WRITTEN QUESTION E-1196/01 by Paulo Casaca (PSE) to the Commission. Compliance with the Treaty competition rules on maritime and port operations in the Autonomous Region of Madeira.
Date: 2001-04-19
Institutions: European Parliament, Provisional data
Subjects: Madeira, charges for use of infrastructure, competence of the Member States, dominant position, national law, port administration, restriction on competition

C 318 E/222

Official Journal of the European Communities

EN

13.11.2001

(2001/C 318 E/243)

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)

(cid:145)DiÆrio da Repœblica(cid:146), I, SØrie 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 (cid:145)structural(cid:146) 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 particular, equal treatment, non
in conformity with applicable rules and principles of the Treaty,
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 (cid:145)behavioural(cid:146) 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
treatment of ports on mainland Portugal and ports on islands stems, as the
the criteria of equal
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.

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Official Journal of the European Communities

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Finally, the Commission wishes to inform the Honourable Member that it recently adopted a proposal for
a Parliament and Council Directive on (cid:145)market access to port services(cid:146) (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.

(2001/C 318 E/244)

WRITTEN QUESTION P-1198/01

by Theodorus Bouwman (Verts/ALE) to the Commission

Subject: Commissioner de Palacio and flax fraud in Spain

(4 April 2001)

According to OLAF(cid:146)s as yet unpublished report on the flax fraud in Spain, Portugal and Belgium, there is
clear evidence of large-scale and widespread fraud in claiming European subsidies for flax cultivation and
processing. This has apparently been going on for years and has been known since the fires at certain flax
warehouses in the summer of 1999 (1).

As the report has not yet been published, I should like, without going into the details, to draw attention
nonetheless to what the former Spanish Minister of Agriculture, Mrs de Palacio, said in reply to questions
by various Members of the European Parliament, including the undersigned, at the hearings in September
1999:

I would like to clarify one thing: growing flax in Spain is not an abuse. Growing flax in Spain is legal
and is carried out by thousands of Spanish farmers in accordance with Community regulations.
Having said this, I was not aware of particular cases of fraud in the flax sector.

Ladies and gentlemen, all of us (cid:129) and myself in particular (cid:129) have a clear obligation to Mr Prodi:
if a situation emerges similar to the one experienced by the outgoing Commission, we will resign. If
I found myself in a similar situation, of course I would resign. I say it clearly: of course I would
resign (2).

Does the President of the Commission agree that the large-scale fraud referred to in OLAF(cid:146)s report had
already come to light before September 1999?

In view of the extent of the fraud and the time when it was known to have occurred, will the President
investigate whether the (cid:145)clear obligation to Mr Prodi(cid:146) which Mrs de Palacio accepted on taking office is still
being honoured?

If not, what will the President of the Commission do?

(1) See Financieel Dagblad, 23 January 2001.
(2) Hearings of the Commissioners-designate, verbatim record

(http://www.europarl.ep.ec/hearings/com/pdf/palacio_en.pdf).

Answer given by Mr Prodi on behalf of the Commission

(25 April 2001)

The Commission would point out that the two quotations taken from Ms de Palacio(cid:146)s hearing before
Parliament on 30 August 1999, to which the Honourable Member refers, have not been given in full.