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Texts adopted
Wednesday, 14 November 2001 - Strasbourg Final edition
Market access to port services ***I
A5-0354/2001
Text
 Resolution

Proposal for a European Parliament and Council directive on market access to port services (COM(2001) 35 - C5-0078/2001 - 2001/0047(COD) )

The proposal was amended as follows:

Text proposed by the Commission (1)   Amendments by Parliament
Amendment 1
Recital 1
   (1) The objective of Article 49 of the Treaty is to eliminate the restrictions on freedom to provide services in the Community; in accordance with Article 51 of the Treaty, that objective must be achieved within the framework of the common transport policy.
   (1) The objective of Article 49 of the Treaty is to eliminate the restrictions on freedom to provide services in the Community; in accordance with Article 51 of the Treaty, that objective must be achieved within the framework of the common transport policy; Article 6 of the Treaty provides that environmental protection requirements must be integrated in the definition and implementation of Community policies and activities .
Amendment 2
Recital 7
   (7) Diverse national legislations and practices have led to disparities in the procedures applied and have created legal uncertainty regarding the rights of providers of port services and the duties of competent authorities. It is in the Community's interest, therefore, to establish a Community legal framework which lays down basic rules on access to the port services market, the rights and obligations of current and prospective service providers, the managing bodies of the ports, as well as on the procedures accompanying the authorisations and selection processes.
   (7) Diverse national legislations and practices have led to disparities in the procedures applied and have created legal uncertainty regarding the rights of providers of port services and the duties of competent authorities. It is in the Community's interest, therefore, to establish a Community legal framework and lay down basic rules on access to the port services market, the rights and obligations of current and prospective service providers, the managing bodies of the ports, the procedures accompanying the authorisation and selection processes, as well as on the right of Member States to classify certain services, particularly technical-nautical services, as services of general interest in order to protect the public interest as regards safety in ports and adjacent waters .
Amendment 4
Recital 8
   (8) In accordance with principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of the proposed action, which is the access for any natural or legal person, established in the Community, to the market for port services, cannot be sufficiently achieved by the Member States because of the dimension of that action and can therefore be better achieved by the Community . This Directive confines itself to the minimum required in order to achieve that objective and does not go beyond what is necessary for that purpose.
   (8) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of the proposed action, which is the access for any natural or legal person, established in the Community, to the market for port services, can be better achieved by establishing common principles for all the Member States . This Directive confines itself to the minimum required in order to achieve that objective and does not go beyond what is necessary for that purpose.
Amendment 3
Recital 8 a (new)
(8a) In view of the special importance of pilotage services for safety of maritime traffic and thus for the protection of the environment in particularly vulnerable regions, each Member State should be free to adopt its own national rules for pilotage services which take into account the specific circumstances of each harbour.
Amendment 5
Recital 9
   (9) The Community legislation on access to port services does not exclude the application of other Community rules. Competition rules have already been applied to port services and are relevant in particular to monopoly situations.
   (9) Community legislation on access to port services does not exclude the application of other Community rules, including those relating to services of general economic interest provided for in Article 86(2) of the Treaty . Competition rules have already been applied to port services and are relevant in particular to monopoly situations.
Amendment 6
Recital 11
   (11) Since ports are made up of limited geographical areas, access to the market may, in certain cases, meet capacity and available-space constraints and traffic-related safety constraints for technical-nautical services . In such cases it may therefore be necessary to limit the number of authorised providers of port services.
   (11) Since ports are made up of limited geographical areas, access to the market may, in certain cases, on grounds of economic efficiency inter alia, be restricted in number on the basis of capacity and available-space constraints, traffic-related safety constraints, public service obligations of the service provider or of the managing body of the port, local, national or international environmental regulations, or the specific or substantiated economic needs of the port or the managing body of the port . In such cases it may therefore be necessary to limit the number of authorised providers of port services.
Amendment 7
Recital 12
   (12) The criteria for any limitation must be objective, transparent, non-discriminatory, relevant and proportional . In the case of cargo handling, and unless exceptional circumstances prevail, the number of service providers for each category of cargo handling must not be limited to fewer than two completely independent providers.
   (12) The criteria for any limitation must be objective, transparent, non-discriminatory, relevant and proportionate .
Amendment 57
Recital 13
   (13) Service providers should have the right to employ personnel of their own choice.
   (13) Service providers should have the right to employ personnel of their own choice, provided the relevant national provisions on training, expertise and working conditions are complied with .
Amendment 9
Recital 18
   (18) Commission Directive 2000/52/EC of 26 July 2000 lays down, for a certain number of undertakings, the obligation to maintain separate accounts which only applies to undertakings whose total annual turnover for each of the last two years exceeded EUR 40 million. In the light of the introduction of the freedom to provide port services in the Community, it is necessary to ensure that the principle of separation of accounts applies to all ports falling within the scope of the present Directive and to impose on ports transparency rules that are not less strict than those laid down in the Commission Directive 2000/52/EC .
   (18) Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings( 1 ) lays down, for a certain number of undertakings, the obligation to maintain separate accounts which only applies to undertakings whose total annual turnover for each of the last two years exceeded EUR 40 million. To establish conditions for fair competition among and within European ports and port systems, that Directive should be applied to all ports or port systems belonging to the trans-European port network. In the light of the introduction of the freedom to provide port services in the Community, it is necessary to ensure that the principle of separation of accounts applies to all ports falling within the scope of this Directive.
______________
(1 )OJ L 193, 29.7.2000, p. 75.
Amendment 10
Recital 20
   (20) Self-handling should be allowed and any criteria set for self-handlers should not be stricter than those set for providers of port services for the same or a comparable kind of service.
   (20) Self-handling should, in accordance with the criteria laid down in this Directive, be allowed and any criteria set for self-handlers should not be stricter than those set for providers of port services for the same or a comparable kind of service.
Amendment 11
Recital 21
   (21) Authorisations granted through a selection procedure should be limited in time. It is reasonable to take into account, when determining the period of authorisation, whether the provider has had to invest in assets or not and, where this is the case, whether these assets are moveable or not. Although such procedure should lead to an adequate outcome, it is nevertheless necessary to set maximum periods of authorisation.
   (21) Authorisations granted through a selection procedure should be limited in time. It is reasonable to take into account, when determining the period of authorisation, whether the provider has had to invest in assets or not and, where this is the case, whether these assets are moveable or not.
Amendment 12
Recitals 22, 23 and 24
   (22) The current situation in the Community ports, with its multitude of authorisation and selection methods and periods, requires that clear transition periods be determined. These transition rules should distinguish between ports where the number of service providers is restricted and those ports where it is not.
   (22) In view of the multiplicity of existing situations, the variety of authorisations and methods of selecting providers of port services, and in the interests of legal certainty linked to the principle of subsidiarity, an exception should be made in respect of authorisations in effect on the date of entry into force of this Directive until the end of the period laid down in the relevant act, contract or similar document.
   (23) Where the number of service providers is not restricted, there is no reason to change the existing authorisations, whilst future ones should be granted in accordance with the Directive's rules.
   (24) Where the number of service providers is restricted, the transitional periods should distinguish between authorisations granted in accordance with a public tender, or an equivalent procedure, or not; between situations where the service provider has made significant investments or not; and where these investments were made in moveable or immovable assets. The interests of legal certainty require that, in each case maximum periods be fixed, whilst leaving national authorities a substantial margin adequately to take into account the specificities of each case.
Amendment 13
Recital 27
   (27) Member States must ensure an adequate level of social protection for the staff of undertakings providing port services.
   (27) Member States must ensure an adequate level of social protection for the staff of undertakings providing port services and must guard against a reduction or dispersal of the expertise and skills in each port, should any newcomers enter the market.
Amendments 74, 42 and 67
Article 1
   1. The objective of this Directive is to create fair and transparent conditions of competition between and in sea ports in the Community.
Freedom to provide port services shall apply to Community providers of port services under the provisions set out in this Directive. Providers of port services shall have access to port installations to the extent necessary for them to carry out their activities.
   2. Freedom to provide port services shall apply to Community providers of port services under the provisions set out in this Directive. Providers of port services shall have access to port installations to the extent necessary for them to carry out their activities, subject to the constraints of structural and organisational capacities and the safety of maritime traffic in the port or port system in which they operate, and in full compliance with applicable requirements in respect of security, environmental protection and public service .
   3. However, pilotage and berthing/unberthing shall not be covered by such provisions, since they constitute an obligatory public service.
Amendment 15
Article 2, paragraph 2
   2. This Directive applies to any sea port or port system located in the territory of a Member State and open to general commercial maritime traffic, provided that the port's average annual throughput over the last 3 years has not been less than 3 million tonnes or 500 000 passenger movements.
   2. This Directive applies to any sea port or port system - as well as access to and from the sea and/or waterway, if considered safe by the Member State - located in the territory of a Member State and open to general commercial waterborne traffic, provided that the port's average annual throughput over the last 3 years has not been less than 3 million tonnes or 500 000 passenger movements.
Amendment 16
Article 2, paragraph 3
   3. Where a port reaches the freight traffic threshold referred to in paragraph 2 without reaching the corresponding passenger movement threshold, the provisions of this Directive shall not apply to port services reserved exclusively for passengers. Where the passenger movement but not the freight traffic threshold is reached, the provisions of this Directive shall not apply to port services reserved exclusively for freight. The Commission shall publish for information, in the Official Journal of the European Communities and on the basis of information provided by Member States, a list of the ports referred to in this Article. The list shall first be published within three months following the entry into force of this Directive, and thereafter annually.
   3. The Commission shall publish for information, in the Official Journal of the European Communities and on the basis of information provided by Member States, a list of the ports and port systems referred to in this Article. The list shall first be published within three months following the entry into force of this Directive, and thereafter annually.
Amendment 17
Article 3, paragraph 2
   2. Where one of the Directives referred to in paragraph 1 makes the tendering of a service contract mandatory, Articles 8(1, 2, 3, 4 and 5) , 12 (1 and 2) , and 13 of this Directive shall not apply to the award of that contract.
   2. Where one of the Directives referred to in paragraph 1 makes the tendering of a service contract mandatory, Articles 8 (1), (2), (3), (4) and (5) , 12 (1) and (2) , and 13 of this Directive shall not apply to the award of that contract. In any event, Member States may include their own specific rules in the specifications for the tendering of a service contract.
Amendment 50
Article 4, point 2
   2. "port system" means two or more ports grouped together to serve the same city or conurbation ;
   2. "port system" means two or more ports located in the same geographical area and managed by a single entity or port authority ;
Amendment 19
Article 4, point 4
   (4) "port services" means the services of commercial value that are normally provided against payment in a port and which are listed in the Annex;
   (4) "port services" means the services that are normally provided against payment in a port and which are listed in the Annex;
Amendment 20
Article 4, point 7
   (7) "self-handling" means a situation in which a port user provides for itself one or more categories of port services and where normally no contract of any description with a third party is concluded for the provision of such services;
   (7) "self-handling" means a situation in which a port user using its own personnel and equipment provides for itself one or more categories of port services in accordance with the criteria laid down in this Directive and where normally no contract of any description with a third party is concluded for the provision of such services;
Amendment 48
Article 4 a (new)
Article 4a
Transparency of financial relations
   1. To establish conditions for fair competition among and within European ports, every port and port system shall be obliged, pursuant to Article 2 of this Directive, to forward the information required under Directive 80/723/EEC ( 1 ) to the Member States and the Commission within the time limits laid down. The same shall apply to financial relations between Member States and providers of port services, regardless whether the other provisions of that Directive apply to them.
   2. The Commission and Member States shall use the data submitted by ports and port systems to draw the conclusions inherent under Community law to establish conditions for fair competition among and within European ports.
   3. Not later than ...*, the Commission shall submit to the European Parliament and the Council a report on the transparency of financial relations in ports and port systems and the conclusions drawn from it by the Member States and the Commission.
__________________
(1 ) Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between the Member States and public undertakings as well as on financial transparency within certain undertakings (OJ L 195, 29.7.1980, p. 35). Last amended by Directive 2000/52/EC.
*Three years after the entry into force of this Directive.
Amendment 49
Article 4 b (new)
Article 4b
Transparency of public funding in European seaports
   1. Public funding
   - of port infrastructure measures accessible to all users on an equal footing,
   - of user-specific port infrastructure measures where they are sold or rented at market prices or which, in the case of publicly owned ports or port systems, are financed on the market participant principle, and
   - of port superstructure measures which, in the case of publicly owned ports, port systems or port undertakings, are financed on the market participant principle,
does not constitute State aid and is therefore not subject to the reporting and monitoring requirements of the Treaty.
   2. Public funding of other user-specific port infrastructure measures and of other port superstructure measures shall always require notification and approval by the Commission.
Amendment 75
Article 4 c (new)
Article 4c
Study on financing
The Commission shall have a study carried out by an independent international research consortium into direct and indirect (public) financing, state support and cost accounting in Community ports. The study shall apply to the costs of port infrastructure and superstructure, port services, port undertakings and port-related businesses.
Amendment 43
Article 6, paragraph 2
   2. The criteria for the granting of the authorisation by the competent authority must be transparent, non-discriminatory, objective, relevant and proportional . The criteria may only relate to the provider's professional qualifications, his sound financial situation and sufficient insurance cover, to maritime safety or the safety of installations, equipment and persons. The authorisation may include public service requirements relating to safety, regularity, continuity, quality and price and the conditions under which the service may be provided.
   2. The criteria for the granting of the authorisation by the competent authority must be transparent, non-discriminatory, objective, relevant and proportionate and shall ensure compliance with an adequate level of safety for ports and adjacent waters . The criteria may only relate to:
   (a) the professional qualifications of the provider, his sound financial situation and sufficient insurance cover,
   (b) maritime safety or the safety of installations, equipment and persons,
   (c) compliance with the provisions of the applicable employment legislation,
   (d) compliance with local, national and international environmental requirements,
   (e) the policy and economic interests of the port and the surrounding region.
The authorisation may include public service requirements relating to safety, regularity, continuity, quality and price and the conditions under which the service may be provided. The authorisation may also include requirements relating to the social protection of the workers concerned. Member States shall regulate measures concerning social protection and the protection of employment and the applicable collective agreements on wages .
Amendment 22
Article 6, paragraph 3
   3. Where the required professional qualifications include specific local knowledge or experience with local conditions, the competent authority must provide adequate training for applicant service providers.
   3. Where the required professional qualifications include specific local knowledge or experience with local conditions, Member States shall regulate access to the occupation, and the certificates of competency to be acquired by examination.
Amendment 23
Article 6, paragraph 4
   4. Criteria referred to in paragraph (2) shall be made public and providers of port services shall be informed in advance of the procedure for obtaining the authorisation. This requirement applies equally to an authorisation linking the provision of service to an investment into immobile assets which will revert to the port upon expiry of the authorisation.
   4. Criteria referred to in paragraph 2 shall be made public and providers of port services shall be informed in advance of the procedure for obtaining the authorisation. This requirement shall also apply to an authorisation linking the provision of service to an investment in immovable assets which will revert to the competent authority upon expiry of the authorisation.
Amendment 24
Article 6, paragraph 5
   5. The provider of port services has the right to employ personnel of his own choice to carry out the service covered by the authorisation.
   5. The provider of port services may employ personnel of his own choice to carry out the service covered by the authorisation provided he complies with the rules laid down by the Member State in which he is providing the services and takes due account also of the specific nature of port work .
Amendment 44
Article 7, paragraph 1, introductory clause
   1. Member States may only limit the number of providers of port services for reasons of constraints relating to available space or capacity or, for technical-nautical services, to maritime traffic-related safety. The competent authority must:
   1. Member States may only limit the number of providers of port services for reasons of constraints relating to available space or capacity, to the safety of shipping in the port and the adjacent waters, to safe landing, and to compliance with local, national or international environmental regulations . The competent authority must:
Amendment 26
Article 7, paragraph 2
   2. Where constraints relating to available space or capacity exist and, for as long as there are no exceptional circumstances in relation to the volume of traffic and categories of cargoes, the competent authority shall authorise at least two service providers for each category of cargo, which shall be completely independent of each other.
Deleted
Amendment 27
Article 7, paragraph 3
   3. Where the competent authority deciding on limitations in relation to the port in question is the managing body of that port and where the managing body itself or a service provider over which it has direct or indirect control or is involved in, is, or wishes to become, also a service provider in that port, Member States shall designate a different competent authority and entrust it with the decision, or approval of a decision, on limitations. This newly designated competent authority must be independent of the managing body of the port in question and must not:
   3. Where the competent authority deciding on limitations in relation to the port in question is the managing body of that port and where the managing body itself or a service provider over which it has direct or indirect control or is involved in, is, or wishes to become, also a service provider in that port, Member States shall designate - where the service in question is the same or comparable - another body, which they will entrust with supervising the decision-making and approval of decision-making concerning any restrictions. National anti-trust organisations would seem to be the most appropriate for this purpose.
   (a) provide port services similar to those provided by any of the service providers in the port in question; and
   (b) have any direct or indirect control over, or be involved in, any of the service providers in the port in question.
Amendment 28
Article 8, paragraph 1
   1. Where the number of providers of port services has been limited in application of Article 7, the competent authority shall take the necessary measures to ensure a transparent and objective selection procedure, through tendering, using proportionate, non-discriminatory and relevant criteria.
   1. Where the number of providers of port services has been limited by the competent authority in application of Article 7, the latter shall take the necessary measures to ensure a transparent and objective selection procedure, through tendering or an equivalent procedure , using proportionate, non-discriminatory and relevant criteria.
Amendment 29
Article 8, paragraph 3
   3. The competent authority shall include in its publication:
   3. The competent authority shall include in its publication:
   (a) authorisation and selection criteria that define the authority's minimum requirements;
   (a) authorisation and selection criteria and conditions that define the authority's minimum requirements including the applicable social legislation and any minimum public service criteria established in accordance with Article 6(2) ;
   (b) award criteria that define the grounds on which the authority will choose among offers meeting the selection criteria; and
   (b) award criteria that define the grounds on which the authority will choose among offers meeting the selection criteria;
   (c) conditions setting out the service requirements that the contract will cover and identifying any assets to be placed at the disposal of the successful tenderer together with the relevant terms and applicable rules.
   (c) conditions setting out the service requirements that the contract will cover and identifying any infrastructure and equipment to be placed at the disposal of the successful tenderer together with the relevant terms and applicable rules;
   (ca) penalties and the terms governing cancellation in the event of non-compliance; and
   (cb) the authorisation period .
Amendment 30
Article 8, paragraph 6
   6. Where the competent authority carrying out the selection procedure in relation to the port in question is the managing body of that port and where the managing body itself or a service provider over which it has direct or indirect control or is involved in, is, or wishes to become, a service provider in that port, Member States shall designate a different competent authority and entrust it with the selection procedure in question. This newly designated competent authority must be independent of the managing body of the port in question and must not:
   6. Where the competent authority carrying out the selection procedure regarding port services in relation to the port in question is the managing body of that port and where the managing body itself or a service provider over which it has direct or indirect control or is involved in, is, or wishes to become, a provider of such services in that port, Member States shall designate - where the services in question are the same or comparable - a supervisory body which they shall entrust with supervising the selection procedure in accordance with Article 7.
   (a) provide port services similar to those provided by any of the service providers in the port in question; and
   (b) have any direct or indirect control over, or be involved in, any of the service providers in the port in question.
Where the competent authority is active in one main category of port services (technical-nautical services, cargo handling or passenger services), there shall be no need to designate a different competent authority to carry out the selection procedure for another main category.
Amendment 31
Article 9, point 1
   1. In cases where the service provider will make no or insignificant investments in order to carry out the provision of services, the maximum duration of its authorisation shall be 5 years.
   (1) In cases where the service provider will make no or insignificant investments in order to carry out the provision of services, the maximum duration of its authorisation shall be 8 years.
Amendment 32
Article 9 a (new)
Article 9a
Compensation
When a new service provider is selected, he shall compensate his predecessors at the current market rate for the value of immovable assets that he inherits.
Amendment 33
Article 11, paragraph 1 a (new)
1a. Member States may restrict self-handling to port users whose vessels fly the flag of a Member State.
Amendment 34
Article 11, paragraph 2
   2. Self-handling may be subject to an authorisation for which the criteria must not be stricter than those applying to providers of the same or a comparable port service.
   2. Self-handling may be subject to an authorisation for which the criteria must be the same as those applying to providers of the same or a comparable port service.
Amendment 35
Article 14
The provisions of this Directive in no way affect the rights and obligations of Member States in respect of law and order, safety and security at ports as well as environmental protection.
The provisions of this Directive in no way affect the rights and obligations of Member States and of competent authorities appointed by them in respect of law and order, safety and security at ports as well as environmental protection.
Amendment 36
Article 15
Without prejudice to the application of this Directive, and subject to the other provisions of Community law, Member States shall take the necessary measures to ensure the application of their social legislation.
Without prejudice to the application of this Directive, and subject to the other provisions of Community law, Member States shall take the necessary measures to ensure the application of their social legislation. Given the particular need for safety and for adequate professional standards in relation to the activities covered by this Directive, Member States shall, in implementing the Directive, and in accordance with the other provisions of Community law, take the necessary measures to ensure the application of standards of social protection that are adequate, and in any event at least as high as those laid down by the applicable Directives in the field of social policy.
Amendment 51
Annex, point 1 (a)
   (a) Pilotage
Deleted
Amendment 37
Annex, point (2), point (c a) (new)
   (ca) Loading and unloading.

(1) OJ C 154 E, 29.5.2001, p. 290.


European Parliament legislative resolution on the proposal for a European Parliament and Council directive on market access to port services (COM(2001) 35 - C5-0078/2001 - 2001/0047(COD) )

(Codecision procedure: first reading)

The European Parliament,

-  having regard to the Commission proposal to the European Parliament and the Council (COM(2001) 35 (1) ),

-  having regard to Articles 251(2) and 80(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0078/2001 ),

-  having regard to Rule 67 of its Rules of Procedure,

-  having regard to the report of the Committee on Regional Policy, Transport and Tourism (A5-0354/2001 ),

1.  Approves the Commission proposal as amended;

2.  Asks to be consulted again should the Commission intend to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and Commission.

(1)OJ C 154 E, 29.5.2001, p. 290.

Last updated: 16 May 2004Legal notice