Opinion of the European Economic and Social Committee on A common EU ports policy
Date: 2007-04-26
Institutions: European Economic and Social Committee
Subjects: ESC opinion, common ports policy, competitiveness, financing, freedom to provide services, harbour installation, investment, port administration

20.7.2007

EN

Official Journal of the European Union

C 168/57

Opinion of the European Economic and Social Committee on A common EU ports policy

(2007/C 168/12)

On 6 July 2006, the European Economic and Social Committee, acting under Rule 29(2) of its Rules of
Procedure, decided to draw up an opinion on A common EU ports policy.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 22 March 2007. The rapporteur
was Mr Jan Simons.

At its 435th plenary session, held on 25 and 26 April 2007 (meeting of 26 April), the European Economic
and Social Committee adopted the following opinion by 137 votes to two, with seven abstentions.

1. Conclusions

1.1
The present own-initiative report focuses on aspects of
European seaport policy on which stakeholders in the port
sector should be able to reach consensus. That is why the report
is being drawn up in close consultation with concerned stake-
holder organisations which were invited to express their view
during two public hearings held on 20 November 2006 and
20 February 2007 (1).

The hearing confirmed that a European seaport policy

1.2
should address the following themes:

a) Ensuring sustainable development of port and port-related

capacity

b) Creating a clear and transparent framework on financing of

port investments

c) Clarifying procedures

regarding market access

for port

services

d) Solving operational bottlenecks that hamper port efficiency

e) Promoting good and safe working conditions and construc-

tive labour relations in ports

f) Promoting the overall competitiveness and positive percep-

tion of ports.

(1) The following organisations were invited to the hearings:

European Association for Forwarding, Transport, Logistic and Customs
Services (CLECAT), European Community Shipowners' Association
(ECSA), European Community Association of Ship Brokers and Agents
(ECASBA), European Shippers' Council (ESC), Association of European
Chambers of Commerce and Industry (EUROCHAMBRES), European
Maritime Pilots' Association (EMPA), European Boatmen's Association
(EBA), European Tugowners Association (ETA), European Transport
Workers' Federation (ETF), International Dockers' Council (IDC), Euro-
pean Sea Ports Organisation (ESPO), European Federation of Inland
Ports (EFIP), Federation of European Private Port Operators (FEPORT),
European Harbour Masters' Committee (EHMC) and Federation of
European Tank Storage Associations (FETSA), EUROGATE.

1.3
These themes broadly correspond with the themes put
forward by the European Commission in its consultation
process on a future European seaport policy. This consultation
was initiated following the withdrawal of the two Commission's
draft Directives on market access to port services (2), and is
likely to be concluded by June 2007.

1.4
The debate on the port services' Directive has already
thrown up extensive information on areas such as port finan-
cing and procedures on market access to port services. Any
progress that is made on these areas should therefore lead to
tangible results in the short term.

especially those

Operational bottlenecks,

related to
1.5
administrative procedures and hinterland transport, can be
addressed in the context of existing initiatives, such as the
programmes on customs modernisation, railway liberalisation
and inland navigation (NAIADES). They also fit within the
broader context of the review of the Transport White Paper (3)
and the Commission's Communication on Logistics (4).

1.6
The EU can stimulate high reliability and safety standards
in European ports by providing adequate (financial) support to
training and education programmes and by enforcing applicable
safety legislation.

1.7
Developing a good social policy for ports is of great
importance. It must be developed in close cooperation with the
social partners who bear primary responsibility in this matter.

(2) See the following two EESC opinions on the subject: EESC opinion
on the ‘Proposal for a Directive of the European Parliament and of
the Council on market access to port services’ OJ C 48, 21.2.2002,
p. 122-129 and EESC opinion on 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)) OJ C 294,
25.11.2005, p. 25-32.
See also the EESC opinion on the ‘Communication from the Commis-
sion to the Council and the European Parliament on the training and
recruitment of seafarers’ OJ C 80, 3.4.2002, p. 9-14; and the EESC
opinion on ‘Europe's accessibility by sea in the future: developments
and how to anticipate them’ OJ C 157, 28.6.2005, p. 0141-0146.
(3) Communication from the Commission to the Council and the Euro-
pean Parliament, Keep Europe moving — sustainable mobility for our
continent — Mid-term review of the European Commission's 2001
Transport White Paper, COM(2006) 314 final.

(4) Communication from the Commission to the Council, European Parlia-
ment,
the European Economic and Social Committee and the
Committee of the Regions, Freight Transport Logistics in Europe — key
to sustainable mobility, COM(2006) 336 final.

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Important instruments which the national authorities and social
partners can use to frame a good social policy are the Interna-
tional Labour Organisation (ILO) conventions on work in ports,
which can also make a significant contribution to creating a
level playing field. The Commission must encourage the
Member States to ratify these conventions.

1.8
The EU can further stimulate young people to pursue a
career in ports, similar to its actions to attract youngsters to sea.
High-level nautical training helps to ensure that in future there
will be enough high-quality pilots, harbour masters and other
professionals in ports.

1.9
In addition, a European social dialogue for seaports may
have added value, provided relevant representative European
stakeholder organisations can agree on an agenda of common
interest.

A fundamental debate on sustainable port development
1.10
is of vital importance in the context of European seaport policy.
Ports have an important responsibility to achieve high environ-
mental standards and should be encouraged to make further
investments in this field. However, it has become quite clear in
the meantime that problems are to a large extent also caused by
the ambiguity of EU environmental legislation.

Further

investigation will be required to establish
1.11
whether spatial planning programmes can help create greater
legal certainty and more opportunities for port development. At
the same time, it must be recognised that ports are frequently
sited close to nature conservation areas of outstanding impor-
tance which need to be protected and properly balanced with
port development.

The EESC understands that the concept of ‘common
1.12
European maritime space’
in the Green Paper on maritime
policy refers to a virtual maritime space. If this is indeed what
the Commission means and it is expressed clearly and unequivo-
cally, the concept can be supported by the EESC provided that
in international waters (high seas) it respects the UNCLOS and
IMO Conventions including the ‘freedom of navigation’ and the
‘right of innocent passage’ within the Exclusive Economic Zone
(EEZ).

1.13
Finally, the EU should play a supportive role in preser-
ving the overall competitiveness of EU ports in a global context
and stimulating initiatives aimed at
restoring the positive
perception of ports thus generating broad public support for
them. This
requires an innovative approach involving the
cultural, tourist and recreational potential of port cities.

A European policy for seaports does not necessarily
1.14
imply producing new legislation. ‘Soft law’ (5) in particular may
be a valuable alternative to legislation on the one hand and a
case-by-case approach on the other.

(5) Soft law refers to rules of conduct that are laid down in instruments
which are not legally binding but may have certain indirect legal effect
and are aimed at producing practical effects. Examples include interpre-
tative communications, guidelines and codes of practice.

1.15
A European seaport policy should generally refrain
from unnecessary interventionism but focus on: a) applying
Treaty rules where necessary, b) ensuring that ports can
adequately fulfil their public role, c) stimulating market-oriented
behaviour and d) promoting a positive public image of the
sector. Existing EU legislation which hampers the sound and
sustainable development of seaports should be revised where
appropriate.

2. Challenges facing European seaports

The most

2.1
fundamental criticism on the draft port
services' Directive was that it did not take into account market
developments and the challenges these represent for European
ports, that it tried to impose a ‘one size fits all’ model regarding
port management and ignored the social component of ports.
Such factors must not be overlooked when a more comprehen-
sive analysis of European seaport policy is drawn up (6).

2.2
Seaports are one of the strong growth sectors in the
transport field of the European economy. This is especially the
case for container traffic. Capacity is lagging behind in several
European regions causing substantial congestion problems (7).

2.3
This calls for the optimal use of existing port facilities
and the development of new port capacity (8) where necessary.
Equally, optimal maritime access routes to ports (dredging), as
well as hinterland infrastructure need to be ensured. Ports can
for obvious reasons only be located in costal regions, including
estuaries, which are characterised by fierce competition for
space. Ports are aware of their impact on the environment and
have made considerable investments to achieve high environ-
mental standards over the past years. This however does not
exclude resistance from local communities and cities which tend
to focus on the negative externalities of seaports and are not
always aware of the added value and positive aspects associated
with ports. More importantly, the legal uncertainty caused by
EU nature conservation legislation adds to the strain on vital
port development plans causing serious delays.

2.4
invest-
Port capacity development requires substantial
ment. The restraining of government budgets means private
capital is vital for the financing of port infrastructure and super-
structure. This requires long-term commitment
from private
investors in ports.

(6) For a more extensive overview on market developments and challenges,
see: ESPO and ITMMA, Factual Report on the European Port Sector,
2004.

(7) For a recent analysis see: Ocean Shipping Consultants, The European

and Mediterranean Container port Markets to 2015, 2006.

(8) EESC opinion on ‘Europe's accessibility by sea in the future: de-
velopments and how to anticipate them’ OJ C 157, 28.6.2005,
p. 0141-0146.

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2.5
Besides strong growth, the European port sector is also
characterised by the processes of globalisation and consolida-
tion. European seaports deal with international shipping groups
and large terminal operator groups have emerged which now
provide services in several European ports (9).

European port competition should focus on logistics
2.6
chains (10). The traditional division of tasks within the logistics
chain has become blurred by vertical
integration strategies.
European ports are increasingly competing from within supply
chains and have become ‘natural habitats’ for logistics services.
Seaports need all transport modes to function optimally.

d) Solving operational bottlenecks that hamper port efficiency

e) Supporting safe and reliable operations and optimal working

conditions in ports

f) Promoting the overall competitiveness and positive percep-

tion of ports.

The section that follows expands on these thematic areas.

As

intermodal connecting points,

2.7
the efficiency of
seaports depends very much on the efficiency of services
provided both in the hinterland and the maritime foreland.
Seaports are moreover favoured locations for carrying out fron-
tier controls on ship safety, security, customs, public health,
environmental and social provisions and conditions on board;
many of these controls are unique to the maritime sector and
are not always properly coordinated and harmonised.

As a consequence of

the processes described above,
2.8
managing bodies of seaports are in many cases reviewing their
traditional port authority role as part of reform processes.

3. Themes for a European seaport policy

3.1
As has been highlighted above, European seaport policy
should focus on stimulating sustainable growth, creating an
attractive investment climate in ports, enhancing legal certainty,
optimising the integration of seaports in the supply chain,
enhancing overall competitiveness and providing for a good
social policy and constructive labour relations so that these
aspects can make a contribution to the positive image of ports
as attractive places to work.

3.2
This overall objective can be divided into six thematic
areas, which have been acknowledged by the European Commis-
sion:

a) Ensuring sustainable development of port and port-related

capacity

b) Creating a clear and transparent framework on financing of

port investments

c) Clarifying procedures on market access to port services

(9) This is especially true in the field of containerized cargo, where already
in 2002 70 % of the market was already controlled by six major opera-
tors (ESPO and ITMMA, p. 38) but the phenomenon is equally present
in markets such as dry bulk and general cargo.

(10) For details see the opinion TEN/262 of the EESC on the Commission
proposal ‘Freight Transport Logistics in Europe — the key to sustain-
able mobility’ COM(2006) 336 final.

4. Ensuring sustainable development of port and port-

related capacity

4.1
Ports are frequently sited close to nature conservation
areas of outstanding importance. Harmonising ecological and
economic values has proved to be a difficult learning exercise
for many ports, often resulting in conflict situations. European
seaports have however made considerable progress in achieving
high environmental standards and improving environmental
management (11) and have over the years succeeded in devel-
oping constructive agreements with NGOs and local stake-
holders leading to win-win situations for nature and ports.

Nevertheless, legal uncertainties with regard to the appli-
4.2
cation of nature conservation legislation continue to cause
substantial delays for many projects. It is generally recognised
that these delays are, to a large extent, caused by ambiguities in
the applicable EU legislation, such as the Bird and Habitats
Directives and the Water Framework Directive. The definition of
essential concepts remains vague (12), leading to different inter-
pretations in Member States.

4.3
The Commission can help remedy this situation by
providing guidance on the interpretation of existing legislation.
At the same time it should stimulate European seaports to take
up their responsibility in the field of environmental manage-
ment, for instance by encouraging the dissemination of best
practices
as
ECOPORTS (13).

sector-driven

initiatives

through

such

4.4
However, the lack of consideration given to economic
factors and conflicts with pre-existing legal regimes applying to
zones earmarked for port development within the legislative
framework itself is also a major cause of problems. Sustainable
development means a balance between economic, social and
ecological
entirely
achieved.

considerations which is

currently not

(11) For an overview see for instance: ESPO Environmental Survey 2004 —
Review of European Performance in Port Environmental Management.
(12) The European Birds and Habitats Directives for instance lead to
different
interpretations regarding appropriate assessments, pre-
existing agreements, analysis of alternatives, so-called ‘Imperative
Reasons of Overriding Public Interest’ (IROPI), compensation require-
ments etc.

(13) The Commission-supported ECOPORTS project ran until 2005 and
stimulated port managers towards self-regulation on environmental
matters. Its work is now carried out by the ECOPORTS Foundation.
www.ecoports.com.

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4.5
The fundamental shortcomings of existing EU environ-
mental law have been highlighted in a recent study sponsored
by the European Commission under its Maritime Transport
Coordination Platform (MTCP) project (14). The study also lists a
number of concrete policy recommendations to achieve greater
legal certainty for port development projects, including the crea-
tion of a coherent network of strategic port development areas.

In its recent Green Paper on Maritime Policy (15) the
4.6
European Commission introduces the concept of maritime
spatial planning (16) which,
in combination with Integrated
Coastal Zone Management (ICZM), as we understand in terri-
torial waters, is aimed at controlling the increasing competition
between maritime activities for the use of European coastal
waters and providing greater legal certainty.

The idea of considering the EU as one country for
4.6.1
customs/administrative purposes only
can be welcomed,
provided that in international waters (high seas) it respects the
UNCLOS and IMO Conventions including the ‘freedom of navi-
gation’ and the ‘right of innocent passage’ within the Exclusive
Economic Zone (EEZ). The EESC understands that the concept
of ‘common European maritime space’ refers to a virtual mari-
time space in which there will be a simplification of administra-
tive and customs formalities for intra-EU maritime services
giving them a similar regime to transport by lorry, train or
inland navigation in the internal market. If this is indeed what
the Commission means and it is expressed clearly and unequivo-
cally, the concept can be supported by the EESC (17).

4.7
Finally, the current approach towards seaports under the
Trans-European Transport Networks (TEN-T) could be revised to
generate greater European support for vital hinterland infra-
structure projects of relevance to ports. Projects of common
interest under the TEN-T may be considered as being of over-
riding public interest in the context of environmental
legisla-
tion (18) since TEN-T status already takes into account environ-
mental considerations.

Solutions described above should however abstain from
4.8
centralised port planning at EU level nor lead to strict national
port planning policies.
the
In essence,
bottom-up principle that project proposals should be designated
by the managing body of a port in conjunction with regional or
national authorities where applicable and taking into account
objective economic assessments that confirm to common meth-
odological standards and respect the applicable legislative frame-
work.

they should foster

(14) E. Van Hoydonk, MTCP Report on the impact of EU environmental

law on waterways and ports, 2006.

(15) Green Paper ‘Towards a future Maritime Policy for the Union: A Euro-

pean vision for the oceans and the seas’, COM(2006) 275 final.

(16) According to the Green Paper, Maritime Spatial Planning has a key role
to play in reducing the vulnerability of marine and coastal areas. A
comprehensive system of spatial planning could improve a stable regu-
latory environment for sectors where large investments have to be
made affecting the location of economic activity. Coordinating all
maritime activities by innovative marine spatial planning could help to
ensure an economically and environmentally sustainable development
of coastal regions.

(17) Cf. TEN/255, Opinion on Green paper towards a future Maritime

Policy for the Union (OJ C 93, 27.4.2007).

(18) As recommended by the above-mentioned MTCP study.

5. Creating a clear and transparent framework for the

financing of port investments

The substantial investment needed in seaports calls for a
5.1
legal framework at EU level. Legal certainty is
clear financial
particularly needed on the conditions
for allowing public
funding in ports without distorting competition. The consensus
is that
the most effective way of achieving this would be
through State aid guidelines.

5.2
The purpose of State aid guidelines should be to clarify
the EU Treaty rules on State aid (notably articles 73, 86, 87 and
88) that apply to ports. Guidelines should indicate the cases in
which public funding is deemed to be State aid and must be
notified to the Commission for examination. If the aid meets
the
the criteria provided in the exemptions of
Commission can declare it compatible with the Treaty.

the Treaty,

It

is generally accepted that public funding of

5.3
the
following investments and activities is not considered to be
State aid and Member States should, therefore, not notify such
funding schemes to the Commission:

a) The provision and operation (including maintenance) of
infrastructure outside the port area connecting the port to
land and maritime access routes. Maintenance of maritime
access routes includes dredging and keeping these routes
open with the aid of icebreaking services.

b) Compensation for activities of the managing body of the
port which are not of an economic nature and which are
normally the responsibility of the managing body of the
its official powers as a public
port
authority both outside and in the port.

in the exercise of

The provision and operation of port

infrastructure,
5.4
however, is a more complex issue. A distinction can be made
here between access and defence infrastructure on the one hand,
and port-internal infrastructure on the other. The former can be
defined as all infrastructure that grants sea and land access to a
land
port area, including maritime access and defence works,
access connections to general public transport facilities, and
infrastructure for utilities required in the port area. Port-internal
infrastructure can be defined as civil works within the port area
that facilitate supply of services to ships and cargoes.

An important factor here is whether port infrastructure
5.5
is in the general interest of the port, or is reserved for a specific
user or operator. Guidelines would have to introduce a workable
distinction.

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5.6
There is consensus on the granting of aid for the provi-
sion and operation of port superstructure, i.e. surface arrange-
ments, buildings, mobile and fixed equipment needed to
produce services. Public financing in these areas is generally
considered to be State aid.

Assuming that a clear distinction can be established
5.7
between investments and activities, whether these are publicly
funded under State aid rules or not, it seems logical to adhere to
the principle that the managing body of the port should have
full financial autonomy to recover from users the cost of invest-
ments and activities that are not covered by eligible State aid.

5.8
Equally, the Transparency Directive should be amended
in order to make it applicable to all ports (19).
In this way,
managing bodies of ports would be required to indicate flows
of public money in their accounts and keep separate balance
sheets
they provide both public and regular economic
services. The latter is especially relevant given the possibility of
obtaining public funding as compensation for public service
obligations.

if

6. Clarifying procedures for market access to port services

6.1
In view of the experiences made with the two legislative
EU Commission proposals on market access to port services, it
may be worthwhile to provide guidance on the basis of the
existing EU legal framework, and to examine which instruments
could be of use to ports and how they should be applied.

For many ports, guidance or recommendations, contrary
6.2
to legislation, on the use of selection procedures, such as
tenders or other acceptable instruments, conditions for conces-
sions and land-lease agreements etc. would be very useful.

6.3
Such guidance may also be useful to clarify the legal
status of those services (e.g. parts of the pilotage task) which
serve as a public service, for example for the overall safety in
ports.

7. Solving operational bottlenecks that hamper port effi-

ciency

and inspections and b) inefficiencies in hinterland transport.

7.2
There is a consensus that the EU should make further
progress with the modernisation of customs (20) and ensure that
its policies on customs, maritime safety, security, public health
and environmental quality are properly coordinated and harmo-
nised and do not unduly transfer government responsibilities to
ports.

The idea of a ‘Common Maritime Space’ suggested by the
7.3
Commission could help in ensuring that short sea shipping will
receive a more equal treatment with inland transport in terms
of administrative and customs procedures. No attempt should,
however, be made to introduce legislative restrictions in interna-
tional EU waters (high seas) which contradict the principle of
free navigation and the right of innocent passage or impose
restrictions which are not compatible with international rules
and regulations. The idea of considering the EU as one country
for customs/administrative purposes only can be welcomed. The
EESC understands that the concept of ‘common European mari-
time space’ refers to a virtual maritime space in which there will
be a simplification of administrative and customs formalities for
intra EU maritime services giving them a similar regime as
transport by truck or train in the internal market.

7.4
In addition, the Commission should step up its efforts to
solve remaining bottlenecks in the hinterland through the
implementation of the NAIADES programme for inland naviga-
tion its railway packages and its efficiency policies with regard
to road transport. In considering these modes of transport it
would be wrong to pay scant attention, or none at all, to social
policy, as has unfortunately been the case in recent Commission
documents on inland waterway transport (Mid-term Review of
the Transport White Paper; NAIADES programme).

8. Promoting good safe working conditions and surround-

ings, and constructive labour relations in ports

The efficiency of operations in ports depends both on a
8.1
reliability and safety component which are, despite technological
progress, to a large extent determined by the human factor. This
explains the need for a qualified and well-trained workforce in
ports covering all services and operations, both landside and on
board ships. This prerequisite applies regardless whether ports
and port service providers are in public or private ownership.

7.1
In addition to the structural problems relating to a lack
of adequate infrastructure capacity which have already been
mentioned above, reference is frequently made to bottlenecks of
a more operational kind that hamper port efficiency. Broadly
speaking, they occur in a) administrative bureaucracy, controls

(19) Directive 1980/723/EEC, amended by Directive 2000/52/EC.

The social partners should play an important role in
8.2
creating and maintaining this. At European level, the Commis-
sion should support their input by facilitating social dialogue.

(20) Several proposals are currently pending which aim to modernise
customs, including two legislative proposals to revise the Customs
Code and the Customs 2013 action programme:
http://ec.europa.eu/taxation_customs/customs/policy_issues/
customs_strategy/index_en.htm.

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8.3
European ports have the responsibility to maintain high
reliability and safety standards. The European Union can stimu-
late these by providing adequate (financial) support to training
and education programmes and by enforcing applicable safety
legislation. The EU can further stimulate young people to
pursue a career in ports, similar to its actions to attract young-
sters to sea. The latter has an impact on work in ports as well.
High-level nautical training helps to ensure that in future there
will be enough high-quality pilots, harbour masters and other
professionals in ports.

8.4
Constructive labour relations are crucially important for
a proper ports policy. The Commission should also create
favourable conditions for such relations in close cooperation
with the governments of the Member States.

8.4.1 With this aim in mind,
the European Commission
should first set out its views on whether ILO Conventions 137
and 152 on dock work are in line with the principles set out in
the European Treaties and the existing body of EU law (the
‘acquis communautaire’) before calling upon the Member States
to ratify these two Conventions.

To achieve optimal working conditions in ports and a
8.5
positive social climate in general, a proper social dialogue is
vital. Such dialogue exists in most European ports and should
be established where it is not the case already. Provided relevant

Brussels, 26 April 2007.

representative European stakeholder organisations can agree on
a common agenda, such a dialogue may also have added value
at European level.

9. Promoting the overall competitiveness and restoring a

positive perception of ports

Given their vital interest for Europe, the European Union
9.1
has a task to enhance the overall competitiveness and promote
a positive image of the port sector, mainly by addressing the
above-mentioned themes, but also through specific actions
listed in this section.

9.2
Through its external relations policy, the EU should pay
particular attention to cases of unfair competition by neigh-
bouring non-EU ports. This is especially relevant for ports in
the Baltic Sea, Black Sea and Mediterranean.

9.3
The EU should also restore the positive perception of
seaports with the European citizen, emphasising the added value
of ports for European trade, welfare, cohesion and culture, thus
generating wider public support for ports.

9.4
Finally, the EU can stimulate cooperation and exchange
of best practice and innovation between ports by supporting
pragmatic, non-theoretical and industry-driven research projects.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS