Framework on future EU ports policy
COTER-V/041
Framework on future EU ports policy
The opinion aims at:
insisting on the territorial dimension and impact of the proposed Regulation and regretting the insufficient recognition of the LRAs with regard to the applicable legislation and or the setting of minimum requirements for the provision of port services (article 4.2 d, article 4.4, article 6.4).
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.
expressing 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 EC 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. Calls on the EC to involve LRAs through the CoR in the further steps to be undertaken in clarifying the possible impact of state aid rules applicable to infrastructure in general and ports in particular.
Transposing these objectives into legislative amendment proposals.
insisting on the territorial dimension and impact of the proposed Regulation and regretting the insufficient recognition of the LRAs with regard to the applicable legislation and or the setting of minimum requirements for the provision of port services (article 4.2 d, article 4.4, article 6.4).
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.
expressing 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 EC 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. Calls on the EC to involve LRAs through the CoR in the further steps to be undertaken in clarifying the possible impact of state aid rules applicable to infrastructure in general and ports in particular.
Transposing these objectives into legislative amendment proposals.
The CoR opinion was sent to all TRAN committee members in the EP (email received by the head of unit), as well as to all national delegations by the Council general secretariat (email also received by the head of unit)!
Response letter by Vice-President Kallas dated 22 January 2014: "I would like to reassure you that the opinion of the Committee and the suggested amendments have my full attention and that, in the context of the legislative procedure, the Commission will remain open to improvements in the text of the proposed regulation".
Several amendments proposed by the CoR were taken on board by the EP rapporteur:
o Flexibility allowing infrastructure charges to vary, commercial freedom of ports (CoR amendments n°4 and 21)
o Deletion of dredging from the scope (CoR amendment n°5)
o Modification to the proposed definition of "seaport" (CoR amendment n°9)
o Several amendments related to port service contracts (CoR amendment n°14)
o Safeguarding of employees' rights (CoR amendment n°17)
o Deletion of the provisions related to the cooperation between independent supervisory bodies (CoR amendment n°23)
Several amendments proposed by the CoR also inspired amendments tabled by other MEPs on the draft report of the EP rapporteur:
o Change from a regulation to a directive (EP AMs 88 to 92)
o Deletion of mooring, pilotage and towage from the scope as well (EP AMs 220-225, 227-228, and 229-232)
o Definition of public service obligations, accessibility of islands (EP AM 340)
o Deletion of the provisions creating independent supervisory bodies in each Member State (EP AMs 463-464)
The draft report was discussed in TRAN committee on 11 February 2014. On 17 March 2014, the TRAN committee decides to postpone the dossier to the next legislature. One of the two reasons invoked for the postponement of the dossier to the next legislature by the European Parliament, i.e. the need to clarify the EU framework related to state aids to port infrastructures, is fully in line with the CoR opinion. The latter indeed regretted the lack of synchronisation with the review of the State aid guidelines applicable to the ports sector and that the EC has not included directly into the ports' package proposals to clarify the notion of aid as regards the financing of infrastructure.
On 8 October 2014 the Council adopted a general approach on the draft regulation, which suggests some changes to the EC proposal that are in line with the key messages of the CoR opinion:
In its opinion, the CoR stressed the need to take into account the diversity of ports in the EU due to their geographical location (point 5). The Council's general approach suggests that Member States can exclude ports located in outermost regions that are part of the comprehensive trans-European transport network (TEN-T) from the rules that govern market access to port services (Article 1 (3a)), which acknowledges the specific functions and the situation of these ports.
The Council took partially into account the CoR recommendation to exclude services that have the objective of general interests - i.e. safety, security and environmental protection, such as dredging and pilotage - from the scope of the regulation (point 13). The general approach subjects dredging only to the financial transparency rules for publicly funded activities, but exempts it from the scope of the Regulation otherwise (Article 1).
The recommendation of the CoR to extend the remits of public service obligations and include in particular criteria related to territorial cohesion (point 16) was taken on board in the general approach, which foresees "territorial cohesion" as legitimate reasons for imposing PSO (Article 8 (1) (cb)).
The CoR regretted that the legislative proposal did not provide a definition of "competent authority" (point 14), and made a proposal for a definition in its recommendations for amendments. The general approach now introduces a definition of "competent authority", although in a different wording.
The CoR questioned the added value of establishing an independent supervisory body responsible for monitoring and supervising the application of the Regulation, and expressed doubts about the need of setting up cooperation between them for facilitating a uniform implementation of the Regulation (points 20 and 21). The Council also rejected the idea to establish such an independent supervisory body and deleted/modified the relevant provisions in the draft regulation accordingly.
A comparison between the CoR opinion and general approach shows that the following CoR recommendations for legislative amendments have been at least partially taken on board:
AM 5 on Article 1 (subject matter and scope) was partially taken on board: dredging was excluded from the scope (except for the application of Article 12 (2));
AM 6 on Article 2 (to add a definition of "competent authority") was taken up by the Council, however in a different wording;
AM 12 on Article 4 (strengthening the role of competent authorities with regard to the minimum requirements for the provision of port services) was well reflected in the general approach: The general approach goes even beyond the CoR recommendation, which only requested the consultation of competent authorities. However, the word "regional" in Article 4 (2) (d) was not taken on board;
AM 15 on Article 8 was partially taken on board: Whilst the CoR proposal that the competent authorities should decide on the introduction of public service obligations was not considered, the proposal to add criteria related to territorial cohesion and the compliance with safety and environmental requirements was taken on board, albeit in a different wording;
AM 16 on Article 9: The CoR suggested that internal operators should also be able to provide port services other than port services under public service obligations. The general approach doesn't restrict the provision of port services by internal operators to public service obligations;
AM 21 on Article 14 rejected the idea that the European Commission shall be empowered to adopt delegated acts on common charging principles for port infrastructure charges. The relevant paragraph was deleted in the general approach;
AM 22, 23 and 24 on Articles 17, 18 and 24: The CoR rejected the proposal of the European Commission to establish an independent supervisory body responsible for monitoring and supervising the application of the regulation, and suggested to delete the relevant provisions in the draft regulation. The general approach is in line with this proposal.
In the European Parliament, Mr Fleckenstein was reappointed as rapporteur on 16 July 2014.He presented his draft report to the TRAN committee on 15 June 2015, where it was adopted on 25 January 2016. At its Plenary Session of 8 March 2016, the European Parliament adopted amendments to the proposal for a Regulation and referred the matter back to the TRAN committee. The Parliament also gave a mandate to the rapporteur to negotiate a first reading agreement with the Council.
Further to the trilogue meetings on 18 April, 24 May and 9 June 2016, an agreement was reached between the Council and the Parliament at the trilogue meeting of 27 June 2016, which was subsequently approved on 29 June 2016 in Coreper and on 11 October by the EP TRAN committee. On this basis, the European Parliament adopted at its Plenary Session of 14 December 2016 a legislative resolution on the 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, which lays down the position of the European Parliament at first reading. This EP position was approved by the Council on 23 January 2017. The final text was signed on 15 February 2017 and published in the Official Journal on 3 March 2017. It entered into force on 23 March 2017 and shall apply from 24 March 2019.
A comparison between the CoR opinion and the final text shows that a number of CoR recommendations for legislative amendments have been at least partially taken on board:
AM 5: The suggestion to exempt dredging, pilotage, towing and mooring from the scope of the Regulation was partially taken on board: The final text exempts dredging from the scope of the Regulation (with exception of Article 11(2)), but mooring, pilotage and towage are still covered;
AM 6: The request to introduce a definition of the term "competent authority" was considered in the final text. The wording is however different from the CoR proposal;
AM 11: The title of Chapter II was changed, as requested by the CoR, the wording is in line with the CoR proposal, but slightly different;
AM 12: The objective of strengthening the role of competent authorities with regard to the minimum requirements for the provision of port services was reflected in the final text. However, the reference to regional requirements was not included;
AM 14: The provisions related to concessions were deleted in the final text, as suggested by the CoR;
AM 15 was taken on board: Public service obligations can now also be imposed to ensure the safety, security or environmental sustainability of port operations, as well as territorial cohesion;
AM 16: The recommendation of the CoR that internal operators should also be able to provide port services other than port services under public service obligations was taken on board;
AM 21: The CoR's position, which rejected the idea that the European Commission shall be empowered to adopt delegated acts on common charging principles for port infrastructure charges, was considered in the final text, where the relevant paragraph was deleted;
Am 22, 23 and 24: The CoR rejected the proposal of the European Commission to establish an independent supervisory body responsible for monitoring and supervising the application of the Regulation, and suggested to delete the relevant provisions. The final text does not include any provisions on such supervisory bodies.
Response letter by Vice-President Kallas dated 22 January 2014: "I would like to reassure you that the opinion of the Committee and the suggested amendments have my full attention and that, in the context of the legislative procedure, the Commission will remain open to improvements in the text of the proposed regulation".
Several amendments proposed by the CoR were taken on board by the EP rapporteur:
o Flexibility allowing infrastructure charges to vary, commercial freedom of ports (CoR amendments n°4 and 21)
o Deletion of dredging from the scope (CoR amendment n°5)
o Modification to the proposed definition of "seaport" (CoR amendment n°9)
o Several amendments related to port service contracts (CoR amendment n°14)
o Safeguarding of employees' rights (CoR amendment n°17)
o Deletion of the provisions related to the cooperation between independent supervisory bodies (CoR amendment n°23)
Several amendments proposed by the CoR also inspired amendments tabled by other MEPs on the draft report of the EP rapporteur:
o Change from a regulation to a directive (EP AMs 88 to 92)
o Deletion of mooring, pilotage and towage from the scope as well (EP AMs 220-225, 227-228, and 229-232)
o Definition of public service obligations, accessibility of islands (EP AM 340)
o Deletion of the provisions creating independent supervisory bodies in each Member State (EP AMs 463-464)
The draft report was discussed in TRAN committee on 11 February 2014. On 17 March 2014, the TRAN committee decides to postpone the dossier to the next legislature. One of the two reasons invoked for the postponement of the dossier to the next legislature by the European Parliament, i.e. the need to clarify the EU framework related to state aids to port infrastructures, is fully in line with the CoR opinion. The latter indeed regretted the lack of synchronisation with the review of the State aid guidelines applicable to the ports sector and that the EC has not included directly into the ports' package proposals to clarify the notion of aid as regards the financing of infrastructure.
On 8 October 2014 the Council adopted a general approach on the draft regulation, which suggests some changes to the EC proposal that are in line with the key messages of the CoR opinion:
In its opinion, the CoR stressed the need to take into account the diversity of ports in the EU due to their geographical location (point 5). The Council's general approach suggests that Member States can exclude ports located in outermost regions that are part of the comprehensive trans-European transport network (TEN-T) from the rules that govern market access to port services (Article 1 (3a)), which acknowledges the specific functions and the situation of these ports.
The Council took partially into account the CoR recommendation to exclude services that have the objective of general interests - i.e. safety, security and environmental protection, such as dredging and pilotage - from the scope of the regulation (point 13). The general approach subjects dredging only to the financial transparency rules for publicly funded activities, but exempts it from the scope of the Regulation otherwise (Article 1).
The recommendation of the CoR to extend the remits of public service obligations and include in particular criteria related to territorial cohesion (point 16) was taken on board in the general approach, which foresees "territorial cohesion" as legitimate reasons for imposing PSO (Article 8 (1) (cb)).
The CoR regretted that the legislative proposal did not provide a definition of "competent authority" (point 14), and made a proposal for a definition in its recommendations for amendments. The general approach now introduces a definition of "competent authority", although in a different wording.
The CoR questioned the added value of establishing an independent supervisory body responsible for monitoring and supervising the application of the Regulation, and expressed doubts about the need of setting up cooperation between them for facilitating a uniform implementation of the Regulation (points 20 and 21). The Council also rejected the idea to establish such an independent supervisory body and deleted/modified the relevant provisions in the draft regulation accordingly.
A comparison between the CoR opinion and general approach shows that the following CoR recommendations for legislative amendments have been at least partially taken on board:
AM 5 on Article 1 (subject matter and scope) was partially taken on board: dredging was excluded from the scope (except for the application of Article 12 (2));
AM 6 on Article 2 (to add a definition of "competent authority") was taken up by the Council, however in a different wording;
AM 12 on Article 4 (strengthening the role of competent authorities with regard to the minimum requirements for the provision of port services) was well reflected in the general approach: The general approach goes even beyond the CoR recommendation, which only requested the consultation of competent authorities. However, the word "regional" in Article 4 (2) (d) was not taken on board;
AM 15 on Article 8 was partially taken on board: Whilst the CoR proposal that the competent authorities should decide on the introduction of public service obligations was not considered, the proposal to add criteria related to territorial cohesion and the compliance with safety and environmental requirements was taken on board, albeit in a different wording;
AM 16 on Article 9: The CoR suggested that internal operators should also be able to provide port services other than port services under public service obligations. The general approach doesn't restrict the provision of port services by internal operators to public service obligations;
AM 21 on Article 14 rejected the idea that the European Commission shall be empowered to adopt delegated acts on common charging principles for port infrastructure charges. The relevant paragraph was deleted in the general approach;
AM 22, 23 and 24 on Articles 17, 18 and 24: The CoR rejected the proposal of the European Commission to establish an independent supervisory body responsible for monitoring and supervising the application of the regulation, and suggested to delete the relevant provisions in the draft regulation. The general approach is in line with this proposal.
In the European Parliament, Mr Fleckenstein was reappointed as rapporteur on 16 July 2014.He presented his draft report to the TRAN committee on 15 June 2015, where it was adopted on 25 January 2016. At its Plenary Session of 8 March 2016, the European Parliament adopted amendments to the proposal for a Regulation and referred the matter back to the TRAN committee. The Parliament also gave a mandate to the rapporteur to negotiate a first reading agreement with the Council.
Further to the trilogue meetings on 18 April, 24 May and 9 June 2016, an agreement was reached between the Council and the Parliament at the trilogue meeting of 27 June 2016, which was subsequently approved on 29 June 2016 in Coreper and on 11 October by the EP TRAN committee. On this basis, the European Parliament adopted at its Plenary Session of 14 December 2016 a legislative resolution on the 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, which lays down the position of the European Parliament at first reading. This EP position was approved by the Council on 23 January 2017. The final text was signed on 15 February 2017 and published in the Official Journal on 3 March 2017. It entered into force on 23 March 2017 and shall apply from 24 March 2019.
A comparison between the CoR opinion and the final text shows that a number of CoR recommendations for legislative amendments have been at least partially taken on board:
AM 5: The suggestion to exempt dredging, pilotage, towing and mooring from the scope of the Regulation was partially taken on board: The final text exempts dredging from the scope of the Regulation (with exception of Article 11(2)), but mooring, pilotage and towage are still covered;
AM 6: The request to introduce a definition of the term "competent authority" was considered in the final text. The wording is however different from the CoR proposal;
AM 11: The title of Chapter II was changed, as requested by the CoR, the wording is in line with the CoR proposal, but slightly different;
AM 12: The objective of strengthening the role of competent authorities with regard to the minimum requirements for the provision of port services was reflected in the final text. However, the reference to regional requirements was not included;
AM 14: The provisions related to concessions were deleted in the final text, as suggested by the CoR;
AM 15 was taken on board: Public service obligations can now also be imposed to ensure the safety, security or environmental sustainability of port operations, as well as territorial cohesion;
AM 16: The recommendation of the CoR that internal operators should also be able to provide port services other than port services under public service obligations was taken on board;
AM 21: The CoR's position, which rejected the idea that the European Commission shall be empowered to adopt delegated acts on common charging principles for port infrastructure charges, was considered in the final text, where the relevant paragraph was deleted;
Am 22, 23 and 24: The CoR rejected the proposal of the European Commission to establish an independent supervisory body responsible for monitoring and supervising the application of the Regulation, and suggested to delete the relevant provisions. The final text does not include any provisions on such supervisory bodies.
Le COmité des régions
- doute que la Commission européenne adopte une approche globale en matière de politique portuaire puisqu'elle ne se réfère ni à la stratégie Europe 2020 ni à l'initiative "Croissance bleue", pas plus qu'à la révision des règlements définissant les valeurs-limites de soufre dans les carburants à usage maritime, qui revêtent une importance majeure pour les ports, et n'évoque pas non plus le manque de synchronisation avec la révision des lignes directrices sur les aides d'État applicables au secteur portuaire;
- exprime sa déception concernant le fait que, malgré le récent document de travail de la Commission consacré à l'étude d'impact territorial, la dimension territoriale ne soit pas explicitement abordée dans l'étude d'impact;
- souligne l'importance de prendre en considération la diversité des ports de l'UE, qui découle des localisations géographiques, des différents types d'activités économiques, de la variété des régimes réglementaires des ports et des différents cadres nationaux de politique portuaire applicables et n'est toujours pas convaincu par le choix d'un règlement plutôt que d'une directive, comme ce fut le cas pour les propositions antérieures de la Commission européenne ou pour la législation qui s'y rapporte (en particulier pour les concessions);
- préconise que le dragage, l'amarrage, le pilotage et le remorquage n'entrent pas dans le champ d'application du règlement car ces services répondent à deux objectifs d'intérêt général qui sont la sécurité et la protection de l'environnement; en ce qui concerne les installations de réception portuaires, il demande à la Commission d'éviter toute incohérence avec des directives existantes ou, le cas échéant, de délimiter clairement leurs champs d'application respectifs;
- regrette la reconnaissance insuffisante du rôle des pouvoirs locaux et régionaux en ce qui concerne la législation en vigueur ou la définition de prescriptions minimales pour la prestation de services portuaires;
- examine l'opportunité d'élargir encore la portée des obligations de service public définies à l'article 8 afin d'inclure notamment les critères liés à la cohésion territoriale comme l'accessibilité des régions isolées, insulaires; et ultrapériphériques;
- estime que la liberté commerciale des gestionnaires de ports ne saurait être remise en question par des principes communs de tarification utilisés pour déterminer les redevances d'infrastructure;
- s'interroge quant à la valeur ajoutée de la mise en place d'une autorité de contrôle indépendante chargée de surveiller et de superviser l’application du règlement et exprime des réserves quant à la nécessité d'instaurer une coopération entre autorités de contrôle indépendantes pour favoriser une mise en œuvre uniforme du règlement, lequel est par définition directement applicable.
- doute que la Commission européenne adopte une approche globale en matière de politique portuaire puisqu'elle ne se réfère ni à la stratégie Europe 2020 ni à l'initiative "Croissance bleue", pas plus qu'à la révision des règlements définissant les valeurs-limites de soufre dans les carburants à usage maritime, qui revêtent une importance majeure pour les ports, et n'évoque pas non plus le manque de synchronisation avec la révision des lignes directrices sur les aides d'État applicables au secteur portuaire;
- exprime sa déception concernant le fait que, malgré le récent document de travail de la Commission consacré à l'étude d'impact territorial, la dimension territoriale ne soit pas explicitement abordée dans l'étude d'impact;
- souligne l'importance de prendre en considération la diversité des ports de l'UE, qui découle des localisations géographiques, des différents types d'activités économiques, de la variété des régimes réglementaires des ports et des différents cadres nationaux de politique portuaire applicables et n'est toujours pas convaincu par le choix d'un règlement plutôt que d'une directive, comme ce fut le cas pour les propositions antérieures de la Commission européenne ou pour la législation qui s'y rapporte (en particulier pour les concessions);
- préconise que le dragage, l'amarrage, le pilotage et le remorquage n'entrent pas dans le champ d'application du règlement car ces services répondent à deux objectifs d'intérêt général qui sont la sécurité et la protection de l'environnement; en ce qui concerne les installations de réception portuaires, il demande à la Commission d'éviter toute incohérence avec des directives existantes ou, le cas échéant, de délimiter clairement leurs champs d'application respectifs;
- regrette la reconnaissance insuffisante du rôle des pouvoirs locaux et régionaux en ce qui concerne la législation en vigueur ou la définition de prescriptions minimales pour la prestation de services portuaires;
- examine l'opportunité d'élargir encore la portée des obligations de service public définies à l'article 8 afin d'inclure notamment les critères liés à la cohésion territoriale comme l'accessibilité des régions isolées, insulaires; et ultrapériphériques;
- estime que la liberté commerciale des gestionnaires de ports ne saurait être remise en question par des principes communs de tarification utilisés pour déterminer les redevances d'infrastructure;
- s'interroge quant à la valeur ajoutée de la mise en place d'une autorité de contrôle indépendante chargée de surveiller et de superviser l’application du règlement et exprime des réserves quant à la nécessité d'instaurer une coopération entre autorités de contrôle indépendantes pour favoriser une mise en œuvre uniforme du règlement, lequel est par définition directement applicable.
