EU Shipping Law
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CHAPTER 13
European Union competition law: ports
A. Introduction
Scope of the chapter
13.001 This chapter examines the application of European Union (“EU”)1 competition law to ports.2 It builds on which contains an overview of EU competition law generally and focuses on how these general competition law rules have been, and could be, applied to ports.3Page 811
Relevance of competition law to ports
13.002 Competition law has become a lively issue for ports in recent years. This is, in part, because the way in which many ports perform their operations has changed in recent years – for example, there has been an increased incidence of privatisation, deregulation and/or liberalisation.4 There has been a move towards more efficient work practices in ports. Port users are demanding more competition, lower prices, more flexible work practices and the ability to self-supply some services.5 There has also been the development of so-called public–private partnerships in some ports whereby there is an interplay between the State/public and commercial private sectors. EU law is neutral in terms of the ownership of property (i.e. EU law does not prefer public or private ownership)6 so competition law applies irrespective of whether the port or the port infrastructure is owned publicly or privately. 13.003 Many of the competition law issues arising in ports relate to the issues of cargo handling, pricing, discrimination, conditions of operation and access to ports.7 In regard to cargo handling, for example, some port users have wanted to be able to load or discharge cargo themselves without having to use the port’s staff or the port’s preferred suppliers of workers. In regard to access to ports, some cases have involved ferry operators seeking access to ports, better facilities or more attractive pricing within ports. There could be illegal market partitioning in ports. 13.004 Competition in ports can be made more difficult by virtue of high barriers to entry, high level of supply-side concentration, high capacity utilisation rate of port infrastructures and the consequent risk of bottlenecks, vertical integration of certain port operators and the absence of countervailing buyer power among some users of port infrastructures. The presence of such factors does not mean that there would always be an anti-competitive issue but they are indicators to be monitored.Competition law applies to ports
13.005 The principles of EU competition law have been applied to ports by the EU in cases relating to, for example, Holyhead, Genoa, Rødby and Roscoff.8 This is, in relative terms, one of the boom areas of EU shipping law but there have not been many reported cases in recent years.9 These cases have involved a consideration of each of thePage 812
“European maritime regions are connected to other regions and continents by world maritime traffic. The strategic importance of Europe’s 1,200 ports is constantly increasing: around 90% of the EU’s foreign trade and 40% of its internal trade is carried out by sea. This explains why the European Union is making considerable efforts to develop seaports. For the period 2000–2006, the total amount of aid flowing to seaports from different instruments such as the cohesion fund, the European Regional Development Fund, or ERDF, and the Financial Instrument for Fisheries Guidance, the FIFG, amounted to 3.6 billion euros.”10