from the incumbent
provider of port services, to grant staff previously taken on by the incumbent provider
of port services the rights to which they would have been entitled if there had
been a transfer within the meaning of Directive 2001/23/EC.

3.           Where
managing bodies of the port require providers of port services to comply with
certain social standards as regards the provision of relevant port services,
tender documents and port service contracts shall list the staff concerned and give
transparent details of their contractual rights and the conditions under which
employees are deemed to be linked to the port services.

Article 11
Exemption

This Chapter and the transitional provisions
of Article 24 shall not apply to cargo handling services and passenger
services.

CHAPTER III – Financial transparency and
autonomy

Article 12
Transparency of financial
relations

1.           The financial relations
between public authorities and a managing body of the port that receives public
funds shall be reflected in a transparent way in the accounts in order to
clearly show the following:

(a)
public funds made available directly by public
authorities to the managing bodies of the port concerned;

(b)
public funds made available by public
authorities through the intermediary of public undertakings or public financial
institutions; and

(c)
the use which these public funds have been
attributed for.

2.           Where the managing body of
the port that receives public funds provides port services itself, it shall keep
the accounts of each port service activity separate from the accounts of its
other activities, in such a way that :

(a)
all costs and revenues are correctly assigned or
allocated on the basis of consistently applied and objectively justifiable cost
accounting principles; and

(b)
the cost accounting principles according to
which separate accounts are maintained are clearly established.

3.           The public funds referred
to in paragraph 1 shall include share capital or quasi-capital funds, non-refundable
grants, grants only refundable in certain circumstances, award of loans
including overdrafts and advances on capital injections, guarantees given to
the managing body of the port by public authorities, dividends paid out and
profits retained or any other form of public financial support.

4.           The managing body of the
port shall keep the information concerning the financial relations as referred
to in paragraphs 1 and 2 of this Article at the disposal of the Commission and of
the competent independent supervisory body as referred to in Article 17 for
five years from the end of the fiscal year to which the information refers.

5.           The managing body of the
port shall make available to the Commission and the competent independent
supervisory body, upon request, any additional information that they deem
necessary in order to complete a thorough appraisal of the data submitted and to
assess compliance with this Regulation. The information shall be transmitted
within two months from the date of the request.

6.           Managing bodies of the
port that have not received public funds in previous accounting years but which
start benefitting from public funds shall apply paragraphs 1 and 2 from the
accounting year following the transfer of the public funds

7.           Where public funds are paid
as a compensation for a public service obligation, they shall be shown
separately in the relevant accounts and may not be transferred to any other
service or business activity.

Article 13
Port service charges

1.           The charges for the services provided by an internal operator as referred
to in Article 9 and the charges levied by providers of port service, in cases
of limitation of the number of providers which have not been designated on the
basis of procedures which are open, transparent and non-discriminatory, shall be
set in a transparent and non-discriminatory way. These charges shall reflect
the conditions on a competitive relevant market and shall not be
disproportionate to the economic value of the service provided.

2.           The payment of the port
service charges may be integrated in other payments, such as the payment of the
port infrastructure charges. In this case, the provider of port service and,
where appropriate, the managing body of the port shall make sure that the
amount of the port service charge remains easily identifiable by the user of
the port service.

3.           The port service provider shall
make available to the competent independent supervisory body as referred to in
Article 17, upon request, information on the elements serving as a basis to determine
the structure and the level of the port service charges that falls under the
application of paragraph 1 of this Article. This information shall include the
methodology used for setting the port charges with regard to the facilities and
services to which these port service charges relate to.

Article 14
Port infrastructure
charges

1.           The managing body of the
port shall levy a port infrastructure charge. This shall not prevent providers
of port services which are using port infrastructures from levying port service
charges.

2.           The payment of the port
infrastructure charges may be integrated in other payments, such as the payment
of the port service charges. In this case, the managing body of the port shall
make sure that the amount of the port infrastructure charge remains easily
identifiable by the user of the port infrastructure.

3.           In order to contribute to
an efficient infrastructure charging system, the structure and the level of
port infrastructure charges shall be defined in an autonomous way by the
managing body of the port according to its own commercial strategy and
investment plan reflecting competitive conditions of the relevant market and in
accordance with State aid rules.

4.           Without prejudice to
paragraph 3, port infrastructure charges may vary in accordance with commercial
practices related to frequent users, or in order to promote a more efficient
use of the port infrastructure, short sea shipping or a high environmental
performance, energy efficiency or carbon efficiency of transport operations.
The criteria used for such a variation shall be relevant, objective,
transparent and non-discriminatory and in due respect of the competition rules.
The resulting variation shall in particular be available to all relevant port
service users on equal terms.

5.           The Commission shall be
empowered to adopt, where necessary, delegated acts in accordance with the
procedure referred to in Article 21 concerning common classifications of
vessels, fuels and types of operations according to which the infrastructure charges
can vary and common charging principles for port infrastructure charges.

6.           The managing body of the
port shall inform port users and the representatives or associations of port
users about the structure and the criteria used to determine the amount of the port
infrastructure charges, including the total costs and revenues serving as a
basis to determine the structure and the level of the port infrastructure
charges. It shall inform users of the port infrastructures of any changes in
the amount of the port infrastructure charges or in the structure or criteria
used in order to determine such charges at least three months in advance.

7.           The managing body of the
port shall make available to the competent independent supervisory body and to the
Commission, upon request, the information referred to in paragraph 4 and the
detailed costs and revenues, serving as a basis to determine the structure and
the level of the port infrastructure charges and the methodology used for
setting the port infrastructure charges with regard to the facilities and
services to which these port charges relate to.

CHAPTER IV –
General and final provisions

Article 15
Consultation of port users

1.           The managing body of the
port shall establish a committee of representatives of operators of waterborne
vessels, cargo owners or other port users which are requested to pay an
infrastructure charge or a port service charge or both. This committee shall be
called the "port users' advisory committee".

2.           The managing body of the
port shall consult on an annual basis prior to the setting of port
infrastructure charges the port users' advisory committee on the structure and
level of such charges. The providers of port services as referred to in Article
6 and in Article 9 shall consult on an annual basis prior to the setting of
port service charges the port users' advisory committee on the structure and
level of such charges. The managing body of the port shall provide adequate
facilities for such consultation and shall be informed of the results of the
consultation by the providers of port services.

Article 16
Consultation of other
stakeholders

1.           The managing body of the
port shall regularly consult stakeholders such as undertakings established in
the port, providers of port services, operators of waterborne vessels, cargo
owners, land transport operators and public administrations operating in the
port area on the following:

(a)
the proper coordination of port services within
the port area;

(b)
measures to improve the connections with the
hinterland and where appropriate measures to develop and improve the efficiency
of rail and inland waterways connections;

(c)
the efficiency of the administrative procedures
in port and where appropriate possible measures to simplify them.

Article 17
Independent supervisory body

1.           Member States shall ensure
that an independent supervisory body monitors and supervises the application of
this Regulation in all the seaports covered by this Regulation on the territory
of each Member State.

2.           The independent
supervisory body shall be legally distinct from and functionally independent of
any managing body of the port or providers of port services. Member States that
retain ownership or control of ports or port managing bodies shall ensure an effective
structural separation between the functions relating to the supervision and
monitoring of this Regulation and the activities associated with that ownership
or control. The independent supervisory body shall exercise its powers
impartially and transparently and with due respect to the right to freely conduct
business.

3.           The independent
supervisory body shall handle the complaints lodged by any party with a
legitimate interest and the disputes brought before it arising in connection
with the application of this Regulation.

4.           In the event that the dispute
arises between parties established in different Member States, the independent
supervisory body of the Member State of the port where the dispute is presumed
to have its origin shall have competence to solve the dispute.

5.           The independent
supervisory body shall have the right to require managing bodies of the ports,
providers of port services and port users to submit information needed to
ensure monitoring and supervision of the application of this Regulation.

6.           The independent
supervisory body may issue opinions at the request of a competent authority in the
  Member State on any issues in relation to the application of this Regulation.

7.           The independent
supervisory body may consult the port users' advisory committee of the port
concerned when dealing with the complaints or disputes.

8.           The decisions of the
independent supervisory body shall have binding effects, without prejudice to
judicial review.

9.           Member States shall notify
to the Commission the identity of the independent supervisory bodies by 1 July
2015 at the latest and subsequently any modification thereof. The Commission shall
publish and update the list of the independent supervisory bodies on its
website.

Article 18
Cooperation between independent
supervisory bodies

1.           The independent
supervisory bodies shall exchange information about their work and
decision-making principles and practices in order to facilitate a uniform
implementation of this Regulation. For this purpose, they shall participate and
work together in a network that convenes at regular intervals and at least once
a year. The Commission shall participate, coordinate and support the work of
the network.

2.           The independent
supervisory bodies shall cooperate closely for the purposes of mutual
assistance in their tasks, including in carrying out investigations required to
handle complaints and disputes in cases involving ports in different Member
States. For this purpose, an independent supervisory body shall make available
to another such body, after a substantiated request, the information necessary
to allow that body to fulfil its responsibilities under this Regulation.

3.           The Member States shall
ensure that the independent supervisory bodies shall provide the Commission,
after a reasoned request, with the information necessary for it to carry its
tasks. The information requested by the Commission shall be proportionate to
the performance of those tasks.

4.           Where information is
considered confidential by the independent supervisory body in accordance with Union or national rules on business confidentiality, the other national supervisory body and
the Commission shall ensure such confidentiality. This information may only be used
for the purpose which it was requested.

5.           Based on the experience of
the independent supervisory bodies and on the activities of the network
referred to in paragraph 1, and in order to ensure efficient cooperation, the
Commission may adopt common principles on the appropriate arrangements for the
exchange of information between independent supervisory bodies. Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 22(2).

Article 19
Appeals

1.           Any party with a
legitimate interest shall have the right to appeal against the decisions or
individual measures taken under this Regulation by the competent authorities,
by the managing body of the port or by the independent supervisory body to an
appeal body which is independent of the parties involved. This appeal body may
be a court.

2.           Where the appeal body
referred in paragraph 1 is not judicial in character, it shall give reasons in
writing for its decisions. Its decisions shall also be subject to review by a national
court.

Article 20
Penalties

Member States shall lay down the rules on
penalties applicable to infringements of the provisions of this Regulation and
shall take all measures necessary to ensure that they are implemented. The
penalties provided for must be effective, proportionate and dissuasive.
Member States shall notify those provisions to the Commission by 1 July 2015 at
the latest and shall notify it without delay of any subsequent amendment
affecting them.

Article 21
Exercise of the delegation

1.           The power to adopt
delegated acts is conferred on the Commission subject to the conditions laid
down in this Article.

2.           The power to adopt
delegated acts referred to in Article 14 shall be conferred on the
Commission for an indeterminate period of time.

3.           The delegation of power
referred to in Article 14 may be revoked at any time by the European Parliament
or by the Council. A decision of revocation shall put an end to the delegation
of the power specified in that decision. It shall take effect the day following
the publication of the decision in the Official Journal of the European
Union or at a later date specified therein. It shall not affect the
validity of any delegated acts already in force.

4.           As soon as it adopts a
delegated act, the Commission shall notify it simultaneously to the European Parliament
and to the Council.

5.           A delegated act adopted
pursuant to Article 14 shall enter into force only if no objection has been
expressed either by the European Parliament or the Council within a period of 2
months of notification of that act to the European Parliament and the Council
or if, before the expiry of that
period, the European Parliament and the Council have
both informed the Commission that they will not object. That period
shall be extended by 2 months at the initiative of the European Parliament or
the Council.

Article 22
Committee procedure

1.           The Commission shall be
assisted by a committee. That committee shall be a committee within the meaning
of Regulation (EU) No 182/2011.

2.           Where reference is made to
this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Article 23
Report

No later than three years after the entry
into force of this Regulation, the Commission shall present a report to the
European Parliament and the Council on the functioning and effect of this Regulation,
accompanied, if appropriate, by relevant proposals.

Article 24
Transitional measures

1.           Port service contracts concluded
before [date of adoption of the Regulation] which were entrusted to selected
providers of port services based on an open, transparent and non-discriminatory
procedure or are otherwise in conformity with the rules of this Regulation
shall continue to be valid until their expiry.

2.           Port service contracts concluded
before [date of adoption of the Regulation] which do not meet the conditions
provided in paragraph 1 shall remain valid until they expire but not after 1
July 2025.

Article 25
Entry into force

This Regulation shall enter into force on the
twentieth day following that of its publication in the Official Journal of
the European Union.

It shall apply
with effect from 1 July 2015.

This
Regulation shall be binding in its entirety and directly applicable in all
Member States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               COM(2011) 650 final/2. The final number of TEN-T ports will
depend on the outcome of the on-going legislative procedure.

[2]               COM (2011)897 final

[3]               Resulting from trade between Member States and trade between a Member State and a non-EU country through another Member State.

[4]               OJ C , , p. .

[5]               OJ C , , p. .

[6]               COM(2012) 573 final (3.10.2012)

[7]               Proposal for a Directive on the award of concession
contracts (COM 2011) 897 final

[8]               OJ L 7, 11.1.2012, p. 3.

[9]               OJ L 114, 26.4.2012, p.8.

[10]             OJ C 8, 11.01.2012

[11]             OJ L 82, 22.3.2001, p. 16.

[12]             OJ L 318, 17.11.2006, p.17.

[13]             OJ L 55, 28.2.2011, p. 13.

[14]             OJ L
332, 28.12.2000, p.81-90.

[15]             Proposal for a Directive on the award of concession
contracts (COM 2011) 897 final

[16]             Proposal for a Directive on procurement by entities operating in the water,
energy, transport and postal services sectors (COM/2011/0895 final)

[17]             Proposal for a Directive on public procurement (COM/2011/0896 final)