WRITTEN QUESTION E-1196/01

by Paulo Casaca (PSE) to the Commission

(19 April 2001)

Subject: Compliance with the Treaty competition rules on maritime and port operations in the Autonomous Region of Madeira

The Madeira Association for Trade and Industry recently published a comprehensive comparative study, embracing the regional, national and Community dimensions, concerning costs related to port and maritime operations in the Autonomous Region of Madeira. This study was widely publicised in the regional and national press.

It concluded that the port tariffs practised in Funchal are incomparably higher than those for all the other ports examined, despite the circumstance that, uniquely, the Funchal port authorities have conceded the exploitation of the port, without charging a fee and without holding a public competition, to the private operator OPM.

Meanwhile, it appears from information supplied by economic operators on the island of Porto Santo that one of the essential conditions laid down in Portuguese law, which sets the conditions for access as regards public service in the maritime transport sector in the region, is that equal shipment criteria should apply as between the Portuguese mainland and any island in the archipelago (Article 6(e) of Decree-Law No 194/98 of 10 July 1998(1)), is not being complied with, contrary to the interests of this small island of the Madeira archipelago.

Given the above:

1. Can the Commission explain in what terms it has carried out its duties as guardian of the Treaty as regards the monitoring of the conditions of competition relating to port and maritime operations in the Autonomous Region of Madeira?

2. What action does the Commission intend to take in the wake of the above study and the evidence it provides of failure to comply with the conditions governing public service in Madeira?

(1) Diário da República, I, Série A, No 157, 10.7.1998.

Answer given by Mr Monti on behalf of the Commission

(8 June 2001)

Regarding the attribution of exclusive rights such as the exploitation of a port it has to be noted that the granting of such rights is not as such incompatible with the competition rules of the EC Treaty. The granting of such a right (i.e. the structural decision) will only be an infringement of these rules if it creates a situation in which the undertaking concerned necessarily abuses its dominant position or is induced to do so.

In the situation described by the Honourable Member there are no indications that such a situation has been created.

Furthermore, if the exploitation of this port is a service concession the public authority should attribute it in conformity with applicable rules and principles of the Treaty, in particular, equal treatment, non discrimination, transparency and proportionality. These rules have been expounded on in a Commission Interpretative Communication on Concessions under Community Law(1).

In this matter, the Commission has no indication that these rules and the principles have been infringed.

From a behavioural point of view excessive prices, asked for by a company enjoying a dominant position, can in principle constitute an infringement of competition rules. The mere fact that prices in one port are higher than in other ports does of course not in itself indicate excessive prices.

It would appear from the information provided for by the Honourable Member that national courts or competition authorities are much better placed to look at the situation described in particular given that the criteria of equal treatment of ports on mainland Portugal and ports on islands stems, as the Honourable Member indicates himself, from a national legislative act. It is therefore primarily up to national authorities and courts to enforce the regulations in question.

Finally, the Commission wishes to inform the Honourable Member that it recently adopted a proposal for a Parliament and Council Directive on market access to port services(2).

Briefly, the aim of that proposal is to establish clear rules and to set up an open and transparent procedural framework for access to the provision of port services, taking at the same time into account the individual characteristics of each port.

The expected results would be an improvement in the quality of port services and a decrease in prices because of increased competition.

(1) OJ C 121, 29.4.2000.

(2) COM(2001) 35 final.