Opinion of the Committee of the Regions on ‘Framework on future EU ports policy’
Date: 2014-04-15
Institutions: European Committee of the Regions
Subjects: EU environmental policy, State aid, Structural Funds, common ports policy, maritime transport, market access, social dialogue (EU), trans-European network








C_2014114EN.01005701.xml










15.4.2014   


EN


Official Journal of the European Union


C 114/57





Opinion of the Committee of the Regions on ‘Framework on future EU ports policy’
2014/C 114/11
I.   POLICY RECOMMENDATIONS

THE COMMITTEE OF THE REGIONS


Political recommendations








1.


against the background of currently 3 million people directly or indirectly employed by EU ports and of the projected increase by 50% by 2030 of the volume of goods handled by ports, the Committee of the Regions welcomes that the European Commission builds its ‘ports package’ around the following priorities:






—


focusing the proposed measures on the 319 ports which are part of the trans-European network while leaving Member States free to apply the draft regulation to other ports;










—


modernising port services and attracting investment to ports by guaranteeing free market access and increasing financial transparency of port services while respecting a significant degree of autonomy for port authorities;










—


relying on the outcome of a European Social Dialogue for the ports sector launched on 19 June 2013;










—


ensuring greater consistency of the environmental management of ports;










—


ensuring coherence with the EU ‘blue belt’ pilot project which aims at contributing to the developing a single market for maritime transport as called in the Single Market Act II;














2.


doubts however that the European Commission follows a holistic approach towards ports' policy considering the lack of reference in the ‘ports package’ to either the Europe 2020 strategy or the ‘Blue Growth’ initiative as well as the absence of reference to the review of the highly port-relevant regulations on sulphur limits for marine fuels or the lack of synchronisation with the review of the State aid guidelines applicable to the ports sector;






Methodology








3.


notes that the European Commission has taken the politically courageous option of presenting a draft regulation for which a certain number of legislative parameters such as the draft directive on concessions, the draft TEN-T regulation or the draft regulation on the access of third-country goods and services to the Union's internal market in public procurement (COM(2012) 124 final) have not been adopted yet and therefore remain ‘moving targets’;










4.


acknowledges that the European Commission had conducted since 2011 intensive consultations with interested parties. Regrets however that neither the Committee of the Regions nor associations representing local and regional authorities had been directly involved. Also expresses disappointment with regard to the fact that despite the recent Commission Staff Working Document on territorial impact assessment (1) the territorial dimension is not explicitly addressed in the impact assessment. This is all the more regrettable in view of the challenges of a European ports policy in relation to territorial cohesion. These challenges are currently exacerbated by the phenomenon of ‘containerisation’ and the threat of congestion in the hinterlands of the largest ports;










5.


stresses the need to take into account the diversity of ports in the EU due to geographical locations, to different type of economic activities, different ports regulatory regimes and different applicable national ports' policy frameworks. Recalls in this context that the ports' package will, according to Decision No 661/2010/EU on European Union guidelines for the development of the trans-European transport network (Art. 12.2), apply to seaports corresponding to one of the categories, A, B or C, defined as follows:






—


‘A: international seaports: ports with a total annual traffic volume of not less than 1,5 million tonnes of freight or 200 000 passengers which, unless it is an impossibility, are connected with the overland elements of the trans-European transport network and therefore play a major role in international maritime transport;










—


B: Union seaports (…): these ports have a total annual traffic volume of not less than 0,5 million tonnes of freight or between 100 000 and 199 999 passengers, are connected, unless it is an impossibility, with the overland elements of the trans-European transport network and are equipped with the necessary transshipment facilities for short-distance sea shipping;










—


C: regional ports: these ports (…) are situated in island, peripheral or outermost regions, interconnecting such regions by sea and/or connecting them with the central regions of the Union’;














6.


welcomes the fact that the social partners in the port sector have established an EU-level Social Dialogue Committee and recalls the importance of encouraging social dialogue at national and local level as an instrument to improve living and working conditions as well as to contribute competitiveness of the sector;






Legal basis, subsidiarity, proportionality








7.


endorses the European Commission's argumentation as to the choice of the legal basis (Article 100 (2) TFEU) and the compliance with the subsidiarity principle as outlined in the explanatory memorandum of the draft regulation (point 3.3.). In relation to the proportionality principle, the Committee of the Regions remains however unconvinced about the choice of a regulation rather than a directive as for the previous proposals made by the European Commission or for related legislation (in particular concessions). It would be contradictory to choose a legal instrument that is directly binding in its entirety as the regulation while recognising the main role of the Member States, regional and local public authorities involved in port infrastructure development. Moreover, a directive would be better suitable to take into consideration the wide diversity of ports in the EU;






Structural funds and State Aids








8.


highlights that since 2000, the EU has made available around EUR 6,2 billion through the Structural and Cohesion Funds to co-finance the construction of seaport infrastructures. In addition, between 2007 and 2012, 4% of the TEN-T envelope (equivalent to EUR 244,6 mi.) were granted to ports;










9.


draws attention to the Special Report by the Court of Auditors 4/2012 on the efficiency of using structural and cohesion funds to co-finance seaports' infrastructure (2). Highlights the Court of Auditors' recommendation to ‘make cohesion policy aid for the coming period conditional upon the existence of a comprehensive long-term port development strategy (based on an assessment of needs) for all the ports of the relevant region’;










10.


welcomes the recognition by the European Commission (3) that state aid for services of general economic interest (SGEI), including contributions from the ERDF, would not be considered in the calculation of ceilings for the intensity of regional aid if the conditions set out in the Decision of 20 December 2011 are met (4);










11.


recalls the importance of clarifying the applicability of the State aid regime to infrastructure, in light of the problems involved in interpreting the General Court judgment of 24 March 2011 on Freistaat Sachsen and Land Sachsen-Anhalt (T-443/08) and Mitteldeutsche Flughafen AG and Flughafen Leipzig-Halle GmbH (T-455/08) v the European Commission, which has resulted in considerable delays in the ex-ante verification of around 200 infrastructure projects funded by the Structural Funds;










12.


regrets that the European Commission has not included directly into the ports' package proposals to clarify the notion of aid as regards the financing of infrastructure, including in the ports sector (Action 5). Instead the European Commission has launched on 3 July 2013 a questionnaire on the functioning and the taxation of ports addressed to the Permanent Representations of all Member States only. Therefore calls on the European Commission to adopt a more inclusive approach in the coming months and to involve local and regional authorities through the CoR in the revision of state aid rules applicable to infrastructure in general and ports in particular, especially with regard to the exemption rules for the port infrastructure category, which will probably be drawn up by the end of 2013;






Legislative proposal








13.


recommends excluding dredging, mooring, pilotage and towage from the scope of the regulation on the grounds that these services obey to objectives of general interest, i.e. safety, security and the protection of the environment; and calls on the Commission to resolve discrepancies with — or clarify scope in relation to — current directives regarding port reception facilities. The conditions and requirements for port reception facilities are already laid down in Directive 2000/59/EC. The provisions of Article 8, in particular, are contrary to free market access for all providers of disposal services. If the port operator selects individual port reception facilities and includes these in the charging system required in that directive, the tender provisions of Directive 2004/17/EC are applicable;










14.


regrets that Article 2 (‘definitions’) does not provide a definition of ‘competent authority’ while it plays a major role in Art. 8 and 9;










15.


regrets the insufficient recognition of the role of local and regional authorities with regard to applicable legislation or the setting of minimum requirements for the provision of port services (Article 4.2 d, Article 4.4, Article 6.4);










16.


envisages further extending the remits of the public service obligations defined in Article 8 in order to include in particular criteria related to territorial cohesion such as the accessibility of remote or island areas and outermost regions;










17.


wonders why in relation to the procedure for the limitation of the number of port services providers as foreseen in article 7, the European Commission foresees in Article 10 only the possibility and not the obligation 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;










18.


expresses doubts as to whether the requirements set notably in article 12 about the degree of detail of the information to be provided by port authorities on the public funding received and the obligation to maintain separate accounts is not disproportionate, in particular with regard to the very different cost structures depending on the location of the ports;










19.


requests the European Commission to further specify what is meant in Article 14.5 by ‘common charging principles’, considering that any empowerment conferred to the European Commission to adopt delegated acts should be kept as precise as possible;










20.


questions the added value of establishing an independent supervisory body responsible for monitoring and supervising the application of the regulation (Recital 19 and Article 17). A body of this kind would be liable to add to the administrative burden associated with planning port development and to have an impact on Member States' budgets;










21.


similarly, expresses doubts on the need of setting-up a cooperation between independent supervisory authorities for facilitating a uniform implementation of a Regulation which is by definition directly applicable (Article 18).




II.   RECOMMENDATIONS FOR AMENDMENTS


Amendment 1

Title






Text proposed by the Commission


CoR amendment




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


Proposal for a 
DIRECTIVE
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a framework on market access to port services and financial transparency of ports






Reason


The Committee of the Regions remains unconvinced about the choice of a regulation rather than a directive as for the previous proposals made by the European Commission or for related legislation (in particular concessions). Moreover, a directive would be better suitable to take into consideration the wide diversity of ports in the EU.

Amendment 2

Recital 4






Text proposed by the Commission


CoR amendment




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 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 overwhelming majority of Union maritime traffic transits through the seaports of the trans-European transport network. In order to achieve the aim of this Directive
Regulation in a proportionate way without imposing any unnecessary burden on other ports, this Directive
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, or outermost regions, without prejudice, however, to the possibility of Member States deciding to apply this Directive
Regulation to other ports as well. Pilotage
Technical-nautical services which fulfil missions of general interest
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
Directive.






Reason


Amendment linked to the amendment to Article 1 (scope).

Amendment 3

Recital 19






Text proposed by the Commission


CoR amendment




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 businesses.


Member States should retain the power to ensure an adequate level of social protection for the staff of undertaking providing port services. This Directive
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 shall
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 businesses.






Reason


Amendment linked to the amendment to Article 10.2.

Amendment 4

Recital 29






Text proposed by the Commission


CoR amendment




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. (…)


In order to supplement and amend certain non-essential elements of this Directive
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 on the basis of
according to which to vary the infrastructure charges and common charging principles for port infrastructure charges can vary. (…)






Reason


Amendment linked to the amendment to Article 14.5. In agreement regarding common classifications of vessels, fuels and types of operations. However, only the port authority can decide on variations in port charges.

Amendment 5

Article 1 — Subject matter and scope






Text proposed by the Commission


CoR amendment




1.   This Regulation establishes:






(a)


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










(b)


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






1.   This Directive
Regulation establishes:






(a)


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










(b)


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.






2.   This Directive
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)




(c) passenger services;











(f)




(d) port reception facilities;











(g)




pilotage and;












(h)




towage.









3.   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].


3.   This Directive
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].




4.   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.


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






Reason








—


Pilotage, towing and mooring are port services of general interest (objective of preserving maritime safety and protecting the environment), strictly regulated by Member States, and cannot be subject to a market approach.










—


The inclusion of dredging services in the Regulation contravenes the property rights of ports, as they would for the most part no longer be able to maintain their own waterways and docks on their own. Moreover, dredging in port areas is comparable with maintenance work on quays and locks, not with other port services that are directly related to the arrival of a specific ship and are invoiced individually for each call.





Amendment 6

Article 2, add new point 2 bis) — Definitions






Text proposed by the Commission


CoR amendment




 



‘competent authority’ means any public authority or group of public authorities of a Member State or Member States which has the power to intervene in port services in a given geographical area or any body vested with such authority







Reason


The term ‘competent authority’ is used in Regulation (EC) 1370/2007 on public passenger transport services by rail and by road where it is defined as ‘any public authority or group of public authorities of a Member State or Member States which has the power to intervene in public passenger transport in a given geographical area or anybody vested with such authority’ (Art. 2 (b)). The definition would contribute to the consistency of EU legal texts and increase the legal transparency to develop a harmonised definition not restricted to passenger services.

Amendment 7

Article 2.14 — Definitions






Text proposed by the Commission


CoR amendment




‘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;


‘public service obligation’ means a requirement defined or determined by a competent authority 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 without compensation;






Reason


This amendment echoes in particular recital 16, which provides that ‘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’.

Amendment 8

Article 2.15 — Definitions






Text proposed by the Commission


CoR amendment




‘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;


‘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 or, in the case of the outermost regions, between ports situated in countries in their geographical neighbourhood;






Reason


There is no justification for restricting ‘close proximity’ to the EU itself. This concept should be extended to whole of the EU's territory, regardless of its geographical location, and particularly to the outermost regions where the EU is encouraging a strategy for strengthening their integration in their close geographical surroundings.

Amendment 9

Article 2.16 — Definitions






Text proposed by the Commission


CoR amendment




‘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;


‘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;







Reason


It is proposed to delete the last part of the definition of a seaport. This part is new compared to previous proposed definitions but the notion of ‘port area’ is not defined. This could lead to confusion with transport infrastructures provided by local and regional authorities between the port and its hinterland.

Amendment 10

Article 2.16 bis (new point) — Definitions






Text proposed by the Commission


CoR amendment




 



‘Technical-nautical services’ mean port services of general interest provided in order to preserve maritime safety and to protect the environment, such as mooring, pilotage and towage.







Reason


Follows from the amendments to Articles 2 and 18.

Amendment 11

Chapter II — Title






Text proposed by the Commission


CoR amendment





CHAPTER II — Market access




CHAPTER II — Market access
Principles governing the provision of and access to port services








Reason


As it currently stands, the title of the chapter suggests that the objective being pursued by the Commission is liberalisation, whereas the chapter actually focuses on provisions that will allow the operation of port services that are not necessarily opened up to the market.

Amendment 12

Article 4 — Minimum requirements for the provision of port services






Text proposed by the Commission


CoR amendment




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


1.   The managing body of the port in consultation with the relevant competent authorities may require that providers of port services comply with minimum requirements to perform the corresponding port service.




2.   The minimum requirements provided for in paragraph 1 may only relate, where applicable, to: (…)






(d)


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






2.   The minimum requirements provided for in paragraph 1 may only relate, where applicable, to: (…)






(d)


the compliance with local, regional, national, Union and international environmental requirements.
(…)








4.   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.


4.   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 relevant competent authority
Member State.






Reason


This amendment aims at strengthening the recognition of the role of local and regional authorities with regard to the applicable legislation or the setting of minimum requirements for the provision of port services.

Amendment 13

Article 6.4 — Limitations of the number of providers of port services






Text proposed by the Commission


CoR amendment




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.


When a managing body of a port provides port services itself or through a legally distinct entity which it directly or indirectly controls, the relevant competent authority
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. The managing body of the port shall prove that the market situation renders possible a limitation. The limitation shall be temporary. If the relevant competent authority 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.






Amendment 14

Article 7






Text proposed by the Commission


CoR amendment




1.   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.


1.   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.




2.   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.



2.   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.





3.   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].



3.   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].





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


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




5.   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.



5.   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.





6.   Paragraphs 1 to 5 of this Article shall not apply in the cases referred to in Article 9.



6.3.   Paragraphs 1 to 5and 2 of this Article shall not apply in the cases referred to in Article 9.




7.   This Regulation is without prejudice to Directive …/… [concession][1], Directive .…/….[public utilities][2] and Directive …/… [public procurement][3].



7.4.   This Regulation is without prejudice to Directive …/… [concession][1], Directive .…/….[public utilities][2] and Directive …/… [public procurement][3].

4a.   The duration of the port service contracts shall be proportionate to the investments made.






Amendment 15

Article 8 — Public service obligations






Text proposed by the Commission


CoR amendment




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






(a)


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










(b)


the availability of the service to all users;










(c)


the affordability of the service for certain categories of users.






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






(a)


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










(b)


the availability of the service to all users;










(c)


the affordability of the service for certain categories of users;










(d)



criteria related to territorial cohesion such as the accessibility of remote, island areas and outermost regions;











(e)



compliance with specific safety, environmental and other requirements that would not be met by port service providers for economic reasons.









2.   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.
3.   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. (…)


2.   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.
3.   The Member States shall designate the competent authorities within their territory to impose such public service obligations. The managing body of the port may, if it is public, be the competent authority. (…)






Reason








—


It is proposed to extend the public service obligations to criteria related to territorial cohesion as suggested in the explanatory memorandum to the draft regulation (see end of section 1.4). Attention should also be paid to criteria that are particularly important for the environment and the safety of port activities but are not economically viable.










—


Since the managing body of the port may be a private body and receive public funds, the possibility provided in article 8§ 3 for this body to be the competent authority for defining public service obligations should be limited to public managing bodies.





Amendment 16

Article 9 — Internal operator






Text proposed by the Commission


CoR amendment




1.   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.
(…)


1.   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 by
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 Directive
Regulation.
(…)




4.   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.
(…)


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






Reason


It is questionable that the situation where the port service provider shall be considered as an ‘internal operator’ is limited to port services under public service obligations only. There could indeed be purely commercial reasons why a port managing body (which can be a private body) could decide to provide a service itself without that service being specifically defined as a public service.

Amendment 17

Article 10.2 — Safeguarding of employees' rights






Text proposed by the Commission


CoR amendment




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.


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.






Reason


It is not understandable why the Commission foresees only the possibility and not the obligation 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.

Amendment 18

Article 10.3 — Safeguarding of employees' rights






Text proposed by the Commission


CoR amendment




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.


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
indicate the status of their contractual rights and the conditions under which employees are deemed to be linked to the port services.






Reason


Publishing the ‘transparent details of the contractual rights’ of staff seems might violate rights concerning personal data.

Amendment 19

Article 12.2 — Transparency of financial relations






Text proposed by the Commission


CoR amendment




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)


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










(b)


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






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 allows for monitoring of the prohibition on transferring public funds paid to one area of activity to another and the monitoring of the use of income from infrastructure charges and surpluses from other commercial activities.








(a)




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












(b)




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











Reason


Suggested simplification of the accountancy requirements derived from Article 6 of Directive 2012/34/EU establishing a single European railway area.

Amendment 20

Article 14.4






Text proposed by the Commission


CoR amendment




4.   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.


4.   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, or for reasons of territorial cohesion, such as the accessibility of the outermost regions for example. 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.






Reason


The amendment wants the rules to allow other pricing criteria that take account of the inaccessibility of the outermost regions and the need for offsetting their additional transport costs so that they enjoy the same conditions as all users, as recognised under TFEU Art. 349.

Amendment 21

Article 14 — Port infrastructure charges






Text proposed by the Commission


CoR amendment




(…)
5.   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.
(…)
7.   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


(…)
5.   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.
(…)

7.   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.







Reason


The commercial freedom of port managing bodies may not be constrained by such principles (charging/pricing is a competitive area). In addition, any empowerment conferred to the European Commission to adopt delegated acts should be kept as precise and limited as possible.

Amendment 22

Article 17






Text proposed by the Commission


CoR amendment





Independent supervisory body

1.   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.
2.   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.
3.   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.
4.   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.
5.   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.
6.   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.
7.   The independent supervisory body may consult the port users' advisory committee of the port concerned when dealing with the complaints or disputes.
8.   The decisions of the independent supervisory body shall have binding effects, without prejudice to judicial review.
9.   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.




Independent supervisory body



1.   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.


2.   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.


3.   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.


4.   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.


5.   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.


6.   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.


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


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


9.   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.







Reason


The added value of (establishing) an independent supervisory body responsible for monitoring and supervising the application of this regulation is questionable. Existing competent authorities (including at local and regional level) can take responsibility for such supervision. In addition, a regulation is by definition ‘directly binding in its entirety’ and therefore needs no measures for facilitating its uniform implementation. In any case, article 19 provides for an appeal mechanism.

Amendment 23

Article 18 — Cooperation between independent supervisory bodies






Text proposed by the Commission


CoR amendment





Cooperation between independent supervisory bodies

1.   The independent supervisory bodies shall exchange information about their work and decision-making principles and practices in order to facilitate a uniform 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.
2.   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 such body, after a substantiated request, the information necessary to allow that body to fulfil its responsibilities under this Regulation.
3.   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.
4.   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.
5.   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).




Cooperation between independent supervisory bodies



1.   The independent supervisory bodies shall exchange information about their work and decision-making principles and practices in order to facilitate a uniform 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.


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


3.   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.


4.   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.


5.   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).







Reason


Similar argumentation line here than for the amendment to Article 17: It remains unclear why cooperation between independent supervisory authorities is needed. It is even more unclear if one follows the Commission's logic of opting for a draft regulation which is by definition ‘directly binding in its entirety’ and ‘should prevent additional administrative burden for Member States and the Commission’ and therefore needs no measures for facilitating its uniform implementation. In any case, Article 19 provides for an appeal mechanism.

Amendment 24

Article 19 — Appeals






Text proposed by the Commission


CoR amendment




1.   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.


1.   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, or 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.




2.   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.


2.   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.






Reason


Follows from the amendments to Articles 17 and 18.

Brussels, 28 November 2013


The President of the Committee of the Regions

Ramón Luis VALCÁRCEL SISO





(1)  SWD(2013) 3 final, http://ec.europa.eu/governance/impact/key_docs/docs/cswd_ati_en.pdf.

(2)  http://eca.europa.eu/portal/pls/portal/docs/1/14018736.PDF.

(3)  Guide to the application of the EU rules on state aid, public procurement and the internal market to SGEI, SWD(2013) 53, 15.2.2013.

(4)  In accordance with the decision of 20.12.2011 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 interest.