Regulation 2017/352 of the European Parliament and the Council will significantly modify the Spanish and European port system as a whole.
This regulation, which will come into force on the 24th of March 2019 will encourage competition between the European ports, which will likewise render them more competent globally. Overall, it will improve various aspects of the port and logistical system in order to create new supply chains that will strengthen the economy of the Member States.
Article 1 of the regulation points out the new changes which will be established in the port systems:
1. A new framework for the provision of port services shall be established. The port services which are going to be regulated by the regulation are: bunkering, cargo-handling, mooring, passenger services, collection of ship-generated waste and cargo residues, pilotage and towage.
2. Common rules on financial transparency and on port service and port infrastructure charges are going to be established.
Precisely, the measures in the aforementioned point 2 are the most important, for they will contribute to the creation of a new legal framework that will foster transparency and free competition between European port authorities. These measures will contribute to achieving the goal of the regulation: enhancing the competitiveness of European ports, bringing them together, unifying them and harmonizing them under the same standards. With this, the ports of the region will not only be considered national ports, but will start to be considered as European ports.
The most important points of the regulation are the following:
1. Regarding the provision of port services, the regulation in its article 3 will allow that access to the market for the provision of port services be subject to various minimum requirements for port services providers: there will be a limit on the number of providers, public services obligations may be established for providers, as well as restrictions related to internal operators.
2. The application of the regulation may not affect national social and labor regulations of member states. Accordingly, the application of the regulation shall respect labor legislation, applicable collective bargaining agreements, and labor rights in general.
3. Chapter three of the regulation refers to transparency and financial autonomy, that is to say, that in all financial relationships between public authorities, managing bodies of ports and other entities that provide port services the following points shall be reflected in the accounting in a transparent way:
a) Public funds made available to the managing bodies of ports.
b) Public funds made available by public authorities through public undertakings or public financial institutions.
c) The use for which those public funds have been attributed.
4. With regards to transparency, the regulation places emphasis on transparent selection processes which shall be available to all port services providers. Moreover, member states may compel port services providers to provide public services in order to ensure:
a) Availability to all users.
b) Availability throughout the year.
c) Security.
d) Environmental sustainability.
e) Territorial cohesion.
5. The Regulation also obliges providers to set charges in a transparent, objective and non-discriminatory way and they shall be proportionate to the cost of the provided service regarding services provided by an internal operator under a public service obligation, charges for pilotage services which are not exposed to effective competition and, finally, charges levied by providers of port services referred to in section b) of Article 6(1).
6. Member states will be under an obligation to establish, unfailingly, public fees for the use of port facilities. This shall not prevent port service providers from levying their own charges to users for the provided services.
In a nutshell, this regulation will come as a big change to the Spanish and European port and logistical system. Countries like Spain, with large logistic infrastructures, good port networks and low prices should make use of this opportunity to implement the regulation so that at the time of the entry into force, Spain is considered by outside importation networks as a transparent and competitive point of entry of goods.
Pedro Blanco Guardado
Vilá Abogados
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February 2nd, 2018
