Explanatory Memorandum to COM(2020)177 - Amending regulation 2017/352 to enable managing bodies or competent authorities to provide flexibility in respect of the levying of port infrastructure charges due to COVID-19

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2020)177 - Amending regulation 2017/352 to enable managing bodies or competent authorities to provide flexibility in respect of the ...
source COM(2020)177 EN
date 29-04-2020


1. CONTEXTOFTHE 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 i 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.”

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

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. LEGALBASIS, SUBSIDIARITYAND 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.


3. RESULTS        OF        EX-POST        EVALUATIONS,        STAKEHOLDER

1.

CONSULTATIONS


ANDIMPACTASSESSMENTS

• 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. BUDGETARYIMPLICATIONS

Not applicable.

5. OTHERELEMENTS

• 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.