Lloyd's Maritime and Commercial Law Quarterly
PORT SERVICES ANCILLARY TO NAVIGATION BETWEEN MARKET AND SAFETY REQUIREMENTS
Sergio M. Carbone * and Francesco Munari**
The thrust towards competition in European ports represents the “new frontier” which all firms operating in port areas must confront. A survey of the relevant case law seems to include among these firms those entrusted with the supply of services related to safety of navigation and ports, such as pilots, boatmen and tug operators. The authors maintain that market imperfections existing for these services require a careful analysis before allowing competitive entry into the relevant markets and that in this regard the mere enforcement of competition rules by the courts may be detrimental for safety issues. A legislative approach aimed at liberalizing only to the extent feasible to permit the maintenance and the strengthening of the existing safety standards may be more desirable and would also be consistent with and complementary to all other initiatives carried out at EU level to enhance safety at sea.
1. Introduction
In the aftermath of the judgment in Port of Genoa I,1 virtually all Community ports have begun to see a ghost lurking along their docks and quays: this ghost is named competition. Finally, the Court of Justice had tackled the grey area of ports (which for over 30 years was suspended between sea and shore) and had clarified beyond any possible doubt that (a) ports were not covered by the scope of the EC Treaty, Art. 84(2) and therefore (b) they were subject to competition rules and to the freedoms of the Treaty even in the absence of any specific implementation of these rules and freedoms in the port sector. But Port of Genoa I was—and is—a leading case also for another reason, since it emphasized the need for strong enforcement of the EC Treaty, Art. 90, pursuant to which competition rules and principles must be applied to the utmost extent even in “sensitive” markets.
Subsequent to Port of Genoa I, the entire Italian port legislation and practice has been questioned and criticized. However, in other Member States also, the need has emerged to confront national port regimes with the principles set forth by the Court of Justice. A sector which, in all Member States, had lived quite well for over 30 years, sheltered by the non-enforcement of the EC rules, woke up and suddenly found itself to be unprepared to cope with an aggressive implementation of the EC Treaty, Art. 90, such as that implied in the Court of Justice’s opinion.
* Full Professor of International Law, Faculty of Law, University of Genoa.
** Lecturer in International Law, Faculty of Political Sciences, University of Genoa.
1. Siderurgica Gabrielli v. Merci Convenzionali Porto di Genova (Case No. C–179/90) [1991] 1 ECR 5883.
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