Common Position (EC) No 61/2002 of 5 November 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council concerning market access to port services
Date: 2002-11-05
Institutions: Council of the European Union
Subjects: harbour installation, market access, ports policy, provision of services, road transport, transport safety

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 61/2002

adopted by the Council on 5 November 2002

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council of
. . . concerning market access to port services

(2002/C 299 E/01)

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 proposals from the Commission (1),

Having regard to the Opinion of the Economic and Social
Committee (2),

Having regard to the Opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1) The objective of Article 49 of the Treaty is to eliminate
restrictions on freedom to provide
in the
Community. In accordance with Article 51 of the Treaty,
that objective is to be achieved within the framework of
the common transport policy whilst respecting, inter alia,
the Treaty's environmental protection rules.

services

(1) OJ C 154 E, 29.5.2001, p. 290 and OJ C 181 E, 30.7.2002, p. 160.
(2) OJ C 48, 21.2.2002, p. 122.
(3) OJ C 19, 22.1.2002, p. 3.
(4) Opinion of the European Parliament of 14 November 2001 (OJ C
140 E, 13.6.2002, p. 294), Council Common Position of
5 November 2002 and Decision of the European Parliament of
. . . (not yet published in the Official Journal).

(2) Through Council Regulation (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 (5)
and Council Regulation (EEC) No 3577/92 of 7 December
1992 applying the principle of freedom to provide services
to maritime transport within Member States (maritime
cabotage) (6), that objective has been attained with regard
to maritime transport services as such.

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

they make

transport

since

an

(4) In the Green Paper on Sea Ports and Maritime Infra-
structure of December 1997 the Commission indicated
its intention of proposing a legislative framework in
order to achieve access to the port services market in
Community ports with international traffic.

(5) As one of

access

the measures which will enhance overall
the Community,
competition in and between ports of
facilitating
at
to the port
Community level should remove existing restrictions that
hamper access for providers of port services and self-
handlers,
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.

improve the quality of

services market

(5) OJ L 378, 31.12.1986, p. 1. Regulation as amended by Regulation

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

(6) OJ L 364, 12.12.1992, p. 7.

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93/37/EEC (3)

93/36/EEC (2),

(6) Where the authorisation under this Directive takes the
form of a contract falling within the scope of Directives
92/50/EEC (1),
and
93/38/EEC (4), those Directives apply. Equally, where the
authorisation under this Directive takes the form of a
public service contract falling within the scope of Regu-
lation (EC) No 3577/92, that Regulation applies. Finally,
where applicable, Directives 89/48/EEC (5), 92/51/EEC (6)
and 99/42/EC (7) on the mutual recognition of professional
education and training apply.

(9) In accordance with the principle of subsidiarity as set out
in Article 5 of the Treaty, the objective of the proposed
action, which is access for any natural or legal person,
established in the Community, to the market for port
establishing
services,
common principles for all Member States. In accordance
with the principle of proportionality, as set out in that
Article,
is
necessary in order to achieve that objective.

this Directive does not go beyond what

could be better

achieved

by

(7) Contracts

services

for port

that have been awarded
following a tendering procedure on the basis of another
instrument of Community law should not be subject to a
selection procedure in accordance with this Directive.

(8) National legislation 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,
to establish a Community legal
framework which lays down basic rules on access to the
port services market, the rights and obligations of current
and prospective service providers and self-handlers, the
managing bodies of the ports, as well as on the procedures
for authorisation and selection.

therefore,

(1) Council Directive 92/50/EEC of 18 June 1992 relating to the coor-
dination of procedures for the award of public service contracts (OJ
L 209, 24.7.1992, p. 1). Directive as last amended by Commission
Directive 2001/78/EC (OJ L 285, 29.10.2001, p. 1).

(2) Council Directive 93/36/EEC of 14 June 1993 coordinating
procedures for the award of public supply contracts (OJ L 199,
9.8.1993, p. 1). Directive
amended by Commission
Directive 2001/78/EC.

last

as

(3) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ
L 199, 9.8.1993, p. 54). Directive as last amended by Commission
Directive 2001/78/EC.

(4) Council Directive 93/38/EEC of 14 June 1993 coordinating the
entities operating in the water,
(OJ L 199,
sectors
last amended by Commission

procurement procedures of
energy,
9.8.1993 p. 84). Directive as
Directive 2001/78/EC.

transport and telecommunications

(5) Council Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher education diplomas awarded
on completion of professional education and training of at least
three years' duration (OJ L 19, 24.1.1989, p. 16). Directive as
amended by Directive 2001/19/EC of
the European Parliament
and of the Council (OJ L 206, 31.7.2001, p. 1).

(6) Council Directive 92/51/EEC of 18 June 1992 on a second general
system for the recognition of professional education and training to
supplement Directive 89/48/EEC (OJ L 209, 24.7.1992, p. 25).
Directive
the
European Parliament and of the Council.

last amended by Directive 2001/19/EC of

as

(7) Directive 1999/42/EC of

the European Parliament and of

the
Council of 7 June 1999 establishing a mechanism for the recog-
nition 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 (OJ L 201, 31.7.1999, p. 77).

(10) Community legislation on access to port services should not
exclude the application of other Community rules, such as
competition rules, including those relating to services of
general economic interest,
to monopoly
situations.

in particular

(11) In order to achieve the aim of

this Directive without
imposing an additional burden on smaller ports, which
would appear disproportionate to the expected results, this
Directive should apply to ports with a total annual maritime
‘international
traffic volume corresponding to that of
in Decision
seaports
No 1692/96/EC (8), without prejudice, however,
to the
possibility of Member States deciding to apply this
Directive to other ports as well. In determining the total
annual traffic volume, Member States should have the possi-
bility of not taking into consideration the traffic in parts of a
port which are not open to general commercial traffic.

(category A)’

defined

as

(12) Member States should equally be able to exclude ports
with a high seasonal character from the scope of this
Directive, provided that
an
adequate level of market access exists for port service
operations.

satisfied that

they are

(13) A port system in the same geographical area as designated
by a Member State is faced with the same constraints as an
individual port and Member States should be able to treat
them in the same way as a single port for the purposes of
this Directive.

(14) Member States should be free to choose the management
model of two or more ports in the same geographical area
that could be included in a port system.

(15) Member States should designate a competent authority or
competent authorities for the purpose of implementing
this Directive. This or these authorities may be public or
private and may be responsible for one or more tasks
covered by this Directive and for one or more ports.

(8) Decision No 1692/96/EC of the European Parliament and of the
Council of 23 July 1996 on Community guidelines for the devel-
the trans-European transport networks (OJ L 228,
opment of
9.9.1996,
by Decision
p.
No 1346/2001/EC (OJ L 185, 6.7.2001, p. 1).

1). Decision

amended

as

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(16) In the interests of efficient and safe port management,
Member States should be able to require that providers
of port service operations and self-handlers obtain author-
isations. The criteria for granting such authorisations
transparent, non-discriminatory,
should be objective,
relevant and proportional, and should be made public.

(17) To ensure adequate

access

to relevant

qualifications

training for
applicant service providers where the required technical
include
professional
local
knowledge or experience of
local conditions, Member
States may oblige service providers with such knowledge
or experience to offer such relevant training, where appro-
priate for payment.

specific

(18) Providers of port services, and self-handlers, should have
the right to employ personnel of their own choice, whilst
complying with relevant rules concerning employment,
working conditions and other social matters, as well as
training and professional competence.

requirements
In such cases and in order

(19) Since ports are made up of limited geographical areas,
access to the market may, in certain cases, be subject to
traffic-related
constraints relating to space or capacity,
in accordance with
safety concerns or
environmental
to
rules.
ensure the ports' overall efficiency it could therefore be
necessary to limit the number of authorised providers of
port services whilst public service obligations of a service
provider or the managing body of the port as well as
environmental rules are respected. The criteria for any
limitation should be objective, transparent, non-discrimi-
natory, relevant and proportional.

(20) In cases where the competent authority,

in accordance
a port,
with the published development policy of
determines
to be
carried out in the port or part of the port, this should
not be considered as a limitation of the number of service
providers.

the range of commercial activities

(21) In the case of a limitation of

the number of service
providers, this number should be the highest appropriate
under the circumstances. The service providers should be
selected by the competent authority under a transparent,
selection procedure with
objective, open and fair
non-discriminatory rules.

to be open and transparent,
should be made public

the selection
(22) In order
sectors
procedure
be
concerned
communicated
decision
resulting from the selection procedure should also be
made public.

documentation
parties.

full
interested

to the

should

The

and

to

(23) It

is essential

to ensure that decisions and procedural
measures under this Directive are taken, and are seen to

be taken, on the basis of the principles of transparency
and non-discrimination. Therefore, where the competent
authority deciding on limitations concerning one or
more port services in a specific port is itself a provider
of the same or a similar service in that port, any decision
on limitations, or the approval or supervision of such
decision, should be entrusted to a different and inde-
pendent
competent
authority carrying out a selection procedure in a port is
itself a provider of the same or a similar service in that
port, the procedure, or the approval or supervision of such
procedure, should also be entrusted to a different and
independent competent authority.

authority. Where

competent

the

(24) The managing body of a port should not discriminate
between service providers. It is in particular necessary to
avoid any discrimination in favour of an undertaking or
body in which it holds an interest.

(25) In cases where no suitable service provider can be found
as a result of the selection procedure, the managing body
of the port should be given the possibility of reserving the
provision of this service for itself for a limited period,
provided that
fulfils the criteria established for the
granting of an authorisation and observes the criteria for
transparency as set out in this Directive.

it

(26) Member States should be able to allow an operator of part
of a port which is not open to general commercial traffic
to provide technical-nautical services to vessels operating
there according to procedures different from those set out
in this Directive on condition that the safety of maritime
traffic and of the port is guaranteed.

(27) Authorisations granted through a selection procedure
should be limited in time, yet they should be granted for
periods that allow for normal depreciation and return on
the investments made.
reasonable to take into
is
account, when determining the period of authorisation,
whether or not the provider has had to invest in assets
and, where this is the case, whether or not these assets are
movable.

It

(28) Investments

in movable assets which are considered
expensive by the competent authority, such as ship-
to-shore gantry cranes, bridge unloaders and specialised
footing with
tugboats,
investments in immovable assets.

should be put on an equal

(29) Member States should be allowed to extend an existing
authorisation and/or to launch a selection procedure in
advance if significant
investments have been made or
will be made, in order to encourage long-term investment
in stable conditions, thereby contributing to the devel-
opment of ports.

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(30) Wherever possible, self-handling should be allowed in
accordance with the conditions laid down in this Directive,
and any criteria set for self-handlers should be the same as
those set for providers of port services for the same or a
comparable kind of service.

sitional measures to be laid down. These measures should
distinguish between ports where the number of service
providers is limited and those ports where it
is not.
After
the period where such transitional
measures apply, all authorisations should be granted in
accordance with this Directive.

the end of

(31) Self-handling should not hamper the overall efficiency of
port operations or lower occupational health, social and
safety standards or training levels as compared with those
applicable to existing personnel, particularly during the
transitional periods for existing authorisations, if relevant.

(32) Member States may require self-handling to be subject to a
prior authorisation to be granted in accordance with
criteria relating,
to employment and social
matters.

inter alia,

(42) Where the number of providers of port services is not
limited, there is no reason to change the existing author-
isations.

(43) Existing authorisations and contracts should be put on an
equal footing with new authorisations and consequently be
submitted,
to the same
maximum periods reckoned from the date of entry into
force of this Directive.

in any case of

limitations,

(33) Specific rules should apply to the service of pilotage in
view of the special requirements for training and qualifi-
cations that characterise it and the need to preserve high
safety standards.

(44) Where the number of service providers is or becomes
limited, the duration of existing authorisations should be
in line with those applicable to new authorisations.

(34) In this context,

should be
permitted to recognise the compulsory nature of pilotage
and other technical-nautical services.

the competent authorities

(35) The hiring out of equipment does not constitute a port
the principles of

it should nevertheless respect

service;
transparency and non-discrimination.

(36) It is necessary to impose on the managing bodies of ports
covered by this Directive, which are also acting as service
providers, an obligation to keep accounts for activities
carried out in their capacity as managing body separate
from those carried out on a competitive basis.

(37) The requirement to keep separate accounts for each port
service should apply to all undertakings which have been
selected to provide such services.

(38) Procedures for appeals against decisions of the competent

authorities should be in place.

(39) This Directive should in no way affect

the rights and
obligations of Member States, or of competent authorities
appointed by them, in respect of law and order, safety and
security at ports, and environmental protection, or with
regard to the international status of ports, waterways and
maritime zones.

(40) The application of national social legislation should in no

way be affected by this Directive.

(45) It is important to ensure that development of new ports
and port facilities is encouraged by this Directive. Any
entity in
such investment made by a
accordance with national rules on acquisition of property
should be considered to have been generally available.

commercial

(46) This Directive should not require a Member State to take
any action which constitutes a deprivation of property or
interference with property contrary to the general prin-
ciples of Community law, unless such deprivation or inter-
ference is justified in accordance with such general prin-
ciples, and an authorised or selected service provider can
be required to pay compensation for that deprivation or
interference in accordance with those general principles.

the Treaty.

(47) This Directive does not affect the application of the rules
of
the Commission should
continue to ensure compliance with these rules by exer-
cising, when necessary, all the powers granted to it by
Article 86 of the Treaty.

In particular

(48) 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

(41) The current situation in the Community ports, with its
multitude of authorisation and selection methods and
periods and the need for legal certainty require clear tran-

1.
Freedom to provide port services in sea ports shall apply
to Community providers of port services under the provisions
set out in this Directive.

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Freedom to provide port services may be subject to a
2.
port's or port system's constraints relating to available space
or capacity, maritime-traffic-related safety or the development
policy of
in compliance, where applicable, with
requirements in respect of safety, environmental protection
and public service obligations. Services relating to waterway
access to and from the port or port system may equally be
subject to specific safety constraints.

the port

Providers of port services, and self-handlers, shall have
3.
non-discriminatory access
is
to port
generally accessible, to the extent necessary for them to carry
out their activities.

infrastructure

that

Article 2

Scope

1.
This Directive shall apply to those port service operations
set out in the Annex which are provided for users of the port,
either inside the port area or on waterway access to and from
the port or port system covered by this Directive.

2.
This Directive shall apply to any seaport or port system
located in the territory of a Member State and open to general
commercial maritime traffic, provided that the individual port's
average annual maritime traffic volume over the previous three
years is not less than 1,5 million tonnes of freight or 200 000
passengers.

For this purpose, and if applicable, Member States may decide
that traffic in parts of a port that are not open to general
commercial traffic will not be taken into consideration.

3. Where a port reaches the freight traffic threshold referred
to in paragraph 2 without
corresponding
passenger movement threshold, this Directive shall not apply
to port services reserved exclusively for passengers. Where the
passenger movement but not the freight traffic threshold is
reached,
services
reserved exclusively for freight.

shall not apply to port

this Directive

reaching the

4. Member States may also apply this Directive to other
ports.

5. Member States may exclude ports with a high seasonal
character from the scope of this Directive on condition that
they are satisfied that an adequate level of market access for
port services is ensured.

A list of these ports shall be reviewed regularly, for the first
time within five years of the entry into force of this Directive,
and thereafter every five years, and any modification shall be
notified to the Commission for information.

6.
in the
The Commission shall publish for information,
Official Journal of the European Communities and on the basis

of information provided by Member States, a list of the ports
and port systems referred to in this Article. The list shall be
published for the first time within three months following the
entry into force of this Directive, and thereafter annually.

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

8. Member States may exclude from the scope of
this
Directive services to which Article 296 of the Treaty applies,
or which are declared secret or the execution of which must be
accompanied by special security measures in accordance with
the laws, regulations or administrative provisions in force in
the Member State concerned or when the protection of the
basic interests of the State's security so requires.

Article 3

Other legislation

1.
This Directive shall be without prejudice to the obli-
gations for competent authorities, which flow from Directive
92/50/EEC, Directive 93/36/EEC, Directive 93/37/EEC and
Directive 93/38/EEC.

This Directive shall equally be without prejudice to public
service contracts concluded on the basis of Regulation (EEC)
No 3577/92.

2. Where one of the Directives referred to in paragraph 1
makes the tendering of a service contract mandatory, Articles
9, 16(1) and (2) and 17 of this Directive shall not apply to the
award of that contract. However, Member States may include
specific rules with regard to their ports in the tendering process
for such contracts.

This Directive

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

Article 4

Definitions

For the purposes of this Directive:

1.

‘seaport’ or ‘port’ means an area of land and water made
up of such works and equipment as to permit, principally,
the reception of ships, their loading and unloading, the
storage of goods, the receipt and delivery of these goods,
and the embarkation and disembarkation of passengers;

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2.

‘waterway access to a port’ means water access to the port
from the open sea, such as fairways, rivers, canals and
fjords.

Article 5

Competent authorities

3.

‘port system’ means two or more ports in the same
geographical area and managed by a single managing
body;

4.

5.

‘port with a high seasonal character’ means any port that
reaches 50 % of the average total annual maritime traffic
volume over
in any three
consecutive months;

the previous

three years

‘managing body of the port’ or ‘port authority’ (hereinafter
referred to as ‘managing body of the port’) means a body
which, whether or not in conjunction with other activities,
has as its objective under national law or regulations the
administration and management of
infra-
structures, and the coordination and, where appropriate,
the control of the activities of the operators present in the
port or port system concerned. It may consist of several
separate bodies or be responsible for more than one port;

the port

6.

‘port services’ means any services provided in a port and
listed in the Annex;

7.

‘provider of port services’ or ‘service provider’ means any
natural or legal person providing, or wishing to provide,
for remuneration, one or more categories of port services;

8.

‘public service requirement’ means a requirement adopted
by a competent authority in order to secure adequate
provision of certain categories of port services;

9.

‘self-handling’ means a situation in which an undertaking,
which normally could buy port services, provides for itself,
using its own regular
and/or
seafaring crew and its own equipment, one or more
categories of port services;

land-based personnel

10.

‘pilot exemption certificate’ means a document issued by
the competent authority by which an exemption from or
modification of compulsory pilotage is granted;

11.

‘authorisation’ means any permission, including a contract,
allowing a natural or legal person to provide one or more
categories of port services or to carry out self-handling.

Member States shall ensure that there is a competent authority
or authorities responsible for implementing Articles 6, 7, 8, 9,
10, 13, 14, 16 and 25.

Article 6

Authorisation

1. Member States shall ensure that the competent authority
may require that a provider of port service operations obtains
prior authorisation, possibly for a limited period, under the
conditions set out
this
Article. Authorisation shall be deemed granted to service
providers selected under Article 9.

in paragraphs 2, 3, 4 and 5 of

2.
The criteria for the granting of authorisations by the
competent authority must be transparent, non-discriminatory,
objective, relevant and proportional. The criteria may only
relate, where applicable, to:

(a) the professional qualifications of the provider and of his
situation and sufficient

sound financial

personnel, his
insurance cover,

(b) maritime safety or the safety of the port or access to it, its

installations, equipment and persons,

(c) employment and social matters,

(d) environmental requirements,

(e)

the development policy of the port.

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. Member States may adopt rules on access to the occu-
pation and on the certificates of competence to be acquired by
examination.

Additionally, where the required technical professional qualifi-
cations include specific local knowledge or experience of local
there exists
conditions, Member States
adequate access
service
providers under transparent and non-discriminatory conditions,
and where appropriate, for payment.

shall ensure that
training for applicant

to relevant

12.

‘limitation of the number of providers’ means a situation
in which the managing body of the port does not allow a
provider that fulfils the criteria for authorisation laid down
in accordance with Article 6 to provide one or more
categories of services.

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
shall apply equally where an authorisation links the provision
of service to an investment in immovable assets.

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The provider of port services carrying out the service
5.
covered by the authorisation shall have the right to employ
personnel of his own choice provided that he fulfils the criteria
laid down in accordance with paragraph 2 and with the legis-
lation of the Member State in which the service provider is
providing the services in question, provided that such legis-
lation is compatible with Community law.

The competent authority may vary or revoke an author-
6.
isation where the criteria referred to in paragraph 2 are not
complied with.

Article 7

Development policy of the port

The competent authority may,
if appropriate, determine the
range of commercial activities to be carried out in the port
or parts of the port, in particular the categories of cargo to be
handled, and the allocation of port space or capacity to such
activities, pursuant to the published development policy of the
port, without this constituting a limitation of the number of
providers.

Article 8

Limitations

1.
This Article, and Articles 9 and 12, shall apply only to a
port service or services where there is a limitation of the
number of providers of this or these services in the port or
port system.

2. Member States shall ensure that the competent authority
limits the number of providers of port services only for reasons
of constraints relating to available space or capacity, safety
considerations or requirements deriving from environmental
regulations.
the number of
providers, the competent authority must:

In the case of a limitation of

(a)

inform interested parties of the category or categories of
port services and, where appropriate, the specific part of
the port to which the restrictions apply as well as the
reasons for such restrictions;

(b) allow the highest number of service providers appropriate

under the circumstances.

Article 9

Selection procedure

1. Where the number of providers of port services has been
limited by the competent authority in accordance with Article
8, the latter shall take the necessary measures to ensure a
using
procedure,
transparent
proportionate, non-discriminatory and relevant criteria.

objective

selection

and

2.
general

The competent authority shall make public,
concerned
the

information of

sectors

for
the
in the

Community, an invitation to interested parties to participate in
the selection process.

This publication shall be made in the Official
Journal of the
for authorisations concerning Article
European Communities
12(2)(b) and for all other authorisations in any appropriate
manner which makes the necessary information available in a
timely way to any person interested in the process.

3.
The competent authority shall ensure that full documen-
tation is communicated to interested parties requesting it. The
documentation given to potential providers shall
include at
least the following elements:

(a) authorisation criteria adopted in accordance with Article
6(2) as well as selection criteria that define the authority's
minimum requirements;

(b) award criteria that define the grounds on which the
authority will make its choice from among the proposals
meeting the selection criteria;

(c) regulatory and organisational conditions for the provision
of the service, including the requirements that the author-
and
isation will
cover
intangible assets to be placed at
the
selected service provider together with the relevant terms
and applicable rules;

and identifying any tangible
the disposal of

(d) penalties and the terms governing cancellation in the event

of non-compliance; and

(e)

the authorisation period.

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

For each procedure, the competent authority shall make

5.
public the decision resulting from the selection procedure.

Article 10

Neutrality of selection procedure

Where the competent authority deciding on limitations in
relation to one or more port services in a specific port or
carrying out the selection procedure for that service in the
port in question is itself a provider of the same or a similar
service or services or has direct or indirect control over a
provider of the same or a similar service or services in that
port, Member States shall designate a different and independent
competent authority and entrust it with the decision on limi-
tations, or approval or supervision of such decision, or with
the selection procedure, or approval or supervision of such
procedure.

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Article 11

Specific situations

1. Where as a result of a selection procedure under Article 9
no suitable service provider could be found for a specific port
the
service,
conditions of Article 16(1),
this
service for itself for a period, which shall in any case be less
than five years.

the port may, under
reserve the provision of

the managing body of

2. Member States may allow the operator of part of a port
that is not open to general commercial traffic to arrange for
the provision of technical-nautical services to vessels operating
there in accordance with rules other than those of Articles 8
and 9, provided that the safety of maritime traffic and of the
port is guaranteed.

Article 12

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 no investments which are considered
significant by the competent authority in order to carry
out the provision of services are involved, the maximum
duration of its authorisation shall be ten years.

2. In cases where investments which are considered significant

by the competent authority involve:

(a) movable assets, the maximum period shall be 15 years;

(b) immovable

assets

assets which are
and movable
considered expensive by the competent authority, the
irrespective of
maximum period shall be 36 years,
whether or not
to the
revert
their ownership will
managing body of the port.

can demonstrate that these will lead to an improvement in
the overall efficiency of
it may
request
the competent authority to launch a selection
procedure in accordance with Article 9 for a new author-
isation before the end of the authorisation in question.

the service concerned,

Article 13

Self-handling

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

Member States shall ensure that
the competent authority
restricts self-handling only in cases where objective reasons
apply that are compatible with, and relevant to, the reasons
for limitations under Article 8.

This Directive shall in no way affect the application of
2.
national
rules concerning employment and social matters,
provided that they are compatible with Community law and
the international obligations of
the Community and the
Member State concerned.

3. When self-handling is subject to an authorisation, the
criteria for such authorisation must be the same as those
applying to providers of
the same or a comparable port
service, provided these are relevant.

4. Where self-handling is subject to the payment of a fee as
a contribution to public service obligations for
technical-
nautical services which cannot be met by self-handlers, the
fee shall be determined in accordance with relevant, objective,
transparent and non-discriminatory criteria.

Article 14

Pilotage

Member States may permit a possible extension of an
existing authorisation for a period of 10 years once
during the last 10 years of validity of the authorisation, if
significant investments in immovable assets and movable
assets which are considered expensive by the competent
authority have been made or irrevocably contracted for.

If the investments made by the service provider include
both movable and immovable assets, the maximum period
shall be the longer of the maximum periods considered.

3. Member States may establish a procedure according to
intends to
in cases where the service provider
which,
make or irrevocably contract
investments
for significant
before the end of the existing authorisation and where it

1. With regard specifically to the service of pilotage,
Member States may submit the granting of an authorisation
in accordance with Article 6 to particularly strict criteria
relating to maritime safety and public service requirements.

The competent authorities may also recognise the compulsory
nature of pilotage and prescribe such organisational rules for
the service as they deem appropriate for reasons of safety and
of public service requirements,
including, when the circum-
stances in a port or a group of ports and/or its access so
require, the possibility of reserving for themselves the service
in question or assigning it, directly if appropriate, to a single
provider. In particular they may require that such service be
provided by
and
equitable
competent persons meeting
non-discriminatory conditions laid down in national law.

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restricted by the

Self-handling may be

competent
2.
authority to delivering pilotage exemption certificates or
exempting certain categories of
from compulsory
pilotage. In this case, the conditions for obtaining a pilotage
exemption certificate or for being exempted from compulsory
pilotage
and
be
non-discriminatory.

transparent

objective,

relevant,

ships

shall

Article 17

Appeals

1. Member States
shall ensure that any party with a
the
legitimate
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

For pilotage the maximum duration under Article 12(1)

3.
shall be ten years.

Article 15

Accounting provisions

The selected service providers shall keep separate accounts for
each port service in question. The accounts must be compiled
in accordance with current commercial practice and generally
recognised accounting principles.

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,
structure and decision-
in its organisation,
making,
authority or
managing body of the port concerned and from any service
provider.

independent

competent

from the

funding,

legal

Article 16

Transparency

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

1. Where the managing body of the port provides port
services, it must fulfil the criteria set out in Article 6(2) and
keep the accounts of each of its port service activities separate
from the accounts of its other activities. The accounts must be
compiled in accordance with current commercial practice and
generally recognised accounting principles to ensure that:

(a) the internal accounts corresponding to different activities

are separate;

Article 18

Safety, security and environmental protection

This Directive shall in no way affect the rights and obligations
of Member States or of competent authorities appointed by
them in respect of law and order, safety and security at ports
or environmental protection.

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

Article 19

Social protection

(c) the cost accounting principles whereby separate accounts

are maintained are clearly identified.

2.
The auditor's report on the annual accounts must indicate
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

A separate auditing report may be considered sufficient
provided it includes the same information.

3.
This Directive shall in no way affect the rights and obli-
gations of Member States under Commission Directive
80/723/EEC of 25 June 1980 on the
transparency of
financial relations between Member States and public under-
takings (1).

legislation of Member States,

in no way affect the application of the
This Directive shall
social
including relevant rules
on employment of personnel by service providers taking over
an authorisation as a result of a selection procedure. Social
standards must not be below those laid down by applicable
Community legislation.

Article 20

International status

This Directive shall in no way affect the rights and obligations
of the Member States with regard to the international status of
ports, waterways and maritime zones.

Article 21

Transitional measures

(1) OJ L 195, 29.7.1980, p. 35. Directive as last amended by Directive

2000/52/EC (OJ L 193, 29.7.2000, p. 75).

This Article shall apply to any authorisation in existence

1.
on the date on which this Directive enters into force.

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2. Where the number of providers of port services in a port
is not limited pursuant to Article 8, existing authorisations may
remain in force unchanged until such time as the number
becomes limited.

limited,

3. Where the number of providers of port services in a port
is
existing authorisations may remain in force
unchanged until they expire, but within the periods provided
for in Articles 12 and 14(3) reckoned from the date of trans-
position of this Directive.

Where the number of providers of port services in a port
becomes limited after the date of entry into force of
this
Directive,
remain in force
authorisations may
unchanged until they expire, but within the periods provided
for in Articles 12 and 14(3) reckoned from the date of
appearance of such limitation.

existing

Where the authorisation derives from the ownership of a port,
the maximum duration shall be 36 years.

Following the expiry of the transitional periods, all auth-

4.
orisations must comply with this Directive.

Article 22

New port or new part of a port

1. Member States may provide that authorisations are to be
granted without any further requirements to an investor or
investors which have commercially financed and jointly built
a new port, or a new part of a port,
including basic infra-
structure, and which wish to provide port services, provided
that the investment opportunity had been generally available.

2. Where the decision for the construction of a new port or
a new part of a port depends on the parallel decision of a
future service provider to contract irrevocably for significant
investments in that new port or new part of a port, Member
States may provide that authorisations are to be granted
future service
without any further
requirements
provider.
the number of
future service providers, Member States shall use an open,
non-discriminatory and transparent procedure.

to that
In the event of a limitation of

3.
The authorisations referred to in paragraphs 1 and 2 shall
be granted for a limited period of time under Article 12 or for
a maximum period of 40 years.

Article 24

Information report and revision

Member States shall send the Commission a report on the
application of this Directive not later than . . . (*).

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

Article 25

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than . . . (**). They shall forthwith inform
the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. The
methods of making such a reference shall be laid down by
the Member States.

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 26

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 27

Addressees

This Directive is addressed to the Member States.

Article 23

Compensation

Done at . . .

Authorised service providers may be required to pay compen-
sation in accordance with national rules to previous service
providers or to any other party concerned.

For the European Parliament

The President

For the Council

The President

(*) Five years from the date of entry into force of this Directive.
(**) Two years from the date of entry into force of this Directive.

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LIST OF PORT SERVICE OPERATIONS CONCERNED BY THIS DIRECTIVE

ANNEX

1. Technical-nautical services

(a) Pilotage, within the limits of Article 14;

(b) Towage;

(c) Mooring.

2. Cargo handling operations including loading and unloading, stevedoring, stowage, transhipment and other intra-

terminal transport;

3. Passenger services (including embarkation and disembarkation)

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STATEMENT OF THE COUNCIL'S REASONS

I.

INTRODUCTION

In the framework of the codecision procedure (art. 251/TEC), the Council reached, on 17 June 2002, a
political agreement on the draft directive on market access to port services (1). Following legal/linguistic
revision, the Council adopted its common position on 5 November 2002.

In taking its position, the Council took account of the opinion of the European Parliament in its first
reading on 14 November 2001 (2), as well as of the opinions of the Economic and Social Committee (3)
and of the Committee of Regions (4).

The principal objective of the directive is to establish a common legal framework to ensure free access
to the port services market on transparent and even conditions in ports with general commercial traffic
in the Member States, with a view to improving the quality and reducing the costs of these services and
hence to encourage shipping and multi-modal transport. The proposal aims at balancing the implemen-
tation of the general principles of the Treaty with the complex reality of the port sector, allowing for a
limitation of the number of providers of port services taking into account each port's specific charac-
teristics and setting up the rules guaranteeing that the procedures for selecting the providers are clear
and transparent.

II. ANALYSIS OF THE COMMON POSITION

Pursuant to Article 49, first paragraph, of the Treaty, the Council supports the objective of establishing
systematic rules to ensure free access to the port services market on even and transparent conditions.
However, at the same time it deems important to take the complexity and diversity of the port sector
into account.

As a rule, the freedom to provide port services should prevail and restrictions that hamper access to
this market should be removed. In the view of the Council, no specific service should be excluded from
the scope of the directive.

However, a common legislative framework should also be compatible with the differing situations of
ports in the Community, with respect to, inter alia, their location, size and public service obligations.

Equally, it is important, in the opinion of the Council, that the freedom to provide services does not
jeopardise maritime safety and the protection of the environment, nor reduce social standards and
conditions of employment.

The access to provide port services may therefore be subject to constraints related to the capacity of a
port or its available space, the safety of maritime traffic and requirements relating to safety, environ-
mental protection and/or public service obligations. Where such constraints exist, providers of port
services should be selected through a transparent and non-discriminatory procedure.

The Council believes that the application of common rules regulating the freedom to provide port
services should be proportionate and not impose undue administrative burdens on the sector.
It
therefore agrees that the obligatory application of the directive should be limited to ports of a
certain size, whilst allowing Member States to apply the directive to other ports as well.

(1) The Commission presented its modified proposal on 19 February 2002 (OJ C 181 E, 30.7.2002, p. 160).
(2) OJ C 140, 13.6.2002, p. 166.
(3) OJ C 48, 21.2.2002, p. 122.
(4) OJ C 19, 22.1.2002, p. 3.

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In order to clarify the scope of the Directive and with a view to the coherence of Community legis-
lation in the field of transport, the scope has been defined with reference to the ports categorised as
‘international seaports (category A)’ in the Community guidelines for the trans-European networks. It is
also made clear that the traffic taking place in parts of a port which are not open to general
commercial traffic should not have to be taken into consideration. However, Member States are free
to apply the directive to ports below this category. Finally, in order not to put disproportionate burdens
on some ports, Member States are given the possibility to exclude ports with significant seasonal traffic
from the scope of the directive.

Pursuant to the general objective of the directive, the Council shares the view that self-handling should
be allowed, whenever possible, on the same conditions as port services in general and should not be
subject to other limitations than those prevailing for the same or comparable port services. However, as
stressed in the common position, self-handling should not hamper the overall efficiency of the port or
lead to lower occupational, social and health standards.

The Council finds it important that Member States are allowed to submit the granting of an author-
isation to provide port services, including self-handling, to a number of criteria concerning the service
provider's professional qualifications and economic situation, safety, environmental and social and
employment considerations and public service requirements. Equally, Member States should be able
to regulate access to the occupation, for instance by means of certificates to be acquired by exam-
ination. In this respect, it should be noted that the common position enables Member States to establish
particularly strict criteria as regards the granting of an authorisation to provide pilotage services.

With respect to employment, working conditions and social protection, the Council's common position
stresses that the freedom to provide port services must in no way affect the application of national
legislation or lead to lower social standards.

In a similar way, the Council is of the view that the freedom to provide port services should not
hamper the possibilities of a port to develop and carry out a long-term development policy. Deter-
mination of the range of commercial activities that stems from the development policy of a port should
therefore not be regarded as a limitation originating from constraints relating to the port's available
space or capacity or safety or environmental requirements. In this case, it will not be necessary to
launch a selection procedure.

The Council shares the view that the procedure for the selection of service providers should be
non-discriminatory and as transparent as possible.
In this regard, requirements for the selection
procedure have been set up which offer sufficient guarantees to potential service providers and, at
the same time, are clear and practicable.

The Council believes that service providers should be able to operate under full legal certainty, thus
contributing to the objective of developing the port sector through the promotion of long-term
investment
the authorisations for the provision of port
services following the selection of service providers have therefore been fixed in order to allow for
a normal depreciation and return of the investments made. In accordance with this, the duration of an
authorisation varies in function of the importance of the investments made.

in stable conditions. The durations of

The Council also considers that service providers should be given the possibility to be granted an
extension of their authorisation if they have made significant investments, or to obtain a new auth-
orisation through the launch of a new selection procedure if they intend to make such investments.

The development of new ports should equally be considered through adequate provisions based on the
above mentioned principles.

In a similar way, the Council wishes to establish transitional measures for existing authorisations which
ensure maximum legal certainty and do not disturb investment policies in the sector.

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III. AMENDMENTS

The Council's common position incorporates the main features of amendments proposed by the
European Parliament in its first reading of the proposal.

— Following the thrust of Parliament's opinion, the Council has modified various provisions in order
to simplify and clarify the text of the directive, in particular Article 6 (Authorisation), Article 9
(Selection Procedure), Article 12 (Duration) and Article 21 (Transitional Measures.)

— The Council shares Parliament's concerns in relation to maritime safety and the protection of the
environment. Considerations in this respect are therefore been referred to and highlighted in various
provisions, for instance those concerning the objective of the directive (Article 1), the criteria for
the granting of authorisations (Article 6), limitations (Article 8) and pilotage (Article 14). Similarly,
Parliament's concerns relating to employment and social legislation are reflected in the amendments
to the provisions on authorisations (Article 6), self-handling (Article 13) and social protection
(Article 19).

— The scope of the Directive has been expanded to include waterway access to ports. In line with
Parliament's opinion, the common position stresses the importance of safety considerations with
respect to the inclusion of waterway access. (Article 1 and 2).

— The definition of a port system has been modified in accordance with Parliament's amendment

(Article 4).

— The Council agrees with Parliament that in ports where there exist constraints relating to available
space or capacity it is not necessary to establish an obligation to authorise at least two service
providers for each category of cargo. The obligation for the competent authority to allow the
highest number of service providers appropriate under the circumstances should be sufficient in
this respect (Article 8).

— The Council shares Parliament's view that the duration of an authorisation granted to a service
provider in accordance with the selection procedure should allow for a commercially viable period
of operation. Therefore, it wishes to prolong the duration of the authorisation period to 10 years in
cases where no significant
in cases where significant
investments are involved. Similarly,
investments in moveable assets are involved, the authorisations can run up to 15 years, and for
the significant investments in immovable assets (and expensive investments in movable assets) the
maximum duration of the authorisation has been set at 36 years (Article 12).

— The Council agrees with Parliament that there should be a possibility to require selected service

providers to pay compensation to previous service providers (Article 23).

— The Council shares Parliament's opinion that pilotage services are essential for maritime safety.
However, it does not consider appropriate to exclude pilotage from the scope of the Directive. In
order to take account of specific features of pilotage, in particular the requirements for training and
qualifications, the Council has introduced special rules for this service, making it possible to submit
the granting of an authorisation to particularly strict criteria concerning maritime safety and public
service requirements. Furthermore, in line with Parliament's amendment, the Council acknowledges
that competent authorities should be able to recognise the compulsory nature of pilotage and
organise this service as they deem appropriate for reasons of safety and public service requirements.
It has also introduced a possibility to restrict self-handling in this service to the delivery of pilot
exemption certificates or to the exemption of certain categories of ships from obligatory pilotage
(Recitals 33 and 34 and Article 14).

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— The Council agrees that enhanced competition between providers of port services is not the sole
element that will increase the competitiveness and efficiency of ports, thereby contributing to the
promotion of short sea shipping and intermodality. It believes that the creation of conditions for
fair and equal competition between European ports through the transparency of financial relations
and of public funding are also central elements in this respect. Notwithstanding, in order not to
unreasonably expand the scope of this directive, it was considered more appropriate to address
these issues in a different context. To this end, the Council has adopted a declaration asking the
Commission to present, in the nearest future, relevant proposals for legislative and other measures
on, inter alia, competition between ports, public financing of port infrastructure, State aids and
transparency of public funding.

The common position also includes some modifications to the Commission proposal in line with the
principles outlined above (II. Analysis of the Common Position), concerning, among other issues, the
scope of the Directive, the duration for authorisations or the transitional measures.