European Port Policy vs. European Policies Applied to Ports

AuthorMaria Elena De Maestri
PositionDottoranda di ricerca in Logistica, trasporti e territorio nell'Università degli studi di Genova

Page 157

1. Does a European port policy exist or have ports to be seen as a particular domain of the more general European Common Market Policy? In order to answer this fundamental question, it must be pointed out that speaking about ports means managing with a complex structure where many actors, rules and interests are living together, trying to find a balance between different needs and different duties1. As an example, you can consider the possible clash between the Page 158 purely economic objective pursued by terminal operators, brokers, shipping agents and carriers and the more general interests that Port Authorities tend to accomplish, such as the development of the national economy or the protection of the environment.

Moreover, concerning the port entity, it has to be emphasised that ports have a "double soul", since they have a public aspect, strictly connected to the strategic importance that each State accords to them as a logistics node, and a commercial side, deriving from the fact that ports are also an important basis for entrepreneurial and economic activities.

Another preliminary consideration, arising from the previous one, is that, on the one hand, States are not willing to release or, however, decrease their legislative power relating to port areas, because of the economic interests connected to port activities; on the other hand, the geographical, economical, legal and managerial specificity of each port makes it impossible to work out a uniform regime, or even to identify common conflict issues which would benefit from a uniform regulation and which normative level is the best to do so.

As a matter of fact, from a national point of view, ports represent a very important logistics node, which shapes the national economy of each State and enhance its competitiveness towards other EC Member States and third States. Then, if we get on to the European level, all Member States' ports constitute the European port system, which deeply influences European economy, and which makes Europe competitive towards third countries. In other words, if we consider that the economic life of each State, and of Europe as an organisation of States, is strictly connected with its trade capacity, it is easy to understand that there are many normative levels interested in regulating port policy.

At the same time, the port as a complex infrastructural reality, develops following territorial specificities and, even at a national level, where managerial and administrative aspects are uniform for all ports located in the State territory, structural differences characterising different ports impose the intervention of local rule-makers in order to implement national law. If we consider the European area, the question gets more and more complicated, as far as different States adopt different managerial models for their ports. For example, traditionally, north European ports are quite independent from central governments and are managed stressing their trade-oriented function; Mediterranean ports are rather more connected to national institutions, because of the idea of the port as a public property. Page 159 This explains why it is difficult to identify common rules at a "supranational" level, except from some very technical aspects, connected to a precise matter.

2. Following the abovementioned considerations, in order to discuss about "port policy" it is necessary to define i) what does "port" mean, in relation to different normative levels (international, European and national), and ii) which are the main issues arising at each normative level.

From an international point of view, the port is, above all, a commercial outcome. So that the priority action is to grant free access to all merchant ships without any discrimination, in order to ensure the freedom of maritime traffics; at the same time, the international transport policy in general is paying more and more attention to some problems, such as the protection of the environment and the elaboration of safety/security standards, and, evidently, also ports' regulation is affected by those key interests. The trade-oriented characterisation of ports can be derived from the only multilateral treaty dedicated to maritime ports: the old 1923 Geneva Convention, processed by the League of Nations and come into force on 1926, in order to "grant the vessels of every other Contracting State equality of treatment with its own vessels, or those of any other State whatsoever, in the maritime ports situated under its sovereignty or authority, as regards freedom of access to the port, the use of the port, and the full enjoyment of the benefits as regards navigation and commercial operations which it affords to vessels, their cargoes and passengers". The Convention is still in force and, at Art. 1, specifies that "all ports which are normally frequented by sea-going vessels and used for foreign trade shall be deemed to be maritime ports within the meaning of the present Statute". However, some Authors2 contend that the relevance of this instrument has fallen off together with the establishment of a well known principle of international law concerning the free access to ports, so that an express regulation of it has become redundant. At the same time, other Authors3 maintain a different position, considering that the access to ports should always be subject to an express consent by the State of the port4. Page 160

In relation to technical provisions, not necessary concerning ports, but which indirectly relate to ports, with reference to safety standards, we can recall the work of the International Maritime Organisation (IMO), such as the 1974 International Convention for the Safety of Life at Sea (SOLAS), whose main objective is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety, and which allows the State of the port to make some controls over ships under other contracting States' flag5.

In 2004 IMO adopted the International Ship and Port Facility Security Code (ISPS Code), which is a comprehensive set of measures to enhance the security of ships and port facilities, developed in response to the perceived threats to ships and port facilities in the wake of the 11 September 2001 attacks in the United States. In essence, the Code follows the approach according to which ensuring the security of ships and port facilities is a risk management activity and, in order to determine which security measures are appropriate, a proper assessment of risks must be evaluated in each particular case.

The purpose of the Code is to provide a standardised, consistent framework for evaluating risks, enabling Governments to offset changes in threat with changes in vulnerability for ships and port facilities through determination of appropriate security levels and corresponding security measures.

Concerning the protection of the environment, we can quote, as examples, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter with the 1996 Protocol; the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation and the 2000 Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances (OPRC-HNS Protocol).

As it can be easily seen, all those international treaties relate to technical aspects of navigation or to the more general problem of the environmental protection of the sea, while they do not affect national port policy as a whole. Furthermore, the fact that some conventions clearly state that they are providing "standards" for national regulations, gives rise to some problems of interpretation concerning the possibility, for each Member State or even for each port, of providing for stricter rules than those envisaged at the international level. In fact, Page 161 if we consider that those instruments give only a minimum level of protection, States are free to adopt more severe rules and therefore to depart from the purpose of uniformity of law, in favour of a material considerations' principle, which leads to a "run" to the best practice and, however, to a fragmented framework.

3. At a European level, we have to say that the EC Treaty does not contain any rule specifically dedicated to ports6. However, from the basic principles of the Treaty itself, and from the judgements of the European Court of Justice, we can infer how European institutions intend the entity "port" and which are the main issues related to it.

At first, reference must be made to the four fundamental freedoms granted by the Treaty: free movement of people, goods, services and capital. All EC actions are aimed at developing as far as possible the internal market, so that also transport infrastructures, among which ports play an important role, have to be seen in the scope of facilitating the free movement of people and goods. At the same time, the commercial "soul" of the port needs to be kept in mind: the fulfilment of the internal market must comply with an entire body of rules concerning competition, State aids, and freedom to provide services. In practice, the port can be examined from a double point of view: a) as ancillary infrastructure for the deployment of the basic freedoms; b) as a market, where the port is seen as a commercial undertaking, since that classification applies to every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed7; so that port activities are ruled according to EC Treaty rules8.

And it is precisely the second aspect, connected with the specific characterisation of services provided in ports, that attracts the attention of European institutions. It is worth mentioning Articles 70-80 ECT, expressly dedicated to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT