EU Shipping Law

Page 810


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.3

Page 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 the

Page 812

competition provisions of the Treaty on the Functioning of the European Union (“TFEU”) but also a combination of Articles (e.g. Article 102 of the TFEU coupled with Article 106 of the TFEU). Indeed, Articles 102 and 106 have been particularly significant but Article 101 is no less relevant even if there are very few cases in the public domain relating to Article 101. These cases will be examined individually later in the chapter. 13.006 Before considering the specific application of competition law to ports, it is useful to consider the background to ports generally. It is trite but true that ports are an indispensable part of the shipping chain. This is no different in the case of the ports in the EU. Joe Borg, the former Commissioner for Fisheries and Maritime Affairs, stated:

“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

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.