Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parliament and of the Council on market access to port services and the
Date: 2005-04-13
Institutions: European Committee of the Regions
Subjects: common ports policy, competition law, competition policy, maritime transport, transport company

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Furthermore, it is not clear whether the suspension applies to new projects approved after 1 January of the
year following the decision and what happens to the ones that have been approved before that date.

Brussels, 13 April 2005.

The President
of the Committee of the Regions
Peter STRAUB

Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parlia-
ment and of the Council on market access to port services

White Paper on the review of Regulation 4056/86, applying the EC competition rules to maritime
transport

and the

(2005/C 231/04)

THE COMMITTEE OF THE REGIONS,

Having regard to the Proposal for a Directive of the European Parliament and of the Council on market
access to port services (COM(2004) 654 final; 2004/0240 (COD)) and the White Paper on the review of
Regulation 4056/86 applying the EC competition rules to maritime transport (COM(2004) 675 final);

Having regard to the decision of the Council of 2 December 2004, to consult it on this subject, under the
first paragraph of Article 265 and Article 80 of the Treaty establishing the European Community;

Having regard to the decision of its president of 3 November 2004 to instruct its Commission for Terri-
torial Cohesion Policy to draw up an opinion on this subject;

Having regard to the Communication from the Commission to the European Parliament and the Council
on Reinforcing quality service in sea ports: A key for European transport and the Proposal for a Directive
of the European Parliament and of the Council on Market access to port services (COM(2001) 35 final) and
the Amended Proposal for a Directive of the European Parliament and of the Council on Market access to
port services (presented by the Commission pursuant to Article 250(2) of the EC Treaty (COM(2002) 101
final));

Having regard to its opinion of 20 September 2001 on the Communication from the Commission to the
European Parliament and the Council on Reinforcing quality service in sea ports: A key for European trans-
port (CdR 161/2001 fin) (1);

Having regard to the opinion of the European Economic and Social Committee of 29 September 2001 on
the Proposal for a Directive of the European Parliament and of the Council on Market access to port
services (CES 1495/2001);

Having regard to the Report of the Standing Committee of the EFTA States of 2 May 2002 on the Proposal
for a Directive of the European Parliament and of the Council on market access to port services;

(1) OJ C 19 of 22.1.2002, p. 3

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Having regard to the Joint text of 22 October 2003, approved by the Conciliation Committee provided for
in Article 251(4) of the EC Treaty, on the Directive of the European Parliament and of the Council on
market access to port services (PE-CONS 3670/03 — C5-0461/2003 — 2001/0047 (COD));

Having regard to the Report, of 4 November 2003, of the European Parliament Delegation in the Concilia-
tion Committee on the Joint text approved by the Conciliation Committee on the Directive of the European
Parliament and of the Council on Market access to port services (A5-0364/2003);

Having regard to its opinion of 29 September 2004 (CdR 163/2004 fin) (1) on the Proposal for a Directive
of the European Parliament and of the Council on Enhancing port security (COM(2004) 76 final);

Having regard to Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on
the Transparency of financial relations between Member States and public undertakings;

Having regard to Council Regulation (EEC) No. 4056/86 of 22 December 1986 laying down detailed rules
for the application of Articles 85 and 86 [now Articles 81 and 82] of the Treaty to maritime transport,
last amended by Regulation 1/2003 of 16 December 2002;

Having regard to the Presidency Conclusions of the Lisbon European Council, held on 23 and 24 March
2000, in which the Commission is urged to ‘speed up liberalisation in areas such as gas, electricity, postal
services and transport’;

Having regard to the White Paper of 12 September 2001 on European transport policy for 2010: Time to
decide (COM(2001) 370 final);

Having regard to Commission Regulation No. 823/2000 of 19 April 2000 on the Application of
Article 81(3) of the EC Treaty to certain categories of agreements, decisions and concerted practices
between liner shipping companies (consortia);

Having regard to Council Regulation (EC) No. 1/2003 of 16 December 2002 on the Implementation of the
rules on competition laid down in Articles 81 and 82 of the Treaty;

Having regard to the Report of the OECD Secretariat of 16 April 2002 on Competition policy in liner
shipping;

Having regard to the European Commission's consultation paper of March 2003 on the Review of Regu-
lation 4056/86 on the detailed application of Articles 81 and 82 of the Treaty to maritime transport;

Having regard to the comments received in respect of the European Commission's consultation paper on
the review of Regulation 4056/86;

Having regard to the Report of the Erasmus University in Rotterdam, dated 12 November 2003, on the
assistance which it provided in processing the comments received by the Commission in respect of its
consultation paper on the review of Regulation 4056/86;

Having regard to the European Commission's discussion paper, drawn up in December 2003, on the
review of Regulation 4056/86;

Having regard to the European Liner Affairs Association (ELAA) Paper on the Review of Regulation
4056/86: Proposals for a new regulatory structure, dated 6 August 2004;

Having regard to the draft opinion (CdR 485/2004 rev.1) adopted by its Commission for Territorial Cohe-
sion Policy on 4 February 2005 (Rapporteur: Mr Rolf Harlinghausen, Member of the Europe Committee of
the Hamburg Parliament (DE/EPP);

(1) OJ C 43 of 18.2.2005, p. 26

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Whereas:

1)

2)

3)

4)

5)

6)

7)

8)

9)

liberalisation of the transport sector has been one of the key objectives of the EU and its Member
States, particularly since the adoption of the Lisbon Agenda in 2000;

transport policy, in particular, is one of the priority areas of the Commission for Territorial Cohe-
sion Policy and also of the Committee of the Regions, as a whole, as has been demonstrated by a
large number of its opinions on this subject, in particular the opinion prepared by Mr Lamberti on
the initial draft of the Directive on port services. The CoR thus underlines the fundamental contribu-
tion made by EU transport policy to the achievement of cohesion in an enlarged and even more
diverse European Union;

in the next few years the EU will have to contend with a considerable growth in demand for trans-
port services. This increase, arising, inter alia, as a result of economic growth, the enlargement of
the EU and the stepping-up of trade relations, will, moreover, affect freight traffic to a considerable
extent;

in view of the fact that capacity is likely to be overloaded, above all as regards road transport infra-
structure, it is therefore essential that considerable efforts be made to channel traffic flows and to
extend transport infrastructure. The environmentally friendly maritime transport sector will play a
key role in this respect as, in view of its potential capacity, it can help to transfer freight transport
from the roads and to bring about more sustainable transport development. The establishment and
extension of an effective intermodal transport network will have a decisive impact on coastal
regions, port regions and hinterland areas and consequently also on port industries in these areas
and the enterprises involved in maritime transport. It may be assumed that this positive impact on
the internal market as a whole will also be clearly visible in areas such as the Baltic region;

the establishment of efficient transport systems is a prerequisite for the achievement of the goal of
making the EU competitive at international level. Reliable basic conditions have to be established in
order to provide incentives for a further bolstering of investment in the transport sector. With this
aim in view, EU law will have to comply with the principles of effective competition and free access
to markets and also meet requirements in respect of security of investment, adequate safety provi-
sions, socially acceptable working conditions and a high level of environmental standards;

cargo handling costs in EU ports are substantially lower than the equivalent costs in North America
and Asia; it is thus vital for the measures to be taken to help bring about an improvement in the
competitiveness and the efficiency of EU ports to be discussed, on the basis of an analysis of the
shortcomings of the current situation. No such analysis is however as yet available;

attention should also be drawn to the fact that effective complex structures have been established in
recent decades, particularly in ports but also in the field of maritime transport. This development
has helped to ensure that many of the enterprises established or operating in the EU and its ports
are already amongst the most profitable and most competitive in the world. Changes to the basic
legal conditions should therefore take adequate account of their impact on structural interdepen-
dences within the transport sector and interdependence between this sector and the other branches
of the economy. The Commission has also recognised the complex nature of these structures by
making provision for considerable financial outlay in order to establish effective, competitive trans-
port systems, such as ‘short sea shipping’ and the ‘motorways of the sea’;

it is essential to adopt a sensitive approach when organising deregulation — which is indisputably
necessary — in the field of maritime transport and port services. The requisite transitional provisions
should — also on employment grounds — strive to avoid placing enterprises established in or oper-
ating in the EU at a disadvantage — however temporary — vis-à-vis other world market players and
to avoid bringing about upheavals in the EU;

a comparison of the situation at worldwide level demonstrates that, in respect of both maritime
transport and port services, basic conditions with regard to competition policy and competition law
differ to a very considerable extent. Industrial policy considerations should therefore play a role
when determining the extent, scope and speed of market liberalisation within the EU. Such consid-
erations have up to now been totally disregarded. Complementary employment policy measures
should also be put in place to minimise possible negative, short-term impacts of liberalisation;

adopted the following opinion at its 59th plenary session of 13-14 April 2005 (meeting of
13 April):

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I. Proposal for a Directive of the European Parliament and

of the Council on Market access to port services

than simply access to port services. These proposals would
have unforeseeable consequences in the field of logistics;

1. General comments made by the Committee of the Regions

THE COMMITTEE OF THE REGIONS

1.1
endorses the Commission's desire to establish a special
Community framework for port services. This endorsement is
all the stronger in view of the fact that ports are to be found in
20 of the now 25 EU Member States;

1.2 welcomes the fact that in the Proposal for a Directive,
the Commission sets out its fundamental objectives of ensuring
competition and efficiency in the port sector. Where inefficien-
cies exist, the instruments of liberalisation, freedom of access to
the markets and transparency can help to achieve these objec-
tives;

agrees with the Commission that,

in addition to the
1.3
application of the transparency Directive to port enterprises, it
is also essential to adopt aid guidelines in respect of port invest-
ment which are clear and transparent, on the one hand, but
also flexible, on the other hand, in order to ensure continuing
fair and efficient competition in the port sector;

1.4
is pleased that the Commission is making it possible for
publicly-owned ports to provide port services in the interests of
promoting effective competition;

1.5
does, however, regret that only a short time after the
failure of its initial attempt to secure approval of its proposals,
the Commission is now submitting a further proposal for a
Directive, setting out stricter provisions in a number of key
regulatory areas, without having carried out
the requisite
analyses. The new proposal for a Directive contains a large
number of amendments based, for the most part, on the initial
draft, which was rejected by both the Council and the European
Parliament; some of these amendments clearly fall short of the
results of the conciliation process;

the
deplores the lack of adequate consideration of
1.6
prevailing market structure with regard to European ports and
port services. There is, in reality, a high degree of competition
between individual ports in the EU, with the result that only
those ports which are efficient and provide good value for
money are able to stand up to the competition in the EU;

1.7
concludes that, as a result of the intense competition
between ports, the only services which will be able to operate
successfully within ports are those which are based on efficient
and inexpensive production methods. As inefficient providers
of port services have a detrimental effect on the competitive-
ness of the overall operation of individual ports, competition
between ports will oblige such service providers to improve
their productivity;

1.8
regrets the failure to take adequate account of the fact
that competition is not confined solely to activities within
ports; whole transport networks are also in competition with
one another. Interventions in one component area of these
transport networks — in this case ports — have an impact on
the whole logistics chain in hinterland transport. The new
proposal for a Directive therefore, in reality, regulates far more

1.9
fears that there will be a drop in the number of active
providers of port services in the EU if the proposal for a Direc-
tive is implemented in its current form. The possibility cannot
be excluded that a small number of service providers from
ports outside the EU, who earn high rates of return on their
investments in their own monopolistic home markets, will step
up their penetration of key ports in the EU and successfully
take part in selection procedures by making high financial bids.
This would be the case in particular, when the size of the bid
was the only, or the decisive, selection criterion. This would
significantly jeopardize the current structure of port industries
in the EU, which is characterised by a large number of public
and private terminal operators. Were it to be the case that a
small number of terminal operators were able, in this way, to
control a sizeable share of the market in cargo handling opera-
tions at ports, this would lead to the establishment, in the EU
too, of monopolistic structures incompatible with the goal of
achieving a higher level of competition;

1.10
fears, in addition, that there will be a drop in the level
of investment by port-service providers. The proposal for a
Directive creates uncertainties with regard to the duration of
contracts and compensation which would lead to a consider-
able decrease in the expected level of amortisation revenue.
These uncertainties will also put up the cost of refinancing
investments as the banking sector will,
in pursuance of the
Basel
II Requirements, pay greater attention to the risks
concerned. Just these two consequences of the proposal for a
Directive will result in a considerable reduction in investment
incentives;

1.11
identifies an infringement of both the subsidiarity prin-
ciple, set out in Article 5 of the EC Treaty, and the principle of
proportionality as the proposal for a Directive pays only very
scant attention to the fact that, at the level of the Member
States, competition has already been liberalised between EU
ports. With their existing form and scope, the provisions set
out in the proposal for a Directive are therefore not necessary;

1.12
therefore expresses its concern that the measures put
forward in the proposal for a Directive will not achieve the
Commission's objectives, which are themselves to be explicitly
welcomed;
trend towards bringing
about considerable increases in growth and efficiency at EU
ports and in respect of port services is more likely to be
damaged by these proposals;

it fears that the current

regards it as appropriate that ports' scope to provide
1.13
port services themselves is not confined to specific situations
but extends across the board. Steps must be taken to ensure
that fair and transparent conditions of competition are safe-
guarded in cases where port authorities
themselves are
competing with other — private — bidders in selection proce-
dures;

1.14 would add that there are qualitative differences in the
various language versions of
for a Directive,
thereby making it more difficult to carry out an appraisal of
the document;

the proposal

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I n d i v i d u a l a s p e c ts of t h e p r o p osa l f or a D i r e c ti v e

THE COMMITTEE OF THE REGIONS

fears that

1.15
the proposed requirements in connection
with mandatory authorisation will involve port authorities in a
vast amount of red tape, which flies in the face of the goals of
a ‘liberalising’ Directive. The proposal for a Directive stipulates
that all port services covered by the Directive (technical —
nautical services such as pilotage, towing and mooring services,
all activities linked to the handling of cargo and passenger
services) will, in future, require authorisation. This requirement
also covers port services which hitherto did not require author-
isation. In future, port authorities would have to issue far more
authorisations than had hitherto been the case as, for example,
property owners, too, who operate port services on their own
property would also need to have an authorisation. Parties
carrying out self-handling in respect of cargo and passenger
operations (‘self-handlers’) would also need to have an authori-
sation, although such authorisations could be provided for an
unlimited period, albeit only for as long as self-handlers
continue to comply with the criteria for issuing such authorisa-
tions. Port authorities would also be obliged to monitor author-
isations. In addition to checking compliance with the criteria
for issuing authorisations, it would also be necessary to carry
out checks with regard to compliance with,
for example,
employment and social provisions, a task which is basically the
responsibility of the social partners. In individual cases, these
obligations taken overall, could also exceed the capacity of a
given port authority;

1.16
believes that it is possible that the proposed mandatory
authorisation in the case of property owners will infringe prop-
erty rights and will also be incompatible with Article 295 of
the Treaty establishing the European Community, under which
Member States' rules governing the system of property owner-
ship shall not be prejudiced. In the event that property owners
see their bids in respect of their own port facilities rejected
under a selection procedure and the contract awarded to a
third party, such property owners would be unable to provide
port facilities any more on their own property. As the port
authorities are not the owners of the port areas in question,
they would have no right of access to these areas and are there-
fore not in a position to conclude a contract of lease with a
third party, without the agreement of the owner of the prop-
erty. In particular, the port authority cannot compel the owner
of the property to conclude a contract with the third party
which has made the successful bid under the selection proce-
dure. Authorisations awarded under such circumstances would
therefore be ineffective;

1.17
points out that complications could arise in connection
with the proposed selection process. In cases where limitations
are imposed, the proposal for a Directive stipulates that the
only authorisations which shall remain in force are those
which are issued under a selection procedure. All authorisations
which had, on the other hand, been properly issued in accord-
ance with current legal provisions would cease to be valid. As
the proposed new legislative act would have retroactive effect
in this case, port authorities would therefore be required, once
the Directive comes into force, to organise selection processes
for re-issuing all authorisations,
including existing authorisa-
tions;

considers that steps to give Member States sole respon-
1.18
sibility for establishing rules on calculating compensation for
the residual value of a company run the risk of distorting
competition. For example, when calculating compensation it

might be possible to provide for (hidden) additional deductions
on property rent. Therefore the principle laid down in the
Directive to set compensation on the basis of transparent rules
established in advance, does not adequately formalise what is
required of national rules on calculating compensation. At the
same time any Community rules must take into account differ-
ences between the respective national depreciation provisions
and tax systems so as to avoid causing distortions in competi-
tion. In line with these principles, European, rules could for
instance make the application of generally applicable national
depreciation provisions mandatory. Any divergence should
only be allowed if there are suitable grounds for doing so.
Moreover, rules on calculating compensation should be made
public, or at least the Commission should be notified thereof,
in order to promote transparency;

1.19
fears that various individual provisions set out in the
proposal for a Directive will result in a reduction in investment;
the provisions in question are as follows:

a) the new, shorter durations of authorisations are out of step
with the period required for amortisation. These excessively
short durations will have the effect of making some long-
term investments by no means profitable or lead to a situa-
tion whereby the prices charged hitherto — which were
advantageous when compared with international rates —
will have to be increased in order to ensure more rapid
amortisation;

b) the proposal for a Directive does not include any provision
for extending the duration of existing authorisations. Under
the proposal, authorisations cannot be extended without
organising a new selection process, thereby running the risk
that authorisations may be lost. Under these circumstances,
it is likely that long-term investments will only be carried
out at the beginning of the duration of a given authorisa-
tion. Thereafter the incentive to invest diminishes continu-
ously as the authorisation period runs out;

c) the proposed compensation rules are inadequate. Investment
just require a
in modern technical equipment does not
capital outlay; considerable expenditure also has to be made
on training employees and adjusting work management. In
order to ensure that operations are effective, it is also essen-
tial to spend considerable resources on positioning enter-
prises within the differentiated network of the transport
chain. If compensation payments fail to take account of this
expenditure, expectations as regards profitability are dimin-
ished from the very moment when investment plans are
being drawn up. These measures will have the effect of
either reducing investment or stopping investment alto-
gether;

1.20
points to the fact that the lack of transitional provisions
will produce considerable legal uncertainty in the case of port-
service providers already providing such services. Enterprises
which are already active on the market cannot rely on being
able to continue their activities in future to the same extent. If
a new port-service provider wishes to enter the market in
future and if limitations are imposed, the port-service providers
which are already active on the market will already have to
take part in a selection procedure, thereby running the risk of
losing their authorisations. On the one hand, this situation will
undermine confidence in existing contracts and, on the other
hand, uncertainty as to the continuing existence of authorisa-
tions will
lead to a significant decrease in the readiness to
invest. A one-sided infringement of current contracts will also
give rise to the risk of sizeable demands for compensation;

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1.21
predicts a decline in the level of attractiveness of EU
ports to cruise ships as a result of the restrictions which are to
be placed on self-handling operations. Under the proposal for a
Directive, self-handling, using the ship's sea-faring crew, would
be authorised only in the case of Short Sea Shipping and the
Motorways of the Sea operations.
International cruise ships
would therefore no longer be entitled to carry out on-board
checks using their own sea-faring crew;

fears that the proposed measure whereby self-handlers
1.22
may use their own land-based personnel will
lead to ‘social
dumping’, a decline in both the quality and the productivity of
port services and conflicts with technical and political safety
requirements (ISPS). Moreover, the selection procedure system
proposed by the Commission would be undermined if,
for
example, handling enterprises were to receive authorisations to
carry out loading work but were,
in reality, not able to use
these authorisations because shipping companies carried out
self-handling;

the

flexible nature of

1.23 welcomes
the provisions
governing pilotage services which enable the Member States to
set proper criteria in respect of national conditions for granting
authorisation and the selection of
service providers. The
Committee does, however, wonder whether it is advisable to
make it obligatory for the Member States to report to the
Commission on measures to improve the effectiveness of pilo-
tage services as, in the case of these services — as is also under-
lined in the proposal for a Directive itself — the criteria of the
safety of maritime transport and personal expertise are the
decisive factors.

2. Recommendations by the Committee of the Regions

THE COMMITTEE OF THE REGIONS

2.1
considers that the Directive should not be approved in
its present form, because it does not promote competition in
the port sector, but creates partly unnecessary or inadequate
rules which are prejudicial to the interests of,
in particular,
small and medium-sized port service providers and which
encourage social dumping; the Directive thus decreases effi-
ciency of ports and restricts opportunities for them to engage
in fair competition. The Commission's stated objectives will not
be achieved via this Directive;

considers it essential to carry out a differentiated analysis
2.2
of the current situation of the market for port services before
organising further consultations. The only way effectively to
tackle the danger of having an over-regulated market for port
services, with the attendant decrease in competition and drop
in the efficiency, is by having a detailed understanding of the
existing weaknesses in the key market sectors of the EU port
industry;

it

is essential

is convinced that

to respect existing
2.3
commitments and provide enterprises which are already active
on the market with a guarantee as to their continued existence
in order to reduce legal uncertainty. Enterprises which are
already active on the market should therefore be exempted
from mandatory authorisation for the duration of existing
contracts or authorisations; alternatively existing authorisations
should remain in force up to the maximum durations laid
the very least,
down in the proposal

for a Directive. At

however, appropriate transitional periods should be set,
i.e.
these periods should be prolonged in order to bring them into
line with the objective
enterprises
concerned;

requirements of

the

2.4
takes the view that compensation provisions should be
introduced in the Member States which would be aligned on
the various national depreciation provisions, even after the due
expiry of authorisations, and would, at
the same time, be
geared to the current value of an enterprise on the fictitious
assumption that its authorisation is to remain in force. Such a
provision would take account of both expenditure, of an invest-
ment nature, by the enterprises concerned on organisation,
staff and the positioning of the enterprise in the transport
network and also of the various basic institutional conditions;

believes

that Community law should specify which
2.5
factors may or must be taken into consideration in the rules on
calculating compensation. However, such rules must take into
account differences between the various national depreciation
provisions and tax systems;

2.6
advocates that the duration of authorisations be geared
to the term of the investments carried out. Furthermore, in the
case of long-term investment carried out only in the course of
the duration of an authorisation, options should be provided
for extending the authorisation. The Committee recommends
that at least the time-limit provisions set out in the proposal
put forward by the Conciliation Committee of the European
Parliament and the Council in respect of Port Package I should
be incorporated into the present proposal for a Directive;

2.7
proposes that the mandatory authorisation requirement
be replaced by an authorisation requirement which would take
effect only in the case of the imposition of a limitation on the
number of service providers. This would bring about a consid-
erable saving of resources;

considers it essential that provision for self-handling be
2.8
unreservedly restricted to sea-faring crew members of
the
vessels concerned. In order to avoid ‘social dumping’ and on
grounds of safety, Member States should be allowed to restrict
self-handling to port-users whose vessels sail under the flag of
an EU Member State;

takes the view that

the area of application of

2.9
the
proposal for a Directive should be extended to include access
waterways to ports. Rivers and canals which are accessible to
maritime transport should also be included in the scope of the
Directive, even if they are not used exclusively as access water-
ways to ports. This proposal is, however, subject to the express
proviso that the other recommendations put forward by the
Committee of the Regions are implemented. Extending the area
of application of the proposal for a Directive without taking
account of the other recommendations would, on the other
hand, aggravate the problems which have been described;

2.10
strongly supports the Commission's intention to draw
up transparent guidelines in respect of the granting of aid to
ports;

2.11
believes that the only way to make EU ports more effi-
cient and to increase competitiveness is by taking account of
the recommendations put forward by the Committee.

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II. White Paper on the review of Regulation (EEC) No.
4056/86 applying the EC competition rules to maritime
transport

however, have a negative impact on employment in enter-
prises;

3. General comments made by the Committee of the Regions

THE COMMITTEE OF THE REGIONS

3.1
praises the Commission for its endeavours to carry out a
review of Regulation 4056/86, applying the EC competition
rules to maritime transport and for its desire, with that aim in
view, to make intensive use of and to incorporate in its work
the expertise of maritime transport operations and their asso-
ciations;

3.2
agrees with the Commission that any future provisions
will, at any rate after a transitional stage, have to comply, fully
and without exception, with the standard conditions set out in
Article 81(3) of the Treaty establishing the European Com-
munity;

fully concurs with the Commission in its desire to fully
3.3
abolish the exclusions in respect of pricing and supply agree-
ments and additional agreements which serve to restrict
competition;

agrees with the Commission that the exclusion of cabo-
3.4
tage and tramp services from the competition implementing
rules enshrined in Regulation 1/2003 may be repealed as there
are actually no obvious valid reasons for maintaining this
exclusion. A further reason for repealing these exclusions is the
fact that this would be a way of tackling, from the outset, a
case of unequal treatment of European operators in respect of
competition law, however implausible this case may be;

3.5 welcomes the fact that the White Paper presented by the
Commission closely examines the issue of the compatibility of
existing provisions with EU competition law; the Committee
does however have the impression that there is indeed strong
circumstantial evidence that
the current provisions are no
longer compatible with the provisions of Article 81(3) of the
EC Treaty; it could, nonetheless be advisable to provide more
sound underlying data to back up the conclusions in this
regard set out by the Commission. This could provide the
Commission with a way of accommodating the reservations
expressed by maritime shipping enterprises and also of
complying with the requirements of Article 253 of the EC
Treaty;

3.6
takes the view that a comprehensive impact analysis has
yet to be provided; the Committee is confident that such an
analysis will play a key role, at the latest at the stage when
concrete regulatory proposals are being drawn up;
in this
context greater consideration should be paid, in particular, to
the impact on trade flows,
investment, market shares and
consumer prices. The objection that such an analysis would be
made more difficult to carry out in view of the fact that, as
liner conferences have been in existence for many years, there
is a lack of data with regards to competitive market operations,
is only partially applicable. The issue at stake here is an area in
which any liberalisation drive will have to contend with a
sector which was previously highly regulated;

3.7 wonders, in particular, whether any amendments should
not also focus more strongly on employment aspects. The
Commission points out that there is likely to be a higher level
of concentration on the market which would give a boost to
innovation. Whilst such a development should be endorsed
from the research and industrial policy standpoints, it could,

takes the view that the proposal put forward by the
3.8
European Liner Affairs Association (ELAA),
to continue to
make provision for the exchange, on a non-discriminatory
basis, of particular data not linked to named enterprises and
aggregated with a delay should be examined in a favourable
light. In the final analysis, freely available market information
may lead to greater
transparency and thus also promote
competition. A price index accessible to all market participants
would be a key component part of the system, the aim being
to take over the guideline role played by existing conference
tariffs. In this context it is, however, absolutely essential to
ensure that effective monitoring takes place and that
the
measures are confined to the mere exchange of information;

3.9 wishes to stress, that the primary issue at stake here —
in addition to the question of the continued existence of par-
ticular provisions, where necessary in modified form — is the
need to meet the requirements of enterprises which are estab-
lished and active on the EU market by introducing appropriate
and differentiated transitional measures. Such measures should
be aligned first and foremost, on the findings of a comprehen-
sive impact analysis. In this context, the Committee wishes to
draw attention to the fact
from the outset, Regu-
lation 4056/86 provided absolute exemption from EU competi-
tion provisions solely in the case of maritime transport; this
sector therefore always had to reckon with the fact that these
provisions would be reviewed at a later stage. A demand that
the existing provisions continue to be applicable or that transi-
tional measures be introduced can therefore not be based solely
on grounds of ensuring legal certainty and protecting confi-
dence. The legislative body should, nonetheless, take account of
the fact that the liner conference system has been in existence
for many years, that practices are deeply rooted and that busi-
ness relations have been built around the conference system;

that,

3.10
does not share the view that the provisions set out in
Article 2 of Regulation 4056/86, concerning authorisation to
conclude technical agreements, should actually be repealed. The
objections raised by the Commission, namely that the provi-
sions in question were ‘merely declaratory’, created confusion
and were interpreted too broadly by shipowners, would not be
resolved by repealing the provisions; this would rather have the
effect of strengthening the objections since technical agree-
ments would be authorised even if there were no legal provi-
sion to that effect. The absence of express provisions would
more likely result in the creation of additional delimitation
problems. The Committee is of the opinion that a provision
which continues to define,
in express terms, the agreements
which are authorised may therefore maintain legal certainty
and provide guidance. This is also subject to the proviso that
Article 2, or the corresponding future provision,
is adjusted
accordingly, should the way in which the future competition
regime is formulated render the hitherto existing provisions
invalid. The future provision could be included in the block
exemption for consortia (Regulation 823/2000);

3.11
takes the view that global standardisation of the basic
legal conditions would appear to be desirable on competition
and industrial policy grounds. This observation is all the more
apposite in view of the fact that the EU market is henceforth to
be liberalised and other shipping nations currently do, to some
extent, regulate competition on their markets to a larger degree
than is the case with current EU law in respect of the European
market;

20.9.2005

EN

Official Journal of the European Union

C 231/45

3.12
draws attention to the fact that the White Paper has, up
to now, not paid sufficient attention to the impact which abol-
ishing or amending Regulation 4056/86 would have on
current international law, on the one hand, and the removal of
possible conflicts of law, on the other hand;

3.13
considers that the planned repeal of Article 9 of Regu-
lation 4056/86, which makes provision for negotiations in the
event of conflicts of law between the EU and non-EU states,
should be reviewed. Whilst it is recognised that this provision
has up to now not yet been invoked, this situation could
change, particularly if, as has been planned, current competi-
tion law governing maritime transport undergoes a thorough
revision. Furthermore, there may be a need to hold negotiations
not only in cases where one constitutional state requires some-
thing which another constitutional state prohibits but also in
cases where a measure is permitted in one constitutional state
but banned in another such state.

4. Recommendations made by the Committee of the Regions

THE COMMITTEE OF THE REGIONS

4.1
appeals to maritime transport enterprises and associa-
tions not to close their minds to the economic advantages
which could be gained,
in the general public interest, by
increasing competition;

4.2
advocates shaping the substance and timing of the subse-
quent process in such a way to ensure that the reservations
expressed by shipping enterprises and their associations can be
addressed on an ongoing basis. Detailed explanations should be
given regarding the extent to which these reservations can be
taken into consideration or have to be rejected. This is the only
way to ensure the establishment of a competition regime for
maritime transport which is sustainable, ensures legal certainty
and is, wherever possible, accepted by all the parties involved;

for

calls

therefore

4.3
implementation, wherever
the
possible, of a comprehensive impact analysis which would
examine more closely the impact on trade flows, investment,
market shares and consumer prices. The Committee recom-
mends that attention be paid, in particular, to employment and
social-policy aspects when examining the impact of liberalisa-
tion;

4.4
takes the view that the proposal put forward by the
European Liners Affairs Association (ELAA) provides an effec-
tive basis for future regulatory measures; in this context, the
Committee regards it as absolutely imperative, for the purposes
of ensuring effective monitoring, to involve the Commission —
from the point of view of both personnel and organisation —
in the operation of the body which the ELAA proposes to be
set up for the purposes of gathering and passing on informa-
the
tion not
Committee takes the view that consideration should be given
to the idea of also channelling all flows of information via the
Commission, or an observer appointed by the Commission,
and even to the idea of having the proposed body established
directly within the Commission. This would make it possible
for the Commission to analyse, on an ongoing basis the impact
which the exchange of information had on the market and on
competition on the market. As reliable results can only be
expected after the scheme has been in operation for a relatively

relating to named enterprises. Furthermore,

long period of time, it would be advisable to adopt a regulatory
measure for a limited period and on a trial basis, with the
option to extend it;

4.5
calls for consideration be given to whether the transi-
tional arrangements could perhaps be aligned on amortisation
periods or on the length of time the shipowners concerned are
likely to need in order to make changes, with regard to the
vessels which they have purchased or are leasing for long or
short periods, in order to bring their operations into line with
the new conditions;

4.6
urges that investigations be carried out to determine
whether it would be possible for the duration of transitional
periods to be geared also to geographical considerations,
i.e. whether they could be aligned on the conditions prevailing
on the regional markets concerned. This being the case, the
transitional periods for the Baltic area could be rather short, as
there are few liner conferences in this area, whereas the transi-
tional period for the Atlantic routes could be rather longer, as
liner conferences play a major role in this area;

4.7 wishes to draw attention to the fact that the establish-
ment and duration of transitional periods could also be geared
to ‘market-share thresholds’;

4.8
calls for the existing uncertainties with regard to Article 2
of Regulation 4056/86 not to be seen as grounds for repealing
the provisions set out in this Article but rather as grounds for
reviewing the substance of these provisions within the frame-
work of Regulation 4056/86 and Regulation 823/2000. On the
one hand, steps should be taken to ensure that these provisions
are compatible with Article 81(3) of the EC Treaty and are in
line with the future competition regime and, on the other
hand, it would be advisable to spell out more concretely those
sections of the provisions which the Commission fears will be
interpreted too broadly by maritime transport enterprises or in
respect of which the Commission has established that such
broad interpretations have already been made. The enterprises
concerned should be advised to submit proposals on this
matter of their own accord,
if they wish to ensure that the
provisions set out in Article 2 are retained;

takes the view, moreover,

4.9
that both at bilateral and
multilateral level and also in the context of cooperation within
existing international organisations, further efforts might well
be advisable with a view to achieving global conditions of
competition which would be more uniform and therefore
fairer.
In this context checks should also be carried out to
determine whether, and to what extent, provisions introduced
by non-EU states could serve as an example for the EU;

4.10
recommends that Article 9 of Regulation 4056/86 be
retained, at least on the basis of a limited-duration provision
valid for several years, with the option of being extended.

Brussels, 13 April 2005

The President
of the Committee of the Regions
Peter STRAUB