Proposal for a Directive of the European Parliament and of the Council on market access to port services
Date: 2004-10-13
Institutions: European Commission
Subjects: approximation of laws, common ports policy, competition policy, freedom to provide services, harbour installation, liberalisation of the market, market access, port administration

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.10.2004 
COM(2004) 654 final 

2004/0240 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on market access to port services 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

In the interests of the consumers and of business alike, liberalisation in all transport sectors is 
explicitly included in the Lisbon Agenda. In fact, in the conclusions of the European Council 
of Lisbon of 28 March 2000, transport is among the areas where the Commission, the Council 
and  the  Member  States,  each  in  accordance  with  their  respective  powers,  were  asked  to 
“speed up liberalisation”. 

Consequently,  on  13 February 2001  the  Commission  adopted  a  Communication  to  the 
European Parliament and to the Council “Reinforcing Quality Service in Sea Ports: A Key for 
European Transport” (the so called Ports’ Package). The cornerstone of this Communication 
was  a  proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  “Market 
Access to Port Services”. 

This was an ambitious initiative, the principles and basic aims of which were also confirmed 
by the Commission’s White Paper, later that year. 

The  proposal  has  led  to  an  extensive  debate,  both  within  the  inter-institutional  legislative 
process1, but also with and between stakeholders. 

However,  on  20  November  2003,  after  almost  three  years  of  inter-institutional  legislative 
process, at the end of the Conciliation procedure, the European Parliament in Plenary Session 
rejected the compromise text by 229 votes against, 209 in favour and 16 abstentions. 

2. 

THE NEED TO ESTABLISH A COMMUNITY LEGAL FRAMEWORK. 

The Commission believes that the need to establish a Community legal framework for access 
to  the  provision  of  port  services  remains  necessary  and  has  been  made  even  more  acute  by 
events which occurred in the last three years. 

1. 

Keep the EU transport sector functioning 

The Commission wishes to underline the fact that during the inter-Institutional discussions on 
its  previous  legislative  initiative,  its  proposal’s  doctrine,  philosophy  and  general  principles 
remained intact. This is proof of the fact that most of the arguments and considerations that 
have  been  developed  in  the  2001  Commission  proposal  to  show  the  need  to  establish  a 
Community legal framework for access to the provision of port services are today still valid: 

Firstly,  the  European  Council,  recognizing  the  need  to  fulfil  the  Lisbon  Agenda,  has  twice 
(Barcelona 2002 and Brussels 2003) explicitly and repeatedly called upon all Institutions to 
work towards adoption of the Port Services Directive. 

1 

During  its  Plenary  Session  on  14  November  2001  the  European  Parliament  approved,  subject  to  a 
number of amendments, the Commission’s proposal for a European Parliament and Council Directive 
on Market Access to Port Services. 

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Moreover,  transport  statistics,  projections  and  trends  repeatedly  confirm  the  Commission’s 
view (expressed in its 2001 White Paper on Transport) that the most efficient way to tackle 
the EU’s ever growing transport needs is to transfer more goods and passengers to maritime 
transport. Thus, congestion on the road network will be reduced and cohesion with peripheral 
regions increased.  

Short  Sea  Shipping  and  the  Motorways  of  the  Sea  have  the  capacity  to  absorb  most  of  the 
freight increase forecast for 2010 (50% more than 1998). This will bring much more business 
to ports, which need to improve their performance.  

2. 

Completing the Internal Market and creating a level playing field between ports 

Under the Treaty the Commission has the right and duty to examine all possibilities allowed 
to it by the Treaty, in order to advance with the issue of market opening in the provision of 
port  services.  This  is  particularly  true  now  that  the  EU  has  been  enlarged  to  25  Member 
States, 20 of which have ports! 

The  EU  Treaty’s  fundamental  freedoms  (freedom  of  establishment,  free  movement  of 
workers, goods and services) as well as its competition rules apply to this port services sector 
as  well.  Some  fifty  years  after  the  creation  of  the  Community,  there  still  is  no  specific 
Community regulatory framework for port services, which  almost  remain the only transport 
service sector where problems with the application of these rules, where they arise, have to be 
dealt with by the Commission on a case by case basis. 

This  is  a  market  area  which  is  characterised  by  the  complexity  and  variety  of  applicable 
national and other rules and by the heterogeneous nature of the port services and the diversity 
of  the  ports  (in  terms  of  status,  ownership,  type  of  management,  size,  function  and 
geographical characteristics). 

Consequently,  the  adoption  of  a  Community  framework  setting  down  the  basic  rules 
applicable  in  those  EU  ports  would  ensure  that  the  competition  within  and  between  ports 
would take place on a level playing field. 

A Community framework on port services should not apply to ports of all sizes. Only ports 
with  a  total  annual  maritime  traffic  volume  corresponding  to  that  of  "international  seaports 
(category  A)"  as  defined  in  Decision  No 1692/96/EC 2  the  Trans-European  Transport 
Network,  should  be  considered.  However,  Member  States  have  the  possibility  to  decide  to 
apply this Directive to other ports as well.  

Two main issues have to be addressed: 

– 

2 

On  intra-port  competition  (competition  between  providers  of  a  same  port  service 
within a port), the efficient provision of services in this market sector is consequently 
essential  for  the  functioning  of  the  EU’s  ports  and  hence  for  achieving  the  EU’s 
policy outlined above.  

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

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Port services are services of a commercial value which are provided against payment 
to  port  users  in  a  port  and  whose  payment  is  not  normally  included  in  the  charges 
collected  for  being  allowed  to  call  at  or  operate  in  a  port.  These  are  the 
technical-nautical  services  of  pilotage,  towage  and  mooring,  all  cargo  handling 
operations (including loading and unloading, stevedoring, stowage, transhipment and 
other  intra-terminal  transport)  and  passenger  services  (including  embarkation  and 
disembarkation). They can be provided either inside the port’s area or on waterway 
access to and from the port. 

Appropriate  account has to be  taken of each port’s specificity and its relevance for 
the  port  service  providers.  This  may,  in  particular,  be  the  case  where  space  and 
capacity  constraints  exist  in  a  port  or  where  specific  maritime  safety,  security  and 
environmental considerations exist. 

On  inter-port  competition  (between  ports),  the  Commission  shares  the  view  of  the 
two co-legislators (European Parliament and Council) that its financial transparency 
directive  should  apply  to  all  ports  covered  by  its  legislative  proposal  and  that  it  is 
necessary to adopt State Aid Guidelines (an exclusive Commission competence) on 
the financing of port infrastructure and will act accordingly on both fronts. 

In  full  respect  of  the  existing  social  and  labour  acquis,  while  increasing 
employment in the sector 

– 

3. 

During  the  previous  legislative  debate,  it  has  often  been  argued  that  market  opening  in  the 
port services’ sector would have negative consequences on employment and social issues of 
its workers, or would endanger the safety and security in ports. 

This is not true. The Commission has always stressed the neutrality of its proposal on EU and 
national rules concerning employment and social matters, including training requirements and 
professional  qualifications,  as  well  as  on  environmental,  safety  and  security  issues. 
Consequently  the  proposal  would  be  without  prejudice  on  the  application  of  relevant  rules 
provided  that  they  are  compatible  with  Community  law  and  the  international  obligations  of 
the Community and the Member State concerned. 

Moreover,  the  shift  of  additional,  new,  volumes  through  ports  will  undoubtedly  create  the 
need  for  new  operations  to  be  established  and  this  will  lead  to  the  enhancement  of 
employment in ports. 

Finally and in order to enhance the application of the proposed Community legal framework, 
the Commission wishes to invite Member States to ratify conventions adopted in international 
organisations, in particular the relevant ILO conventions3. 

3. 

THE COMMISSION’S PROPOSAL. 

The Commission consequently believes that it is still necessary, in the interests of operators, 
authorities and consumers, to introduce specific and clear rules on access to the port services 
market which will take account of its unique features. 

3 

ILO Convention C 137 of 1973 on Dock Work; ILO Convention C152 of 1979 on Occupational Safety 
and Health (Dock Work); ILO Convention C145 of 1976 on Continuity of Employment (Seafarers) 

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Therefore,  as  sole  holder  of  the  power  of  initiative,  the  Commission  brings  forward  a  new 
proposal for a Directive on market access to port services. 

The key philosophy, principles and objectives the Commission wished to attain with its 2001 
Communication remain the same. The Commission, however, recognizes the added value of 
constructive  changes  brought  forward  during  the  previous  legislative  process,  as  well  as 
suggestions by stakeholders and interested parties. 

As  a  result,  the  Commission’s  new  text  is  based  both  on  its  original  2001  proposal  and  the 
2002  amended  proposal,  as  well  as  numerous  constructive  amendments  brought  forward  by 
the  European  Parliament’s  two  Readings,  the  Council’s  Common  Position  and  Conciliation 
texts. 

For example, the following points remain the same as in the past: 

– 

– 

– 

– 

– 

– 

– 

The scope of the Directive, i.e. the thresholds for the ports covered and port services 
concerned. 

(a)  For ports, only ports in the TEN Transport category A list are considered (see 

above point II.2, Article 2). 

(b)  The services concerned are defined in Article 3. 

The  Directive  in  no  way  affects  the  rights  and  obligations  of  Member  States  in 
respect of the application of their social legislation, including relevant national rules 
on health, safety and employment of personnel (Article 4). 

The  Directive  in  no  way  affects  the  rights  and  obligations  of  Member  States  in 
respect  of  law  and  order,  safety  and  security  at  ports  as  well  as  environmental 
protection (Article 5). 

The  criteria  for  granting  authorisations  should  be  objective,  transparent,  non-
discriminatory, relevant and proportional, and should be made public (Article 7). 

The reasons for introducing a limitation in the number of service providers for one or 
more  port  services  must  be  objective.  The  highest  possible  number  of  service 
providers must be allowed (Article 9). 

The  neutrality  of  the  competent  authority  regarding  decisions  on  limitations  in  the 
number of service providers and on selection procedures must be assured (Articles 8 
and 9). 

For  pilotage  the  Commission  will  propose  the  text  which  was  approved  during  the 
conciliation procedure (Article 14). 

Pilotage  is  therefore  included  in  the  scope  of  the  Directive  and  recognized  as  a 
service  of  a  commercial  nature.  However,  particular  emphasis  is  put  on  the  key 
importance of service specificities it is subject to. 

These  specificities,  in  particular  public  service  obligations  and  maritime  safety 
considerations of pilotage, were acknowledged by European Parliament, Council and 
Commission  during  the  discussion  of  the  original  proposal.  This  is  the  reason  why 

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they considered that authorisations for pilotage can be submitted to particularly strict 
criteria  related  with  public  service  obligations  and  maritime  safety;  especially  this 
could concern explicit knowledge and capacity of navigability for the local areas of 
operation.  For  this  purpose,  competent  authorities  may,  on  a  case  by  case  basis, 
either  reserve  to  themselves,  or  directly  grant  an  exclusive  right  to  an  organisation 
for the provision of pilotage services in a port. Adoption of port-specific solutions is 
thus allowed. 

It should be noted that, self-handling for pilotage is included in the Directive in the 
form of Pilotage Exemption Certificates (PECs). 

– 

Transparent accounting for the managing body of the port is required. 

The main new elements included in the new Commission proposal are: 

– 

As a general rule, self-handling for cargo & passengers operations may be provided 
using the land-based personnel of the self-handler. 

Use of land-based personnel to carry out self-handling will increase employment in 
ports,  with  the  local  communities  the  first  beneficiaries.  Needless  to  say  that  this 
personnel  will  have  to  be  employed  in  full  respect  of  the  applicable  national  and 
Community  rules  dealing  with  employment  and  social  issues,  following  the  same 
general rules and conditions set for all other personnel involved in cargo handling. .  

In  addition  to  using  land-based  personnel,  ships  providing  an  authorised  regular 
shipping service in the context of Short Sea Shipping or operating on Motorways of 
the Sea may, in addition, carry out self-handling using the ship’s regular sea-faring 
crew. 

Authorised regular shipping services, Short Sea Shipping and Motorways of the Sea 
operations  are  EU  policies  whose  main  aim  is  to  reduce  land  (road)  transport.  The 
latter are defined in Decision no 884/2004/EC of the European Parliament and of the 
Council  of  29  April  200,  amending  Decision  No  1692/96/EC  on  Community 
guidelines  for  the  development  of  the  trans-European  transport  network.  The 
Directive  also  covers  maritime  links  between  ports  of  the  same  Member  State 
(cabotage). 

The  EU  is  supporting  increased  recourse  to  them  in  various  manners,  including 
financing  through  Community  funds.  It  would  thus  only  be  normal  to  further 
encourage them through Community legislation.  

It should be noted that an authorisation is needed for self-handling. The criteria for 
granting such authorisations must be the same as those applying to providers of the 
same  or  a  comparable  port  service,  provided  these  are  relevant.  Competent 
authorities  shall  grant  such  authorisations  to  self-handlers  in  an  efficient  and 
expedient  manner.  They  shall  remain  in  force  so  long  as  the  self-handler  complies 
with the criteria for granting them. 

– 

Authorisations for service providers become mandatory (Article 7). The Commission 
wishes  in  this  way  to  reconcile  the  need  to  allow  efficient  and  effective  access  of 
competent  port  service  providers  with  the  need  to  ensure  proper  management  of  a 

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port  with  its  inherent  constraints  as  well  as  to  ensure  a  satisfactory  level  of 
professional qualifications. 

Within  a  certain  time  frame  following  the  entry  into  force  of  the  Directive  all 
providers of port services in a port have to operate on the basis of an authorisation. 
The  method  used  for  granting  the  authorisation will determine what will happen in 
the  event  of  a  later  limitation  in  the  number  of  service  providers  of  a  port  service. 
(Article 10). 

(a)  Within  a  reasonable  time  frame,  authorisations  granted  prior  to  the  entry  into 
force  of  the  Directive  need  to  be  reviewed,  since  they  were  not  granted  in 
conformity with its rules and stipulations. However, at the same time account 
has  to  be  taken  of  legitimate  expectations  of  current  service  providers.  The 
system will also apply for new authorisations to be granted after the entry into 
force of the Directive. 

The  timeframe  set  is  a  maximum  of  12  months  after  the  latest  possible  date  for 
transposition of the Directive (12 + 18 months). 

The  proposed  system  allows  for  an  authorisation  simply  to  be  granted  without  any 
further requirements, but it also foresees the possibility for this to be done through a 
selection  procedure  (described  in  Article  11),  either  if  a  port  authority  so  decides 
and/or an existing (or new) service provider so asks.  

(b) 

If and when a limitation in the number of service providers arises: 

– 

– 

– 

– 

the  authorisation  which  has  been  granted  through  a  selection  procedure 
must remain in force unchanged. 

the authorisation which has been granted without a a selection procedure 
will  have  to  be  terminated  and  a  selection  procedure  will  have  to  be 
launched. 

Compensation is foreseen for the existing service provider if he does not 
win the selection procedure, in full respect of the competition rules of the 
Treaty. 

Provisions  for  authorisations  which  include  property  and  ownership 
rights in a port are somewhat different, as their specificity has been taken 
into account.  

– 

– 

Durations of authorisations (Article 12) are still linked to the investment made by the 
service provider. The time frames proposed are in line with real general depreciation 
rules applied in the EU. 

The  Commission  shares  the  point  of  view  of  the  two  co-legislators  (European 
Parliament and Council) that the issue of inter port (between ports) competition has 
to be addressed as well. Therefore as already agreed in conciliation: 

(a)  The text providing for the application of the financial transparency directive to 

all ports covered by the legislative proposal is included (Article 16). 

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(b)  The State Aid Guidelines text agreed is also included. This provides for State 
Aid  guidelines  to  be  adopted  by  the  Commission  within  a  year  after  the 
adoption of the Directive (Article 17).  

4. 

COMMENTARY ON THE ARTICLES. 

Article  1  sets  out  the  Directive’s  objectives,  i.e.  freedom  to  provide  and  self-handle  port 
services  in  sea  ports  for  Community  providers  of  port  services,  subject  to  certain  objective 
and relevant constraints. 

Article 2 sets out the Directive’s scope. It explains, by referring to a definitions article, what 
port  services  are  covered  and  introduces  various  thresholds  for  ports  to  which  the  Directive 
would apply.  

Article 3 defines key terms, and in particular the port services that the Directive applies to. 

Article  4  recalls  that  the  Directive  in  no  way  affects  the  rights  and  obligations  of  Member 
States  in  respect  of  the  application  of  their  social  legislation,  including  relevant  rules  on 
health, safety and employment of personnel. 

Article  5  recalls  that  the  Directive  in  no  way  affects  the  rights  and  obligations  of  Member 
States  in  respect  of  law  and  order,  safety  and  security  at  ports  as  well  as  environmental 
protection. 

Article  6  explains  that  the  Directive  does  not  replace  any  of  the  obligations  to  which 
authorities are already subject as a result of the public procurement Directives 92/50, 93/36, 
93/37  and  93/38,  as  well  as  regulation  3577/92.  In  addition,  where  one  of  those  Directives 
already requires a contract to be tendered, it will be those Directives rather than the proposed 
Directive that determine the manner in which this  should  be done. Paragraph  3  furthermore 
ensures  application  of  Directives  89/48,  92/51  and  99/42  on  mutual  recognition  of 
professional  education  and  training,  in  particular  where  Member  States  issue  authorisations 
based on a provider’s professional qualifications. 

Article  7  establishes  the  basic  rule  that  all  providers  of  port  services  shall  operated  on  the 
basis of an authorisation granted by the competent authority. This must happen at the latest 12 
months after the latest possible date for transposition of the Directive. A system of selection 
procedure  can  be  used  as  an  option.  The  conditions  for  granting  an  authorisation  must  be 
transparent,  non-discriminatory,  objective,  relevant  and  proportional.  They  must  be  made 
public, as has to be the procedure for obtaining the authorisation. They have to be granted in 
an efficient and expedient manner. This article contains a restricted list of criteria on which 
the  authorisation  may  depend  and  those  criteria  may  include  certain  public  service 
obligations.  It  contains  furthermore  an  obligation  for  the  competent  authority  to  provide 
adequate training where local knowledge is indispensable for a potential service provider and 
the right of a service provider to employ the personnel of his choice. 

Article 8 describes and defines the selection procedure to be used for granting authorisations. 
Use  of  this  procedure  shall  be  necessary  in  cases  of  limitations  of  the  number  of  service 
providers  for  one  or  more  port  services.  It  also  provides  for  cases  when  a  suitable  service 
provider has not been found through a selection procedure. Finally it ensures the neutrality of 
the competent authority as a decision making body for the selection procedure for a service in 

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case it also wishes to provide this service. An independent body has to be appointed for these 
purposes. 

Article  9  sets  out  the  transparent  rules  to  be  followed  where  a  limitation  in  the  number  of 
service providers in a port becomes necessary. It requires that the highest possible number of 
service providers must be allowed. 

Article 10 defines the rules to be followed in case the number of providers for a port service 
becomes  limited.  Notably  it  introduces  a  different  treatment  on  the  basis  of  the  way  the 
authorisation  was  granted  (with  or  without  selection  procedure).  The  issue  of  authorisations 
which include property and ownership rights in a port is addressed. 

Article 11 sets out rules to be followed for past and future authorisations for new ports or part 
of a port. 

Article 12 Maximum duration periods are given: The article introduces the principle of a time 
limit  to  authorisations  and  links  its  duration  to  the  criterion  of  investment  in  assets.  The 
duration  varies  according  to  the  level  of  investments  made  by  the  service  provider  and 
whether the assets in which investments were made are movable or not.  

Article 13 sets out that the rules of this Directive equally apply to self-handling. Self-handling 
for a service can be refused only in exceptional and well defined cases. For authorised regular 
shipping  services  in  the  context  of  Short  Sea  Shipping  and  Motorways  of  the  Sea  cargo-
handling  operations  and  passenger  services,  the  self  handler  is  allowed  to  use  regular  sea-
faring crew, on top of land-based personnel. Authorisations for self-handling are mandatory 
and any criteria set should not be stricter than those set for other providers of the same or a 
comparable  port  service.  Authorisations  have  to  be  provided  in  an  expedient  and  efficient 
manner  and  shall  remain  in  force  so  long  as  the  self-handler  complies  with  the  criteria  for 
granting  them.  National  social,  employment  and  training  issues  should  not  be  affected. 
Participation from self-handlers to the cost of the public service obligations for that service is 
possible. 

Article  14  sets  out  a  specific  regime  for  pilotage,  because  of  maritime  safety  and  public 
service requirements. Self-handling for pilotage is possible. A report by the Member States on 
measures  to  improve  the  effectiveness  of  pilotage  services  is  foreseen.  Self-handling  for 
pilotage is included in the Directive in the form of Pilotage Exemption Certificates (PECs). 

Article  15  ensures  full  transparency  of  the  selection  process  and  requires  Member  States  to 
establish appeal procedures, including a judicial review. 

Article  16  ensures  the  application  of  the  Commission’s  Directive  on  financial  transparency, 
80/723 to the ports covered by the Directive and foresees a reporting system on this issue. 

Article 17 foresees that the Commission shall adopt State Aid guidelines on the financing of 
port infrastructure within a year of the entry into force of this Directive. 

Article 18 introduces the requirement that service providers must have separate accounts for 
port service activities. 

Article 19 introduces transparent accounting requirements for the managing body of the port. 

Article 20 concerns the international status of ports, waterways and maritime zones. 

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Article  21  lays  down  obligations  of  Member  States  to  report  on  the  application  of  the 
Directive  and  of  the  Commission  to  draw  up  a  report  on  the  basis  of  these  reports 
accompanied, where appropriate, by a proposal for a revision. 

Article 22 contains Member States’ obligation to implement the Directive. 

Article 23 provides for the entry into force of the Directive. 

Article 24 contains the addressees of the Directive. 

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2004/0240 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on market access to port services 

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 Commission4, 

Having regard to the opinion of the European Economic and Social Committee5, 

Having regard to the opinion of the Committee of the Regions6, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty7, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

4 
5 
6 
7 
8 

9 

The  objective  of  Article  49  of  the  Treaty  is  to  eliminate  restrictions  on  freedom  to 
provide services 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 social and environmental protection rules. 

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 8  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) 9,  that  objective  has 
been attained with regard to maritime transport services as such. 

Port  services  are  essential  to  the  proper  functioning  of  maritime  transport  since  they 
make an essential contribution to the efficient use of maritime transport infrastructure. 

In  the  Green  Paper  on  Sea  Ports  and  Maritime  Infrastructure  of  December  1997  the 
Commission  indicated  its  intention  of  proposing  a  legislative  framework  in  order  to 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
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). 
OJ L 364, 12.12.1992, p. 7. 

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(5) 

(6) 

(7) 

(8) 

achieve  access  to  the  port  services  market  in  Community  ports  with  international 
traffic. 

As one of the measures which will enhance overall competition in and between ports 
of the Community, facilitating access to the port services market at Community level 
should  remove  existing  restrictions  that  hamper  access  for  providers  of  port  services 
and self-handlers, improve 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.  Financial  relations  between  seaports  or 
port systems and providers of port services on the one hand, and public authorities on 
the other, including State funding for ports, must also be made transparent. 

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, therefore, 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. 

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, in particular to monopoly situations. 

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  traffic  volume 
corresponding to that  of  "international seaports (category A)" as defined in Decision 
No 1692/96/EC  of  the  European  Parliament  and  of  the  Council  of  23  July  1996  on 
Community  guidelines  for 
transport 
the  development  of 
networks10, 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 possibility of not taking into consideration the 
traffic in parts of a port which are not open to general commercial traffic. 

trans-European 

the 

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

(10)  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. 

(11)  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. 

(12)  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 

10 

OJ L 228,  9.9.1996,  p.1.  Decision  as  amended  by  Decision  No  2004/884/EC  (OJ  L  167,  30.4.2004, 
p. 1). 

EN 

12 

   EN 

 
                                                 
private and may be responsible for one or more tasks covered by this Directive and for 
one or more ports. 

(13)  The application of national social legislation, including relevant rules on health, safety 
and employment of personnel by service providers and self-handlers, should in no way 
be affected by this Directive. 

(14)  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. 

(15)  Where the authorisation under this Directive takes the form of a contract falling within 
the scope of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination 
of  procedures  for  the  award  of  public  service  contracts 11,  Council  Directive 
93/36/EEC  of  14  June  1993  coordinating  procedures  for  the  award  of  public  supply 
contracts12 Council Directive 93/37/EEC of 14 June 1993 concerning the coordination 
of  procedures  for  the  award  of  public  works  contracts13  and  Council  Directive 
93/38/EEC coordinating the procurement procedures of entities operating in the water, 
energy,  transport  and  telecommunications  sectors14,  those  Directives  should  apply. 
Equally, where the authorisation under this Directive takes the form of a public service 
contract  falling  within  the  scope  of  Regulation  (EEC)  No 3577/92,  that  Regulation 
should  apply.  Finally,  where  applicable,  Council  Directives  89/48/EEC15  and 
92/51/EEC 16  and  European  Parliament  and  Council  Directive 1999/42/EC 17  on  the 
mutual recognition of professional education and training should apply. 

(16)  Contracts for port services 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. 

(17) 

In the interests of efficient and safe port management, Member States should require 
that providers of port service operations obtain authorisations. The criteria for granting 
such authorisations should be objective, transparent, non-discriminatory, relevant and 
proportional,  and  should  be  made  public.  Competent  authorities  should  grant 
authorisations  in  an  efficient  and  expedient  manner  and  in  accordance  with  the 
provisions of this Directive. 

(18)  To  ensure  adequate  access  to  relevant  training  for  applicant  service  providers  where 
the required technical professional qualifications include specific local knowledge or 
experience of local conditions, Member States may oblige service providers with such 
knowledge  or  experience  to  offer  such  relevant  training,  where  appropriate  against 
payment. 

11 

12 
13 
14 
15 

16 
17 

OJ  L  209,  24.7.92,  p.  1.  Directive  as  last  amended  by  Commission  Directive 2001/78/EC  (OJ L  285, 
29.10.2001, p. 1). 
OJ L 199, 9.8.93, p.1. Directive as last amended by the 2003 Act of Accession. 
OJ L 199, 9.8.1993, p. 54. Directive as last amended by the 2003 Act of Accession. 
OJ L 199, 9.8.1993 p. 84. Directive as last amended by the 2003 Act of Accession. 
OJ L 19, 24.1.1989, p. 16. Directive as amended by Directive 2004/108/EC of the European Parliament 
and of the Council (OJ L 32, 5.2.2004, p. 15). 
OJ L 209, 24.7.1992, p. 25. Directive as last amended by Directive 2001/19/EC. 
OJ L 201, 31.7.1999, p. 77. 

EN 

13 

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(19)  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. 

(20)  Since  ports  are  made  up  of  limited  geographical  areas,  access  to  the  market  may,  in 
certain  cases,  be  subject  to  constraints  relating  to  space  or  capacity,  traffic-related 
safety concerns or requirements in accordance with environmental rules. In such cases 
and  in  order  to  ensure  the  ports'  overall  efficiency  it  may  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-discriminatory, relevant and proportional. 

(21) 

(22) 

(23) 

In cases where the competent authority, in accordance with the published development 
policy of a port, determines the range of commercial activities 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. 

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,  objective,  open  and  fair 
selection procedure with non-discriminatory rules. 

In order to be open and transparent, the selection procedure should be made public to 
the  sectors  concerned  and  full  documentation  should  be  communicated  to  interested 
parties.  The  decision  resulting  from  the  selection  procedure  should  also  be  made 
public. 

(24)  The current situation in the Community ports, with its multitude of authorisation and 
selection  methods  and  periods  and  the  need  for  legal  certainty  requires  all  existing 
service providers to be issued with an authorisation within a specific time frame. After 
the end of this time frame, all authorisations should be granted in accordance with this 
Directive. 

(25) 

(26) 

If  the  port  authority  so  decides,  or  if  an  existing  service  provider  so  requests,  a 
selection procedure should take place for the granting of the authorization.  

In  case  limitations  appear  after  the  entry  into  force  of  this  Directive,  those 
authorisations  not  granted  through  a  call  for  tenders  should  be  terminated  and  a 
selection should take place. 

(27)  Member States should enact provisions whereby an existing service provider which is 
not  selected  following  a  selection  procedure  shall  be  compensated  by  the  newly 
selected service provider for past investments which have not yet been fully amortised 
and which it has made and the newly selected service provider takes over, taking into 
account  the  overall  economic  balance  of  the  service  provided  during  the  previous 
period, according to clear and pre-established criteria. 

(28) 

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 

EN 

14 

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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  independent 
competent authority. Where the 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. 

(29)  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. 

(30) 

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 it fulfils the 
criteria  established  for  the  granting  of  an  authorisation  and  observes  the  criteria  for 
transparency  as  set  out  in  this  Directive.  At  the  end  of  this  period  a  new  selection 
procedure should be launched. The managing body of the port should be compensated 
by  the  newly  selected  service  provider  for  past  investments  which  it  has  made  and 
have not yet been fully amortised and which the newly selected service provider takes 
over, taking into account the overall economic balance of the service provided during 
the previous period, according to clear and pre-established criteria. 

(31)  Authorisations  granted  should  be  limited  in  time,  yet  they  should  be  granted  for 
periods  that  allow  for  normal  depreciation  and  return  on  the  investments  made.  It  is 
reasonable to take into 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. 

(32) 

Investments in comparable movable capital assets, such as container bridges, ship-to-
shore  gantry  cranes,  bridge  unloaders  and  specialised  tugboats,  should  be  put  on  an 
equal footing with investments in immovable assets. 

(33)  Member States may establish a procedure which allows a service provider who intends 
to make or irrevocably contract for significant investments in immovable assets during 
the last 10 years before the end of the existing authorisation and can demonstrate that 
these investments will lead to an improvement in the overall efficiency of the service 
concerned,  to  request  the  competent  authority  to  launch  a  selection  procedure  in 
accordance with Article 8 for a new authorisation before the authorisation in question 
expires. 

(34)  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. 

(35)  Concerning cargo handling operations and passenger services for an authorised regular 
shipping  service  carried  out  in  the  context  of  Short  Sea  Shipping  and  Motorways  of 

EN 

15 

   EN 

 
the  Seas18  operations,  Member  States  should  recognize  the  right  for  undertakings  to 
self-handle  using  in  addition  to  their  land-based  personnel,  the  ship’s  regular  sea-
faring  crew.  Self-handling  should  be  subject  to  a  prior  authorisation  in  accordance 
with criteria relating, inter alia, to employment, professional qualifications and social 
and environmental matters. Competent authorities should grant authorisations for self-
handling in an efficient and expedient manner. Authorisations granted to self-handlers 
should remain in force for as long as the criteria for granting them are complied with 
by the self-handler. 

(36)  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. 

(37)  The special importance of pilotage services for the safety of maritime traffic and thus 
for  the  protection  of  the  environment  in  particularly  vulnerable  regions  requires 
specific rules to be applied. Member States should report on progress towards greater 
effectiveness of pilotage services. 

(38) 

In  this  context,  the  competent  authorities  should  be  permitted  to  recognise  the 
compulsory nature of pilotage and other technical-nautical services. 

(39)  Exemption from compulsory pilotage or the exemption of certain categories of vessel 
from  compulsory  pilotage,  possibly  through  pilotage  exemption  certificates,  should 
also  constitute  self-handling.  Where  such  exemptions  are  subject  to  special 
authorisation,  the  conditions  for  this  must  be  appropriate,  objective,  transparent  and 
non-discriminatory. 

(40)  The hiring out of equipment does not constitute a port service. It should nevertheless 

respect the principles of transparency and non-discrimination. 

(41) 

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. 

(42)  The  requirement  to  keep  separate  accounts  for  each  authorised  port  service  should 

apply to all undertakings which have been selected to provide such services. 

(43)  Procedures  for  appeals  against  decisions  of  the  competent  authorities  should  be  in 

place. 

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

(45) 

It  is  important  to  ensure  that  development  of  new  ports  and  port  facilities  is 
encouraged  by  this  Directive.  Any  such  investment  made  by  a  commercial  entity  in 

18 

As defined in Decision no 884/2004/EC of the European Parliament and of the Council of 29 April 200, 
amending  Decision  No  1692/96/EC  on  Community  guidelines  for  the  development  of  the  trans-
European transport network, OJ L 167, 30.04.2004. 

EN 

16 

   EN 

 
                                                 
accordance with national rules on acquisition of property should be considered to have 
been generally available. 

(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 
principles  of  Community  law,  unless  such  deprivation  or  interference  is  justified  in 
accordance with such general principles, and an authorised or selected service provider 
can be required to pay compensation for that deprivation or interference in accordance 
with those general principles. 

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

(48)  On  the  basis  of  Member  States'  reports  on  the  application  of  this  Directive,  the 
Commission  should  make  an  assessment  accompanied,  if  appropriate,  by  a  proposal 
for the Directive's revision. The Commission should also assess the issues of training, 
professional  qualifications  and  social  conditions  of  personnel  carrying  out  cargo-
handling operations in ports as well as the conditions prevailing for self-handling. 

(49)  Since the objective of the action to be taken, which is 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  the  action 
and can therefore be better achieved at Community level, the Community may adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty. In accordance with the principle of proportionality, as set out in that Article, 
this Directive does not go beyond what is necessary in order to achieve that objective. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Objective 

1. 

2. 

3. 

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

Freedom  to  provide  port  services  may  be  subject  to  a  port's  or  port  system's 
constraints  relating  to  available  space  or  capacity,  maritime-traffic-related  safety, 
security  or  the  development  policy  of  the  port  in  compliance,  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. 

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

EN 

17 

   EN 

 
1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Article 2 
Scope 

This  Directive  shall  apply  to  those  port  service  operations  set  out  in  Article  3  and 
which are provided against payment for users of the port. 

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 and/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. 

Where a port reaches only one of the two traffic thresholds referred to in paragraph 2 
without  reaching  the  other,  this  Directive  shall  only  apply  to  the  traffic  threshold 
which is reached.  

Member States may also apply this Directive to other ports. 

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  three  years,  and  any 
modification shall be notified to the Commission for information. 

The  Commission  shall  publish  for  information,  in  the  Official  Journal  of  the 
European Union 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. 

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

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. 

For the purposes of this Directive: 

Article 3 
Definitions 

EN 

18 

   EN 

 
1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

"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; 

"waterway access to and from a port" means water access to the port from the open 
sea and vice versa, such as fairways, rivers, canals and fjords; 

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

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

“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  the  port  infrastructures,  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; 

"port services" means the technical-nautical services of pilotage (within the limits of 
Article 14),  towage  and  mooring;  all  cargo  handling  operations  (including  loading 
and unloading, stevedoring, stowage, transhipment and other intra-terminal transport) 
and  passenger  services  (including  embarkation  and  disembarkation).  They  are 
provided  either  inside  the  port  area  or  on  waterway  access  to  and  from  the  port  or 
port system covered by this Directive. 

"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; 

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

"self-handling"  means  a  situation  in  which  an  undertaking  (a  self-handler),  which 
normally  could  buy  port  services,  provides  for  itself,  using  its  own  land-based 
personnel,  with  the  exception  of  the  situation  foreseen  in  Art.  13.2,  and  its  own 
equipment, one or more categories of port services in accordance with the criteria set 
out in this Directive; 

land-based personnel means persons employed by the self-handler and who are not 
members of its seafaring crew. 

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

"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; 

EN 

19 

   EN 

 
13. 

14. 

15. 

"limitation  of  the  number  of  providers"  means  a  situation  in  which  the  competent 
authority does not allow a provider that fulfils the criteria for authorisation laid down 
in accordance with Article 7 to provide one or more categories of services. This may 
only be done for reasons or constraints relating to available space or capacity, safety 
considerations or requirements deriving from environmental regulations. 

An  ‘Authorised  Regular  Shipping  Service’  is  a  regular  short-sea  service,  which 
operates  exclusively  between  ports  situated  in  the  Customs  territory  of  the 
Community. The service may not come from, go to or call at any ports outside the 
Community Customs territory (e.g. in a third country) or a free zone of a port (where 
the free zone is principally segregated by a fence) in this territory.. 

“Competent  authority  or  authorities”  means  a  body  designated  by  member  States 
which, whether or not in conjunction with other activities, has as its objective under 
national  law  or  regulations  the  implementation  of  the  present  Directive.  It  may 
consist of several separate bodies or be responsible for more than one port. 

Article 4 
Social protection 

This  Directive  shall  in  no  way  affect  the  application  of  the  social  legislation  of  Member 
States, including relevant national rules on health, safety and employment of personnel. Social 
standards must not be below those laid down by applicable Community legislation. 

Article 5 
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. 

Article 6 
Other legislation 

1. 

2. 

3. 

This Directive shall be without prejudice to the obligations 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. 

Where  one  of  the  Directives  referred  to  in  paragraph  1  makes  the  tendering  of  a 
service contract mandatory, Articles 11, 17 and 21(1) and (2) of this Directive shall 
not apply to the award of that contract. 

This  Directive  shall  be  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 mutual recognition among Member States of professional education 
and training. 

EN 

20 

   EN 

 
Article 7 

Authorisation 

1. 

2. 

3. 

4. 

5. 

6. 

No later than eighteen months after the date foreseen in Article 22, all providers of 
port  services  in  a  port  shall  operate  on  the basis  of  an  authorisation  granted  by  the 
competent authority, within the maximum durations foreseen in Article 12. 

If the competent authority so decides, or if an existing and / or new potential service 
provider so requests, the procedure laid down in Article 8 shall apply to the granting 
of the authorization. 

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

(a) 

the professional qualifications of the service provider and of his personnel, his 
sound financial situation and sufficient insurance cover, 

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

installations, equipment and persons, 

(c) 

compliance  with  employment  and  social  rules,  including  those  laid  down  in 
collective agreements, provided that they are compatible with Community law, 
In any case, those minimal rules set out in European social law will be respected. 

(d) 

compliance with local, national and international 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. 

Criteria referred to in paragraph 3 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. 

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

Additionally,  where  the  required  technical  professional  qualifications  include 
specific  local  knowledge  or  experience  of  local  conditions,  Member  States  shall 
ensure  that  there  exists  adequate  access  to  relevant  training  for  applicant  service 
providers  under 
transparent  and  non-discriminatory  conditions,  and  where 
appropriate, against payment. 

The  provider  of  port  services  carrying  out  the  service  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 3  and  with  the  legislation  of  the 

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Member  State  in  which  the  service  provider  is  providing  the  services  in  question, 
provided that such legislation is compatible with Community law. 

The competent authority shall vary or revoke an authorisation where, in a substantial 
manner, the criteria referred to in paragraph 3 are not, or no longer complied with, or 
where the Member State’s social legislation is not or is no longer complied with. 

Article 8 
Procedure for granting the authorisations 

Whenever,  reference  is  made  to  this  Article,  the  competent  authority  shall  take  the 
necessary  measures  to  ensure  that  a  transparent  and  objective  selection  procedure, 
using proportionate, non-discriminatory and relevant criteria.  

The competent authority shall make public, for the general information of the sectors 
concerned 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  European  Union  for 
authorisations  concerning  Article 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. 

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

(a) 

(b) 

(c) 

authorisation  criteria  adopted  in  accordance  with  Article 7(3)  as  well  as 
selection criteria that define the authority's minimum requirements; 

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

regulatory  and  organisational  conditions  for  the  provision  of  the  service, 
including the requirements that the authorisation will cover and identifying any 
tangible  and  intangible  assets  to  be  placed  at  the  disposal  of  the  selected 
service provider together with the relevant terms and applicable rules;  

(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 days between the dispatch 
of the call for proposals and the latest date for receiving them. 

For each procedure, the competent authority shall make public the decision resulting 
from the selection procedure. 

Where as a result of a selection procedure for granting an authorisation no suitable 
service provider could be found for a specific port service, the managing body of the 

7. 

1. 

2. 

3. 

4. 

5. 

6. 

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port may, under the conditions of Article 19, reserve the provision of this service for 
itself for a period, which may not exceed five years, following which a new selection 
procedure for granting an authorisation shall be launched. The managing body of the 
port  shall  be  compensated  by  the  newly  selected  service  provider  for  all  relevant 
investments it made during this period, which has not yet been fully amortised and 
which the newly selected service provider takes over, taking into account the overall 
economic  balance  of  the  service  provided  during  the  previous  period,  according  to 
clear and pre-established criteria.. 

7. 

8. 

Where the competent authority carrying out the selection procedure for one or more 
port services in a specific port is itself a provider of the same or a similar service or 
wishes to be one or has direct or indirect control over a provider or potential 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 
selection procedure, or approval or supervision of such procedure. 

When an authorisation as a result of a selection procedure is taken over by another 
service provider, the relevant rules on employment of the personnel of the previous 
service provider shall not be affected. Social standards must not be below those laid 
down by applicable Community legislation. 

Article 9 
Limitation of the number of providers of one or more port services 

1. 

Member  States  shall  ensure  that  in  the  case  of  a  limitation  of  the  number  of 
providers, the competent authority must: 

(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. 

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. 

Where the competent authority deciding on limitations in relation to one or more port 
services  in  a  specific  port  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  limitations,  or 
approval or supervision of such decision. 

2. 

3. 

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Article 10 
Granting of authorisations 

1. 

2. 

Where limitations appear after the date foreseen in Article 7 (1), for one or more port 
services  and  the  condition  foreseen  in  Article  7  (2)  has  been  fulfilled,  all  existing 
authorisations  for  this  service  or  services  at  the  moment  these  limitations  appear, 
shall remain into force until they expire. 

Where limitations appear after the date foreseen in Article 7 (1), for one or more port 
services and the condition foreseen in Article 7 (2) has not been fulfilled, all existing 
authorisations  for  this  service  or  services  at  the  moment  these  limitations  appear, 
shall  have  to  be  terminated  and  the  procedure  provided  for  in  Article  8  shall  be 
launched within 6 months of the date on which the limitation occurred. 

Member States shall enact provisions whereby an existing service provider which is 
not selected following the application of the present Article shall be compensated by 
the newly selected service provider for those past investments which it has made and 
have  not  yet  been  fully  amortised  and  which  the  newly  selected  service  provider 
takes  over,  taking  into  account  the  overall  economic  balance  of  service  provided 
during the previous period, according to clear and pre-established criteria . 

3. 

Existing authorisations, which include rights deriving from ownership of a port or of 
property in a port, may remain in force unchanged after the date foreseen in Article 7 
(1). In this case, the provisions of Article 12 may not apply. 

If however limitations appear after the date foreseen in Article 7 (1), for one or more 
port services existing authorisations for this service or services at the moment these 
limitations  appear,  which  include  rights  deriving  from  ownership  of  a  port  or  of 
property in a port, shall remain in force unchanged until they expire, but within the 
periods provided for in Article 12 starting from the date foreseen in Article 7.1. 

Article 11 
New ports or new parts of a port 

1. 

2. 

An investor or investors who commercially financed and jointly built a new port, or a 
new part of a port, including basic infrastructure prior to the date foreseen in Article 
7 (1) and who wish to provide port services, excluding technical-nautical services as 
defined  at  Article  3.6,  therein,  shall  be  granted  a  relevant  authorisation  within  the 
periods provided for in Article 12 reckoned from the date foreseen in Article 7.1. 

In case limitations appear after the date foreseen in Article 7.1, for one or more port 
services  and  provided  the  investment  opportunity  was  generally  available,  all 
existing  authorisations  for  this  service  or  services  at  the  moment  these  limitations 
appear, shall remain into force until they expire. 

Where after the date foreseen in Article 7 (1), the decision on 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, including in basic infrastructure, authorisations are to be granted for a 

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limited  period  of  time  under  the  provisions  of  Article 12,  without  any  further 
requirements on that future service provider.  

3. 

4. 

In the event of a later limitation of the number of service providers for one or more 
port  services,  all  existing  authorisations  for  this  service  or  services  at  the  moment 
these  limitations  appear,  shall  remain  in  force  until  they  expire,  provided  that  the 
investment opportunity was generally available. 

Technical-nautical services as defined at Article 3.6, are excluded by the dispositions 
of the present article. 

Article 12 
Duration 

Authorisations  shall  be  granted  for  a  limited  period  and  renewable  period  of  time  to  be 
determined in accordance with the following criteria: 

1. 

2. 

3. 

4. 

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 8 years. 

In  cases  where  investments  which  are  considered  significant  by  the  competent 
authority involve: 

(a)  movable assets, the maximum period shall be 12 years; 

(b) 

immovable  assets  and  comparable  movable  capital  assets,  such  as  container 
bridges, ship-to-shore gantry cranes, bridge unloaders and specialised tugboats, 
the  maximum  period  shall  be  30  years,  irrespective  of  whether  or  not  their 
ownership will revert to the managing body of the port. 

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. 

Member  States  may  establish  a  procedure  which  allows  a  service  provider  who 
intends  to  make  or  irrevocably  contract  for  significant  investments  in  immovable 
assets  during  the  last  10  years  before  the  end  of  the  existing  authorisation  and  can 
demonstrate  that  these  investments  will  lead  to  an  improvement  in  the  overall 
efficiency  of  the  service  concerned,  to  request  the  competent  authority  to  launch  a 
selection procedure in accordance with Article 8 for a new authorisation before the 
authorisation in question expires. 

Competent  authorities  shall  make  public,  for  the  general  information  of  the  sectors 
concerned in the Community the authorisations which are going to expire, at least six 
months before their date of expiry. 

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Article 13 
Self handling 

1. 

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

Member States shall ensure that the competent authority refuses self-handling for one 
or  more  categories  of  port  services  only  where  there  exist  objective  reasons  or 
constraints  relating  to  available  space  or  capacity,  safety  considerations  or 
requirements deriving from environmental regulations. 

Concerning  cargo  handling  operations  and  passenger  services  for  an  authorised 
regular  shipping  service  carried  out  in  the  context  of  Short  Sea  Shipping  and 
Motorways of the Seas operations19, Member States shall recognize the right to self-
handle using also the vessel’s regular sea-faring crew.  

Self-handling shall be 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  and  as  referred  to  in  Article  7  (3),  provided  these  are  relevant.  Competent 
authorities  shall  grant  such  authorisations  to  self-handlers  in  an  efficient  and 
expedient  manner.  They  shall  remain  in  force  so  long  as  the  self-handler  complies 
with the criteria for granting them. 

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

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 and shall be proportional to the costs of 
maintaining the public service obligations. 

Article 14 
Pilotage 

With regard to the service of pilotage, Member States may submit the granting of the 
authorisation referred to in Article 7 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 
circumstances in a port or a group of ports and/or its access so require, the possibility 

As defined in Decision no 884/2004/EC of the European Parliament and of the Council of 29 April 200, 
amending  Decision  No  1692/96/EC  on  Community  guidelines  for  the  development  of  the  trans-
European transport network, OJ L 167, 30.04.2004. 

2. 

3. 

4. 

5. 

1. 

19 

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2. 

1. 

2. 

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 competent persons meeting equitable and non-discriminatory conditions 
laid down in national law. 

Exemption from compulsory pilotage or the exemption of certain categories of vessel 
from  compulsory  pilotage,  possibly  through  pilotage  exemption  certificates,  shall 
constitute self-handling. Where such exemptions are subject to special authorisation, 
the  conditions  for  this  authorisation  must  be  appropriate,  objective,  transparent  and 
non-discriminatory. 

Member States shall report to the Commission no later than five years following the 
entry into force of this Directive on measures to improve the effectiveness of pilotage 
services. 

Article 15 
Appeals 

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

Where  an  application  for  access  to  provide  port  services  under  this  Directive  is 
rejected,  the  applicant(s)  shall  be  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,  in  its  organisation,  funding,  legal  structure  and  decision-making, 
independent  from  the  competent  authority  or  managing  body  of  the  port  concerned 
and from any service provider. 

3. 

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

Article 16 
Transparency of financial relations 

1. 

To  establish  fair  conditions  of  competition  in  and  between  Community  ports,  every 
port  and  port  system  within  the  meaning  of  Article  2  shall  be  obliged  to  submit  the 
details required under Commission Directive 80/723/EEC 20 to the Member States and 
the  Commission  within  the  prescribed  time  limits.  The  same  shall  apply  to  financial 
relations between Member States and providers of port services, regardless of whether 
the other provisions of Directive 80/723/EEC apply to them. 

20 

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). 

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2. 

3. 

The Commission and the Member States shall use the data submitted by ports and port 
systems  to  take  the  measures  required  under  Community  law  to  establish  fair 
conditions of competition in and between Community ports. 

Not  later  than  three  years  from  the  date  of  entry  into  force  of  this  Directive  and 
thereafter every three years, the Commission shall submit to the European Parliament 
and  the  Council  a  report  on  the  transparency  of  financial  relations  in  ports  and  port 
systems  and  the  measures  taken  in  relation  thereto  by  the  Member  States  and  the 
Commission. 

Article 17 
Transparency of State funding 

The Commission shall draw up, no later than one year from the date of the entry into force of 
this  Directive,  common  guidelines  for  funding  given  to  ports  by  Member  States  or  out  of 
public funds and shall indicate which funding to ports is compatible with the internal market. 

Article 18 
Accounting provisions 

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

1. 

2. 

Article 19 
Transparency of the accounts of the managing body of the port 

Where the managing body of the port provides port services, it must fulfil the criteria 
set  out  in  Article 7(3)  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; 

(b) 

(c) 

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

the  cost  accounting  principles  whereby  separate  accounts  are  maintained  are 
clearly identified. 

The  auditor's  report  on  the  annual  accounts  must  indicate  the  existence  of  any 
financial  flows  between  the  port  service  activity  of  the  managing  body  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. 

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

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3. 

This  Directive  shall  in  no  way  affect  the  rights  and  obligations  of  Member  States 
under Directive 80/723/EEC. 

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 
Information report and revision 

Member  States  shall  send  the  Commission  a  report  on  the  application  of  this  Directive  not 
later than 36 months following its entry into force. 

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 22 
Implementation 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative  provisions 
necessary to comply with this Directive by [ 18 months from the date of entry into force of the 
Directive] at the latest. They shall forthwith inform the Commission thereof. 

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.  The 
methods of making such reference shall be laid down by Member States . 

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. 

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

Article 23 

Article 24 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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EN 

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