Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a framework on market access to port services and financial transparency of ports
Date: 2013-05-23
Institutions: European Commission
Subjects: administrative transparency, harbour installation, harmonisation of standards, provision of services, trans-European network

EUROPEAN 
COMMISSION 

Brussels, 23.5.2013  
COM(2013) 296 final 

2013/0157 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing a framework on market access to port services and financial transparency 
of ports 

(Text with EEA relevance) 

{SWD(2013) 181 final} 
{SWD(2013) 182 final} 
{SWD(2013) 183 final} 

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EXPLANATORY MEMORANDUM 

1. 

1.1 

CONTEXT OF THE PROPOSAL 

Background 

Europe is one of the most dense port regions worldwide. At the same time, the port sector is 
very  heterogeneous  and  characterised  by  a  wide  diversity  in  types  and  organisation.  This 
Regulation respects this diversity and does not seek to impose a uniform model for ports. 
Over 1.200 commercial seaports operate along some 70.000 kilometres of the Union’s coasts. 
In 2011, around 3.7 billion tonnes of cargo (more than 60 000 port calls of merchant ships) 
transited through European ports.  
While the EU is highly dependent on its ports for its trade with the rest of the world, its ports 
also play a key role for its own internal market. Thus short sea shipping represents 60% of the 
tons handled in EU ports. Seaports are key nodal points of the EU intermodal transport chains 
using  short  sea  shipping  as  an  alternative  to  saturated  land  transport  routes  and  as  a  way  to 
connect peripheral or island areas. 
In terms of passengers transport, EU ports handled 385 million maritime passengers in 2011.  
Port activities contribute directly to employment, inward investment and GDP growth. 2,200 
port operators currently employ around 110,000 port dockers. In total, ports represent up to 3 
million (direct and indirect) jobs in the 22 maritime Member States and are a major source of 
tax revenues for local, regional or national governments. 
96%  of  all  freight  and  93%  of  all  passengers  through  the  EU  ports  transit  through  the  319 
seaports  identified  in  the  Commission's  proposal  for  Guidelines  on  the  trans-European 
transport network (TEN-T)1.  

1.2 

Challenges 

While  the  need  to  develop  hinterland  connections  is  well  identified  as  a  key  challenge  and 
already  addressed  through  the  TEN-T  policy,  other  key  challenges  for  TEN-T  ports  remain 
unresolved. First, there is the fact that today not all TEN-T ports are offering the same high-
level  service.  Second,  the  current  port  governance  framework  is  not  in  all  cases  attractive 
enough for investors. This together relates to five specific challenges: 

1.2.1 

Sub-optimal port services and operations in some TEN-T seaports 

Efficient  port  services  are  crucial  for  the  performance  of  the  TEN-T  seaports.  The 
Commission,  together  with  the  sector,  has  identified  three  issues  that  may  prevent  port 
services from being organised in an optimal way: (1) many of the port services are subject to a 
weak competitive pressure due to market access restrictions; (2) monopolistic or oligopolistic, 
although justified in a number of situations, may lead to market abuses and (3) in some ports 
users  are  faced  with  too  much  administrative  burden  due  to  a  lack  of  coordination  within 
ports. 

1.2.2 

Port governance frameworks are not attractive enough for investments in all TEN-T 
seaports 

The investments required to adapt the port capacities to changing needs are only possible only 
in  a  stable  policy  and  regulatory  framework  that  will  reduce  economic  uncertainties  and 
ensure a level playing field. This however does not seem to be the case in all TEN-T ports. 

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COM(2011) 650 final/2. The final number of TEN-T ports will depend on the outcome of the on-going 
legislative procedure. 

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Several  factors  explain  it:  a)  the  legal  uncertainties  created  by  the  market  restrictions 
described  above  and  b)  the  need  for  better  infrastructure  planning  which  can  be  tackled 
through stricter TEN-T rules.  
But  two  other  fundamental  issues  explain  this  current  and  overall  unattractive  investment 
climate in several TEN-T ports: (4) unclear financial relations between public authorities, port 
authorities  and  port  services  providers  and  (5)  the  weak  autonomy  of  ports  to  define 
infrastructure charges and non-transparent links with the costs related to access infrastructure 
of ports. 

1.3 

Objective 

The objective is to contribute to the goal of a more efficient, interconnected and sustainable 
functioning  of  the  TEN-T  by  creating  a  framework  which  improves  the  performance  of  all 
ports and helps them to cope with changes in transport and logistics requirements. The TEN-T 
ports must help develop short sea shipping as part of intermodal routes, hence contributing to 
sustainable transport, one of the key goals of the Transport White Paper and contribute to the 
EU  2020  strategy  for  a  resource  efficient  growth  which  will  stimulate  growth  of  trade  and 
cargo. 
This  initiative  ensures  a  balanced  approach  between  legislative  action  and  a  soft  approach, 
exemplified  by  the  Social  Dialogue.  This  is  the  result  of  an  intensive  and  pertinent 
consultation of the stakeholders that allowed to focus the Regulation on measures with a high 
EU  added  value.  This  Regulation  will  avoid  additional  burden  for  those  ports  already 
functioning well and will create the conditions for the other ports to deal with their structural 
challenges. 

1.4 

Consistency with other EU policies and objectives 

The  proposal  fits  within  the  policy  announced  by  the  Commission  in  the  White  Paper  on 
Transport (2011) and has been explicitly announced under the heading of a Single European 
Transport Area and market access to ports. The White Paper clearly states the intention of the 
Commission  to  review  restrictions  on  provisions  of  port  services  and  to  enhance  the 
transparency on ports' financing, clarifying the destination of public funding to the different 
port activities, with a view to avoid any distortion of competition. The proposal has also been 
identified  as  one  of  the  key  actions  of  the  Single  Market  Act  II  and  will  contribute  to  the 
completion of the European Single Market. 

The  proposal  completes  and  supplements  on-going  policies  or  proposals  already  made:  the 
proposals  on  the  trans-European  transport  network  guidelines  and  the  Connecting  Europe 
Facility which provides a framework to support the development of hinterland connections to 
ports,  the  proposal  for  a  Directive  on  the  awards  of  concession  contracts  which  applies  to 
concession  contracts  in  ports  and  the  preparatory  work  on  a  Blue  Belt  initiative  aiming  at 
simplifying  the  customs  procedures  applied  to  EU  goods  carried  by  vessels  calling  at  EU 
ports. 

The proposal applies to all the ports of the TEN-T since by their very nature they all play a 
significant  role  in  the  European  transport  system  either  to  facilitate  the  exchanges  between 
Member States or to improve the regional accessibility of island or peripheral areas. It should 
however be stressed that the principles of non-discrimination and freedom of establishment of 
the Treaty on the functioning of the European Union and the competition rules also apply to 
the other ports, which although not in the trans-European network may have an important role 
at local level or for other sectors than transport like fishing or tourism. Member States may 
also decide to apply the provision of this proposed Regulation to these ports. 

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2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

2.1 

Consultation of interested parties 

DG MOVE has maintained a dialogue with the national administrations in charge of the ports' 
policy (Ministries of Transport). It held meetings with the main industry associations  in the 
port sector, inter alia: port authorities (ESPO), private terminal operators (FEPORT), inland 
ports (EFIP), ship-owners (ECSA), pilots (EMPA), tug owners and operators (ETA), mooring 
operators  (EBA),  ship's  agents  (ECASBA),  shippers  (ESC),  dredgers  (EuDA)  and  logistic 
operators  (CLECAT).  DG  MOVE  also  held  meetings  with  the  two  main  Unions  of  port 
workers,  the  International  Dockers  Council  (IDC)  and  the  dock  workers'  section  of  the 
European  Transport  Workers  Federation  (ETF).  A  sectoral  social  dialogue  committee  could 
not be consulted, as this is still in the process of being set up.  

The preparatory work was supported by an economic study on the quality and efficiency of 
European ports (PwC). The work took account of extensive research on transport economics, 
ports and logistics and involved several discussions with industry and research experts. 

Stakeholders  were  consulted  extensively  through  two  on-line  surveys  and  an  open 
stakeholders'  two-day  conference  in  Brussels  (25-26  Sept.  2012).  A  final  targeted  public 
hearing, presenting the key problems and discussing policy options and their possible impacts 
was held on 18 January 2013. The main results of the consultation process (2012-2013) can 
be summarised as follows:  

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All  stakeholders  stressed  the  need  for  a  stable  and  fair  level  playing  field  both  for 
inter-port (competition between ports) and intra-port (competition between providers 
of  a  same  port  service  within  a  port)  competition  in  the  EU.  The  need  for  legal 
certainty and a  business friendly environment  with as less administrative burden as 
possible is a priority for all stakeholders. 

There  is  a  major  concern  about  unfair  competition  between  ports  linked  to  public 
funding practices of port infrastructures. Member States and port authorities request 
a tight control of state aid.  

A significant part of the users of port services, shipping companies and export-import 
industries, consider that port services in many EU ports are not satisfactory in terms 
of price, quality and administrative burden. 

30%  of  European  port  authorities  do  not  consider  that  the  current  situation  is 
satisfactory.  However,  the  majority  of  them  oppose  the  introduction  of  EU 
procedures  limiting  the  capacities  of  public  authorities  to  grant  contracts  and 
permissions  to  operators  of  port  services  through  direct  award.  Applying  EU 
concession rules to certain contracts granted in ports is highly controversial in certain 
Member States.  

Port  workers'  trade  unions  extremely  oppose  any  EU  provision  touching  on  the 
existing port labour regimes in certain Member States . Representatives of pilotage 
services  argue  that  pilotage,  although  provided  against  remuneration,  is  not  an 
economic service and should be excluded from competitive pressure. 

Most  stakeholders  agree  that  the  EU  port  system  has  to  evolve  and  adapt  to 
significant challenges in terms of scarce funding resources, competitiveness vis-à-vis 
ports  in  neighbouring  third  countries  and  other  world  regions,  creation  of  added 
value and jobs as well as coping with environmental impacts. They all agree on the 

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importance to secure and, if possible, increase, EU funding expenditure in support of 
ports and maritime transport. 

2.2 

Impact assessment 

The  Impact  Assessment  identified  five  operational  objectives  related  to  the  two  main 
challenges identified above. 

2.2.1  Modernise port services and operations:  

First, by better optimising port services and operations, a number of TEN-T ports should be 
able  to  handle  or  attract  more  cargo  and  passengers  with  the  existing  infrastructure.  This 
translates into three operational objectives: 

(1) 

Clarify and facilitate access to the port services market:  

This  should  reduce  access  restrictions  to  the  port  services  market  while  clarifying  and 
suppressing  the  current  legal  uncertainties  stemming  from  horizontal  rules  from  the  Treaty 
and on public procurement. 

(2) 

Prevent market abuse by designated port service providers:  

This  should  ensure  that  designated  service  providers  offer  their  services  in  a  cost-efficient 
manner  while  continuing  to  fulfil  their  role  and  possible  their  mission  of  public  service, 
notably in the field of safety, security and environment. 

(3) 

Improve coordination mechanisms within ports:  

This  should  facilitate  smooth  operations  for  shippers,  logistic  operators  and  cargo-owners, 
reducing the time and money required for using the port. The coordination effort should also 
benefit  operators  established  in  the  port,  facilitating  synergies  and  avoiding  duplication  of 
efforts for serving the same customers.  

2.2.2  Create framework conditions to attract investments in ports:  

Second, a greater financial transparency and autonomy of ports should create a level playing 
field, encourage more efficient charging, and eventually attract more investments. This in turn 
translates in two additional operational objectives: 

(4) 

Make  the  financial  relations  between  public  authorities,  port  authorities  and 
providers of port services transparent:  

This  should  ensure  a  financial  transparency  between  public  authority  functions  and 
commercial operations in order to prevent that ports and service providers benefit from unfair 
competitive advantages.  

(5) 

Ensure autonomously set and transparent port infrastructure charges:  

This  should  achieve  a  more  efficient  use  of  infrastructure  and  more  economic  rationality  in 
the  planning,  investment,  maintenance,  and  operation  of  port  infrastructures,  while  enabling 
environmental and societal price signals. 

On the basis of this 4 policy options where considered: 

(1) 

Policy Package 1: “Transparency”  

Policy  Package  1  (PP1)  applies  a  soft  measure  (non-binding  communication)  to  clarify  and 
facilitate  the  market  access  of  ports  services.  Binding  provisions  are  however  introduced  in 
monopolistic or oligopolistic situations: in those cases the services should be subject to price 
supervision in order to avoid excessive or discrminatory charging. The financing and setting 

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of port charges is left over to the competent authorities on the condition of basic transparency. 
Coordination of the services inside the port is guaranted by a port users' committee. 

(2) 

Policy Package 2: “Regulated competition”  

Policy  Package  2  (PP2)  introduces  the  principle  of  freedom  to  provide  services  under  a 
scheme  of  regulated  market  access.  Under  this  regulated  market  access,  the  freedom  to 
provide services can be restricted if it is warranted by the lack of space in the port area or by 
public service obligations (availability, accessibility, etc.). In such cases, newly attributed and 
designated  services  are  made  subject  to  a  public  tendering  procedure  and  in  the  case  of  in-
house  operations,  the  service  needs  to  remain  confined.  Services  under  a  monopolistic  or 
oligopolistic situation are subject to price supervision. The transparency of financial relations 
between  public  authorities,  ports  authorities  and  port  service  providers  is  accommodated  by 
separated accounts and rules link the setting of the port infrastructure charges to actual costs. 
Coordination of the services inside the port is facilitated by a port users' committee. 

(3) 

Policy Package 2a: “Regulated competition and port autonomy”  

Policy Package 2a (PP2a) consists of PP2 with the following differences:  
The obligation to have recourse to public tenders in case of space restrictions or public service 
obligations applies not only to new contracts but also in the event of substantial changes to 
existing  contracts.  The  regulatory  oversight  of  service  providers  in  monopolistic  position  is 
more  limited  in  scope:  it  only  applies  to  the  markets  which  can  not  be  contested,  i.e.  the 
markets  for  which  no  public  tender  is  organised.  Greater  autonomy  is  given  to  ports:  on 
infrastructure charging, instead of imposing that charges are linked to actual costs, each port 
is given the right to set itself the structure and level of port dues, provided that the charging 
policy  is  transparent.  The  initiative  also  encourages  a  differentiation  according  to  the 
environmental performance of ships. 

(4) 

Policy Package 3: “Full competition and port autonomy”  

Policy Package 3 (PP3) builds on PP2a by obliging additionally at least two competing and 
independent  operators  for  every  port  service  where  the  number  of  operators  is  limited  as  a 
result of space constraint. There would also be a functional/legal separation. This separation 
would  result  in  a  multiplication  of  port  actors:  to  ensure  that  the  port  keeps  functioning, 
strengthening the central coordination role of the port authorities would be necessary. As in 
PP2a  each  port  authority  would  be  free  to  determine  the  structure  and  level  of 
infrastrustructure charges according to its own commercial practices.  

After analysis of the different options and potential impact the Commission concluded that the 
best  option  should  be  PP2a  with  a  variant  for  cargo  handling  and  passenger  services.  As 
regards the measures related to the market access to cargo handling and passenger services, 
there  is  no  need  to  propose  new  legal  provisions.  Existing  rules  and  requirements  will  be 
clarified in a Communication. The rules on the regulatory oversight of the price of the service 
providers in monopolistic or oligopolistic position and on the transparency of accounts would 
however apply to cargo handling and passenger services.  

The impact assessment highlights the potential benefits in terms of costs savings (€ 10 billion 
until 2030), development of short sea shipping and reduction of road congestion and creation 
of jobs. The impact assessment indicates that this proposal does not lead to direct significant 
changes  of  the  administrative  burden  in  ports.  The  introduction  of  the  freedom  to  provide 
services will reduce the administrative cost for ports, while the supervision of prices in certain 
cases and the consultation of users may require new administrative efforts. However it should 
be  stressed  that  this  proposal  will  indirectly  contribute  to  the  simplification  by  lifting 

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restrictions. Further simplification efforts will also be proposed in the forthcoming initiative 
on the Blue Belt. 

3. 

3.1 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the measures proposed 

The proposal contains the following main elements: 

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The Regulation applies to all the seaports identified in the Commission's proposal for 
Union Guidelines on the trans-European transport network.  

The  freedom  to  provide  services  will  be  applicable  to  port  services.  However 
managing  bodies  of  a  port  may  impose  minimum  requirements  on  the  providers  of 
specific  port  services.  When  imposed,  these  requirements  shall  only  relate  to 
professional  qualifications,  the  necessary  equipment  or  maritime  safety,  general 
safety  and  security  in  the  port  and  relevant  environmental  requirements.  These 
requirements should  not  be  used  as  a way of implicitly introducing market  barriers 
and  therefore  the  criteria  should  be  objective  and  proportionate  ensuring  a  fair 
treatment  of  all  operators,  existing  and  potential  ones.  Potential  operators  should 
have access to training to acquire relevant specific local knowledge.  

The above mentioned provision will not be imposed to cargo handling services and 
passengers  terminals.  These  services  are  often  organised  by  means  of  concession 
contracts  falling  in  the  scope  of  the  future  Directive  on  the  award  of  concession 
contracts proposed by the Commission2. Moreover additional legal provisions could 
undermine efforts being made to initiate a Social Dialogue at Union level. Contrary 
to pilotage services to enter and exit ports, pilotage services  performed  in  the  deep 
sea have no direct impact on the efficiency of port and therefore do not need to be 
included in this Regulation.  

Where  relevant  the  stated  freedom  to  provide  services  could  be  subjected  to  a 
limitation of the number of service providers. This restriction should be based on two 
elements:  either  in  the  case  of  space  constraints  or  reservation  which  if  clearly 
documented  in  a  formal  port  development  plan  can  justify  to  limit  the  number  of 
operators  active  in  the  port  perimeter  or  in  the  case  of  a  public  service  obligation 
imposed  to  an  operator  and  for  which  the  intention  should  be  clear  and  publicly 
available. 

A  Member  State  should  have  the  possibility  to  designate  authorities  competent  to 
impose  public  service  obligation,  in  line  with  the  applicable  State  aid  rules.  The 
obligations of public services must be clearly defined transparent, non-discriminatory 
and  verifiable  and  must  relate  to  the  availability  (no-interruption),  the  accessibility 
(to all users) or the affordability (of certain categories of users) of the port service.  

In the case of public service obligations being imposed by a competent authority in a 
port or in several  ports such an authority will have  the opportunity to organise and 
commercially exploit specific port services itself under the condition that its activity 
remains confined to the port or ports where it imposes public service obligations.  

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Employees'  rights  should  be  safeguarded  and  the  Member  States  should  have  the 
option to further strengthen these rights in the event of a transfer of undertakings and 
the relevant staff working for the old undertaking. 

In those case where managing bodies of the port benefit from public funds there shall 
be  a  transparent  accounting  in  order  to  show  the  effective  and  appropriate  use  of 
these public funds. 

In  those  cases  where  designated  port  service  providers  have  not  been  subject  to  an 
open  public  tendering  procedure  and  in  the  case  of  internal  operators,  it  should  be 
ensured that the price for the service is transparent, non-discriminatory and that it is 
set  according  to  normal  market  conditions,  in  particular  in  such  way  that  the  total 
charges do not exceed the total incurred costs and a reasonable profit. 

Managing  bodies  of  the  port  shall  define  the  port  infrastructure  charges  in  an 
autonomous way and according to its own commercial and investment strategy.  

The port infrastructure charges may be varied in accordance to commercial practices 
related to the frequent use of the port or in order to promote a more efficient use of 
the  port  infrastructure,  short  sea  shipping  or  a  high  environmental  performance, 
energy efficiency or carbon efficiency of transport operations. 

A port users' advisory committee shall be set up in every port. This committee will 
bring  together  representatives  of  operators  of  waterborne  vessels,  cargo  owners  or 
other  port  users  which  are  requested  to  pay  a  port  infrastructure  charge  or  port 
service  charge.  This  committee  shall  be  consulted  on  the  structure  and  the  level  of 
the port infrastructure charges and in certain cases the port service charges.  

The  managing  body  of  the  port  shall  consult  stakeholders  such  as  undertakings 
established in the ports, providers of port services, and port users on issues like the 
coordination of port services, hinterland connections or administrative procedures.  

Member  States  shall  ensure  that  an  independent  supervisory  body  monitors  and 
supervises  the  application  of  this  Regulation.  It  can  be  an  existing  body.  The 
different  national  independent  supervisory  bodies  shall  exchange  information  about 
their  work  and  decision-making  principles  and  shall  cooperate  closely  for  the 
purpose of mutual assistance in their tasks. 

3.2 

Legal basis 

The  legal  basis  for  this  proposal  is  Article  100  (2)  of  the  Treaty  on  the  Functioning  of  the 
European Union. 

3.3 

Subsidiarity principle 

Articles  58,  90  and  100  of  the  Treaty  on  the  Functioning  of  the  European  Union  extend  to 
ports  the  objectives  of  a  genuine  internal  market  in  the  context  of  the  Common  Transport 
Policy.  
The overwhelming share of seaborne trade handled in TEN-T ports results from trade between 
Member States or at international level. Ports have a clear European function. approximately 
one out of every two tonnes of volume handled in ports comes from or goes to, by sea or land, 
a  Member  State  which  is  different  from  the  one  of  the  port  in  which  the  goods  transit3. 
Actions  by  Member  States  alone  cannot  ensure  a  level  playing  field  within  the  EU  internal 

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Resulting from trade between Member States and trade between a Member State and a non-EU country 
through another Member State. 

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market,  nor  can  they  take  actions  to  improve  the  performance  of  ports  located  on  the  same 
trans-European corridor but in other Member States.  
Therefore, although the specific nature of the port sector and its long-lasting local history and 
culture is recognised, because of internal market reasons, network effects and the international 
dimension of the port sector, the proposed initiative is in line with the subsidiarity principle. 

3.4 

Proportionality principle 

The Regulation only covers TEN-T seaports. This will ensure proportionality insofar as it will 
avoid imposing unnecessary rules on very small ports which do not have a significant role for 
the European transport system. By contrast the TEN-T seaports deal with the overwhelming 
majority of the traffic and by definition are essential for the international and intra-European 
trade exchanges, and therefore for the European internal market, and/or the cohesion within 
the EU. Moreover TEN-T ports are eligible to EU funding.  

The scope has not been further limited to the core ports in order not to risk creating distortions 
of competition between core ports and other TEN-T ports. Moreover an efficient functioning 
of  the  network  requires  both  core  ports  (typically  hub)  and  non-core  TEN-T  ports  for  the 
regional distribution. 

3.5 

Choice of instrument 

Whilst  the  Member  States,  regional  and  local  public  authorities  have  traditionally  been  the 
main  actors  involved  in  port  infrastructure  development  and  management  this  situation  has 
been progressively changing. Transport operators, autonomous public bodies and entities and 
other  private  and  public  entities  have  also  become  key  actors  in  the  development, 
management and organisation of port. Therefore, it is important to ensure that this legislation 
on market access to port services and financial transparency of ports is generally applicable. 
Moreover, to ensure a uniform implementation, enforcement and a level playing field in the 
internal market, the legislation should be directly binding in its entirety. The Commission has 
therefore chosen a Regulation as the appropriate legal instrument for this proposal. This will 
also prevent additional administrative burden for Member States and the Commission. 

3.6 

European Economic Area 

The  proposed  Regulation  concerns  an  EEA  matter  and  should  therefore  extend  to  the 
European Economic Area. 

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2013/0157 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

establishing a framework on market access to port services and financial transparency 
of ports 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100 (2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 
Having regard to the opinion of the European Economic and Social Committee4, 
Having regard to the opinion of the Committee of the Regions5, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The  full  integration  of  ports  in  seamless  logistic  and  transport  chains  is  needed  to 
contribute  to  growth  and  a  more  efficient  use  and  functioning  of  the  trans-European 
transport  network  and  the  internal  market.  This  requires  modern  port  services 
contributing  to  an  efficient  use  of  ports  and  a  climate  favourable  to  investments  to 
develop ports in line with current and future transport and logistics requirements. 
In  the  Communication  on  the  Single  Market  Act  II  Together  for  new  growth6,  the 
Commission has recalled that the attractiveness of maritime transport is dependent on 
the  availability  efficiency  and  reliability  of  port  services  and  the  necessity  of 
addressing  questions  regarding  the  transparency  of  public  funding  and  port  charges, 
administrative  simplification  efforts  in  ports  and  reviewing  restrictions  on  the 
provision of services at ports. 

Facilitating  access  to  the  port  services  market  at  Union  level  and  introducing  the 
financial  transparency  and  autonomy  of  seaports  will  improve  the  quality  and 
efficiency  of  service  provided  to  users  of  the  port  and  contribute  to  a  climate  more 
favourable  to  investments  in  ports,  and  thereby  help  reduce  costs  for  transport  users 
and  contribute  to  promoting  short  sea  shipping  and  a  better  integration  of  maritime 
transport with rail, inland waterway and road transport.  

(4) 

The overwhelming majority of Union maritime traffic transits through the seaports of 
the trans-European transport network. In order to achieve the aim of this Regulation in 

4 
5 
6 

OJ C , , p. . 
OJ C , , p. . 
COM(2012) 573 final (3.10.2012) 

EN 

10 

   EN 

                                                 
a  proportionate  way  without  imposing  any  unnecessary  burden  on  other  ports,  this 
Regulation should apply to the ports of the trans-European transport network, each of 
which  playing  a  significant  role  for  the  European  transport  system  either  because  it 
handles more than  0.1% of the total EU freight or the total number of passengers or 
because  it  improves  the  regional  accessibility  of  island  or  peripheral  areas,  without 
prejudice,  however,  to  the  possibility  of  Member  States  deciding  to  apply  this 
Regulation to other ports as well. Pilotage services performed in the deep sea do not 
have a direct impact on the efficiency of the ports as they are not used for the direct 
entry and exit of the ports and therefore do not need to be included in this Regulation.  

The objective of Article 56 of the Treaty on the Functioning of the European Union is 
to  eliminate  restrictions  on  freedom  to  provide  services  in  the  Union.  In  accordance 
with  Article  58  of  the  Treaty  on  the  Functioning  of  the  European  Union  should  be 
achieved within the framework of the provisions of the Title relating to transport, more 
specifically Article 100 (2).  

The  self-provision  of  service  which  entails  shipping  companies  or  providers  of  port 
services to employ staff of their own choice and to provide themselves port services is 
regulated in a number of Member States for safety or social reasons. The stakeholders 
consulted by the Commission when preparing its proposal highlighted that imposing a 
generalised  allowance  of  the  self-provision  of  service  at  Union  level  would  require 
additional rules on safety and social issues in order to avoid possible negative impacts 
in these areas. It appears therefore appropriate at this stage not to regulate this issue at 
Union level and to leave it to the Member States to regulate the self-provision of port 
services  or  not.  Therefore,  this  Regulation  should  only  cover  the  provision  of  port 
services for remuneration.  

In  the  interest  of  efficient,  safe  and  environmentally  sound  port  management,  the 
managing  body  of  the  port  should  be  able  to  require  that  port  service  providers  can 
demonstrate  that  they  meet  minimum  requirements  to  perform  the  service  in  an 
appropriate way. These minimum requirements should be limited to a clearly defined 
set of conditions concerning the professional qualifications of the operators, including 
in  terms  of  training,  and  the  equipment  required  insofar  as  these  requirements  are 
transparent,  non-discriminatory,  objective  and  relevant  for  the  provision  of  the  port 
service.  

Having the necessary equipment at his disposal should imply that the provider of the 
port service owns, rents or leases it and that in any case it has a direct and indisputable 
control of the equipment, in order to ensure that it can use such equipment whenever 
needed.  

The procedure to grant with the right to provide port services when compliance with 
minimum  requirements  is  required  should  be  transparent,  objective  and  non-
discriminatory and should allow the providers of port services to start the provision of 
their port services in a timely manner. 

(5) 

(6) 

(7) 

(8) 

(9) 

(10)  Since ports are constituted of limited geographical areas, access to the market could, in 
certain  cases,  be  subject  to  limitations  relating  to  the  scarcity  of  land  or  in  case  the 
land is reserved for certain type of activities in accordance with a formal development 
plan  which  plans  in  a  transparent  way  the  land  use  and  with  relevant  national 
legislation such as those related to town and country planning objectives.  

(11)  Any  intention  to  limit  the  number  of  port  service  providers  should  be  published  in 
advance by the competent authority and should be fully justified, in order to give the 

EN 

11 

   EN 

interested parties the opportunity to comment. The criteria for any limitation should be 
objective, transparent and non-discriminatory.  

(12) 

In  order  to  be  open  and  transparent,  the  procedure  to  select  the  providers  of  port 
services  and  its  result  should  be  made  public  and  full  documentation  should  be 
communicated to interested parties. 

(13)  The selection procedure for providers of port service in the case the number of those 
providers is limited should follow the principles and approach determined in Directive 
../../… [concession]7, including the threshold and method for determining the value of 
the  contracts  as  well  as  the  definition  of  substantial  modifications  and  the  elements 
related to the duration of the contract.  

(14)  The  recourse  to  public  service  obligations  leading  to  a  limitation  in  the  number  of 
providers  of  a  port  service  should  only  be  justified  for  reasons  of  public  interest  in 
order to ensure the accessibility of the port service to all users, the availability of the 
port service all year long or the affordability of the port service to certain category of 
users.  

(15)  Where  there  is  a  need  to  limit  the  number  of  port  service  providers,  the  decision  on 
that limitation may be entrusted by the Member state to a different authority in order 
to safeguard  competition.  Any  limitation  in  the  number  of  providers  of  port  services 
should  follow  a  procedure  which  is  open,  transparent  and  non-discriminatory.  This 
should  however  not  be  the  case  when  public  service  obligations  are  to  be  entrusted 
directly to a competent authority or an internal operator. 

(16)  This  Regulation  does  not  preclude  the  possibility  of  competent  authorities  to  grant 
compensation for the accomplishment of the public service obligations provided that it 
complies with the applicable State aid rules. Where public service obligations qualify 
as  SGEI  compliance  should  be  ensured  with  Commission  Decision  of  20  November 
2011  on  the  application  of  Article  106(2)  of  the  Treaty  on  the  Functioning  of  the 
European  Union  to  State  aid  in  the  form  of  public  service  compensation  granted  to 
certain  undertakings  entrusted  with  the  operation  of  services  of  general  economic 
interest8,  Commission  Regulation  (EU)  No  360/2012  of  25  April  2012  on  the 
application of Articles 107 and 108 of the Treaty on the Functioning of the European 
Union  to  de  minimis  aid  granted  to  undertakings  providing  services  of  general 
economic  interest9  and  the  European  Union  framework  for  State  aid  in  the  form  of 
public service compensation10. 

(17)  The  managing  body  of  the  port  should  not  discriminate  between  providers  of  port 
services, in particular in favour of an undertaking or body in which it holds an interest.  

(18)  The  competent  authorities  designated  in  a  Member  State  should  have  the  choice  to 
decide to provide port services with public service obligations themselves or to entrust 
directly the provision of such services directly to an internal operator. In the case that a 
competent authority decides to provide the service itself, this may cover the provision 
of services through agents employed by the competent authority or commissioned by 
the competent authority. When such limitation is applied in all the TEN-T ports in the 
territory of a Member State, the Commission should be informed. In the cases where 

7 
8 
9 
10 

Proposal for a Directive on the award of concession contracts (COM 2011) 897 final  
OJ L 7, 11.1.2012, p. 3. 
OJ L 114, 26.4.2012, p.8. 
OJ C 8, 11.01.2012 

EN 

12 

   EN 

                                                 
the competent authorities in a Member State prevail on such a choice, the provision of 
port services by the internal operators should be confined only to the port or ports for 
which  those  internal  operators  were  designated.  Moreover,  in  such  cases,  the  port 
service  charges  applied  by  such  an  operator  should  be  subject  to  supervision  by  the 
independent supervisory body.  

(19)  Member States should retain the power to ensure an adequate level of social protection 
for the staff of undertaking providing port services. This Regulation shall not affect the 
application of the social and labour rules of the Member States. In cases of limitation 
of the number of port service providers, where the conclusion of a port service contract 
may entail a change of port service operator, it should be possible for the competent 
authorities  to  ask  the  chosen  service  operator  to  apply  the  provisions  of  Council 
Directive 2001/23/EC on the approximation of the laws of the Member States relating 
to  the  safeguarding  of  employees'  rights  in  the  event  of  transfers  of  undertakings, 
businesses or parts of undertakings or businesses11. 

(20) 

In  many  ports,  the  market  access  for  providers  of  cargo-handling  and  terminal 
passenger  services  is  granted  by  means  of  public  concession  contracts.  This  type  of 
contracts will be covered by the Directive ..../…[concessions]. Consequently, Chapter 
II of this Regulation should not apply to the provision of cargo-handling and passenger 
services,  but  Member  States  should  remain  free  to  decide  to  apply  nevertheless  the 
rules of this Chapter to these two services. For other types of contracts used by public 
authorities  for  granting  market  access  to  cargo  handling  and  terminal  passenger 
services, the Court of Justice of the European Union has confirmed that the competent 
authorities  are  bound  by  the  principles  of  transparency  and  non-discrimination  when 
concluding  these  contracts.  These  principles  are  fully  applicable  as  regards  the 
provision of any port service. 

(21)  Financial relations between seaports which receive public funds and providers of port 
services  on  the  one  hand,  and  public  authorities  on  the  other  should  be  made 
transparent in order to ensure a level playing field and to avoid market distortions. In 
this respect, this Regulation extends to other categories of addressees the principles of 
transparency of financial relations as set out in Commission Directive 2006/111/EC on 
the transparency of financial relations between Member States and public undertakings 
as well as on financial transparency within certain undertakings12 without prejudice to 
its scope. 

(22) 

It  is  necessary  to  impose  on  the  managing  body  of  the  port  which  receives  public 
funds,  when  it  is  also  acting  as  a  service  provider,  an  obligation  to  keep  separate 
accounts for activities carried out in their capacity as managing body of the port from 
those  carried  out  on  a  competitive  basis  in  order  to  ensure  a  level  playing  field, 
transparency in the allocation and use of public funds and to avoid market distortions. 
In any case compliance with the State aid rules should be ensured. 

(23)  Port service charges applied by providers of port services which are not designated in 
accordance with an open, transparent and non-discriminatory procedure entail a higher 
risk of price abuse given their monopolistic or oligopolistic situation and the fact that 
their  market  cannot  be  contested.  The  same  is  true  for  charges  levied  by  internal 
operators in the meaning of this Regulation. For those services, in the absence of fair 
market  mechanisms,  arrangements  should  be  established  to  ensure  that  the  charges 

11 
12 

OJ L 82, 22.3.2001, p. 16.  
OJ L 318, 17.11.2006, p.17. 

EN 

13 

   EN 

                                                 
they  levy  reflect  the  normal  conditions  of  the  relevant  market  and  are  set  in  a 
transparent and non-discriminatory way.  

(24) 

In order to be efficient, the port infrastructure charges of each individual port should 
be  set  in  a  transparent  and  autonomous  way  in  accordance  with  that  port's  own 
commercial and investment strategy. 

(25)  The  variation  of  port  infrastructure  charges  should  be  allowed  in  order  to  promote 
short  sea  shipping  and  to  attract  waterborne  vessels  having  an  environmental 
performance or energy and carbon efficiency of the transport operations, notably the 
off-shore  or  on-shore  maritime  transport  operations,  that  is  better  than  average.  This 
should  help  to  contribute  to  the  environmental  and  climate  change  policies  and  the 
sustainable  development  of  the  port  and  its  surroundings  notably  by  contributing  to 
reducing the environmental footprint of the waterborne vessels calling and staying in 
the port. 

(26)  Adequate facilities should be in place to ensure that the users of the ports which are 
requested to pay a port infrastructure charge and/or a port service charge are regularly 
consulted when the port infrastructure charge and the port service charge are defined 
and  changed.  The  managing  bodies  of  the  ports  should  also  regularly  consult  other 
stakeholders  on  key  issues  related  to  the  sound  development  of  the  port,  its 
performance  and  its  capacity  to  attract  and  generate  economic  activities  such  as  the 
coordination of port services within the port area and the efficiency of the connections 
with the hinterland and of the administrative procedures in ports.  

(27) 

In  order  to  ensure  the  proper  and  effective  application  of  this  Regulation,  an 
independent  supervisory  body,  which  could  be  an  already  existing  body,  should  be 
designated in every Member State. 

(28)  The  different  independent  supervisory  bodies  should  exchange  information  on  their 
work and cooperate in order to ensure a uniform application of this Regulation. 

(29) 

In  order  to  supplement  and  amend  certain  non-essential  elements  of  this  Regulation 
and  in  particular  to  promote  the  uniform  application  of  environmental  charging, 
reinforce the Union-wide coherence of environmental charging and to ensure common 
charging  principles  in  relation  to  the  promotion  of  short  sea  shipping,  the  power  to 
adopt  acts  in  accordance  with  Article  290  of  the  Treaty  on  the  Functioning  of  the 
European  Union  should  be  delegated  to  the  Commission  in  respect  of  common 
classifications of vessels, fuels and types of operations according to which to vary the 
infrastructure charges and common charging principles for port infrastructure charges. 
It is of particular importance that the Commission carry out appropriate consultations 
during  its  preparatory  work,  including  at  expert  level.  The  Commission,  when 
preparing  and  drawing-up  delegated  acts,  should  ensure  a  simultaneous,  timely  and 
appropriate  transmission  of  relevant  documents  to  the  European  Parliament  and 
Council. 

(30) 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Regulation 
implementing  powers  relating  to  appropriate  arrangements  for  the  exchange  of 
information  between  independent  supervisory  bodies  should  be  conferred  on  the 
Commission. Those powers should be exercised in accordance with Regulation (EU) 
No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16  February  2011 

EN 

14 

   EN 

laying down the rules and general principles concerning mechanisms for control by the 
Member States of the Commission's exercise of implementing powers 13. 

(31)  Since  the  objectives  of  this  Regulation,  namely  ensuring  the  modernisation  of  port 
services and the appropriate framework to attract necessary investments in all the ports 
of  the  trans-European  transport  network,  cannot  be  sufficiently  achieved  by  the 
Member  States  because  of  the  European  dimension,  international  and  cross-border 
nature of port and related maritime business and can therefore, by reason of the need 
for a European level playing field, be better achieved at Union level, the Union may 
adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 
of the Treaty on European Union. In accordance with the principle of proportionality, 
as set out in that Article, this Regulation does not go beyond what is necessary in order 
to achieve those objectives. 

(32)  This Regulation respects the fundamental rights and observes the principles recognised 

in particular by the Charter of Fundamental Rights of the European Union. 

13 

OJ L 55, 28.2.2011, p. 13. 

EN 

15 

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HAVE ADOPTED THIS REGULATION: 

CHAPTER I – Subject matter, scope and definitions 

Article 1 
Subject matter and scope 

1. 

This Regulation establishes: 

(a) 

(b) 

a clear framework for access to the market of port services; 

common  rules  on  the  financial  transparency  and  charges  to  be  applied  by 
managing bodies or providers of port services. 

2. 

This  Regulation  shall  apply  to  the  provision  of  the  following  categories  of  port 
services, either inside the port area or on the waterway access to and from the ports. 

(a)  bunkering 

(b) 

cargo handling; 

(c)  dredging; 

(d)  mooring; 

(e)  passenger services; 

(f) 

port reception facilities;  

(g)  pilotage and; 

(h) 

towage. 

3. 

4. 

This Regulation shall apply to all seaports of the trans-European transport network, 
as defined in Annex I of Regulation XXX [regulation on the TEN-T Guidelines].  

Member  States  may  also  apply  this  Regulation  to  other  seaports.  When  Member 
States  decide  to  apply  this  Regulation  to  other  seaports  they  shall  notify  their 
Decision to the Commission. 

Article 2 
Definitions 

For the purpose of this Regulation: 

1. 

2. 

3. 

"bunkering" means the provision of solid, liquid or gaseous fuel or any other energy 
source  used  for  the  propulsion  of  the  waterborne  vessel  as  well  as  for  general  and 
specific energy provision on board of the waterborne vessel whilst at berth; 

"cargo handling services" means the organisation and handling of cargo between the 
carrying  waterborne  vessel  and  the  shore  be  it  for  import,  export  or  transit  of  the 
cargo, including the processing, transporting and temporary storage of the cargo on 
the  relevant  cargo  handling  terminal  and  directly  related  to  the  transporting  of  the 
cargo,  but  excluding  warehousing,  stripping,  repackaging  or  any  other  value  added 
services related to the handled cargo; 

"dredging" means the removal of sand, sediment or other substances from the bottom 
of the waterway access to a port in order to allow waterborne vessel to have access to 
the  port  and  comprises  both  the  initial  removal  (capital  dredging)  and  the 
maintenance dredging in order to keep the waterway accessible; 

EN 

16 

   EN 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

14. 

15. 

"essential  port  facility"  means  a  facility  of  which  the  access  is  indispensable  to 
perform  a  port  service  and  which  cannot  be  replicated  under  normal  market 
conditions;  

"managing body of the port" means any public or private body which, whether or not 
in  conjunction  with  other  activities,  has  as  its  objective  under  national  law  or 
instruments  the  administration  and  management  of  the  port  infrastructures,  port 
traffic,  the  coordination  and,  where  appropriate,  the  control  of  the  activities  of  the 
operators present in the port concerned; 

"mooring"  means  the  berthing  and  un-berthing  services  required  for  a  waterborne 
vessel  being  anchored  or  otherwise  fastened  to  the  shore  in  the  port  or  in  the 
waterways access to the port; 

"passenger services" means the organisation and handling of passengers between the 
carrying waterborne vessel and the shore and also includes the processing of personal 
data and transporting the passengers inside the relevant passenger terminal; 

"pilotage" means the guidance service of a waterborne vessel by a pilot or a pilotage 
station in order to allow for a safe entry or exit of the vessel in the waterways access 
to the port; 

"port infrastructure charge" means a fee collected for the direct or indirect benefit of 
the  managing  body  of  the  port  and  paid  by  the  operators  of  waterborne  vessels  or 
cargo owners for the use of facilities and services that allow vessels entry and exit in 
and out of the port, including the waterways giving access to those ports, as well as 
access to the processing of passengers and cargo; 

"port  reception  facility"  means  any  facility,  which  is  fixed,  floating  or  mobile  and 
capable of receiving ship-generated waste or cargo residues as defined in Directive 
2000/59/EC  of  the  European  Parliament  and  of  the  Council  on  port  reception 
facilities for ship-generated waste and cargo residues14; 

"port  service  charge"  means  a  fee  collected  for  the  benefit  of  the  provider  of  port 
services and paid by the users of the relevant service; 

"port  service  contract"  means  a  formal  and  legally  binding  agreement  between  a 
provider  of  port  service  and  a  competent  authority  whereby  this  body  designates  a 
provider  of  port  service  to  provide  port  services  following  a  procedure  to  limit  the 
number of providers of port services; 

"provider of port services" means any natural or legal person providing, or wishing to 
provide,  for  remuneration,  one  or  more  categories  of  port  services  listed  in  Article 
1(2); 

"public  service  obligation"  means  a  requirement  defined  or  determined  in  order  to 
ensure the provision of those port services in the general interest that an operator, if it 
were  considering  its  own  commercial  interests,  would  not  assume  or  would  not 
assume to the same extent or under the same conditions;  

“short sea  shipping” means the movement of cargo and passengers by  sea between 
ports  situated  in  geographical  Europe  or  between  those  ports  and  ports  situated  in 
non-European countries having a coastline on the enclosed seas bordering Europe; 

14 

OJ L 332, 28.12.2000, p.81-90. 

EN 

17 

   EN 

                                                 
16. 

17. 

18. 

"seaport" means an area of land and water made up of such works and equipment so 
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;  and  any  other  infrastructure  necessary  for  transport 
operators within the port area; 

"towage" means the assistance to a waterborne vessel by means of a tug in order to 
allow for a safe entry or exit of the port by providing assistance to the manoeuvring 
of the waterborne vessel; 

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

CHAPTER II – Market access 

Article 3 
Freedom to provide services 

1. 

2. 

1. 

2. 

3. 

4. 

5. 

Freedom to provide services in seaports covered by this Regulation shall apply to the 
providers of port services established in the Union under the conditions set out in this 
Chapter.  

Providers  of  port  services  shall  have  access  to  essential  port  facilities  to  the  extent 
necessary for them to carry out their activities. The terms of the access shall be fair, 
reasonable and non-discriminatory. 

Article 4 
Minimum requirements for the provision of port services 

The  managing  body  of  the  port  may  require  that  providers  of  port  services  comply 
with minimum requirements to perform the corresponding port service.  

The  minimum  requirements  provided  for  in  paragraph  1  may  only  relate,  where 
applicable, to: 

(a) 

(b) 

(c) 

(d) 

the professional qualifications of the port service provider, its personnel or the 
natural persons who effectively and continuously are managing the activities of 
the port service provider; 

the  equipment  needed  to  provide  the  relevant  port  service in  normal  and  safe 
conditions and the capacity to maintain this equipment at the appropriate level; 

the  compliance  with  requirements  on  the  maritime  safety  or  the  safety  and 
security of the port or access to it, its installations, equipment and persons;  

the  compliance  with  local,  national,  Union  and  international  environmental 
requirements. 

The  minimum  requirements  shall  be  transparent,  non-discriminatory,  objective  and 
relevant to the category and nature of port services concerned. 

Where  the  minimum  requirements  include  specific  local  knowledge  or  acquaints 
with  local  conditions,  the  managing  body  of  the  port  shall  ensure  that  adequate 
access  to  relevant  training  exists,  under  transparent  and  non-discriminatory 
conditions, unless adequate access to such training is ensured by the Member State.  

In  the  cases  provided  for  in  paragraph  1,  the  minimum  requirements  referred  to  in 
paragraph 2 and the procedure for the granting of the right to provide port services 

EN 

18 

   EN 

under those requirements shall have been published by the managing body of the port 
by 1 July 2015 or for minimum requirements being applicable after that date at least 
three months before the date on which those requirements would become applicable. 
Providers of port services shall be informed in advance of any change in the criteria 
and of the procedure. 

Article 5 
Procedure to ensure compliance with the minimum requirements  

The managing body of the port shall treat providers of port services equally and shall 
act in a transparent manner. 

The managing body of the port shall grant or refuse the right to provide port services 
on the basis of the minimum requirements established in accordance with Article 4 
within  one  month  from  receiving  a  request  for  the  granting  of  such  a  right.  Any 
refusal  shall  be  duly  justified  on  the  basis  of  objective,  transparent,  non-
discriminatory and proportionate criteria.  

Any limit in the duration of the decision issued in accordance with paragraph 2 may 
be justified only on grounds related to the type and nature of the port service. 

Article 6 
Limitations of the number of providers of port services 

By way of derogation from Article 3, the managing body of the port may limit the 
number of providers of port service for a given port service for one or several of the 
following reasons:  

(a) 

the  scarcity  or  reserved  use  of  land  provided  that  the  managing  body  can 
demonstrate  that  the  land  constitutes  an  essential  port  facility  to  provide  the 
port  service  and  that  the  limitation  is  in  accordance  with  the  formal 
development  plan  of  the  port  as  agreed  by  the  management  body  of  the  port 
and where appropriate any other public competent authorities according to the 
national legislation;  

(b) 

the  public  service  obligations  as  provided  for  in  Article  8,  insofar  as  the 
absence of limitation can obstruct the performance of the obligations assigned 
to the providers of port services.  

The  managing  body  of  the  port  shall  publish  any  proposal  to  apply  paragraph  1  at 
least  six  months  in  advance  together  with  the  grounds  justifying  it,  giving  any 
interested party the opportunity to comment within a reasonable period.  

The managing body of the port shall publish the adopted decision. 

When  a  managing  body  of  a  port  provides  port  services  itself  or  through  a  legally 
distinct entity which it directly or indirectly controls, the Member State may entrust 
the adoption of the decision limiting the number of providers of port services to an 
authority which is independent from the managing body of the port. If the Member 
State does not entrust the adoption of the decision limiting the number of providers 
of port services to such an authority, the number of providers shall not be less than 
two. 

1. 

2. 

3. 

1. 

2. 

3. 

4. 

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Article 7 
Procedure for the limitation of the number of providers of port services 

Any  limitation  of  the  number  of  providers  for  a  port  service  in  accordance  with 
Article  6  shall  follow  a  selection  procedure  which  shall  be  open  to  all  interested 
parties, non-discriminatory and transparent. 

If the estimated value of the port service exceeds the threshold defined in paragraph 
3,  the  rules  on  the  award  procedure,  the  procedural  guarantees  and  the  maximum 
duration of the concessions as set out in Directive …./…. [concession] shall apply. 

The  threshold  and  the  method  to  determine  the  value  of  the  port  service  shall  be 
those of the relevant and applicable provisions of Directive .…/…. [concession]. 

The selected provider or providers and the managing body of the port shall conclude 
a port service contract. 

For the purposes of this Regulation, a substantial modification within the meaning of 
Directive  …./…  [concession]  of  the  provisions  of  a  port  service contract during  its 
term  shall  be  considered  as  a  new  port  service  contract  and  shall  require  a  new 
procedure as referred to in paragraph 2.  

Paragraphs 1 to 5 of this Article shall not apply in the cases referred to in Article 9. 
This  Regulation  is  without  prejudice  to  Directive  …/…  [concession]  15,  Directive 
.…/….[public utilities]16 and Directive …/… [public procurement]17 

Article 8 
Public service obligations  

Member  States  may  decide  to  impose  public  service  obligations  related  to  port 
services on providers in order to ensure the following: 

(a) 

(b) 

(c) 

the availability of the service without interruption during the day, the night, the 
week and the year; 

the availability of the service to all users;  

the affordability of the service for certain categories of users. 

The obligations referred to in paragraph 1 shall be clearly defined, transparent, non-
discriminatory,  verifiable  and  shall  guarantee  equality  of  access  to  all  port  service 
providers established in the Union.  

The Member States shall designate the competent authorities within their territory to 
impose such public service obligations. The managing body of the port may be the 
competent authority.  

When the competent authority designated in accordance with paragraph 3 is different 
from  the  managing  body  of  the  port,  that  competent  authority  shall  exercise  the 
powers provided for in Articles 6 and 7 concerning the limitation of the number of 
providers of port services based on public service obligations. 

Proposal for a Directive on the award of concession contracts (COM 2011) 897 final  
Proposal for a Directive on procurement by entities operating in the water, energy, transport and postal 
services sectors (COM/2011/0895 final) 
Proposal for a Directive on public procurement (COM/2011/0896 final) 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

1. 

2. 

3. 

4. 

15 
16 

17 

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5. 

6. 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

3. 

If  a  competent  authority  decides  to  impose  public  service  obligations  in  all  the 
seaports  covered  by  this  Regulation  in  a  Member  State,  it  shall  notify  these 
obligations to the Commission.  

In the event of a disruption of port services for which public service obligations are 
imposed  or  when  an  immediate  risk  of  such  a  situation  occurs,  the  competent 
authority  may  take  an  emergency  measure.  The  emergency  measure  may  take  the 
form  of  a  direct  award  so  as  to  attribute  the  service  to  a  different  provider  for  a 
period up to one year. During that time period, the competent authority shall either 
launch a new procedure to select a provider of port service in accordance with Article 
7 or shall apply Article 9. 

Article 9 
Internal operator  

In the cases provided for in Article 6 (1) (b), the competent authority may decide to 
provide  a  port  service  under  public  service  obligations  itself  or  to  impose  such 
obligations  directly  on  a  legally  distinct  entity  over  which  it  exercises  a  control 
similar  to  that  exercised  over  its  own  departments.  In  such  a  case,  the  port  service 
provider  shall  be  considered  as  an  internal  operator  for  the  purpose  of  this 
Regulation. 

The  competent  authority  shall  be  considered  as  exercising  a  control  of  a  legally 
distinct entity similar to that exercised to its own departments only if it exercises a 
decisive influence over both the strategic objectives and the significant decisions of 
the controlled legal entity. 

The internal operator shall be confined to perform the assigned port service only in 
the port(s) for which the assignment to provide the port service has been attributed to 
him. 

If a competent authority decides to apply paragraph 1 in all the seaports covered by 
this Regulation in a Member State, it shall inform the Commission. 

This Article is without prejudice to Directive .…/….[concession]. 

Article 10 
Safeguarding of employees' rights 

This Regulation shall not affect the application of the social and labour rules of the 
Member States.  

Without  prejudice  to  national  and  Union  law  including  collective  agreements 
between social partners, the managing bodies of the port may require the designated 
provider of port services appointed in accordance with the procedure established by 
Article 7, in the case where this provider is different from the incumbent provider of 
port  services,  to  grant  staff  previously  taken  on  by  the  incumbent  provider  of  port 
services the rights to which they would have been entitled if there had been a transfer 
within the meaning of Directive 2001/23/EC.  

Where managing bodies of the port require providers of port services to comply with 
certain  social  standards  as  regards  the  provision  of  relevant  port  services,  tender 
documents  and  port  service  contracts  shall  list  the  staff  concerned  and  give 
transparent  details  of  their  contractual  rights  and  the  conditions  under  which 
employees are deemed to be linked to the port services. 

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21 

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Article 11 
Exemption 

This  Chapter  and  the  transitional  provisions  of  Article  24  shall  not  apply  to  cargo  handling 
services and passenger services. 

CHAPTER III – Financial transparency and autonomy  

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Article 12 
Transparency of financial relations 

The  financial  relations  between public authorities and  a managing body of  the port 
that receives public funds shall be reflected in a transparent way in the accounts in 
order to clearly show the following: 

(a)  public  funds  made  available  directly  by  public  authorities  to  the  managing 

bodies of the port concerned; 

(b)  public funds made available by public authorities through the intermediary of 

public undertakings or public financial institutions; and 

(c) 

the use which these public funds have been attributed for. 

Where  the  managing  body  of  the  port  that  receives  public  funds  provides  port 
services itself, it shall keep the accounts of each port service activity separate from 
the accounts of its other activities, in such a way that : 

(a) 

(b) 

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

the  cost  accounting  principles  according  to  which  separate  accounts  are 
maintained are clearly established. 

The  public  funds  referred  to  in  paragraph  1  shall  include  share  capital  or  quasi-
capital funds, non-refundable grants, grants only refundable in certain circumstances, 
award  of  loans  including  overdrafts  and  advances  on  capital  injections,  guarantees 
given to the managing body of the port by public authorities, dividends paid out and 
profits retained or any other form of public financial support. 

The  managing  body  of  the  port  shall  keep the information concerning the financial 
relations  as  referred  to  in  paragraphs  1  and  2  of  this  Article  at  the  disposal  of  the 
Commission  and  of  the  competent  independent  supervisory  body  as  referred  to  in 
Article  17  for  five  years  from  the  end  of  the  fiscal  year  to  which  the  information 
refers.  

The  managing  body  of  the  port  shall  make  available  to  the  Commission  and  the 
competent  independent  supervisory  body,  upon  request,  any  additional  information 
that  they  deem  necessary  in  order  to  complete  a  thorough  appraisal  of  the  data 
submitted  and  to  assess  compliance  with  this  Regulation.  The  information  shall  be 
transmitted within two months from the date of the request.  

Managing  bodies  of  the  port  that  have  not  received  public  funds  in  previous 
accounting years but which start benefitting from public funds shall apply paragraphs 
1 and 2 from the accounting year following the transfer of the public funds 

Where public funds are paid as a compensation for a public service obligation, they 
shall be shown separately in the relevant accounts and may not be transferred to any 
other service or business activity. 

EN 

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1. 

2. 

3. 

1. 

2. 

3. 

4. 

5. 

Article 13 
Port service charges 

The charges for the services provided by an internal operator as referred to in Article 
9  and  the  charges  levied  by  providers  of  port  service,  in  cases  of  limitation  of  the 
number  of  providers  which  have  not  been  designated  on  the  basis  of  procedures 
which are open, transparent and non-discriminatory, shall be set in a transparent and 
non-discriminatory way. These charges shall reflect the conditions on a competitive 
relevant  market  and  shall  not  be  disproportionate  to  the  economic  value  of  the 
service provided.  

The payment of the port service charges may be integrated in other payments, such 
as  the  payment  of  the  port  infrastructure  charges.  In  this  case,  the  provider  of  port 
service and, where appropriate, the managing body of the port shall make sure that 
the amount  of the  port service charge  remains easily identifiable by the user of the 
port service.  

The  port  service  provider  shall  make  available  to  the  competent  independent 
supervisory  body  as  referred  to  in  Article  17,  upon  request,  information  on  the 
elements serving as a basis to determine the structure and the level of the port service 
charges  that  falls  under  the  application  of  paragraph  1  of  this  Article.  This 
information  shall  include  the  methodology  used  for  setting  the  port  charges  with 
regard to the facilities and services to which these port service charges relate to. 

Article 14 
Port infrastructure charges 

The managing body of the port shall levy a port infrastructure charge. This shall not 
prevent providers of port services which are using port infrastructures from levying 
port service charges. 

The payment of the port infrastructure charges may be integrated in other payments, 
such as the payment of the port service charges. In this case, the managing body of 
the  port  shall  make  sure  that  the  amount  of  the  port  infrastructure  charge  remains 
easily identifiable by the user of the port infrastructure. 

In order to contribute to an efficient infrastructure charging system, the structure and 
the level of port infrastructure charges shall be defined in an autonomous way by the 
managing body of the port according to its own commercial strategy and investment 
plan reflecting competitive conditions of the relevant market and in accordance with 
State aid rules. 

Without prejudice to paragraph 3, port infrastructure charges may vary in accordance 
with  commercial  practices  related  to  frequent  users,  or  in  order  to  promote  a  more 
efficient  use  of  the  port  infrastructure,  short  sea  shipping  or  a  high  environmental 
performance,  energy  efficiency  or  carbon  efficiency  of  transport  operations.  The 
criteria  used  for  such  a  variation  shall  be  relevant,  objective,  transparent  and  non-
discriminatory  and  in  due  respect  of  the  competition  rules.  The  resulting  variation 
shall in particular be available to all relevant port service users on equal terms.  

The  Commission  shall  be  empowered  to  adopt,  where  necessary,  delegated  acts  in 
accordance  with  the  procedure  referred  to  in  Article  21  concerning  common 
classifications  of  vessels,  fuels  and  types  of  operations  according  to  which  the 
infrastructure  charges  can  vary  and  common  charging  principles  for  port 
infrastructure charges. 

EN 

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6. 

7. 

1. 

2. 

1. 

The  managing  body  of  the  port  shall  inform  port  users  and  the  representatives  or 
associations  of  port  users  about  the  structure  and  the  criteria  used  to  determine  the 
amount  of  the  port  infrastructure  charges,  including  the  total  costs  and  revenues 
serving as a basis to determine the structure and the level of the port infrastructure 
charges. It shall inform users of the port infrastructures of any changes in the amount 
of  the  port  infrastructure  charges  or  in  the  structure  or  criteria  used  in  order  to 
determine such charges at least three months in advance.  

The  managing  body  of  the  port  shall  make  available  to  the  competent  independent 
supervisory body and to the Commission, upon request, the information referred to in 
paragraph 4 and the detailed costs and revenues, serving as a basis to determine the 
structure  and  the  level  of  the  port  infrastructure  charges  and  the  methodology  used 
for setting the port infrastructure charges with regard to the facilities and services to 
which these port charges relate to. 

CHAPTER IV – General and final provisions  

Article 15 
Consultation of port users 

The  managing  body  of  the  port  shall  establish  a  committee  of  representatives  of 
operators  of  waterborne  vessels,  cargo  owners  or  other  port  users  which  are 
requested  to  pay  an  infrastructure  charge  or  a  port  service  charge  or  both.  This 
committee shall be called the "port users' advisory committee". 

The managing body of the port shall consult on an annual basis prior to the setting of 
port  infrastructure  charges  the  port  users'  advisory  committee  on  the  structure  and 
level of such charges. The providers of port services as referred to in Article 6 and in 
Article 9 shall consult on an annual basis prior to the setting of port service charges 
the  port  users'  advisory  committee  on  the  structure  and  level  of  such  charges.  The 
managing body of the port shall provide adequate facilities for such consultation and 
shall be informed of the results of the consultation by the providers of port services.  

Article 16 
Consultation of other stakeholders  

The  managing  body  of  the  port  shall  regularly  consult  stakeholders  such  as 
undertakings  established  in  the  port,  providers  of  port  services,  operators  of 
transport  operators  and  public 
waterborne  vessels,  cargo  owners, 
administrations operating in the port area on the following: 

land 

(a) 

the proper coordination of port services within the port area; 

(b)  measures to improve the connections with the hinterland and where appropriate 
measures to  develop and improve the efficiency  of  rail  and  inland  waterways 
connections;  

(c) 

the  efficiency  of  the  administrative  procedures  in  port  and  where  appropriate 
possible measures to simplify them. 

EN 

24 

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1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

1. 

2. 

Article 17 
Independent supervisory body 

Member  States  shall  ensure  that  an  independent  supervisory  body  monitors  and 
supervises  the  application  of  this  Regulation  in  all  the  seaports  covered  by  this 
Regulation on the territory of each Member State. 

The  independent  supervisory  body  shall  be  legally  distinct  from  and  functionally 
independent of any managing body of the port or providers of port services. Member 
States that retain ownership or control of ports or port managing bodies shall ensure 
an  effective  structural  separation  between  the  functions  relating  to  the  supervision 
and monitoring of this Regulation and the activities associated with that ownership or 
control. The independent supervisory body shall exercise its powers impartially and 
transparently and with due respect to the right to freely conduct business. 

The independent supervisory body shall handle the complaints lodged by any party 
with a legitimate interest and the disputes brought before it arising in connection with 
the application of this Regulation. 

In the event that the dispute arises between parties established in different Member 
States, the independent supervisory body of the Member State of the port where the 
dispute is presumed to have its origin shall have competence to solve the dispute. 

The independent supervisory body shall have the right to require managing bodies of 
the ports, providers of port services and port users to submit information needed to 
ensure monitoring and supervision of the application of this Regulation. 

The independent supervisory body may issue opinions at the request of a competent 
authority  in  the  Member  State  on  any  issues  in  relation  to  the  application  of  this 
Regulation.  

The independent supervisory body may consult the port users' advisory committee of 
the port concerned when dealing with the complaints or disputes.  

The  decisions  of  the  independent  supervisory  body  shall  have  binding  effects, 
without prejudice to judicial review.  

Member  States  shall  notify  to  the  Commission  the  identity  of  the  independent 
supervisory  bodies  by  1  July  2015  at  the  latest  and  subsequently  any  modification 
thereof.  The  Commission  shall  publish  and  update  the  list  of  the  independent 
supervisory bodies on its website. 

Article 18 
Cooperation between independent supervisory bodies 

The independent supervisory bodies shall exchange information about their work and 
to  facilitate  a  uniform 
decision-making  principles  and  practices 
implementation of this Regulation. For this purpose, they shall participate and work 
together in a network that convenes at regular intervals and at least once a year. The 
Commission shall participate, coordinate and support the work of the network. 

in  order 

The  independent  supervisory  bodies  shall  cooperate  closely  for  the  purposes  of 
mutual assistance in their tasks, including in carrying out investigations required to 
handle complaints and disputes in cases involving ports in different Member States. 
For  this  purpose,  an  independent  supervisory  body  shall  make  available  to  another 

EN 

25 

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3. 

4. 

5. 

1. 

2. 

such body, after a substantiated request, the information necessary to allow that body 
to fulfil its responsibilities under this Regulation.  

The  Member  States  shall  ensure  that  the  independent  supervisory  bodies  shall 
provide the Commission, after a reasoned request, with the information necessary for 
it  to  carry  its  tasks.  The  information  requested  by  the  Commission  shall  be 
proportionate to the performance of those tasks. 

Where information is considered confidential by the independent supervisory body in 
accordance  with  Union  or  national  rules  on  business  confidentiality,  the  other 
national  supervisory  body  and  the  Commission  shall  ensure  such  confidentiality. 
This information may only be used for the purpose which it was requested.  

Based on the experience of the independent supervisory bodies and on the activities 
of  the  network  referred  to  in  paragraph  1,  and  in  order  to  ensure  efficient 
cooperation,  the  Commission  may  adopt  common  principles  on  the  appropriate 
arrangements  for  the  exchange  of  information  between  independent  supervisory 
bodies.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 22(2). 

Article 19 
Appeals 

Any  party  with  a  legitimate  interest  shall  have  the  right  to  appeal  against  the 
decisions  or  individual  measures  taken  under  this  Regulation  by  the  competent 
authorities, by the managing body of the port or by the independent supervisory body 
to  an  appeal  body  which  is  independent  of  the  parties  involved.  This  appeal  body 
may be a court.  

Where  the  appeal  body  referred  in  paragraph  1  is  not  judicial  in  character,  it  shall 
give reasons in writing for its decisions. Its decisions shall also be subject to review 
by a national court.  

Article 20 
Penalties 

Member  States  shall  lay  down  the  rules  on  penalties  applicable  to  infringements  of  the 
provisions  of  this  Regulation  and  shall  take  all  measures  necessary  to  ensure  that  they  are 
implemented.  The  penalties  provided for  must  be  effective,  proportionate  and  dissuasive. 
Member States shall notify those provisions to the Commission by 1 July 2015 at the latest 
and shall notify it without delay of any subsequent amendment affecting them.  

Article 21 
Exercise of the delegation 

1. 

2. 

3. 

The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article.  

The power to adopt delegated acts referred to in Article 14 shall be conferred on the 
Commission for an indeterminate period of time. 

The delegation of power referred to in Article 14 may be revoked at any time by the 
European Parliament or by the Council. A decision of revocation shall put an end to 
the  delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  the  day 
following  the  publication  of  the  decision  in  the  Official  Journal  of  the  European 

EN 

26 

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Union  or  at  a  later  date  specified  therein.  It  shall  not  affect  the  validity  of  any 
delegated acts already in force.  

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to 
the European Parliament and to the Council.  

A  delegated  act  adopted  pursuant  to  Article  14  shall  enter  into  force  only  if  no 
objection  has  been  expressed  either  by  the  European  Parliament  or  the  Council 
within a period of 2 months of notification of that act to the European Parliament and 
the Council or if, before the expiry of that period, the European Parliament and the 
Council  have  both  informed  the  Commission  that  they  will  not  object.  That  period 
shall  be  extended  by  2  months  at  the  initiative  of  the  European  Parliament  or  the 
Council. 

Article 22 
Committee procedure  

The  Commission  shall  be  assisted  by  a  committee.  That  committee  shall  be  a 
committee within the meaning of Regulation (EU) No 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply.  

4. 

5. 

1. 

2. 

Article 23 
Report 

No later than three years after the entry into force of this Regulation, the Commission shall 
present a report to the European Parliament and the Council on the functioning and effect of 
this Regulation, accompanied, if appropriate, by relevant proposals. 

Article 24 
Transitional measures 

1. 

2. 

Port  service  contracts  concluded  before  [date  of  adoption  of  the  Regulation]  which 
were  entrusted  to  selected  providers  of  port  services  based  on  an  open,  transparent 
and  non-discriminatory  procedure  or  are  otherwise  in  conformity  with  the  rules  of 
this Regulation shall continue to be valid until their expiry. 

Port  service  contracts  concluded  before  [date  of  adoption  of  the  Regulation]  which 
do  not  meet  the  conditions  provided  in  paragraph  1  shall  remain  valid  until  they 
expire but not after 1 July 2025.  

Article 25 
Entry into force 

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

It shall apply with effect from 1 July 2015. 

EN 

27 

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This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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