Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council on Market Access to Port Services amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2003-04-15
Institutions: European Commission
Subjects: common ports policy, drafting of EU law, harbour installation, market access, provision of services, services contract

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 15.4.2003
COM(2003) 208 final

2001/0047 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on Market Access to Port Services

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

2001/0047 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on Market Access to Port Services

1.

INTRODUCTION

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second
reading.  The  Commission  sets  out  its  opinion  below  on  the  amendments  proposed  by
Parliament.

2.

a)

b)

c)

d)

e)

f)

g)

BACKGROUND

On 13 February 2001, the Commission transmitted to the Council and the European
Parliament its proposal for a Directive (COM(2001) 35 final - 2001/047(COD)).

The European Economic and Social Committee delivered an opinion supporting the
Commission’s proposal on 29 November 2001.

The  Committee  of  the  Regions  delivered  an  opinion  supporting  the  Commission’s
proposal on 20 September 2001.

On  14  November  2001,  the  European  Parliament,  at  its  first  reading,  delivered  its
opinion, containing 43 amendments to the Commission proposal.

On  19  February  2002  (COM(2002) 101 final),  the  Commission  adopted,  in
accordance  with  Article  250(2)  of  the  Treaty,  an  amended  proposal  incorporating,
wholly or in part 25 and rejecting 18 of the amendments adopted by Parliament.

The Council adopted its common position on 5 November 2002.

On  11  March  2003,  the  European  Parliament  adopted,  at  the  second  reading,  a
resolution containing 39 amendments to the common position.

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3.

PURPOSE OF THE PROPOSAL

The  Commission’s  proposal  for  a  European  Parliament  and  Council  Directive  on  market
access  to  port  services  concerns  market-opening  measures  for  port  services.  Its  aim  is  to
ensure equitable competitive conditions for all service providers, as well as to establish clear
rules, and to set up an open and transparent procedure, for access to these services.

The  port  services  concerned  are  cargo  handling  in  all  its  variations,  passenger  services  and
technical-nautical services such as towing, mooring and pilotage. They can either be provided
inside the port area or on waterway access to and from the port.

4.

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN
PARLIAMENT

The European Parliament adopted at second reading 39 amendments to the Common Position
of the Council.

The  Commission  can  accept  10  amendments  in  full,  3  in  part  and  4  in  principle,  subject  to
redrafting.

It has nonetheless to reject 22 amendments in full and 3 in part.

4.1.

Amendments accepted by the Commission (10 amendments in full – 3 in part).

The  Commission  believes  that  amendments  1,  2,  5,  7,  9,  11,  14,  27,  31,  32,  28.1st  part,
33.1st part and  51.2nd  part,  constitute  welcome  and  important  changes  of  substance,  genuine
improvements and useful clarifications in the text.

4.1.1. Changes of substance (2 amendments – 1 in part).

Amendment 2 (inserting  new  text  in  recital  5)  and  amendment  14  (creating  a  new  Art.  4a),
apply  the  provisions  of  the  Commission’s  Transparency  Directive  to  the  ports  to  which  the
Ports’ Directive applies and ensure their effective application.

It  is  recalled  that  the  Commission  had  always  agreed  with  the  principle  contained  in  these
amendments, which provide a satisfactory approach.

Amendment  33,  1st  part,  (on  Art  22.3)  establishes  uniform  durations  for  the  authorisations
granted in the case of new ports and for other ports.

It is recalled that in the Common Position the durations for the authorisations vary.

The Commission agrees with the Parliament that there is indeed no objective reason to allow
different authorisations for new ports and for existing ones.

4.1.2. Genuine improvements (3 amendments).

Amendment 11 (on Art. 2.5) aims to align the periodicity of the revision and notification of
the list of the seasonal ports, which are excluded by the Directive, with the periodicity of the
publication of other relevant lists of ports.

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Amendment 5 (on recital 28) and amendment 27 (on Art. 12.2(b)) aim to specify the nature of
certain movable assets and specifically enumerate them. Investment in those assets, due to their
high  cost,  should  be  considered  the  same  as  investment  in  immovable  assets,  as  far  as  the
duration of authorisations is concerned.

4.1.3. Useful clarifications (4 amendments in full – 2 in part).

Amendment 1 (on recital 1) adds new text, which clarifies that, inter alia social protection rules
the  Directive’s
should  be  cited  among  the  issues  which  should  be  respected 
implementation.

in 

Amendment 7 and amendment 51 – 2nd part (on recital 32) adds new text, which clarifies that
professional qualifications and environmental matters might be among the criteria to authorise
self-handling.  It  is  recalled  that  these  issues  already  are  possible  criteria  for  authorising
service  providers  and  that  the  Common  Position  stipulates  that  criteria  for  self-handlers
should be the same as criteria for service providers.

Amendment 9 (on Article 1.2) makes environmental protection and public service obligations
in a port an integral part of the conditions under which port services may be provided, while
respecting the Common Position’s flexibility on the issue.

Amendment 28 – 1st part (on Article 13.2) adds new text, which clarifies that national rules on
training  requirements  and  occupational  qualifications  should  not  be  affected  by  the
Directive’s application.

Amendment 31 (on Article 21.2) and amendment 32 on (Article 21.3) clarify that the rules on
transitional periods apply to private ports as well. It is recalled that the Common Position already
did not differentiate on the basis of port ownership, in view of Article 295 of the Treaty.

4.2.

Amendments accepted in principle, subject to redrafting (4 amendments).

Amendment 12 (on Article 2.8) deletes the clause of the Common Position, which allows the
exemption of certain services to which art. 296 of the Treaty applies.

Since  such  services  are  already  excluded  from  the  scope  of  the  Directive  by  virtue  of
Article 2.2, the clause in question appears indeed to be superfluous, unless the full intentions
pursued  by  Council  are  not  adequately  reflected  in  the  text.  In  this  latter  case  a  re-drafting
may prove appropriate.

Amendment 17 (on Article 6.2.d) clarifies that when environmental requirements are criteria for
the granting of authorisations, this means all levels, namely local, national and international. In
order  to  maintain  presentational  conformity  the  following  redrafting  is  suggested:  “local,
national and international environmental requirements”.

Amendment 26 (on Art. 11) and amendment 4 (on recital 26) delete the clause of the Common
Position which foresees that if  a port  is  not  open  to  general  commercial  traffic,  its  operator
can  be  allowed  to  provide  technical  and  nautical  services  therein  outside  the  rules  of  the
Directive.

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Whereas deletion of this clause would appear at first glance to be justified because such ports
do in any case not fall within the scope of the Directive (see Article 2.2), the full intentions
pursued by Council may not be adequately reflected in the text. In this latter case a re-drafting
may prove appropriate.

4.3.

Amendments rejected by the Commission (22 amendments in full – 3 in part).

The Commission believes that amendments 6, 8, 10, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25,
29, 30, 34, 49, 53, 56, 57, 62, 28.2nd part, 33.2nd part and 51.1st part are contrary to the basic
principles and philosophy of its proposal.

4.3.1.

Limitations of self-handling rules to land based personnel (1 amendment).

Amendment  13  (on  Article  4.9)  limits  the  application  of  this  Directive  to  self-handling  by
seafaring personnel. Whereas such a limitation would, of course, not prevent the Treaty rules
to  continue  to  apply  to  self-handling  by  land  based  personnel,  the  limitation  would  prevent
self-handling  by  land-based  personnel  to  be  governed  by  specific  and  clear  rules.  It  would
furthermore  not  contribute  towards  allowing  commercial  operators  to  make  better  use  of
existing  resources  although  they  would  have  to  respect  existing  rules  in  a  number  of  areas,
including the social area.

4.3.2.

Restrictions on self-handling (4 amendments – 1 in part).

Amendment  6  (on  recital  30),  amendment  51  -  1st  part  (on  recital  32),  amendment  56  (on
Article 13.2a) and amendment 57 (on Article 13.3) turn the objective of the Directive, namely
to allow self-handling whenever possible, into the exact opposite, namely to attach as many
obstacles to it as possible.

Amendment 29 (on Art. 13.2a), limits the benefit of self-handling to EU vessels, restricts the
scope  of  self-handling.  Additionally  its  compatibility  with  international  obligations  of  the
Member States and the Community, need further evaluation.

4.3.3.

Pilotage (3 amendments).

Amendment 8 (on recital 33), amendment 30 (on Article 14) and amendment 34 (on the Annex)
take  pilotage  outside  the  scope  of  the  Directive.  The  Commission  believes  that  as  such
pilotage is a commercial service, thereby access to its provision should follow the rules of this
Directive. This is why it supported the consensus found in the Common Position, namely to
submit authorisations to particularly strict criteria related with public service obligations and
maritime safety. This solution allows for port-specific solutions to be adopted.

Moreover, self-handling for pilotage, through the granting of Pilotage Exemption Certificates
(PECs),  should  be  allowed,  under  certain  conditions.  The  amendments  do  not  foresee  this
option anymore, which is unacceptable.

4.3.4.

Restrictions and limitations on port service providers (11 amendments in full – 2 in
part).

Amendment  19  (on  Article  6.2.2),  amendment  20  (on  Article  6.3),  amendment  22  (on
Article 6.6) and amendment 28 – 2nd part (on Article 13.2) attempt to change the objective of
the Directive from creating market access rules to creating social legislation. The Directive is
based  on  a  full  application  of  existing  social  rules.  The  new  rules  would  lead  to  possible

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restrictions  and  limitations  on  the  Treaty’s  freedom  to  provide  services  and  the  freedom  of
establishment, which are unwanted.

Amendment  21  (on  Article  6.5)  seriously  restricts  the  right  of  the  service  provider  to  use
personnel of his own choice.

Amendment  49  (on  recital  16),  amendment  18  (on  Article  6.2.e),  amendment  23  (on
Article 7),  amendment  24  (on  Article  9a),  amendment  25  (on  Article  11),  amendment  33 -
2nd part (on Article 22.3) and amendments 53 and 62 (on Article 6.1) attempt in various ways
to narrow and restrict the scope of the freedom to provide services and restrict access to their
provision.

4.3.5.

Issues dealing with competition between ports (3 amendments).

Amendment 10 (on a new Article 1.3) indicates that the aim of the Directive also is to create
fair  and  transparent  competition  between  Community  ports.  The  Commission  does  not
disagree  with  this  principle,  but  the  amendment  promises  more  than  the  Directive  with  its
current legal base can hold.

Amendment 15 (on a new Article 4b) addresses the issue of the transparency of State Aid in
the context of competition between ports. The Commission appreciates this concern. Its recent
“Vademecum  on  Community  rules  on  State  aid  and  the  financing  of  the  construction  of
seaport  infrastructures”  proves  its  willingness  to  tackle  it.  It  is  ready  to  further  pursue  its
action in this direction.

However,  this  must  be  done  within  the  framework  of  the  rules  of  the  Treaty  and  the
Commission’s right of initiative must not be affected. Amendment 15 would affect this right.

Amendment 16 (on a new Article 4c) requires the Commission to have a study carried out on
direct and indirect public financing, State support and cost accounting in Community seaports
and port systems. The Commission wishes to recall that such a study has already been carried
out for the 2001 “Ports  Package”. Co-operation by ports was limited.  There  is  no  reason  to
believe that in the future this will change.

5.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out
above.

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