Let's continue our analysis of the Regulation (EU) 2017/352 "establishing a framework for the provision of port services and common rules on financial transparency of ports", examining the general principles on port services1, with particular reference to the requirements for the provision of the same and the possible "limitation" on the number of providers of port services in a European port.
Before going into the examination of the rules laid down by the Regulation we consider it appropriate to make a preliminary reflection on the general principles laid down in terms of port services. This because said principles denote the spirit and the goals that moved the European legislator, in the light of which the specific rules shall always be interpreted.
Firstly, let's look at how, in recital no. 11, the European legislator chooses to refer directly to the general principles – already set out in the Treaties of the European Union – according to which port service providers should be free to provide their services in European seaports.
Nevertheless, the same recital sets out the power of ports managing bodies to impose certain conditions on the exercise of that freedom. More specifically, in the opinion of the European legislator, "in the interest of an efficient, safe and environmentally sound port management"2 the managing body of the port should have the power to require that port service providers must have the "minimum requirements necessary to perform the service in an appropriate way".
According to the provisions of the Regulation, said minimum requirements should have specific characteristics: (i) consist in a clearly defined set of conditions; (ii) be transparent, objective and non-discriminatory; (iii) be proportionate and relevant for the provision of the port service.
The European legislator believes that a system of minimum requirements can contribute to ensuring a "high quality of port services". Nevertheless, such a system should not, as a result of its application, "introduce market barriers"3.
In order to make the system for selecting providers of port services efficient and non-discriminatory, the European legislator considers it appropriate that, where compliance with minimum requirements is required, the procedure promoted by the managing body of the port – in order to grant the right to provide port services – must be, in its turn, transparent, objective, non-discriminatory and proportionate.
A particularly interesting legislative provision is that according to which port service providers, at the request of the managing body of the port, should be able to demonstrate their ability to provide services to "a minimum number of vessels, making available necessary staff and equipment"4.
In fact, through the aforementioned recital, the European legislator introduces a requirement of operational capacity of the provider of port services.
With regard to the limitation on the number of providers of port services, the Regulation provides the faculty of managing bodies of ports to apply them where said limitations are linked to scarcity of land or waterside space, to the characteristics of the port infrastructure or to the nature of port traffic or, finally, to the need to ensure safe, secure or environmentally sustainable port operations5.
The aforementioned limitation should be justified by clear and objective reasons and should not introduce "disproportionate"6 market barriers.
The managing body of the port, in the opinion of the European legislator, should communicate "in advance" its intention to limit the number of providers of port services and this limitation should be "fully justified"7 in order to give the interested parties the opportunity to comment.
With regard to the selection of providers of port services, the managing body of the port should communicate its intention to do so also on the Internet and said publication should contain the necessary information on the selection procedure and, in particular, the criteria for the award of the provision of port services8.
A premise of particular interest is that referred to in recital 22 according to which "In order to ensure transparency and equal treatment, amendments to the provisions of a contract during its term should be considered to constitute a new award of a contract when they render the contract materially different in character from the original contract and, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract".
In other words, according to the European legislator, whenever the essential terms of the contract governing the relationship between the managing body of the port and the provider of port services are called into question, there cannot be a two-sided relationship, but said renegotiation must be brought to the attention of other port service operators, who may better meet the changing needs for the provision of a specific port service.
Finally, the Regulation deals with those countries in the European Union where market access for providers of goods handling and passenger services is guaranteed through public procurement. Having acknowledged that the Court of Justice of the European Union has already affirmed that competent authorities are bound to respect the principles of transparency and non-discrimination when concluding such contracts, recitals 38 of the Regulation leaves the concerned States free to decide to apply the framework outlined by the new Regulation or to keep their existing national laws in force, always respecting the fundamental principles set out in the case law of the European Union.
In the next issue, we will close this first part of the analysis of the Regulation dedicated to the examination of the general principles moving to the discovery of those principles laid down in terms of financial transparency and rights to use the port infrastructure. After that, we will begin to enter into the details of the rules set by the Regulations.
Footnotes
1The Regulation under examination (Article 1) applies "to the provision of the following categories of port services ("port services"), both within the port area, and on the waterway access to the port: (i) replenishment of fuel; (ii) goods handling; (iii) mooring; (iv) passenger services; (v) collection of waste produced by ships and cargo residues; (vi) piloting; (vii) towing services".
2 Recital No. 13
2 Recital No. 13
3 Recital No. 14
4 Recital No. 19
5 Recital No. 20
6 Recital No. 26
7 Recital No. 21
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