CHAPTER II

PROVISION OF PORT SERVICES

Organisation of port services
Article 3
1
Access to the market for the provision of port services in maritime ports may, in accordance with this Regulation, be subject to:
a
minimum requirements for the provision of port services;
b
limitations on the number of providers;
c
public service obligations;
d
restrictions related to internal operators.
2
Member States may decide by national law not to impose any of the conditions referred to in paragraph 1 on one or more categories of port services.
3
The terms of access to the facilities, installations and equipment of the port shall be fair, reasonable and non-discriminatory.

Minimum requirements for the provision of port services
Article 4
1
The managing body of the port, or the competent authority, may require providers of port services, including subcontractors, to comply with minimum requirements for the performance of the corresponding port service.
2
The minimum requirements provided for in paragraph 1 may only relate to:
a
the professional qualifications of the provider of port services, its personnel or the natural persons who actually and continuously manage the activities of the provider of port services;
b
the financial capacity of the provider of port services;
c
the equipment needed to provide the relevant port service in normal and safe conditions and the capacity to maintain this equipment at the required level;
d
the availability of the relevant port service to all users, at all berths and without interruptions, day and night, throughout the year;
e
compliance with requirements on maritime safety or the safety and security of the port or access to it, its installations, equipment and workers and other persons;
f
compliance with local, national, Union and international environmental requirements;
g
compliance with obligations in the field of social and labour law that apply in the Member State of the port concerned, including the terms of applicable collective agreements, manning requirements and requirements relating to hours of work and hours of rest for seafarers, and with applicable rules on labour inspections;
h
the good repute of the port service provider, as determined in accordance with any applicable national law on good repute, taking into consideration any compelling grounds to doubt the reliability of the provider of port services.
3
Without prejudice to paragraph 4, where a Member State deems that it is necessary to impose a flag requirement in order to ensure full compliance with point (g) of paragraph 2 for waterborne vessels predominantly used for towage or mooring operations in ports located on its territory, it shall inform the Commission of its decision prior to the publication of the contract notice or, in the absence of a contract notice, prior to imposing a flag requirement.
4
The minimum requirements shall:
a
be transparent, objective, non-discriminatory, proportionate, and relevant to the category and nature of the port service concerned;
b
be complied with until the right to provide a port service expires.
5
Where the minimum requirements include specific knowledge of local conditions, the managing body of the port, or the competent authority, shall ensure that there is adequate access to information, under transparent and non-discriminatory conditions.
6
In the cases provided for in paragraph 1, the managing body of the port, or the competent authority, shall publish the minimum requirements referred to in paragraph 2 and the procedure for the granting of the right to provide port services under those requirements by 24 March 2019 or, in the case of minimum requirements that are to apply after that date, at least three months before the date from which those requirements are to apply. The managing body of the port, or the competent authority, shall, in advance, inform providers of port services of any change in the criteria and of the procedure.
7
This Article applies without prejudice to Article 7.

Procedure to ensure compliance with the minimum requirements
Article 5
1
The managing body of the port, or the competent authority, shall treat providers of port services in a transparent, objective, non-discriminatory and proportionate manner.
2
The managing body of the port, or the competent authority, shall grant or refuse the right to provide port services on the basis of the minimum requirements established in accordance with Article 4 within a reasonable period, which in any event shall not exceed four months, from receiving a request for the granting of such a right and the necessary documents.
3
Any such refusal, by the managing body of the port, or by the competent authority, shall be duly justified on the basis of the minimum requirements set out in Article 4(2).
4
Any limitation or termination by the managing body of the port, or the competent authority, of the right to provide a port service shall be duly justified and shall be in accordance with paragraph 1.

Limitations on the number of providers of port services
Article 6
1
The managing body of the port, or the competent authority, may limit the number of providers of port services for a given port service for one or more of the following reasons:
a
the scarcity or reserved use of land or waterside space, provided that the limitation is in accordance with the decisions or plans agreed by the managing body of the port and, where appropriate, any other public authorities competent in accordance with the national law;
b
the absence of such a limitation is obstructing the performance of public service obligations as provided for in Article 7, including when such absence leads to excessively high costs related to the performance of such obligations for the managing body of the port, the competent authority, or the port users;
c
the absence of such a limitation runs counter to the need to ensure safe, secure or environmentally sustainable port operations;
d
the characteristics of the port infrastructure or the nature of the port traffic are such that the operations of multiple providers of port services in the port would not be possible;
e
where it has been established pursuant to Article 35 of Directive 2014/25/EU that a port sector or subsector, together with its port services, within a Member State carries out an activity that is directly exposed to competition in accordance with Article 34 of that Directive. In such cases, paragraphs 2 and 3 of this Article shall not apply.
2
In order to give interested parties the opportunity to submit comments within a reasonable period, the managing body of the port, or the competent authority, shall publish any proposal to limit the number of providers of port services in accordance with paragraph 1 together with the grounds justifying it at least three months in advance of the adoption of the decision to limit the number of providers of port services.
3
The managing body of the port, or the competent authority, shall publish the adopted decision to limit the number of providers of port services.
4
Where the managing body of the port, or the competent authority, decides to limit the number of providers of a port service, it shall follow a selection procedure which shall be open to all interested parties, non-discriminatory and transparent. The managing body of the port, or the competent authority, shall publish information on the port service to be provided and on the selection procedure, and shall ensure that all essential information that is necessary for the preparation of their applications is effectively accessible to all interested parties. Interested parties shall be given long enough to allow them to make a meaningful assessment and prepare their applications. In normal circumstances, the minimum such period shall be 30 days.
5
Paragraph 4 shall not apply in the cases referred to in point (e) of paragraph 1 and in paragraph 7 of this Article and in Article 8.
6
Where the managing body of a port, or the competent authority, provides port services either itself or through a legally distinct entity which it directly or indirectly controls, the Member State concerned shall take such measures as are necessary to avoid conflicts of interests. In the absence of such measures, the number of providers shall not be fewer than two, unless one or more of the reasons listed in paragraph 1 justifies a limitation on the number of providers of port services to a single provider.
7
Member States may decide that their ports of the comprehensive network which do not meet the criteria in point (b) of Article 20(2) of Regulation (EU) No 1315/2013 may limit the number of service providers for a given port service. Member States shall inform the Commission of such a decision.

Public service obligations
Article 7
1
Member States may decide to impose public service obligations related to port services on providers of port services and may entrust the right to impose such obligations to the managing body of the port, or to the competent authority, in order to ensure at least one of the following:
a
the availability of the port service to all port users, at all berths, without interruption, day and night, throughout the year;
b
the availability of the service to all users on equal terms;
c
the affordability of the service for certain categories of users;
d
the safety, security or environmental sustainability of port operations;
e
the provision of adequate transport services to the public; and
f
territorial cohesion.
2
The public service obligations referred to in paragraph 1 shall be clearly defined, transparent, non-discriminatory and verifiable, and shall guarantee equality of access to all providers of port services established in the Union.
3
Where a Member State decides to impose public service obligations for the same service in all its maritime ports covered by this Regulation, it shall notify those obligations to the Commission.
4
In the event of a disruption of port services for which public service obligations are imposed or when an immediate risk of such a situation occurs, the managing body of the port, or the competent authority, may take an emergency measure. The emergency measure may take the form of a direct award so as to attribute the service to a different provider for a period of up to two years. During that period, the managing body of the port, or the competent authority, shall either launch a new procedure to select a provider of port services or shall apply Article 8. Collective industrial action that takes place in accordance with national law shall not be considered a disruption of port services for which an emergency measure may be taken.

Internal operator
Article 8
1
Without prejudice to Article 6(6), the managing body of the port, or the competent authority, may decide either to provide a port service itself or to do so through a legally distinct entity over which it exercises a degree of control similar to that which it has over its own departments, provided that Article 4 applies equally to all operators providing the port service concerned. In such a case, the provider of port services shall be considered to be an internal operator for the purpose of this Regulation.
2
The managing body of the port, or the competent authority, shall be considered to be exercising a degree of control over a legally distinct entity similar to that which it has over its own departments only if it has a decisive influence over both the strategic objectives and the significant decisions of the legal entity concerned.
3
In the cases provided for in points (a) to (d) of Article 6(1), the internal operator shall be limited to performing the assigned port service only in the port or ports attributed to it in the assignment to provide the port service.

Safeguarding of employees’ rights
Article 9
1
This Regulation shall not affect the application of the social and labour rules of the Member States.
2
Without prejudice to Union and national law, including applicable collective agreements between social partners, the managing body of the port, or the competent authority, shall require the designated provider of port services to grant staff working conditions in accordance with applicable obligations in the field of social and labour law and to comply with social standards as set out in Union law, national law or collective agreements.
3
In the case of a change of provider of port services that is due to the award of a concession or public contract, the managing body of the port, or the competent authority, may require that the rights and obligations of the outgoing provider of port services arising from a contract of employment, or from an employment relationship as defined in national law, and existing on the date of that change, be transferred to the newly appointed provider of port services. In such a case, the staff previously taken on by the outgoing provider of port services shall be granted the same rights as those to which they would have been entitled if there had been a transfer of undertaking within the meaning of Directive 2001/23/EC.
4
Where, in the context of the provision of port services, a transfer of staff occurs, tender documents and port service contracts shall list the staff concerned and give transparent details of their contractual rights and the conditions under which employees are deemed to be linked to the port services.

Exemptions
Article 10
1
This Chapter and Article 21 shall not apply to cargo-handling, passenger services or pilotage.
2
Member States may decide to apply this Chapter and Article 21 to pilotage. Member States shall inform the Commission of such a decision.