EN Official Journal of the European Union C 168/57

Opinion of the European Economic and Social Committee on A common EU ports policy

(2007/C 168/12)

On 6 July 2006, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an opinion on A common EU ports policy.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 22 March 2007. The rapporteur was Mr Jan Simons.

At its 435th plenary session, held on 25 and 26 April 2007 (meeting of 26 April), the European Economic and Social Committee adopted the following opinion by 137 votes to two, with seven abstentions.

1. Conclusions

1.1 The present own-initiative report focuses on aspects of European seaport policy on which stakeholders in the port sector should be able to reach consensus. That is why the report is being drawn up in close consultation with concerned stakeholder organisations which were invited to express their view during two public hearings held on 20 November 2006 and 20 February 2007 (1).

1.2 The hearing confirmed that a European seaport policy should address the following themes: a) Ensuring sustainable development of port and port-related capacity b) Creating a clear and transparent framework on financing of port investments c) Clarifying procedures regarding market access for port services d) Solving operational bottlenecks that hamper port efficiency e) Promoting good and safe working conditions and constructive labour relations in ports f) Promoting the overall competitiveness and positive perception of ports.

1.3 These themes broadly correspond with the themes put forward by the European Commission in its consultation process on a future European seaport policy. This consultation was initiated following the withdrawal of the two Commission's draft Directives on market access to port services (2), and is likely to be concluded by June 2007.

1.4 The debate on the port services' Directive has already thrown up extensive information on areas such as port financing and procedures on market access to port services. Any progress that is made on these areas should therefore lead to tangible results in the short term.

1.5 Operational bottlenecks, especially those related to administrative procedures and hinterland transport, can be addressed in the context of existing initiatives, such as the programmes on customs modernisation, railway liberalisation and inland navigation (NAIADES). They also fit within the broader context of the review of the Transport White Paper (3) and the Commission's Communication on Logistics (4).

1.6 The EU can stimulate high reliability and safety standards in European ports by providing adequate (financial) support to training and education programmes and by enforcing applicable safety legislation.

1.7 Developing a good social policy for ports is of great importance. It must be developed in close cooperation with the social partners who bear primary responsibility in this matter. Important instruments which the national authorities and social partners can use to frame a good social policy are the International Labour Organisation (ILO) conventions on work in ports, which can also make a significant contribution to creating a level playing field. The Commission must encourage the Member States to ratify these conventions.

1.8 The EU can further stimulate young people to pursue a career in ports, similar to its actions to attract youngsters to sea. High-level nautical training helps to ensure that in future there will be enough high-quality pilots, harbour masters and other professionals in ports.

1.9 In addition, a European social dialogue for seaports may have added value, provided relevant representative European stakeholder organisations can agree on an agenda of common interest.

1.10 A fundamental debate on sustainable port development is of vital importance in the context of European seaport policy. Ports have an important responsibility to achieve high environmental standards and should be encouraged to make further investments in this field. However, it has become quite clear in the meantime that problems are to a large extent also caused by the ambiguity of EU environmental legislation.

1.11 Further investigation will be required to establish whether spatial planning programmes can help create greater legal certainty and more opportunities for port development. At the same time, it must be recognised that ports are frequently sited close to nature conservation areas of outstanding importance which need to be protected and properly balanced with port development.

1.12 The EESC understands that the concept of ‘common European maritime space’ in the Green Paper on maritime policy refers to a virtual maritime space. If this is indeed what the Commission means and it is expressed clearly and unequivocally, the concept can be supported by the EESC provided that in international waters (high seas) it respects the UNCLOS and IMO Conventions including the ‘freedom of navigation’ and the ‘right of innocent passage’ within the Exclusive Economic Zone (EEZ).

1.13 Finally, the EU should play a supportive role in preserving the overall competitiveness of EU ports in a global context and stimulating initiatives aimed at restoring the positive perception of ports thus generating broad public support for them. This requires an innovative approach involving the cultural, tourist and recreational potential of port cities.

1.14 A European policy for seaports does not necessarily imply producing new legislation. ‘Soft law’ (5) in particular may be a valuable alternative to legislation on the one hand and a case-by-case approach on the other.

1.15 A European seaport policy should generally refrain from unnecessary interventionism but focus on: a) applying Treaty rules where necessary, b) ensuring that ports can adequately fulfil their public role, c) stimulating market-oriented behaviour and d) promoting a positive public image of the sector. Existing EU legislation which hampers the sound and sustainable development of seaports should be revised where appropriate.

2. Challenges facing European seaports

2.1 The most fundamental criticism on the draft port services' Directive was that it did not take into account market developments and the challenges these represent for European ports, that it tried to impose a ‘one size fits all’ model regarding port management and ignored the social component of ports. Such factors must not be overlooked when a more comprehensive analysis of European seaport policy is drawn up (6).

2.2 Seaports are one of the strong growth sectors in the transport field of the European economy. This is especially the case for container traffic. Capacity is lagging behind in several European regions causing substantial congestion problems (7).

2.3 This calls for the optimal use of existing port facilities and the development of new port capacity (8) where necessary. Equally, optimal maritime access routes to ports (dredging), as well as hinterland infrastructure need to be ensured. Ports can for obvious reasons only be located in costal regions, including estuaries, which are characterised by fierce competition for space. Ports are aware of their impact on the environment and have made considerable investments to achieve high environmental standards over the past years. This however does not exclude resistance from local communities and cities which tend to focus on the negative externalities of seaports and are not always aware of the added value and positive aspects associated with ports. More importantly, the legal uncertainty caused by EU nature conservation legislation adds to the strain on vital port development plans causing serious delays.

2.4 Port capacity development requires substantial investment. The restraining of government budgets means private capital is vital for the financing of port infrastructure and superstructure. This requires long-term commitment from private investors in ports.

2.5 Besides strong growth, the European port sector is also characterised by the processes of globalisation and consolidation. European seaports deal with international shipping groups and large terminal operator groups have emerged which now provide services in several European ports (9).

2.6 European port competition should focus on logistics chains (10). The traditional division of tasks within the logistics chain has become blurred by vertical integration strategies. European ports are increasingly competing from within supply chains and have become ‘natural habitats’ for logistics services. Seaports need all transport modes to function optimally.

2.7 As intermodal connecting points, the efficiency of seaports depends very much on the efficiency of services provided both in the hinterland and the maritime foreland. Seaports are moreover favoured locations for carrying out frontier controls on ship safety, security, customs, public health, environmental and social provisions and conditions on board; many of these controls are unique to the maritime sector and are not always properly coordinated and harmonised.

2.8 As a consequence of the processes described above, managing bodies of seaports are in many cases reviewing their traditional port authority role as part of reform processes.

3. Themes for a European seaport policy

3.1 As has been highlighted above, European seaport policy should focus on stimulating sustainable growth, creating an attractive investment climate in ports, enhancing legal certainty, optimising the integration of seaports in the supply chain, enhancing overall competitiveness and providing for a good social policy and constructive labour relations so that these aspects can make a contribution to the positive image of ports as attractive places to work.

3.2 This overall objective can be divided into six thematic areas, which have been acknowledged by the European Commission: a) Ensuring sustainable development of port and port-related capacity b) Creating a clear and transparent framework on financing of port investments c) Clarifying procedures on market access to port services d) Solving operational bottlenecks that hamper port efficiency e) Supporting safe and reliable operations and optimal working conditions in ports f) Promoting the overall competitiveness and positive perception of ports. The section that follows expands on these thematic areas.

4. Ensuring sustainable development of port and port-related capacity

4.1 Ports are frequently sited close to nature conservation areas of outstanding importance. Harmonising ecological and economic values has proved to be a difficult learning exercise for many ports, often resulting in conflict situations. European seaports have however made considerable progress in achieving high environmental standards and improving environmental management (11) and have over the years succeeded in developing constructive agreements with NGOs and local stakeholders leading to win-win situations for nature and ports.

4.2 Nevertheless, legal uncertainties with regard to the application of nature conservation legislation continue to cause substantial delays for many projects. It is generally recognised that these delays are, to a large extent, caused by ambiguities in the applicable EU legislation, such as the Bird and Habitats Directives and the Water Framework Directive. The definition of essential concepts remains vague (12), leading to different interpretations in Member States.

4.3 The Commission can help remedy this situation by providing guidance on the interpretation of existing legislation. At the same time it should stimulate European seaports to take up their responsibility in the field of environmental management, for instance by encouraging the dissemination of best practices through sector-driven initiatives such as ECOPORTS (13).

4.4 However, the lack of consideration given to economic factors and conflicts with pre-existing legal regimes applying to zones earmarked for port development within the legislative framework itself is also a major cause of problems. Sustainable development means a balance between economic, social and ecological considerations which is currently not entirely achieved.

4.5 The fundamental shortcomings of existing EU environmental law have been highlighted in a recent study sponsored by the European Commission under its Maritime Transport Coordination Platform (MTCP) project (14). The study also lists a number of concrete policy recommendations to achieve greater legal certainty for port development projects, including the creation of a coherent network of strategic port development areas.

4.6 In its recent Green Paper on Maritime Policy (15) the European Commission introduces the concept of maritime spatial planning (16) which, in combination with Integrated Coastal Zone Management (ICZM), as we understand in territorial waters, is aimed at controlling the increasing competition between maritime activities for the use of European coastal waters and providing greater legal certainty.

4.6.1 The idea of considering the EU as one country for customs/administrative purposes only can be welcomed, provided that in international waters (high seas) it respects the UNCLOS and IMO Conventions including the ‘freedom of navigation’ and the ‘right of innocent passage’ within the Exclusive Economic Zone (EEZ). The EESC understands that the concept of ‘common European maritime space’ refers to a virtual maritime space in which there will be a simplification of administrative and customs formalities for intra-EU maritime services giving them a similar regime to transport by lorry, train or inland navigation in the internal market. If this is indeed what the Commission means and it is expressed clearly and unequivocally, the concept can be supported by the EESC (17).

4.7 Finally, the current approach towards seaports under the Trans-European Transport Networks (TEN-T) could be revised to generate greater European support for vital hinterland infrastructure projects of relevance to ports. Projects of common interest under the TEN-T may be considered as being of overriding public interest in the context of environmental legislation (18) since TEN-T status already takes into account environmental considerations.

4.8 Solutions described above should however abstain from centralised port planning at EU level nor lead to strict national port planning policies. In essence, they should foster the bottom-up principle that project proposals should be designated by the managing body of a port in conjunction with regional or national authorities where applicable and taking into account objective economic assessments that confirm to common methodological standards and respect the applicable legislative framework.

5. Creating a clear and transparent framework for the financing of port investments

5.1 The substantial investment needed in seaports calls for a clear financial legal framework at EU level. Legal certainty is particularly needed on the conditions for allowing public funding in ports without distorting competition. The consensus is that the most effective way of achieving this would be through State aid guidelines.

5.2 The purpose of State aid guidelines should be to clarify the EU Treaty rules on State aid (notably articles 73, 86, 87 and 88) that apply to ports. Guidelines should indicate the cases in which public funding is deemed to be State aid and must be notified to the Commission for examination. If the aid meets the criteria provided in the exemptions of the Treaty, the Commission can declare it compatible with the Treaty.

5.3 It is generally accepted that public funding of the following investments and activities is not considered to be State aid and Member States should, therefore, not notify such funding schemes to the Commission: a) The provision and operation (including maintenance) of infrastructure outside the port area connecting the port to land and maritime access routes. Maintenance of maritime access routes includes dredging and keeping these routes open with the aid of icebreaking services. b) Compensation for activities of the managing body of the port which are not of an economic nature and which are normally the responsibility of the managing body of the port in the exercise of its official powers as a public authority both outside and in the port.

5.4 The provision and operation of port infrastructure, however, is a more complex issue. A distinction can be made here between access and defence infrastructure on the one hand, and port-internal infrastructure on the other. The former can be defined as all infrastructure that grants sea and land access to a port area, including maritime access and defence works, land access connections to general public transport facilities, and infrastructure for utilities required in the port area. Port-internal infrastructure can be defined as civil works within the port area that facilitate supply of services to ships and cargoes.

5.5 An important factor here is whether port infrastructure is in the general interest of the port, or is reserved for a specific user or operator. Guidelines would have to introduce a workable distinction.

5.6 There is consensus on the granting of aid for the provision and operation of port superstructure, i.e. surface arrangements, buildings, mobile and fixed equipment needed to produce services. Public financing in these areas is generally considered to be State aid.

5.7 Assuming that a clear distinction can be established between investments and activities, whether these are publicly funded under State aid rules or not, it seems logical to adhere to the principle that the managing body of the port should have full financial autonomy to recover from users the cost of investments and activities that are not covered by eligible State aid.

5.8 Equally, the Transparency Directive should be amended in order to make it applicable to all ports (19). In this way, managing bodies of ports would be required to indicate flows of public money in their accounts and keep separate balance sheets if they provide both public and regular economic services. The latter is especially relevant given the possibility of obtaining public funding as compensation for public service obligations.

6. Clarifying procedures for market access to port services

6.1 In view of the experiences made with the two legislative EU Commission proposals on market access to port services, it may be worthwhile to provide guidance on the basis of the existing EU legal framework, and to examine which instruments could be of use to ports and how they should be applied.

6.2 For many ports, guidance or recommendations, contrary to legislation, on the use of selection procedures, such as tenders or other acceptable instruments, conditions for concessions and land-lease agreements etc. would be very useful.

6.3 Such guidance may also be useful to clarify the legal status of those services (e.g. parts of the pilotage task) which serve as a public service, for example for the overall safety in ports.

7. Solving operational bottlenecks that hamper port efficiency

7.1 In addition to the structural problems relating to a lack of adequate infrastructure capacity which have already been mentioned above, reference is frequently made to bottlenecks of a more operational kind that hamper port efficiency. Broadly speaking, they occur in a) administrative bureaucracy, controls and inspections and b) inefficiencies in hinterland transport.

7.2 There is a consensus that the EU should make further progress with the modernisation of customs (20) and ensure that its policies on customs, maritime safety, security, public health and environmental quality are properly coordinated and harmonised and do not unduly transfer government responsibilities to ports.

7.3 The idea of a ‘Common Maritime Space’ suggested by the Commission could help in ensuring that short sea shipping will receive a more equal treatment with inland transport in terms of administrative and customs procedures. No attempt should, however, be made to introduce legislative restrictions in international EU waters (high seas) which contradict the principle of free navigation and the right of innocent passage or impose restrictions which are not compatible with international rules and regulations. The idea of considering the EU as one country for customs/administrative purposes only can be welcomed. The EESC understands that the concept of ‘common European maritime space’ refers to a virtual maritime space in which there will be a simplification of administrative and customs formalities for intra EU maritime services giving them a similar regime as transport by truck or train in the internal market.

7.4 In addition, the Commission should step up its efforts to solve remaining bottlenecks in the hinterland through the implementation of the NAIADES programme for inland navigation its railway packages and its efficiency policies with regard to road transport. In considering these modes of transport it would be wrong to pay scant attention, or none at all, to social policy, as has unfortunately been the case in recent Commission documents on inland waterway transport (Mid-term Review of the Transport White Paper; NAIADES programme).

8. Promoting good safe working conditions and surroundings, and constructive labour relations in ports

8.1 The efficiency of operations in ports depends both on a reliability and safety component which are, despite technological progress, to a large extent determined by the human factor. This explains the need for a qualified and well-trained workforce in ports covering all services and operations, both landside and on board ships. This prerequisite applies regardless whether ports and port service providers are in public or private ownership.

8.2 The social partners should play an important role in creating and maintaining this. At European level, the Commission should support their input by facilitating social dialogue.

8.3 European ports have the responsibility to maintain high reliability and safety standards. The European Union can stimulate these by providing adequate (financial) support to training and education programmes and by enforcing applicable safety legislation. The EU can further stimulate young people to pursue a career in ports, similar to its actions to attract youngsters to sea. The latter has an impact on work in ports as well. High-level nautical training helps to ensure that in future there will be enough high-quality pilots, harbour masters and other professionals in ports.

8.4 Constructive labour relations are crucially important for a proper ports policy. The Commission should also create favourable conditions for such relations in close cooperation with the governments of the Member States.

8.4.1 With this aim in mind, the European Commission should first set out its views on whether ILO Conventions 137 and 152 on dock work are in line with the principles set out in the European Treaties and the existing body of EU law (the ‘acquis communautaire’) before calling upon the Member States to ratify these two Conventions.

8.5 To achieve optimal working conditions in ports and a positive social climate in general, a proper social dialogue is vital. Such dialogue exists in most European ports and should be established where it is not the case already. Provided relevant representative European stakeholder organisations can agree on a common agenda, such a dialogue may also have added value at European level.

9. Promoting the overall competitiveness and restoring a positive perception of ports

9.1 Given their vital interest for Europe, the European Union has a task to enhance the overall competitiveness and promote a positive image of the port sector, mainly by addressing the above-mentioned themes, but also through specific actions listed in this section.

9.2 Through its external relations policy, the EU should pay particular attention to cases of unfair competition by neighbouring non-EU ports. This is especially relevant for ports in the Baltic Sea, Black Sea and Mediterranean.

9.3 The EU should also restore the positive perception of seaports with the European citizen, emphasising the added value of ports for European trade, welfare, cohesion and culture, thus generating wider public support for ports.

9.4 Finally, the EU can stimulate cooperation and exchange of best practice and innovation between ports by supporting pragmatic, non-theoretical and industry-driven research projects.

Brussels, 26 April 2007. The President of the European Economic and Social Committee Dimitris DIMITRIADIS

(1) The following organisations were invited to the hearings:

European Association for Forwarding, Transport, Logistic and Customs Services (CLECAT), European Community Shipowners' Association (ECSA), European Community Association of Ship Brokers and Agents (ECASBA), European Shippers' Council (ESC), Association of European Chambers of Commerce and Industry (EUROCHAMBRES), European Maritime Pilots' Association (EMPA), European Boatmen's Association (EBA), European Tugowners Association (ETA), European Transport Workers' Federation (ETF), International Dockers' Council (IDC), European Sea Ports Organisation (ESPO), European Federation of Inland Ports (EFIP), Federation of European Private Port Operators (FEPORT), European Harbour Masters' Committee (EHMC) and Federation of European Tank Storage Associations (FETSA), EUROGATE.

(2) See the following two EESC opinions on the subject: EESC opinion on the ‘Proposal for a Directive of the European Parliament and of the Council on market access to port services’ OJ C 48, 21.2.2002, p. 122-129 and EESC opinion on the Proposal for a Directive of the European Parliament and of the Council on market access to port services (COM(2004) 654 final — 2004/0240 (COD)) OJ C 294, 25.11.2005, p. 25-32.

See also the EESC opinion on the ‘Communication from the Commission to the Council and the European Parliament on the training and recruitment of seafarers’ OJ C 80, 3.4.2002, p. 9-14; and the EESC opinion on ‘Europe's accessibility by sea in the future: developments and how to anticipate them’OJ C 157, 28.6.2005, p. 0141-0146.

(3) Communication from the Commission to the Council and the European Parliament, Keep Europe moving — sustainable mobility for our continent — Mid-term review of the European Commission's 2001 Transport White Paper, COM(2006) 314 final.

(4) Communication from the Commission to the Council, European Parliament, the European Economic and Social Committee and the Committee of the Regions, Freight Transport Logistics in Europe — key to sustainable mobility, COM(2006) 336 final.

(5) Soft law refers to rules of conduct that are laid down in instruments which are not legally binding but may have certain indirect legal effect and are aimed at producing practical effects. Examples include interpretative communications, guidelines and codes of practice.

(6) For a more extensive overview on market developments and challenges, see: ESPO and ITMMA, Factual Report on the European Port Sector, 2004.

(7) For a recent analysis see: Ocean Shipping Consultants, The European and Mediterranean Container port Markets to 2015, 2006.

(8) EESC opinion on ‘Europe's accessibility by sea in the future: developments and how to anticipate them’OJ C 157, 28.6.2005, p. 0141-0146.

(9) This is especially true in the field of containerized cargo, where already in 2002 70 % of the market was already controlled by six major operators (ESPO and ITMMA, p. 38) but the phenomenon is equally present in markets such as dry bulk and general cargo.

(10) For details see the opinion TEN/262 of the EESC on the Commission proposal ‘Freight Transport Logistics in Europe — the key to sustainable mobility’ COM(2006) 336 final.

(11) For an overview see for instance: ESPO Environmental Survey 2004 — Review of European Performance in Port Environmental Management.

(12) The European Birds and Habitats Directives for instance lead to different interpretations regarding appropriate assessments, pre-existing agreements, analysis of alternatives, so-called ‘Imperative Reasons of Overriding Public Interest’ (IROPI), compensation requirements etc.

(13) The Commission-supported ECOPORTS project ran until 2005 and stimulated port managers towards self-regulation on environmental matters. Its work is now carried out by the ECOPORTS Foundation. www.ecoports.com.

(14) E. Van Hoydonk, MTCP Report on the impact of EU environmental law on waterways and ports, 2006.

(15) Green Paper ‘Towards a future Maritime Policy for the Union: A European vision for the oceans and the seas’, COM(2006) 275 final.

(16) According to the Green Paper, Maritime Spatial Planning has a key role to play in reducing the vulnerability of marine and coastal areas. A comprehensive system of spatial planning could improve a stable regulatory environment for sectors where large investments have to be made affecting the location of economic activity. Coordinating all maritime activities by innovative marine spatial planning could help to ensure an economically and environmentally sustainable development of coastal regions.

(17) Cf. TEN/255, Opinion on Green paper towards a future Maritime Policy for the Union (OJ C 93, 27.4.2007).

(18) As recommended by the above-mentioned MTCP study.

(19) Directive 1980/723/EEC, amended by Directive 2000/52/EC.

(20) Several proposals are currently pending which aim to modernise customs, including two legislative proposals to revise the Customs Code and the Customs 2013 action programme:

http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_strategy/index_en.htm.