Annexes to COM(2007)616 - Communication on a European Ports Policy - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2007)616 - Communication on a European Ports Policy. |
|---|---|
| document | COM(2007)616  |
| date | October 18, 2007 |
A clarification is needed on the rights of workers in case of transfer of activity further to a selection procedure
If an undertaking takes over certain activities previously carried out by another undertaking, subsequent to the award of a concession or public contract, Directive 2001/23/EC[22] may apply[23]. Indeed, for a "transfer" within the meaning of the Directive to occur, two conditions must be met: a) the employer must have changed; and b) the transferred entity must retain its identity. Retention of identity is marked both by the continuation by the new employer of the same activities and by the continuity of its workforce, management and organizational patterns. These are, however, merely single factors in an overall assessment which must be made and can not therefore be considered in isolation[24]. If those requirements are fulfilled on the occasion of a tender procedure or privatisation of port services, Directive 2001/23/EC shall apply.
4.4. Technical-nautical services
Technical-nautical services are pilotage, towage and mooring. Often those services are also linked to port safety. This link is much stronger in the case of pilotage and towage than with regard to mooring. Such activities may either be provided by the public administration or constitute services of general economic interest.
Against this background, it should be recalled that under Article 86(2) of the Treaty, undertakings entrusted with tasks of general economic interest are subject to the Treaty rules on competition and on internal market as long as the application of such rules does not prevent them from effectively fulfilling their tasks. In this context, according to the principle of proportionality, the means used to accomplish the general interest mission can limit the freedoms of the internal market only to the extent necessary to guarantee the fulfilment of the mission[25].
In the current state of Community law and jurisprudence, the Treaty principle of freedom of establishment applies to technical-nautical services. Legal monopolies for technical-nautical services may encroach upon this freedom and, in such cases, they can only be justified to the extent that they are necessary and proportionate for the provision of the service in question. In those cases a transparent procedure has to be carried out for the selection of the operator. This requirement is fulfilled if adequate European wide publicity is given to the selection procedure and the impartiality of the selection procedure can be reviewed. Exclusive rights should not be granted for excessive periods, regard taken of the need to ensure a reasonable return on invested capital, whilst maintaining a risk inherent in the provision of the service. Regarding pilotage, in particular, the Commission considers that granting exemptions from mandatory pilotage for frequent users, when safety is ensured should be granted as it would reduce the costs of maritime transport and make it more attractive, in particular short sea shipping. Technological innovation should be taken into consideration when assessing this. In this respect, remote pilotage may become a valuable option in the future, to be developed in the framework of e-maritime.
A further point should be made for the provision of mooring services. The Court of Justice has held that restrictions to the free provision of this service may be justified[26]. It should be noticed, however, that, even in this case, restrictions to the provision of the service are not necessarily always indispensable. Where the free provision of mooring is not capable of undermining the pattern of the universal service – this may, for instance, be the case in big ports with several terminals -, free access to this activity should be ensured[27].
4.5. Cargo-handling
Cargo-handling has significantly evolved during the last years. It has become a service based on advanced technologies and is now much less labour-intensive. Its role has also evolved, along with the role of ports, gateways in the logistic chain and not only the starting and ending points of a maritime trade. Cargo-handling is performed according to different settings across the Community and even within one Member State. Port workers are often directly employed by terminal operators, while in some ports they are contracted via "pools", entities in charge of recruiting and training port workers.
Like cargo-handling in general, pooling arrangements can be very different across the Member States. Moreover, they can be based on national or local legislation or entirely governed by local practices. The Treaty rules on freedom of establishment and freedom to provide services can fully apply to the activities carried out by the pools
Pools often provide sound training to workers and are an efficient tool for employers. However, such arrangements should not be used to prevent suitably qualified individuals or undertakings from providing cargo-handling services, or to impose, on employers, workforce that they do not need, since this could under certain circumstances fall foul of the Treaty rules on the Internal Market, and in particular of Article 43 on freedom of establishment and Article 49 on freedom to provide services.
4.6. Port dues
When using ports, shipowners have to pay several fees, some for the use of the port as such, others for services provided by terminal operators, pilots, tug-operators, moorers, etc. Single billing windows would simplify users ' operations. Only the fees charged for the use of the general port infrastructure will be briefly addressed below ("port dues").
Port dues and their possible ancillary fees are made publicly available in most cases today, in particular on the internet. This is in the interest of ports themselves. The problem is that, although available, those fees are sometimes unclear to customers and very difficult to calculate in practice. The Commission insists on the need for more clarity on the different items that compose port dues, as well as on more transparency in their relation with relevant costs. Obsolete criteria for tarification discriminating ships used for short sea shipping should be overcome. This is also true for all services provided to them.
The Commission will help disseminating best practices on transparency in port charges.
Port charging can also be a policy instrument for encouraging the use of less polluting ships as already provided in Directive 2000/59/EC, the Commission is in favour of such a sustainable approach.
4.7. Competition with third countries
Competition with Member States' ports by ports in third countries is a concern expressed by some European ports. This is especially the case of some EU ports close to non-EU ones, as well as in relation to hubs. Lower levels of environmental constraints and social rules, fiscal dumping, public financing for hinterland connections, discriminatory charging practices for the use of hinterland connections, can distort fair competition and put the continuity of deep-sea activities at risk in different parts of the EU. The permanent transport dialogue between the EU and Russia is an example of a forum that allows to address such issues. Bilateral agreements on maritime trade as they have been concluded with China or others is another example on how those matters can be actively dealt with. Cooperation with those neighbouring countries should be encouraged and guided by the need to establish harmonious conditions of competition.
The Commission will make an inventory of the problems encountered with a view to addressing them in Community external relations when needed.
5. ESTABLISHING A STRUCTURED DIALOGUE BETWEEN PORTS AND CITIES
The relationship between cities and their ports remains one of interdependency and should be ruled by long-term strategic vision and planning. It is therefore important to both the port and to the city to strengthen their association. Promoting the image of European ports and providing greater public access to them are subjects to be mainly left to the ports themselves, regions and Member States. However, the Commission will examine how to cooperate with and enhance co-operation between those authorities and stakeholders in order to improve the image of ports and their integration with "their" cities. This can be done at the level of city planning, for example in terms of collective transport offer – but also by organizing port festivities, open days, or similar activities. We must try to reconcile port activity with culture, sea-related tourism and city-development at large. There is also need to preserve Europe's maritime identity, a field in which ports can have a considerable role to play since they have served for centuries as nodal points not only for transportation but also as meeting points of different civilizations. This process should also help better integrating ports into cities and city life.
The Commission has proposed in its communication on the integrated maritime policy the enactment of a European maritime day which will launch a week of events aimed at raising the visibility and enhancing the image of the maritime sector. It wishes to further propose a European ports open day during that week which would give the occasion for the general public to assess, and understand better port community work.
It will examine possible sources of finance for supporting the improvement of the integration of ports with cities within the existing envelopes.
Two specific matters relating to the relationship between ports and cities are especially relevant from a Community perspective: environment and security.
In fact, one of the reasons why ports are often criticized by the local community is their impact on congestion and the environment. It has already been indicated above that the possible increase of congestion in port-neighbouring areas should be properly assessed when planning port developments and that efforts should be made by ports and the maritime industry in order to reduce pollution generated by ships in ports.
As for security, protection against terrorism and crime has made port areas much less accessible than a few years ago, so reducing the possibilities for the people to be in close contact with everyday's port business. .
In the context of ongoing work on maritime and port security, the Commission considers assessing the impact of security measures and provide guidance on how to reconcile the need for sound security measures with a fair degree of openness and accessibility to port areas. T he review of legislation on maritime and port security will provide an opportunity to assess port access requirements and to examine the development of a European model for multi purpose access cards
6. WORK IN PORTS
6.1. Dialogue
Different arrangements for stevedoring exist in European ports. The Commission considers that a dialogue between stakeholders can contribute significantly to a better understanding between the parties concerned and a successful management of change. In this context, dialogue between the social partners can play a particularly powerful role towards more and better jobs in the ports sector. The Commission welcomes all initiatives aiming at undertaking or promoting a dialogue between stakeholders at different levels, including the initiatives already taken by some ports at local level providing models for "best practices". The recent agreements concluded between all stakeholders in the ports of Dunkirk and Valletta are a demonstration of this. Furthermore, the Commission will encourage a structured social dialogue at European level.
The Commission will encourage the establishment of a European s ectoral social dialogue committee in ports within the meaning of Commission Decision 98/500/EC [28] .
If such a committee is established, the Commission will promote an active contribution of the social partners to management of change, modernisation and more and better jobs.
6.2. Training
There are currently no specific Community rules on training for port workers. The Commission recognizes that training of port workers has become of primary importance for the safe and efficient operation of ports. Port equipments have become technologically advanced and often complex tools. Work in port has consequently evolved and, as the consultation has shown, a set of common requirements for training of port workers should be established at Community level. This will also enhance the mobility of European port workers by means of the mutual recognition of their qualifications.
At a Community level Directive 89/391/EEC[29] (the "Framework" Directive) lays down rules on safety and health related training of workers which fully apply to work in ports. In this respect, Directive 89/391/EEC sets the responsibility of the employer to ensure that each worker receives adequate training on safety and health matters.
The Commission will propose a mutually recognizable framework on training of port workers in different fields of port activities.
6.3. Health and Safety at Work
At the European Union level, the general rules for the protection of health and safety of workers at work are laid down in the above-mentioned "Framework" Directive, which has been supplemented by 19 individual Directives covering specific sectors and risks. Most of these directives are relevant for work in ports. Full respect and enforcement of these rules is crucial for improving working conditions.
Furthermore, in February 2007 the Commission adopted a communication [30] inter alia encouraging a risk prevention culture at work which was supported by Council resolution [31] . As any other work environment , ports are covered by this communication.
It should be noticed that a significant number of occupational accidents including fatal ones [32] still occur in ports.
The Commission will closely monitor the implementation to ports of Community rules on safety and health of workers at work.
The Commission will also closely follow the proper collection of statistics relating to accidents according to the ESAW [33] and EODS [34] methodologies established by the Commission (EUROSTAT) [35].
III. CONCLUSION
As part of European maritime transport this communication provides a framework and a number of related actions to be carried out, including an extended dialogue and interpretations clarifying the relevant Community rules. It will help concentrate the efforts so that Europe's ports can face the challenges of tomorrow, attract new investment and fully contribute to co-modal development. The Commission calls upon all public and private stakeholders to support this approach and looks forward to a continuation of dialogue to ensure the most harmonious development of EU ports.
[1] COM(2006) 314.
[2] COM(2007) 575.
[3] Article 19 of Regulation (EC) 680/2007.
[4] COM(2007)1.
[5] Directive 92/43/EEC.
[6] Directive 79/409/EEC.
[7] Directive 2000/60/EC.
[8] Directive 99/31/EC.
[9] COM(2006) 846 and SEC(2007) 1283.
[10] See COM(2007) 575 and SEC(2007) 1278.
[11] See COM(2007) 575.
[12] See http://www.marnis.org
[13] COM(2005) 608.
[14] COM(2007) 575.
[15] COM(2006) 314.
[16] Article 18 of Directive 2004/17/EC and Article 17 of Directive 2004/18/EC.
[17] Commission interpretative communication on concessions under Community law (2000/C 121/02).
[18] Judgment of the Court of 7 December 2000, Telaustria, Case C-324/98, Point 60 and 62, and Judgment of the Court of 13 October 2005, Parking Brixen, Case C-458/03, Point 49.
[19] Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, C 179, 01/08/2006, pp. 2-7.
[20] See communication on concessions (2000/C 121/02), Paragraph 3.1.3.
[21] See 2000/C 121/02, Paragraph 2.4.
[22] Council Directive 2001/23/EC.
[23] Point 3.2.1.2 of COM(2001) 566.
[24] It should also be recalled that in a case of change of contractor the Court of Justice has held that the fact that the tangible assets taken over by the new contractor did not belong to its predecessor but were provided by the contracting authority cannot preclude the existence of a transfer of an undertaking within the meaning of the Directive (. Judgment of the Court. Abler, Case C-340/01 ECR I-14023).
[25] Communication from the Commission — Services of general interest in Europe, C 017, 19/01/2001 P. 4. Point 23.
[26] Judgment of the Court - Corsica Ferries, Case C-266/96.
[27] See Judgment of Court Paul Corbeau, Case C-320/91. Points 18 and 19.
[28] Commission Decision 98/500/EC
[29] Council Directive 89/391/EEC, Article 12.
[30] COM(2007) 62.
[31] Council resolution 2007/C 145/01.
[32] Three fatal accidents during the six month consultation process.
[33] ESAW means "European Statistics on Accidents at Work".
[34] EODS means "European Occupational Diseases Statistics".
[35] Cf. COM(2007) 46.