EU REGULATIONS REVIEWED

In introducing 25 Frequently Asked Questions relating to the EU Seaports Regulation, Professor Dr. Eric Van Hooydonk writes: “We are aware that newcomers to the field may feel uneasy about the prospect of perusing a commentary of over a thousand pages replete with legal minutiae and subtleties in order to get answers to very simple and practical questions about the daily business of running a port or a port services.”

Indeed, his recently published manual on the EU Seaports Regulation – said to be the only one in existence – stretches to 1,307 pages. It’s a hefty read.

When it entered into force in 2017, the regulation applied to 323 explicitly designated maritime ports or port clusters located in 23 member states of the EU. Brexit means crossing 40 off that list. In addition, in 2019 there were 21 ports in Iceland and Norway added to the regulation’s scope, as part of the European Free Trade Association and wider EEA.

The regulation applies to bunkering, cargo handling, mooring, passenger services, the collecting of ship-generated waste and cargo residues, pilotage and towage, with some exceptions.

Antwerp-based lawyer Dr. Hooydonk, who is port law professor at the Maritime Institute of the University of Ghent, examines the policy background, legalities, scope of application, provision of port services, financial transparency and autonomy and procedural safeguards associated with a regulation that took two decades of debate and three attempts to cross the finishing line.

A Desperate Debate

In his critical assessment, he says that a major merit of the regulation is that it concludes, at long last, a ‘desperate debate’.

“The EU Seaports Regulation is the keystone – if not the crown jewel – of European port policy,” he says. “It submits the European seaport sector to liberalisation and charging principles which were introduced long ago for other transport and utilities sectors characterised by large-scale public intervention and special or exclusive rights, such as air transport, airports, rail transport, telecommunications, post services and energy.”

Making Comprises

However, many compromises were made in the route to this regulation, so that the final contents were somewhat watered down. On this, Dr Hooydonk warns: “One cannot ignore the fact that the addition of a significant dose of fuzzy give-and-take language in the course of the legislative process is likely to increase the risk of legal controversy, increasing the need to the parties to seek internal and external legal assistance, both to prevent litigation and to handle it when it has become unavoidable.”

In a ‘doomsday scenario’, he says lawsuits over the correct interpretation – and/or validity – of the regulation might delay, interrupt or even bring to a full stop normal decision-making processes, investment and construction projects, revenue collection and daily operations.

Risking Legal Disputes

“This risk of legal disputes caused by the introduction of a new legal framework, set to contain, inevitably, a good measure of ambivalent compromise wording, is a serious administrative and financial impact, which the Commission seems conveniently to have overlooked in its initial analysis.”

Only time will show whether Rapporteur Knut Fleckenstein was right in assuring the European Parliament that the regulation would ‘create legal certainty for the ports’ or if EU Transport Commission Violeta Bulc had a point in telling MEPs during the final debate that it would ‘end today’s unclear situation where port policy is not decided by you, the legislators, but rather by judgments of the European Court of Justice on a case-by-case basis’, says Dr Hooydonk.

“At this stage, we have our doubts, not only because not all MEPs concurred with the Commissioner’s view but also because ascertaining the correct interpretation of the regulation’s imprecise provisions will inevitably require further guidance from the law courts, both at national and EU level.”

Anachronistic Pool Systems

Inevitably, he says, the regulation has not resolved all the issues that today’s EU ports industry is facing. For example: “The regulation does not address the negative impact of the anachronistic pool systems for port labour which still prevail in various European ports.”

The resistance of trade unions was a major stumbling block for Port Packages I and II (the first and second attempts at regulation), he points out, “so it comes as no surprise that in 2013 the Commission simply preferred to shut its eyes to the issue, although it did order a study to gain better insight in the labour systems”.

However, crystal-clear case law shows that dock labour monopolies are incompatible with the Treaty principles, he says. “Expectations are that the Commission will closely monitor developments and open new infringement procedures against member states that continued to refuse to abide by these principles.”