Maritime transport: strategic approach

European regulations on maritime transport focus on the application of the principle of free movement of services and the correct application of competition rules, while ensuring a high level of safety, good working conditions and environmental standards.

Legal basis and objectives

Article 100(2) of the Treaty on the Functioning of the European Union (TFEU) is the legal basis, supplemented by the Treaty’s general provisions on competition and the freedom to provide services (3.1.4). The aim is to apply the principle of freedom to provide services to the Union’s maritime transport industry and to ensure that competition rules are complied with. Sea transport is also a central part of the Integrated Maritime Policy (IMP) (5.3.8). The EU’s maritime safety policy is dealt with in a separate chapter (5.6.11).

Achievements

a.General approach

Maritime transport was the subject of a 1985 Commission memorandum entitled ‘Progress towards a common transport policy — maritime transport’ and a 1996 communication entitled ‘Towards a new maritime strategy’. The Commission Green Paper on sea ports and maritime infrastructures (COM(1997) 0678) offered a review of the industry and took a close look at the problems of port charges and market organisation, including integrating ports into the trans-European transport networks (TEN-T).

In January 2009, the Commission published a communication on strategic goals and recommendations for the EU’s maritime transport policy until 2018 (COM(2009) 0008). A wide range of impending challenges was identified:

  • EU maritime shipping in globalised markets and in the face of increased competition;
  • human resources, seamanship and maritime know-how: possible strategic measures that could be taken included, in particular, increasing the attractiveness of maritime professions, improving the training of seafarers, promoting lifelong professional prospects in maritime sectors and improving the image of shipping;
  • the long-term objective of ‘zero-waste, zero-emission’ for maritime transport, improvement in maritime safety and prevention of terrorism and piracy;
  • exploitation of the full potential of short sea shipping, for example by creating a European maritime transport area without barriers and fully implementing the projects to establish the motorways of the sea or to link ports to their hinterland;
  • maritime research and innovation: promoting innovation and technological R&D in order to improve the energy efficiency of ships, reduce their environmental impact and provide better quality of life at sea.

b.Market access

The first maritime legislative package dates back to 22 December 1986 and comprises the following regulations: Regulation (EEC) No 4055/86, which abolished the restrictions on EU shipowners, Regulation (EEC) No 4057/86, which dealt with unfair pricing practices in maritime transport, and Regulation (EEC) No 4056/86, which allowed the Community to counter the ‘protectionist’ measures of third countries.

In 1992, the Council adopted a second maritime package of measures to phase in the liberalisation of national cabotage (access for carriers not resident in a given Member State to the maritime transport market between ports in that Member State) and in particular Regulation (EEC) No 3577/92 of 7 December 1992.

c.Competition rules

Regulation (EEC) No 4056/86 was repealed by Regulation (EC) No 1419/2006, through which the scope was extended to include cabotage and international tramp vessel services.

On 1 July 2008, the Commission adopted a set of guidelines on the application of Article 81 of the EC Treaty (subsequently replaced by Article 101 TFEU) to maritime transport services. In September 2013, it decided not to extend the guidelines on maritime transport agreements because it found that their objective of facilitating the regime change in applying competition rules to the maritime sector had been achieved. On the question of state aid, the Commission had already adopted (in 1997) a legal framework authorising Member States to implement state aid schemes for the maritime sector. In 2004, the Commission confirmed this framework in the form of revised guidelines on state aid to maritime transport (Commission communication C(2004)0043). It clarifies what aid — particularly for the purpose of promoting the entry of vessels in the registers of the Member States or a return to registration under their flags — is compatible with the Treaty.

Opening up port services to competition, however, has yet to be achieved. In February 2001, the Commission presented a communication on reinforcing quality service in sea ports (COM(2001) 0035), accompanied by a proposal for a directive on market access to port services (‘first port package’). After nearly three years, an agreement was reached between Parliament and the Council through a conciliation procedure, but Parliament rejected the agreement on 20 November 2003. The Commission then tried to address the subject again, putting forward a new proposal on 13 October 2004 (COM(2004) 0654), which Parliament also rejected, this time at first reading on 18 January 2006. On 23 May 2013, the Commission presented a new package of measures to liberalise port services: a communication entitled ‘Ports: an engine for growth’ (COM(2013) 0295) and a proposal for a regulation establishing a framework on market access to port services and financial transparency of ports (COM(2013) 0296). On 15 February 2017, Regulation (EU) 2017/352 of the European Parliament and of the Council was adopted. This new EU strategy is part of the revised TEN-T guidelines (5.8.1) and covers 319 major seaports. The aim is to level the playing field in the sector, protect port operators against uncertainties and create a climate more conducive to efficient public and private investments. The regulation defines the conditions under which the freedom to provide port services applies, for instance the type of minimum requirements that can be imposed for safety or environmental purposes, the circumstances in which the number of operators can be limited and the procedure for selecting the operators in such cases. It introduces common rules on the transparency of public funding and of charging for the use of port infrastructure and port services, notably by making sure that users of the port are consulted. It introduces in each Member State a new mechanism to handle complaints and disputes between ports stakeholders. Finally it requires all port service providers to provide employees with adequate training.

The social provisions governing the port labour regime are discussed by the Social Dialogue Committee for Ports, which was set up in 2013 and brings together port authorities, terminal operators, dockers and other port workers.

d.Working conditions

Directive 1999/63/EC of 21 June 1999 was based on an agreement between the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF). It concerned the duration of the working time of seafarers onboard EU Member State-flagged ships, while Directive 1999/95/EC of 13 December 1999 applied it to third-country ships calling at Community ports. The International Labour Organisation (ILO) adopted the Maritime Labour Convention (MLC) on 23 February 2006, thus creating a single, self-contained instrument comprising all the current standards relating to maritime labour: seafarers’ right to a safe, secure job in accordance with current safety standards; appropriate employment and living conditions; health protection; medical care and social protection. Directive 2009/13/EC amending Directive 1999/63/EC implements the agreement of the MLC.

Directive 2012/35/EU of 21 November 2012 amending Directive 2008/106/EC on the minimum level of training of seafarers stipulates that the training and certification of seafarers is regulated by the International Maritime Organisation (IMO) Convention on Standards of Training, Certification and Watchkeeping for Seafarers (the ‘STCW Convention’). It was adopted in 1978 and entered into force in 1984, but it was significantly amended in 1995 and again in 2010.

Directive 2013/38/EU of 12 August 2013 amending Directive 2009/16/EC on port state control aligns the text more closely with the above-mentioned MLC of 2006. The amended directive also makes reference to: (i) the International Convention on the Control of Harmful Anti-fouling Systems on Ships (the ‘AFS Convention’, 2001); and (ii) the International Convention on Civil Liability for Bunker Oil Pollution Damage (the ‘Bunkers Convention’, 2001).

Directive 2013/54/EU of the European Parliament and of the Council of 20 November 2013 concerning certain flag state responsibilities for compliance with and enforcement of the Maritime Labour Convention implemented the agreement reached between ECSA and ETF on the 2006 MLC.

Finally, Directive 2015/1794/EU of 6 October 2015 amended the text of five directives (2008/94/EC, 2009/38/EC, 2002/14/EC, 98/59/EC and 2001/23/EC) on informing and consulting workers, works councils, collective redundancies, the transfer of undertakings and employer insolvency so that seafarers would be covered by them in all Member States.

e.Environmental standards for sea transport

In recent years, numerous measures have been adopted on protecting the marine environment. They include in particular:

  • Directive 2000/59/EC of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues, which made it compulsory to dispose of oil, oily mixtures, ships’ waste and cargo residues at EU ports, and provided the monitoring mechanism necessary to enforce this;
  • Regulation (EC) No 782/2003 of 14 April 2003 on the prohibition of organotin compounds on ships. Such compounds were used primarily as anti-fouling agents, to prevent the growth of organisms on ships’ hulls, but cause serious environmental damage. This regulation implements the AFS Convention adopted by the IMO on 5 October 2001;
  • Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements. This contains precise definitions of offences and also provides for effective, dissuasive and proportionate penalties — criminal or administrative — for violation of the rules. It was amended by Directive 2009/123/EC of 21 October 2009 so that the persons responsible for the discharges of polluting substances would be subject to adequate penalties, including criminal penalties (even in less serious cases);
  • Directive 2012/33/EU of 21 November 2012 (the ‘Sulphur Directive’) provides that cargo vessels sailing in the maritime territories of Member States would no longer be able to use fuel containing more than 0.1% mass of sulphur as from 1 January 2015. These waters are classified as a sulphur emission control area (SECA) in accordance with Annex VI to the MARPOL Convention. See also Directive 2016/802/EU of 11 May 2016 on a reduction in the sulphur content of certain liquid fuels.

Role of the European Parliament

In its resolution of 12 April 2005 on short sea shipping, Parliament called for short sea shipping to be promoted more strongly, for administrative procedures to be reduced, for high-quality corridors between Member States to be developed, and for priority to be given to investment in infrastructure in order to improve access to ports.

In its resolution of 5 May 2010 on strategic goals and recommendations for the EU’s maritime transport policy until 2018, Parliament supported the Commission’s approach in principle. It also called for: further action against abuses of flags of convenience, new rules on state aid and guidelines for ports, greater consideration of maritime routes within the TEN-Ts (particularly through the motorways of the sea), improvements in the sustainability of maritime transport by reducing emissions from ships, and a European maritime transport policy to be developed in the common maritime area.

On 15 December 2011, Parliament adopted a resolution on a ‘Roadmap to a Single European Transport Area’ in response to the 2011 Commission White Paper. With regard to maritime transport, Parliament called for:

  • a proposal to be put forward by 2013 on the ‘Blue Belt’ (see COM(2013) 0510 of 8 July 2013);
  • the introduction of a European policy for short and medium sea shipping; and
  • the allocation of at least 15% of TEN-T funding to projects that improve sustainable and multimodal connections between seaports, inland ports and multimodal platforms.

On 2 July 2013, Parliament followed this up with a resolution on Blue Growth, presenting what is Parliament’s roadmap for further advancement and seeking to revitalise the IMP. Parliament recommended establishing maritime spatial planning systems, upgrading infrastructure and creating access to professional skills. Importantly, Parliament also reiterated the paramount importance of maritime skills and employment, research and innovation, and the EU share of shipping and shipbuilding.

On 28 April 2015, Parliament adopted a legislative resolution approving, without amendment, the Council position at first reading with a view to the adoption of Regulation (EU) 2015/757 of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC.

Christina Ratcliff

06/2017