To The European Commission (General Directive VII):
Mr. Julián García González, General Coordinator of the “International Dockworkers Council” (IDC), whose domicile for notifying purposes, is at Calle del Mar, 97, 4º 08003 – Barcelona (Spain), coordination@idcdockworkers.org says the following:
That having considered the Directive’s draft of the European Parliament and of the Council on the trade access of dockwork services, issued by the services of the above mentioned Commission, makes the following
1st: About the non-transparency and the obscurity of social negotiation.
I must Express previously the IDC’s malaise about the secret in which the Directive’s draft was written. This malaise turned into indignation in the sense that, as you know, this organisation appeared before that commission as interested party in any Community initiative regarding ports and dockwork services in particular. And by this Commission’s request, a questionnaire about a future port regulation was answered. The Commission has damaged with this behaviour the participation and audience rights of the mentioned organization, as recognised and interested party and against the European Union Treaty regulations. This is the second time that the organization is forced to remind that the community authorities are obliged to encourage social negotiations, to recognise the social interlocutors and let them take part on the decisions affecting them (art. 136, 138 and 140 of the Treaty); something that this organization, it seems, wants to ignore.
In any case, with regard to the draft, the number of considerations made, show how their previsions damage the community regulation and the rights recognised on the international agreements. This considerations are the following
2nd: About the right of the dockwork service providers to employ staff of their own election.
According to art. 6.5 of the directive’s draft: “The dockwork service provider has the right to employ staff of their own election to carry out the service included in the authorization”. This rule is literally categorical. Any dockwork service provider – handling operators, loading and unloading among them- has the right to choose their staff freely, with no major requests. There’s nothing to say about qualifications, the need of a register or about professional training.
The first peculiarity of the mentioned right is that it appears without an explanation of its reason of being or its relationship with the directive’s objective, neither in the memorandum attached to the draft, nor in their statements: “To guarantee access to any person or legal entity settled in the Community to the dockwork services market in any port embraced by the Directive” (legal reasonº4). It is something exceptional. All the measures compiled on the Directive are explained in the memorandum and on its legal reasons.
The second peculiarity is that this kind of regulation in which community authorities arrange the internal organization (personal) of the companies providing a service, is incomparable with any other community directive regarding liberalization of other areas and economical services like telecommunications, electricity, railways, air transport or post service. The introduction of free competition on this areas was made using the same measures compiled on the directive’s draft: objectifying the allocation of authorizations to render services, linking its validity with the recovery of the investments made, separating public authorities and service providers, imposing the principle of account and legal separation when the Administration renders services through public companies, admitting the imposition of obligations of public service in the name of regularity, continuity, quality or price of the services, or to demand rates to be adapted to effective costs. However, none of the mentioned directives declared itself about the staff or management of telecommunication companies, electricity providers or post operators. These directives did not invade that areas because it was unnecessary in order to reach free competition, and because if done, it would suppose an infriction of the community rights. Well, the directive’s draft does invade them, violating this right and in contradiction with the directive itself.
The directive’s draft allows the imposition of public service obligations. In that sense, and in accordance with the provisions made on art. 62: “The authorization may include public service requirements relating to the security, regularity, continuity, quality, price and the conditions under which the service would be rendered”. Therefore, it is responsibility of each member State to impose the obligations considered necessary in order to guarantee the feasibility of the different port services. Each State is able to introduce the measures of regulation needed to assure availability (regularity and continuity), quality (professional qualifications) and distribution of inactivity costs of loading and unloading services in every port. With this aim, the services providers, through authorization, may be obliged to employ certain workers in certain conditions as long as they seek the regularity and quality of the port services.
However, this competition of States stumbles with the right supposedly recognized to the service providers. In the current drafting, the States are able to impose any type of obligation of public service (for example, a deposit, a certain level of investments, a certain quality facilities) but there is nothing to say, although it is necessary, about the regulation of the work carried out in the ports. The private interests of the service providers is placed before the port’s needs as a general interest infrastructure and the different essential services for its optimal running. The contradiction is clear: the power of imposing public service obligations strives with this right at the expense of the port and its feasibility.
On the other hand, this art. 6.5 of the draft is arbitrary and out of proportion.
The art. 5.3 of the European Union Treaty imposes the principle of proportion to the community authorities. According to this principle, any action taken by the Community can’t exceed the necessary to reach the objectives of the Treaty itself. In words of the Court of Justice: “by virtue of the principle of proportion, the measures taken by the community institutions will not exceed the necessary in order to reach the pursued aim”. (sentence of may 17th 1984, Denkavit case, section 25).
The inevitable question is if the measure included in art. 6.5 of the draft surpasses this parameter. The answer is clear: It does not. The attainment of the defined objective: to guarantee the access of any industrialist to render port services, neither is reached, nor let be reached, although the lenders had the right to use any worker, as it would not be obtained either if it were demanded that their facilities were of their own or were rented. The mechanisms - indicated before - that allow the attainment of that objective are others. This measure lacks of any relationship with the objective declared on the directive’s draft. In fact, the only coherent right with the objectives of the directive’s draft would be the right of port users to choose freely the port service provider. The lack of foundation of this right of art. 6.5 of the draft becomes more obvious if we take into account that, if maintained, the competition between States to assure the regularity, continuity, quality and price of port services, taking the necessary limitative measures, would be restricted only to facilities and equipment.
In short, this notorious gulf between the objectives pursued and the right recognized in art. 6.5 of the draft means the violation of the community principle of proportion and, states its nullity by contrary to the community right.
The statements made do not exhaust, however, the nullity reasons of the mentioned art. 6.5 of the draft, on the contrary, it still incurs in other two serious infractions. The art. 6.5 damages the art. 295 of the European Union Treaty which imposes the neutrality of the authorities and of the community laws with regard to the propiety regime existing in every single member State. It is responsibility of each State to regulate propiety and, through this, the freedom of market and labour relationships, without interfering by the community authorities. This includes, among other aspects, if dockworking is a statuary or a labour relationship. If it is a labour relationship, ordinary or special, if the access is free or there is a public selection involving competitive examinations and interviews. Well, this rule denies that competition and, therefore, damages the European Union Treaty provisions.
On the other hand, the above mentioned rule forgets about all provisions of the Treaty in terms of employment and social policy; in particular, in terms of employment promotion (art. 125 and following), of stablishing work conditions (art. 137.1), where minimum regulations should be stablished, and in terms of social protection of workers (art. 137.3). Also, this article 6.5 crashes head on with dockworking guarantees (registered workers) stablished on the Agreement 137 of the International Work Organization (adopted by the IWO on April 25th 1973); agreement which links almost the whole member States of the European Union and which means a minimum that cannot be waived by this collective. It would mean that the draft does not modify this guarantee level, but the truth is that the art. 16 determines the protection of the workers’ rights in every State to what is written in the directive’s draft, although the subsidiary nature of the community initiative in terms of social protection and work conditions.
In short, the recognized right in art. 6.5 of the draft contradicts the directive itself as it gives to the member States the power of regulating the services and imposing public service obligations, damages the community order, breaks international agreements signed by the member States, and shows a clear contempt to the workers, their representative organizations and to the Treaty regulations concerning social protection.
3rd: About the self-assistance right.
In art. 11 of the draft, the port users have the right of self-assistance together with their crew. It says the following: “1. The member States will take the necessary measures to carry out the self-assistance according to the current Directive.
2. The self-assistance will depend on an authorization whose criteria cannot be more strict than the applied to the suppliers of the same or similar port service.”
To a large extent, the draft echoes the doctrine of the Union Court of Justice about self-assistance. It is just confined to haulage contractors, independent to whether they have means inside the port or not. It is reduced to the crew, there is no other staff in land. It is subject to a previous authorization. However, the terms used in the draft to refer to the requested criteria are more then questionable. The draft points out that this criteria “cannot be more strict than the applied to the suppliers of the same or similar port service”. They are a great burden, it is clear. But this leaves a question in the air: ¿Should they be equal to the requested to other suppliers or less demanding? The answer should be negative: they should be equal.
The demand of certain requests in order to develop a port service involves the need to protect certain assets: maritime security, the good functioning of port facilities, the efficient use of space in the port area, the feasibility of certain services, hence the demands self financing, professionalism, insurances, availability and public service obligations. Then, if a haulage contractor is able to render himself those services does not change the situation, he has to comply the same requests, no less; on the contrary it would be understood that the conditions demanded to the ordinary port service providers are not justified, unnecessary to the provision and to the port protection. Under those conditions, not only the principle of equality between operators would be broken, but also those who take advantage of the self-assistance would be doing unfair competition with the service providers, which is a clear violation of the community rules about competition.
Consequently, as the requests to carry out certain services are determined by objective factors, not subjective, those established for the fulfilment of each service should be established to all operators equally, independent to whether they develop their services to others o to himself.
In short, the mentioned paragraph should be written in terms removing all doubts. It could be as follows:
“2. The self-assistance will be subject to an authorization based in the same criteria applied to all port service providers of the same or similar service.”
4th: About the omission of professional qualification.
The directive’s draft says nothing about the demand of a certain qualification to carry out each one of the port works and, in particular, those who make up loading and unloading. That way, this question becomes responsibility of the States.
The need of a certain professional qualification to develop each work in the port is determined by three factors: first of all, professionalism as a guarantee of the safety of the cargo and the port facilities. Second, the professional capacity as a guarantee of the service quality and its efficient provision. And third, the professional capacity as a protection of the workers. It is clear that it is not a capacity alien to the port; what this factors demand is a professional training and qualification in port areas, in the place where this activities are developed.
Nothing raises any objection to this need, on the contrary, it is an obligation to the community authorities.
It is a main objective of the EC to reach “a high standard of employment and social protection” (art. 2 of the Treaty), and specially “to boost qualified, trained and adaptable labor” (art. 125 of the Treaty). The professional qualification is, therefore, an irrevocable objective, that does not go with the omission of any reference to this type of workers. It is not, in any case, an objective of pragmatic nature, of more or less difficult implementation. It is a duty imposed by the Treaty. Also, the Court of Justice has already recognized that it is legitimate to determine the access to dockworking activities to a previous obtaining of a certificate or accreditation of capacity, in the measure that the development of tasks such as loading and unloading demand a certain aptitude and experience (sentence of September 16th 1999, case of port of Gent)
However, although what has been said, the capacity levels and qualification in port areas remain under the regulation of each State, not only this objectives will not be reached, but also competition between ports of different member States will be affected. Where a qualification or a training is requested, the service will improve undoubtedly, the service will be better and of best quality, more safety and efficient, but maybe more expensive than in ports where this conditions are not demanded, taking to a situation of unfair competition.
Well, in the interest of safety in the handling of goods and port facilities, of the service quality, of the protection of dockworkers, but also in the interest of free competition between ports, it seems necessary that the future directive mention the need of a professional qualification that must be demanded to those interested in carrying out port labours, requesting for each activity a previous obtaining of a qualification or an aptitude accreditation issued in the port area.
According to this Statements we make the following REQUESTS:
That having presented this document, the Commission take this statements about the Directive’s draft about the access to the market of the maritime port services, in which this organization is working, and manifest the denial and opposition of the organization to the draft, and agree its file for damaging the community order and construct a frontal attack against dockworkers; subsidiary, agree the modification of the directive’s draft through the addition to the text of the proposals made on this document: the deletion of art. 6.5, the change of phrasing of art. 11.2 in order to assure an equal treatment to all port service providers, acting for others or for themselves, and the adding of a certification or accreditation of professional qualification sufficient to carry out the different dockworking tasks.
Barcelona, February the 3rd 2001.
