Proposal for a Directive of the European Parliament and of the Council On Market Access to Port Services
Date: 2001-02-13
Institutions: European Commission
Subjects: harbour installation, market access, ports policy, service

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Proposal for a Directive of the European Parliament and of the Council on Market Access to Port
Services

(2001/C 154 E/30)

(Text with EEA relevance)

COM(2001) 35 final (cid:151) 2001/0047(COD)

(Submitted by the Commission on 14 February 2001)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

(1) The objective of Article 49 of the Treaty is to eliminate
the restrictions on freedom to provide services in the
the
in accordance with Article 51 of
Community;
Treaty,
that objective must be achieved within the
framework of the common transport policy.

(2) Through Council Regulations

(EEC) No 4055/86 of
22 December 1986 applying the principle of freedom to
provide services to maritime transport between Member
States and between Member States and third countries (1)
and (EEC) No 3577/92 of 7 December 1992 applying the
freedom to provide services to maritime
principle of
transport within Member States (maritime cabotage) (2)
that objective has been attained with regard to maritime
transport services as such.

(3) Port services are essential to the proper functioning of
maritime
an essential
contribution to the efficient use of maritime transport
infrastructure.

they make

transport

since

1997 (3)

of December
intention
its

(4) In the Green Paper on Sea Ports and Maritime Infra-
the Commission
structure
a
legislative
indicated
to the port
framework in order
services market in Community ports with international
traffic. Therein, port services should be defined as those
services of commercial value that are normally provided
against payment in a port.

proposing
to achieve access

of

(1) OJ L 378, 31.12.1986, pp. 1-3. Last amended by Council Regulation

(EEC) No 3573/90 (OJ L 353, 17.12.1990, p. 16).

(2) OJ L 364, 12.12.1992, pp. 7-10.
(3) COM(97) 678 final of 10 December 1997.

(5) Facilitating access

services market

at
to the port
Community level should remove prevailing restrictions
improve
that hamper access for port service operators,
the quality of service provided to users of
the port,
increase efficiency and flexibility, help reduce costs and
thereby contribute to promoting short sea shipping and
combined transport.

(6) Where the authorisation under this Directive takes the
form of a contract falling within the scope of Directives
92/50/EEC (4),
and
93/38/EEC (7),
apply. Equally,
where applicable, Directives 89/48/EEC (8), 92/51/EEC (9)
and 1999/42/EC (10) on the mutual
recognition of
professional education and training apply.

latter Directives

93/36/EEC (5),

93/37/EEC (6)

these

(7) Diverse national

legislations and practices have led to
disparities in the procedures applied and have created
legal uncertainty regarding the rights of providers of
port services and the duties of competent authorities. It
is in the Community’s interest, therefore, to establish a
Community legal
framework which lays down basic
rules on access to the port services market, the rights
and obligations of
service
providers, the managing bodies of the ports, as well as
on the procedures accompanying the authorisations and
selection processes.

and prospective

current

(4) Directive 92/50/EEC of 18 June 1992 relating to the coordination
of procedures for the award of public service contracts (OJ L 209,
24.7.1992, p. 1), last amended by Directive 97/52/EC (OJ L 328,
28.11.1997).

(5) Directive 93/36/EEC of 14 June 1993 co-ordinating procedures for
the award of public supply contracts (OJ L 199, 9.8.1993, p. 1), last
amended by Directive 97/52/EC (OJ L 328, 28.11.1997).

(6) Directive 93/37/EEC of 14 June 1993 concerning the co-ordination
of procedures for the award of public works contracts (OJ L 199,
9.8.1993, p. 54), last amended by Directive 97/52/EC (OJ L 328,
28.11.1997).

(7) Directive 93/38/EEC of 14 June 1993 co-ordinating

the
procurement procedures of entities operating in the water,
energy,
sectors (OJ L 199,
9.8.1993, p. 84),
last amended by Directive 98/4/EC (OJ L 101,
1.4.1998).

transport and telecommunications

(8) Directive 89/48/EEC of 21 December 1989 on a general system for
awarded on
least

the
completion of professional education and training of at
three years’ duration.

recognition of higher

education diplomas

(9) Directive 92/51/EEC of 18 June 1992 on a second general system
the recognition of professional education and training to

for
supplement Directive 89/48/EEC.

(10) Directive 1999/42/EC of 7 June 1999 establishing a mechanism for
the recognition of qualifications in respect of
the professional
activities covered by the Directives on liberalisation and transitional
measures and supplementing the general systems for the recog-
nition of qualifications.

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the Treaty,

in Article 5 of

(8) In accordance with principles of subsidiarity and propor-
tionality as set out
the
objectives of the proposed action, which is the access
for any natural or
legal person, established in the
Community, to the market for port services, cannot be
sufficiently achieved by the Member States because of the
dimension of
that action and can therefore be better
achieved by the Community. This Directive confines
itself to the minimum required in order to achieve that
objective and does not go beyond what is necessary for
that purpose.

(9) The Community legislation on access to port services does
not exclude the application of other Community rules.
Competition rules have already been applied to port
services and are relevant
to monopoly
situations.

in particular

(10) In the interest of an efficient and safe port management,
Member States may require that service providers obtain
authorisations. The criteria for granting such authoris-
ations must be objective, transparent, non-discriminatory,
relevant and proportional. They must be made public.

(11) Since ports are made up of

to the market may,

limited geographical areas,
access
in certain cases, meet
capacity and available-space constraints and traffic-related
safety constraints for technical-nautical services. In such
cases it may therefore be necessary to limit the number of
authorised providers of port services.

(12) The criteria for any limitation must be objective, trans-
parent, non-discriminatory, relevant and proportional. In
the case of cargo handling, and unless exceptional circum-
stances prevail, the number of service providers for each
category of cargo handling must not be limited to fewer
than two completely independent providers.

(13) Service providers

should have the right

to employ

personnel of their own choice.

(14) Where the number of providers of port services is limited,
these will need to be selected by the competent authority,
according to a transparent, objective, open and fair
selection procedure with non-discriminatory rules.

(15) In order to ensure that decisions and procedural measures
under this Directive are taken, and are seen to be taken,
by neutral bodies, the position of the managing body of a
port which is itself, or wishes to become, a provider of a
port service should be defined. It must be subject to the
same conditions and procedures as other service providers
whilst remaining in a position to ensure the functioning
of
the port. Therefore any decision on limiting the
number of service providers and the selection itself must
be entrusted to a neutral body and the managing body of
a port shall not discriminate between service providers
and between port users.

(16) It

is therefore necessary to ensure non-discrimination
between the managing body of the port and independent
operators, as well as between managing bodies of different
ports.

(17) In the financial field it is necessary to impose the obli-
gation for managing bodies of ports covered by this
Directive, which are also acting as service providers, to
keep accounts for activities carried out in their function as
managing bodies separate from those carried out on a
competitive basis.

(18) Commission Directive 2000/52/EC of 26 July 2000 lays
down, for a certain number of undertakings, the obli-
gation to maintain separate accounts which only applies
to undertakings whose total annual turnover for each of
the last two years exceeded EUR 40 million.

In the light of the introduction of the freedom to provide
port services in the Community, it is necessary to ensure
that the principle of separation of accounts applies to all
ports falling within the scope of the present Directive and
to impose on ports transparency rules that are not less
strict than those laid down in the Commission Directive
2000/52/EC.

(19) The requirement

service
to keep accounts
activities should apply to all undertakings which have
been selected to provide such services.

for port

(20) Self-handling should be allowed and any criteria set for
self-handlers should not be stricter than those set
for
providers of port services for the same or a comparable
kind of service.

(21) Authorisations granted through a selection procedure
should be limited in time. It is reasonable to take into
account, when determining the period of authorisation,
whether the provider has had to invest in assets or not
and, where this is the case, whether these assets are
moveable or not. Although such procedure should lead
to an adequate outcome, it is nevertheless necessary to set
maximum periods of authorisation.

(22) The current situation in the Community ports, with its
multitude of authorisation and selection methods and
be
clear
periods,
determined. These transition rules
should distinguish
between ports where the number of service providers is
restricted and those ports where it is not.

transition periods

requires

that

(23) Where the number of service providers is not restricted,
there is no reason to change the existing authorisations,
whilst future ones should be granted in accordance with
the Directive’s rules.

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(24) Where the number of service providers is restricted, the
transitional periods should distinguish between authoris-
ations granted in accordance with a public tender, or an
equivalent procedure, or not; between situations where
the service provider has made significant investments or
not; and where these investments were made in moveable
or
legal certainty
require that,
in each case maximum periods be fixed,
whilst leaving national authorities a substantial margin
adequately to take into account the specificities of each
case.

immovable assets. The interests of

(25) Member States should determine the competent auth-
this

implementation of

responsible

the

for

orities
Directive.

(26) Appeal procedures against decisions of

the competent

authorities should be in place.

(27) Member States must ensure an adequate level of social
protection for the staff of undertakings providing port
services.

(28) The provisions of this Directive in no way affect the rights
and obligations of Member States in respect of law and
order, safety and security at ports as well as environ-
mental protection.

This Directive applies to any sea port or port system
2.
located in the territory of a Member State and open to
general commercial maritime traffic, provided that the port’s
average annual throughput over the last 3 years has not been
less than 3 million tonnes or 500 000 passenger movements.

threshold,

reaching the

the provisions of

traffic threshold is reached,

3. Where a port reaches the freight traffic threshold referred
to in paragraph 2 without
corresponding
this
passenger movement
Directive shall not apply to port services reserved exclusively
for passengers. Where the passenger movement but not the
freight
this
Directive shall not apply to port services reserved exclusively
for freight. The Commission shall publish for information, in
the Official Journal of the European Communities and on the basis
of information provided by Member States, a list of the ports
referred to in this Article. The list shall
first be published
within three months following the entry into force of this
Directive, and thereafter annually.

the provisions of

4. Member States may require that the providers of port
services be established within the Community and that
vessels used exclusively for the provision of port services
shall be registered in, and fly the flag of a Member State.

(29) This Directive does not affect the application of the rules
of the Treaty; in particular the Commission will continue
to ensure compliance with these rules by exercising, when
necessary, all the powers granted to it by Article 86 of the
Treaty.

This Directive is without prejudice to the obligations for
1.
competent authorities which flow from Directive 92/50/EEC,
Directive 93/36/EEC, Directive 93/37/EEC and Directive
93/38/EEC.

Article 3

(30) On the basis of Member States’ reports on the application
the Commission should make an
if appropriate, by a proposal

of
assessment accompanied,
for the Directive’s revision,

this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objective

2. Where one of the Directives referred to in paragraph 1
makes the tendering of a service contract mandatory, Articles 8
(1, 2, 3, 4 and 5), 12 (1 and 2), and 13 of this Directive shall
not apply to the award of that contract.

3.
This Directive is without prejudice, where applicable, to
the obligations of competent authorities which flow from
Directives 89/48/EEC, 92/51/EEC and 1999/42/EC on a
mutual
recognition among Member States of professional
education and training.

Freedom to provide port services shall apply to Community
providers of port services under the provisions set out in this
Directive. Providers of port services shall have access to port
installations to the extent necessary for them to carry out their
activities.

Article 4

Definitions

For the purposes of this Directive:

Article 2

Scope

1.
This Directive applies to those port services set out in the
Annex which are provided inside the port area for users of the
port.

1.

(cid:145)sea port(cid:146) (in this Directive referred to as (cid:145)port(cid:146)) is an area of
land and water made up of such improvement works and
equipment as to permit, principally, the reception of ships,
their loading and unloading,
the
receipt and delivery of these goods by inland transport,
the embarkation and disembarkation of passengers;

the storage of goods,

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2.

(cid:145)port system(cid:146) means two or more ports grouped together to
serve the same city or conurbation;

3.

(cid:145)port authority(cid:146) or (cid:145)managing body of the port(cid:146) (hereafter
referred to as (cid:145)managing body of the port(cid:146)) means a body
which, whether or not in conjunction with other activities,
has as its objective under national
law or regulation the
administration and management of the port infrastructures,
and the co-ordination and control of the activities of the
different operators present
in the port or port system
concerned. It may consist of several separate bodies or be
responsible for more than one port;

4.

(cid:145)port services(cid:146) means the services of commercial value that
are normally provided against payment in a port and which
are listed in the Annex;

5.

(cid:145)provider of port services(cid:146) means any natural or legal person
providing, or wishing to provide, one or more categories of
port services;

6.

(cid:145)public service requirement(cid:146) is a requirement adopted by a
competent authority in order to secure adequate provision
of certain categories of port services;

7.

(cid:145)self-handling(cid:146) means a situation in which a port user
provides for itself one or more categories of port services
and where normally no contract of any description with a
third party is concluded for the provision of such services;

safety or the safety of installations, equipment and persons. The
authorisation may include public service requirements relating
to safety, regularity, continuity, quality and price and the
conditions under which the service may be provided.

3. Where the required professional qualifications include
specific local knowledge or experience with local conditions,
the competent authority must provide adequate training for
applicant service providers.

4.
Criteria referred to in paragraph 2 shall be made public
and providers of port services shall be informed in advance of
the procedure for obtaining the authorisation. This requirement
applies equally to an authorisation linking the provision of
service to an investment
into immobile assets which will
revert to the port upon expiry of the authorisation.

5.
The provider of port services has the right to employ
personnel of his own choice to carry out the service covered
by the authorisation.

Article 7

Limitations

1. Member States may only limit the number of providers of
port services for reasons of constraints relating to available
to
space or
maritime traffic-related safety. The competent authority must:

technical-nautical

capacity or,

services,

for

8.

(cid:145)authorisation(cid:146) means any permission, including a contract,
allowing a natural or legal person to provide port services
or to carry out self-handling.

(a)

inform interested parties of the category or categories of
port services and the specific part of the port to which the
restrictions
such
restrictions;

apply as well

reasons

the

for

as

Article 5

Competent authorities

Member States shall designate the competent authority or auth-
orities for the purpose of implementing (Articles 6, 7, 8, 10, 11,
12 and 19 of this Directive.

Article 6

Authorisation

(b) allow the highest number of service providers possible

under the circumstances.

2. Where constraints relating to available space or capacity
exist and, for as long as there are no exceptional circumstances
in relation to the volume of traffic and categories of cargoes,
the competent authority shall authorise at least two service
providers for each category of cargo, which shall be completely
independent of each other.

1. Member States may require that a provider of port
services obtains prior authorisation under the conditions set
out in paragraph 2, 3, 4 and 5. Authorisation shall be auto-
matically granted to service providers selected under Article 8.

2.
The criteria for the granting of the authorisation by the
competent authority must be transparent, non-discriminatory,
objective, relevant and proportional. The criteria may only
relate to the provider’s professional qualifications, his sound
financial situation and sufficient insurance cover, to maritime

3. Where the competent authority deciding on limitations in
relation to the port in question is the managing body of that
port and where the managing body itself or a service provider
over which it has direct or indirect control or is involved in, is,
or wishes to become, also a service provider in that port,
Member States shall designate a different competent authority
and entrust it with the decision, or approval of a decision, on
limitations. This newly designated competent authority must be
independent of the managing body of the port in question and
must not:

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(a) provide port services similar to those provided by any of

the service providers in the port in question; and

(b) have any direct or indirect control over, or be involved in,
any of the service providers in the port in question.

(b) have any direct or indirect control over, or be involved in,
any of the service providers in the port in question.

Article 8

Selection procedure

1. Where the number of providers of port services has been
limited in application of Article 7, the competent authority
shall take the necessary measures to ensure a transparent and
objective
through tendering, using
proportionate, non-discriminatory and relevant criteria.

selection procedure,

2.
The competent authority shall publish in the Official
Journal of the European Communities an invitation to interested
parties to participate in the selection process.

This publication may refer to the competent authority’s or the
port’s own internet web-site or, where there is no such
web-site, any other appropriate manner which makes the
necessary information available in a timely way to any
person interested in the process.

3.

The competent authority shall include in its publication:

(a) authorisation and selection criteria that define the auth-

ority’s minimum requirements;

(b) award criteria that define the grounds on which the
authority will choose among offers meeting the selection
criteria; and

(c) conditions setting out the service requirements that the
contract will cover and identifying any assets
to be
placed at the disposal of the successful tenderer together
with the relevant terms and applicable rules.

4.
The procedure shall provide for an interval of at least 52
days between the dispatch of the call for proposals and the
latest date for receipt of them.

5.
The competent authority shall include in the information
it supplies to potential providers all relevant information it
holds.

6. Where the competent authority carrying out the selection
procedure in relation to the port in question is the managing
body of that port and where the managing body itself or a
service provider over which it has direct or indirect control or
is involved in, is, or wishes to become, a service provider in
that port, Member States shall designate a different competent
authority and entrust
it with the selection procedure in
question. This newly designated competent authority must be
independent of the managing body of the port in question and
must not:

(a) provide port services similar to those provided by any of

the service providers in the port in question; and

Article 9

Duration

Providers of port services shall be selected for a limited period
of time to be determined in accordance with the following
criteria:

1. In cases where the service provider will make no or insig-
nificant investments in order to carry out the provision of
services, the maximum duration of its authorisation shall be
5 years.

2. In cases where the service provider will make significant

investments in:

(a) moveable assets, the maximum period shall be 10 years;

(b) immovable assets,

irrespective of whether

the maximum period shall be 25
their ownership will

years,
revert to the port.

Article 10

Accounting provisions

The competent authority shall oblige the selected service
providers to keep separate accounts for each port service in
question. The compilation of the accounts must accord with
current
recognised
commercial
accounting principles.

generally

practice

and

Article 11

Self-handling

1. Member States shall take the necessary measures to allow
self-handling to be carried out
in accordance with this
Directive.

Self-handling may be subject

to an authorisation for
2.
which the criteria must not be stricter than those applying
to providers of the same or a comparable port service.

Article 12

Managing body of the port

the port provides port
1. Where the managing body of
it must fulfil the criteria set out in Article 6 and
services,
separate the accounts of each of
its port service activities
from the accounts of its other activities. The compilation of
the accounts must accord with current commercial practice
and generally recognised accounting principles to ensure that:

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(a) the internal accounts corresponding to different activities

Article 14

are separate;

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

(c)

the cost accounting principles according to which separate
accounts are maintained are clearly identified.

The auditor’s report on the annual accounts must indicate
2.
the existence of any financial flows between the port service
activity of
the port and its other
activities. The auditor’s report must be kept by the Member
States and made available to the Commission upon request.

the managing body of

3. Where as a result of a selection procedure under Article 8
no suitable service provider could be found for a specific port
service, the competent authority may, under the conditions of
paragraph 1 of this Article, reserve the provision of this service
to the managing body of the port for a maximum period of 5
years.

The managing body of the port shall not discriminate
4.
between service providers. It shall
in particular refrain from
any discrimination in favour of an undertaking or body in
which it holds an interest.

5.
The provisions of this Directive in no way affect the
rights and obligations of Member States in respect of the Trans-
parency Directive 2000/52/EC.

Article 13

Appeals

shall ensure that any party with a
1. Member States
legitimate
the
to appeal
decisions or individual measures taken, under this Directive,
by competent authorities or the managing body of the port.

interest has

against

right

the

the applicant(s)

this Directive is

2. Where an application for access to provide port services
under
shall be
rejected,
informed of the reasons for not having been authorised or
selected. Such reasons must be objective, non-discriminatory,
well-founded and duly substantiated. Appeal procedures must
be made available to the applicant. It must be possible to bring
the appeal before a national court or a public authority that is
independent in its organisation, funding,
legal structure and
decision-making of
the competent authority or managing
body of the port concerned and from any service provider.

Safety, security and environmental protection

The provisions of this Directive in no way affect the rights and
obligations of Member States in respect of law and order, safety
and security at ports as well as environmental protection.

Article 15

Social protection

this Directive, and
Without prejudice to the application of
subject to the other provisions of Community law, Member
States
to ensure the
application of their social legislation.

take the necessary measures

shall

Article 16

Transitional measures

1. Where the number of providers of port services in a port
limited by constraints relating to available space or
is not
existing authorisations may
capacity or maritime
remain in force unchanged until such time as the number
becomes limited. New authorisations must comply with the
provisions of this Directive.

safety,

2. Where the number of providers of port services in a port
is limited, the rules of points (a) to (e) apply.

(a) Where an existing authorisation was granted after a public
tender or an equivalent procedure and is otherwise in
conformity with the rules of this Directive, the author-
isation may remain in force unchanged.

(b) Where an existing authorisation was not granted in
conformity with the rules of this Directive and where the
service provider has made no or insignificant investments, a
new authorisation procedure in conformity with the rules
of this Directive must be carried out within 2 years of the
date of transposition of this Directive in the case of a sole
service provider and within 4 years in all other cases.

(c) Where in the context of an existing authorisation a service
investments in moveable

provider has made significant
assets, the following shall apply:

3. Member States shall
take the necessary measures to
ensure that decisions taken by appeal bodies are subject to
judicial review.

(i) where the authorisation was not granted in conformity
with the rules of this Directive but was preceded by a
public tender or an equivalent procedure, the maximum
duration of the existing authorisation shall be 10 years;

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(ii) where the authorisation was not granted in conformity
with the rules of this Directive and was not preceded by
a public tender or an equivalent procedure, a new auth-
orisation procedure in conformity with the rules of this
Directive must be carried out within 3 years of the date
of transposition of this Directive in the case of a sole
service provider and within 5 years in all other cases.

(d) Where in the context of an existing authorisation a service
provider has made significant investments in immovable
assets, the following shall apply:

(i) where the authorisation was not granted in conformity
with the rules of this Directive but was preceded by a
public tender or an equivalent procedure, the maximum
duration of the existing authorisation shall be 25 years;

(ii) where the authorisation was not granted in conformity
with the rules of this Directive and was not preceded by
a public tender or an equivalent procedure, a new auth-
orisation procedure in conformity with the rules of this
Directive must be carried out within 5 years of the date
of transposition of this Directive in the case of a sole
service provider and within 8 years in all other cases.

(e) Where in the context of an existing authorisation a service
provider has made significant investments in moveable and
immovable assets, point (d) shall apply.

Article 17

Information report and revision

Member States shall send the Commission a report on the
application of this Directive no later than 3 years after the
date of transposition.

On the basis of the Member States’ reports, the Commission
will make an assessment of the implementation by Member
States of the Directive accompanied, where appropriate, by a
proposal for its revision.

Article 18

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
from the date of
Directive not
its
entrance
forthwith inform the
Commission thereof.

than one year
shall

into force. They

later

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 19

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

Article 20

Addressees

This Directive is addressed to the Member States.

ANNEX

LIST OF PORTS SERVICES CONCERNED BY THIS DIRECTIVE

1. Technical-nautical services

(a) Pilotage,

(b) Towage,

(c) Mooring.

2. Cargo handling including

(a) stevedoring, stowage, transhipment and other intra-terminal transport,

(b) Storage, depot and warehousing, depending on cargo categories,

(c) Cargo consolidation.

3. Passenger services (including embarkation and disembarkation).