WRITTEN QUESTION P-0450/01

by Stefano Zappalà (PPE-DE) to the Commission

(13 February 2001)

Subject: Port operations and the provision of temporary port services

Law No 186 of 30 June 2000 governing port operations and the provision of services consisting of temporary port work, was first brought before the Italian Senate in the form of a text that had already been agreed with the Italian Minister of Transport and Navigation, Claudio Burlando, and the Commissioner responsible for competition policy, Karel Van Miert. The proposed Law No 3409 amended, among other things, Article 16 of Law 84/94 and introduced a new definition of port services under which they must be connected with the carrying out of port operations whether or not they are an intrinsic part of the cycle of port operations themselves.

This formulation covered any activity, whether or not it was included in the cycle of port operations, which can be carried out on a contract basis by any port enterprise authorised in accordance with Arti-cle 16.

The rules therefore allowed activities, whether or not they are part of the cycle of port operations, to be outsourced, as explicitly referred to in paragraph 16 of the Decision of the European Commission of 21 October 1997.

The text adopted by the Italian Senate on 15 July 1999 was forwarded to the European Commission on 28 July 1999.

Commissioner Karel Van Miert, in a letter of 24 August 1999 to the Italian Minister of Transport and Navigation, expressed serious doubts about the compatibility with Community rules of the Senate's amendments to the original text of the proposed Law No 3409.

In particular, the European Commission stressed the fact that the new definition of port services considerably narrowed the original definition thereby preventing authorised port enterprises from providing, on a contract basis, services consisting of the performance of one or more operations relating to the operating cycle of the terminal enterprise.

Despite these reservations, the text of Law No 3409 was adopted definitively without amendments by the Italian Chamber of Deputies on 30 May 2000.

In view of the above, and of the foregoing legal considerations, can the Commission say whether it considers it appropriate for it to deliver a negative opinion on the substance of the draft regulation in question, which the Italian Government has recently submitted to the Commission for evaluation, in relation to the section which states that port services consist of activities separate from those that form part of the cycle of port operations. These rules would prevent a port enterprise from contracting out one or more port operations that are part of its operating cycle, thereby restricting such contracts to the monopoly operator (the former Port Company) authorised to provide services consisting of temporary port work in accordance with Article 17 of Law No 84/94.

Answer given by Mr Monti on behalf of Commission

(15 March 2001)

On 21 October 1997 the Commission adopted a decision finding that various clauses in Italian port legislation concerning labour were incompatible with the competition rules of the EC Treaty(1). One of the clauses concerned the granting of exclusive rights for providing temporary labour in ports to firms which were also authorised to carry out port operations. On 12 February 1998 the Court of Justice confirmed the principle of this incompatibility, declaring that the articles [82] and [86] of the Treaty () preclude a national provision which reserves to a dock-work company the right to supply temporary labour to other undertakings operating in the port in which it is established, when that company is itself authorised to carry out dock work(2).

In order to put an end to the infringement established by the decision of 21 October 1997, the Italian Government brought in a bill in July 1998 which amends port legislation, in particular as regards temporary work. The Commission stated that when this bill was adopted the infringement would be terminated.

The Italian Parliament amended the bill and on 30 June 2000 passed Law No 186. The new version differs from the initial bill, notably with respect to organisation and free access to various activities (including port operations and services).

This being a matter of bringing national law into line with Community law, it should be remembered that it is for the Member State to identify the appropriate measure or measures and to implement them. The Commission's role is to check whether the measure adopted puts an end to the infringement. In this case, the information available to the Commission suggests that Law No 186 together with the adoption of the implementing regulation will effectively put an end to the infringement established in the decision of 21 October 1997 because it is explicitly provided that the role of exclusive supplier of temporary labour cannot be combined with that of port operations and services provider.

(1) Decision 97/744/CE of 21.10.1997 (OJ L 301, 5.11.1997).

(2) Case C-163/96 Silvano Raso and others [1998] ECR I-0533.