Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2017/352, so as to enable managing bodies or competent authorities to provide flexibility in respect of the levying of port infrastructure charges in the context of the COVID-19 outbreak
Date: 2020-04-29
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: administrative transparency, charges for use of infrastructure, common ports policy, epidemic, harbour installation, infectious disease, maritime transport, provision of services, trans-European network

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   EUROPEAN COMMISSION  Brussels, 29.4.2020  COM(2020) 177 final 2020/0067 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2017/352, so as to enable managing bodies or competent authorities to provide flexibility in respect of the levying of port infrastructure charges in the context of the COVID-19 outbreak   (Text with EEA relevance)  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Regulation  (EU)  2017/352  of  the  European  Parliament  and  of  the  Council  of  15  February 
2017  establishes  a  framework  for  the  provision  of  port  services  and  common  rules  on  the 
financial  transparency  of  ports1  (hereinafter  ‘Regulation  (EU) 2017/352’).  Its  Article  13 
requires Member States to ensure that a port infrastructure charge is levied. 

The  outbreak  of  COVID-19  is  having  a  serious  impact  on  maritime  transport  and  on  the 
financial  sustainability  of  operators.  A  suspension  or  deferral  of  the  payment  of  port 
infrastructure charges may therefore help ship operators in such exceptional circumstances. 

Article  13(1)  of  Regulation  (EU)  2017/352  requires  Member  States  to  ensure  that  a  port 
infrastructure charge is levied.  

Port  infrastructure  charges  are  defined  in  Article  2(9)  of  Regulation  (EU)  2017/352  as  ”a 
charge  levied,  for  the  direct  or  indirect  benefit  of  the  managing  body  of  the  port  or  of  the 
competent  authority,  for  the  use  of  infrastructure,  facilities  and  services,  including  the 
waterway access to the port concerned, as well as access to the processing of passengers and 
cargo, but excluding land lease rates and charges having equivalent effect”. 

Port  infrastructure  charges  are  levied  by  a  managing  body  of  a  port  or  by  a  competent 
authority on the port users, i.e. ship owners or operators. 

Article 13(4) of Regulation (EU) 2017/352 provides that port infrastructure charges may vary, 
inter alia, for certain categories of users, but does not allow a managing body of a port or a 
competent  authority  to  waive,  suspend,  reduce  or  defer  the  payment  of  port  infrastructure 
charges for all port users. 

The new transitional provision will provide Member States with the option to allow managing 
bodies of a port or competent authorities to decide whether to: 

– 

– 

– 

– 

waive (condone, i.e. not require the payment at all); or  

suspend (freeze or put on hold the payment for a certain time period); or  

reduce (decrease the payment); or 

defer  (require  the  payment  at  a  later  point  in  time)  the  payment  of  the  port 
infrastructure charges. 

As the duration of the impact on maritime transport of the outbreak of COVID-19 is uncertain 
and in order to allow for sufficient flexibility for the sector, the new transitional provision will 
apply  to  port  infrastructure  charges  due  for  the  period  between  1  March  2020  and  31 
December 2020. 

Article 13(5) of Regulation (EU) 2017/352 provides: “The managing body of the port, or the 
competent  authority,  shall  ensure  that  users  of  the  port  infrastructure  are  informed  of  any 
changes in the nature or level of the port infrastructure charges at least two months in advance 
of the date on which those changes come into effect.” 

1 

Regulation  (EU)  2017/352  of  the  European  Parliament  and  the  Council  Regulation  (EEC)  of  15 
February establishing a framework for the provision of port services and common rules on the financial 
transparency of ports, OJ L 57, 3.3.2017, p. 1 

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The requirement of a notice of “at least two months” should be dispensed with in exceptional 
circumstances like the current coronavirus crisis. Therefore, the proposed amendment grants 
managing bodies of a port or competent authorities the possibility to deviate from the “at least 
two months” notice in exceptional circumstances and to give a shorter notice, which period is 
to be determined by the managing body of the port or the competent authority. 

• 

Consistency with existing policy provisions in the policy area 

Regulation (EU) 2017/352 does not foresee the possibility for ports to waive, suspend, reduce 
or defer port infrastructure charges in exceptional circumstances, such as the consequences of 
the COVID-19 outbreak. The Regulation should therefore be amended so as to allow for the 
possibility to mitigate the effects of the current crisis and to provide legal certainty to Member 
States, their competent authorities and individuals. 

• 

Consistency with other Union policies 

The effective functioning of maritime transport depends on the economic performance of the 
ship operators. The negative economic consequences of the current COVID-19 outbreak for 
ship  operators  will  have  an  impact  on  their  financial  health  of  those  operators  and  entail 
serious negative effects for the transport system and the economy as a whole. The amendment 
of  Regulation  2017/352  to  allow  Member  States  to  provide  managing  bodies  of  a  port  or 
competent  authorities  with  the  flexibility  to  decide  to  waive,  suspend,  reduce  or  defer  the 
payment of port infrastructure charges can help address this concern. The Member States will 
have to ensure compliance of the adopted measures with the State aid rules. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  initiative  is  based  on  Article  100(2)  of  the  Treaty  on  the  Functioning  of  the  European 
Union. That provision permits the adoption of all appropriate provisions for sea transport and 
already served as a basis for the adoption of Regulation (EU) 2017/352.  

• 

Subsidiarity (for non-exclusive competence)  

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reasons. Regulation (EU) 2017/352 does not allow Member States, for reasons such 
as those in question here, to permit ports to waive, suspend, reduce or defer port infrastructure 
charges. This objective may be achieved only through an amendment of the Regulation. 

• 

Proportionality 

The  proposal  is  limited  in  time  and  does  not  go  beyond  what  is  necessary  to  achieve  the 
objective of alleviating the impact of the current COVID-19 outbreak for the purposes of the 
operation of Regulation (EU) 2017/352. The proposed measure is therefore proportionate.  

• 

Choice of the instrument 

Since  the  legal  act  amends  Regulation  (EU)  2017/352,  the  appropriate  legal  instrument  is  a 
Regulation. 

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3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This  is  an  urgent  measure  which  is  triggered  by  the  sudden  and  unforeseeable  outbreak  of 
COVID-19. For this reason, the measure is not relevant for the regulatory fitness programme 
and no ex-post evaluation has been carried out. 

• 

Stakeholder consultations 

Given  the  urgency  of  the  matter  formal  stakeholder  consultation  has  not  been  carried  out. 
However,  some  Member  States  authorities  and  ports  have  already  announced  measures 
similar to those foreseen.  

• 

Collection and use of expertise 

As  explained,  the  proper  collection  of  expertise  was  not  possible  due  to  the  urgency  of  the 
situation. 

• 

Impact assessment 

Given the urgency of the situation, an impact assessment could not be carried out.  

• 

Fundamental rights 

Not applicable.  

4. 

BUDGETARY IMPLICATIONS 

Not applicable. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The measure does not  include any specific monitoring or reporting arrangements. However, 
the  Member  States  will  be  requested  to  report  on  the  use  of  the  measures  in  view  of  the 
preparation  of  a  report  to  the  European  Parliament  and  the  Council  on  the  functioning  and 
effect  of  the  Regulation  by  24  March  2023  as  required  by  Article  20  of  Regulation  (EU) 
2017/352. 

• 

Detailed explanation of the specific provisions of the proposal 

A new paragraph 3 is added in Article 21 of Regulation (EU) 2017/352. The new provision 
provides for a possibility for Member States, notwithstanding the provisions of Article 13(1), 
to  allow  managing  bodies  of  a  port  or  competent  authorities  to  waive,  suspend,  reduce  or 
defer the payment of port infrastructure charges due for the period between 1 March 2020 and 
31  December  2020.  The  waiver,  suspension,  reduction  or  deferral  of  the  port  infrastructure 
charge  must  be  granted  in  a  transparent,  objective  and  non-discriminatory  way  to  all  port 
users subject to port infrastructure charges. The new provision also grants managing bodies of 
a port or competent authorities the possibility to deviate from the “at least two months” notice 
laid down in Article 13(5) of Regulation (EU) 2017/352. 

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2020/0067 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) 2017/352, so as to enable managing bodies or competent 
authorities to provide flexibility in respect of the levying of port infrastructure charges 
in the context of the COVID-19 outbreak  

(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 Committee2, 
Having regard to the opinion of the Committee of the Regions3, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

2 
3 
4 

The  outbreak  of  COVID-19  is  having  a  serious  impact  on  maritime  transport.  The 
consequent  serious  impact  on  maritime  transport  and  port  infrastructure  has  been 
pervasive since 1 March 2020, and is likely to continue to have an impact throughout 
2020. A waiver, suspension, reduction or deferral of the payment of port infrastructure 
charges  could  therefore  contribute  to  sustaining  the  financial  operation  of  ship 
operators in these exceptional circumstances.  

Article  13(1)  of  Regulation  (EU)  2017/352  of  the  European  Parliament  and  of  the 
Council4 requires Member States to ensure that port infrastructure charges are levied 
by a managing body of a port or by a competent authority. There is no exception from 
this obligation to levy charges, not even in exceptional circumstances.  

In  view  of  the  consequences  of  the  COVID-19  outbreak,  it  is  appropriate  to  allow 
Member States to provide the managing bodies of a port or the competent authorities 
with  the  possibility  to  waive,  suspend,  reduce  or  defer  the  payment  of  port 
infrastructure  charges  due  for  the  period  from  1  March  2020  to  31  December  2020. 
The waiver, suspension, reduction or deferral of the port infrastructure charges should 
be  granted  in  a  transparent,  objective  and  non-discriminatory  way  to  all  port  users 
subject to port infrastructure charges. 

OJ C , , p. . 
OJ C , , p. . 
Regulation  (EU)  2017/352  of  the  European  Parliament  and  the  Council  of  15  February  2017 
establishing  a  framework  for  the  provision  of  port  services  and  common  rules  on  the  financial 
transparency of ports (OJ L 57, 3.3.2017, p. 1). 

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(4) 

(5) 

(6) 

(7) 

In view of the urgency, it is also appropriate to grant the managing bodies of a port or 
the competent authorities the possibility to derogate from the obligation provided for 
in  Article  13(5)  of  Regulation  (EU)  2017/352,  to  inform  the  users  of  the  port 
infrastructure of any changes in the nature or level of the port infrastructure charges at 
least two months before these changes come into effect. 

Since  the  objective  of  this  Regulation  requires  the  adoption  of  an  amendment  of 
Regulation (EU) 2017/352, in view of the urgency created by the outbreak of COVID-
19, 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 to achieve that objective. 

In view of the urgency due to the exceptional circumstances caused by the COVID-19 
outbreak  justifying  the  proposed  measures,  and  more  particularly  the  need  to  adopt 
such  measures  quickly  in  the  interest  of  sustaining  the  financial  operation  of  ship 
operators,  it  is  appropriate  to  provide  for  an  exception  to  the  eight-week  period 
referred  to  in  Article  4  of  Protocol  No  1  on  the  role  of  national  Parliaments  in  the 
Union, annexed to the Treaty on European Union, to the Treaty on the Functioning of 
the  European  Union  and  the  Treaty  establishing  the  European  Atomic  Energy 
Community. 

The  unforeseeable  and  sudden  outbreak  of  COVID-19  and  the  relevant  legislative 
procedures  required  for  adoption  of  relevant  measures,  made  it  impossible  to  adopt 
such measures in time. For that reason, the provisions of this Regulation should also 
cover  the  charges  due  for  the  period  before  its  entry  into  force.  Given  the  nature  of 
these  provisions,  such  an  approach  should  not  result  in  violation  of  the  legitimate 
expectations of the persons concerned. 

(8) 

This Regulation should enter into force as a matter of urgency on the date following 
that of its publication in the Official Journal of the European Union, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

In Article 21 of Regulation (EU) 2017/352, the following paragraph 3 is added:  

“3. By way of derogation from Article 13(1) Member States may allow the managing body of 
the  port  or  the  competent  authority  not  to  levy  or  to  suspend  or  to  reduce  the  port 
infrastructure charge or to defer a payment of the port infrastructure charge due for the period 
from  1 March 2020 to  31 December 2020. The  waiver, suspension, reduction or deferral  of 
the  port  infrastructure  charge  shall  be  granted  in  a  transparent,  objective  and  non-
discriminatory way to all port users subject to port infrastructure charges.  

The managing body of the port or the competent authority shall ensure that port users and the 
representatives or associations of port users are informed accordingly. The time limit of two 
months referred to in Article 13(5) shall not apply.” 

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

Article 2 

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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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