Italy: Regulation (EU) 2017/352 Establishing A Framework For The Provision Of Port Services And Common Rules On The Financial Transparency Of Ports: A Preliminary Analysis Of The General Principles Set Out In The Preamble

As anticipated in the last issue of our bulletin, we are going to conduct an exhaustive analysis of Regulation (EU) 2017/352 "establishing a framework for the provision of port services and common rules on the financial transparency of ports", which is a key piece of legislation on the subject – crucial to our industry – of the provision of port services and transparency of the financial relations between public authorities and port management bodies, with a focus on port service charges and the rights for use of port facilities.

We consider it useful to proceed with an analysis of the whereas clauses to the Regulation, which clarify the underlying reasons why the European legislator, working on the basis of the current regulatory and factual situation of European ports, found it appropriate to create a first comprehensive regulatory instrument.

The European legislator first seeks to clarify the relevance of European ports to the European Union, stating that "Ports contribute to the long-term competitiveness of European industries in world markets while adding value and jobs in all Union coastal regions¹".

Therefore, the objective of the European ports regulation is to make or maintain competitive European industries, acknowledging the importance that the existence of a port may have in a region in terms of both increase in employment levels and impact on surrounding areas.

The most fitting examples relate to the creation and subsistence of the logistics industry near ports primarily operating cargo ships and the profit led to cities whose ports operate passenger ships, ferries or cruises.

Precisely since "The full integration of ports in seamless transport and logistics chains is needed to contribute to growth and amore efficient use and functioning of the trans-European transport network and the internal market"², the European Union believes that modern port services should be provided that contribute to the efficient use of ports and that a climate favourable to investments should be assured.

The European legislator indeed makes reference to the European Commission's communication of 2012,³stating that the capacity of European ports to attract traffic is conditional on "availability, efficiency and reliability of port services"⁴. Nevertheless, pursuant to such communication, European and national bodies are responsible for thoroughly reviewing the existing restrictions on the provision of services at ports.

This is, moreover, a subject highly debated in Italy these days by both the sector's operators and authorities, who are asked to properly regulate the performance of port services, particularly with an eye to European and Italian anti-trust laws and regulations.

Nonetheless, the European legislator endorses the European Commission's statement on the "necessity of addressing questions regarding the transparency of public funding and port charges, as well as administrative simplification efforts in ports"⁵.

Indeed, according to the Union, facilitating access to the port services market by all the operators concerned (meeting certain requirements) and introducing financial transparency and autonomy of maritime ports will have a highly positive impact.

More specifically: (i) there will be an improvement in the quality and efficiency of the services provided to port users – be they professional or private operators; (ii) such improvement will contribute to a climate that is more favourable to investments in ports; (iii) there will be a reduction in costs for transport users; (iv) transparency and cost reduction will help promote short sea shipping.

On the other hand, in the opinion of the European legislator, greater access to port services and transparency in the management of ports will result in a significant increase in investments in ports and, therefore, greater integration of maritime transport with rail, inland waterway and road transport.

The European legislator then highlights the impact that a proper regulation of port services and greater transparency in the management of ports will have at public level.

Indeed, Whereas Clause 6 reads: "The establishment of a clear framework of transparent, fair and non-discriminatory provisions relating to the funding of and charges for port infrastructure and port services plays a fundamental role in ensuring that the port's own commercial strategy and investment plans and, where relevant, the general national ports policy framework comply fully with competition rules".

Once again, the Union addresses the delicate issue of complying with laws protecting competition at ports.

Again, with an eye to the public, the European legislator then addresses the issue of State aid, expressing the view that the transparency of financial relations will allow a fair and effective control of State aid, thus preventing market distortions.

Precisely in this regard, in Regulation (EU) 2017/352 it is recalled that the Council of the Union called up the EU Commission⁶to explore State aid guidelines for maritime ports "with the aim to ensuring fair competition and stable legal framework for port investment⁷".

After having illustrated the general principles of the Regulation as set out in its preamble, we invite you to tune in for the next issue of our Bulletin to start getting through and commenting on the whereas clauses and other provisions of the Regulation.

Footnotes

1 Whereas Clause 2.

2 Whereas Clause 1.

3 Communication from the Commission of 3 October 2012, "Single Market Act II — Together for new growth".

4 Whereas Clause 3.

5 See footnote 4.

6 Conclusions of 5.6.2014

7 Premise no. 6

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.