Dock Labor Schemes in the Context of EU Law and Policy

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1. Introduction: A Brief History of European Ports Policy

The debate on a common policy framework for European ports is almost as old as the European integration process itself. Especially the European Parliament was an early advocate of a common ports policy and published from 1961 until 1993 a series of reports and resolutions calling for an ambitious agenda covering port organisation, financing, labour etc. Parliament however did in those days not have the same political influence it has today and its calls for a common ports policy were initially not actively taken up by the European Commission.

In a non-published note from 1970, the Commission did identify the two main objectives that would characterise all of its future attempts to devise a common ports policy: to ensure, on the one hand, the consistent application of general Treaty rules, notably with regard to competition and the basic internal market freedoms, and, on the other hand, to achieve a balanced development of European ports (Commission of the European Communities 1970). In 1974, the Commission set up a Port Working Group of port authority representatives from Europe's major ports which produced a so-called 'Fact-Finding Report' which showed considerable diversity in the organisation, management, operations, finance and legal obligations of the ports that were surveyed in the then 8 Member States of the European Union. (2) The majority of the experts came to the conclusion that these differences however did not seem to be capable of provoking serious distortions to competition which would require solutions at Community level. The Commission initially followed this 'non-interventionist' approach advocated by the sector.

Things changed in the early 1990s however when the Commission devised a common transport policy which aimed to develop a coherent European infrastructure network through the concept of the Trans-European Transport Networks (TEN-T) and the objective of achieving 'sustainable mobility'. The latter gave a prominent place to intra-European maritime transport as an environmental-friendly alternative to congested road transport. A specific communication on 'short sea shipping' followed in 1995 which contained a section on ports policy. This was followed by a 'Green Paper on Sea Ports and Maritime Infrastructure' produced in 1997. This discussion paper can be seen as the Commission's first genuine attempt to move towards a coherent policy on ports and maritime infrastructure. The Commission then published in 2001 a communication on the improvement of quality services in ports. The operational part of this communication was a Directive proposal on market access to port services.

In what can best be described as a very unusual political process, the Commission's proposal failed twice to gain political majority in the European Parliament. After the second rejection, in January 2006, the Commission withdrew the proposal and initiated a major consultation round of stakeholders which resulted in an all-embracing 'Ports Policy Communication', which mainly relied on 'soft law' in the form of guidance and recommendations. The action plan contained in the communication is currently being implemented, with some actions progressing faster than others. Table 1 summarises the main steps involved up to the present date.

The following sections will analyse more in detail to what extent European law and policy regarding ports impacts on port labour arrangements and, more specifically, dock labour schemes. A first section will address the application of the basic principles of the EU Treaty. This is then followed by descriptions of the genesis of the Commission's port services' Directive proposal and its main provisions on port labour. Next comes a brief analysis of the process that led to the downfall of the proposal and a section which looks at what the Commission's 2007 Ports Policy Communication, which was issued after the downfall of the port services' Directive, has to say about port labour. …