The evolution of Greek maritime law
RECENT developments in Greek maritime law include two of a legislative nature - cabotage and port organisation.
Council Regulation 3577/92 implements the freedom to provide services to the national maritime transport of EU member states, providing for the progressive liberalisation of cabotage restrictions. According to Article 1, mainland cabotage has been liberalised as from the entry into force of the regulation. According to Article 3 Paragraph 1, all cruise services have been liberalised as from January 1, 1995. However, for reasons of socio-economic cohesion, Greece was granted a derogation until January 1, 2004, for regular passenger and ferry services as well as for services provided by vessels of less than 650 gt.
Following the Express Samina casualty, which caused the deaths of 81 passengers and crew members, the Greek authorities resolved to accelerate the process of liberalisation of Greek cabotage, despite the benefit of the above derogation. Law 2932/2001 put forward the opening of the market to November 1, 2002, and established the new legal framework for the provision of national maritime services.
According to Article 1 L 2932/2001, freedom to provide services shall apply to Community shipowners, as defined in regulation 3577/92, to shipowners from the EEA countries, and to those from the EFTA counties, with the exception of Switzerland, provided that the vessel is registered in and flies the flag of one of those countries. Third countries' vessels may be authorised to provide services, on a reciprocity basis, upon a decision of the Minister of Merchant Marine, if the aforementioned vessels do not cover the needs of the market.
Conditions related to access to the market
The actual organisation of the cabotage trades, based on a public service approach, is tightly controlled by the Ministry of Merchant Marine. The lines and the ports to be served are defined by the authorities. Operators, fulfilling the criteria fixed by the relevant regulations, must obtain an operating licence depending on the discretion of the authorities, and are subject to the obligations attached to the provision of cabotage services.
L 2932/2001 has radically modified the actual regime. Provision of services is no longer subject to prior approval by the national authorities. As the European Court of Justice has recently held in the Analir case regarding Spanish legislation, the imposition of a system of prior approval for all cabotage lines constitutes a restriction incompatible with the principle of freedom to provide services, and may be justified only if reasons of public interest are shown.
Any shipowner interested in providing regular services submits a relevant declaration to the Ministry of Merchant Marine, provided that the following requirements are satisfied:
- The vessel is authorised to carry out cabotage in the country of registration;
- It is covered by the required class and safety certificates;
- It corresponds to the specific characteristics of the port infrastructure and to the requirements of the relevant line;
- Its age does not exceed 35 years on 31 December, 2002, 2003, 2004 and 2005, 34 years on 31 December, 2006, 33 years on 31 December, 2007, and 30 years on 31 December, 2008.
- The shipowner has not been irrevocably condemned to temporary term or imprisonment of at least one year for the criminal offences referred to in Article 3 Paragraph 2;
- He is not under bankruptcy, liquidation or other equivalent procedure;
- He has fulfilled his fiscal and social security obligations;
- He is insured for civil liability arising out of a) death, personal injury or material damage, including damage to port installations, b) damage due to delay, c) damage from violation of extra-contractual rights, d) wreck removal or measures offsetting the consequences of a wreck, e) loss or shifting of cargo and f) marine pollution or preventive measures;
- He applies an electronic system of ticket reservation and of passenger registration, according to the applicable provisions.
A vessel may be scheduled for a one-year period, starting on November 1 (regular scheduling). The shipowner submits, until January 31, the 'scheduling declaration' defining the line or lines to be served, the departure, arrival and calling ports, timetable of the itineraries and the maximum rates of the services. The declaration has to be accompanied by a deposit calculated on the tonnage of the vessel.
The competent authority publishes the declarations until February 10. The shipowners concerned may modify, complete or revoke their declarations until March 31. Afterwards, the authority announces to the applicant the acceptance of the declaration. The ministry is entitled to modify the declaration, to a reasonable measure, if a) the port conditions do not permit, for safety reasons or for reasons relating to the port organisation, the execution of the requested itineraries, b) the vessel is not able to provide the transport services at a specific port place and on the declared timetable, c) the frequency of the services or the envisaged interruption of service do not respond to the stable needs of the regular provision of services, d) the proposed maximum rates are considered exorbitant for the relevant line and against the public interest.
To ensure the good and prompt execution of service, the shipowner is obliged to provide the ministry with a letter of guarantee. The content, the amount of the guarantee and the criteria for any forfeiture thereof are defined by a ministerial decision.
The execution of the itineraries announced is compulsory. Modification or interruption of the announced schedules is not permitted, except as provided in Article 6 Paragraph 3 L 2932/2001. Any breach of this obligation results in the forfeiture of the guarantee.
Public service contracts
If the aforementioned declarations for regular scheduling of vessels do not satisfy the requirements of continuity, regularity, quality and pricing, or do not fully cover the transport needs, the minister may conclude public service contract(s) for three-to-five years regarding the exclusive exploitation of a specific line. The selection is effected through a tender procedure ensuring the non-discriminatory participation of all interested shipowners. If no candidate appears, or the applications do not respond to the requirements described above, bidding takes place for the conclusion of a one-year contract. The public service contract is signed with the lowest bidder, provided that bidder satisfies all the conditions defined in the call for tender.
Regulatory Authority of the National Maritime Transports
In order to ensure the access of the beneficiaries to the market on the basis of objective, transparent and non-discriminatory criteria, L 2932/2001 has established an independent Regulatory Authority of the National Maritime Transports. This authority is supervised by the Minister of Merchant Marine, but only regarding the legality of its actions. It comprises seven members, non-revocable, providing their exclusive services for a term of five years. These persons are not allowed to be directly or indirectly involved in the operation, management or ownership of a company providing maritime transport services.
The new regulatory authority is entrusted to a) supervise the functioning of the national market and to propose adequate measures in respect of competition principles, b) investigate, ex-officio or upon complaint, violations of the national and Community competition rules and survey the fixing of rates, c) investigate for the existence of restrictive agreements or concerted practices, d) collect the necessary commercial, economic, technical and other relevant date for the accomplishment of its mission, e) advise the minister on any issue conmtained in L 2932/2001. It collaborates with the national Competition Authority on subjects involving application of competition rules. Finally, it submits an annual report of its activities to the Minister of Merchant Marine and to the president of the parliament.
Reform of port organisation
The legal regime of the main Greek ports (Piraeus and Thessaloniki), dating from 1950, has been modified by Law 2688/1999. The previous regime was based on the so-called comprehensive port model, where one legal entity was charged with the construction, maintenance and management of the port infrastructure and superstructure, as well as with the provision of cargo-handling services.
Such integrated functions were clearly seen in the example of the Piraeus Port Organism (OLP). On the one hand, it was accomplishing its regulatory mission and, on the other hand, it was acting as a provider of port services, benefiting from an exclusive right. This public-service approach has been revised under the pressure of ECJ jurisprudence applying the principles of freedom to provide services and the competition rules into the port sector. The result was a generalised legislative reform in all South-European member states.
Main features of the reform
The first new element is the transformation of the previous public organs into commercial legal entities, the share capital of which is, for the moment, retained by the Greek state. The first chapter of the law deals with the Piraeus Port Authority and the second one with the Port Authority of Thessaloniki.
According to Article 1 of L 2688/1999, the Piraeus Port Authority is a commercial legal entity of public utility, functioning on the basis of market economy principles, and benefits from an administrative and financial independence, under the surveillance of the Minister of Merchant Marine. All the assets of the old entity are automatically transferred to the new company, called OLP SA. Article 3 L 2688/1999 contains the statutes of OLP SA, describing their objectives as a) provision of services relating to the arrival, stay and departure of vessels as well as cargo-handling services, b) construction and operation of port infrastructure and superstructure, c) any other port activity as well as any activity of commercial, industrial or other nature, d) any other function previously entrusted to OLP.
It is clear from this wide description that OLP SA continues to accomplish both regulatory and commercial functions. Such a combination may raise problems in practice, once the proposed directive on market access to port services is adopted.
The monopoly issue
Although the objective of the new legal regime is to introduce commercial criteria into port operation, it is still not clear if the exclusive rights granted to OLP for the provision of handling services are abolished. The answer seems to be positive, for reasons relating to the letter and the spirit of the new law.
First of all, OLP SA now has the right, by a decision of the board of directors, to create subsidiaries or to participate with other companies having as an objective the development of port activities within the Piraeus port or other national or foreign ports. Moreover, the board is entitled to grant concessions to physical or legal persons, of Hellenic or foreign nationality, regarding studies, construction works or provision of services. Such possibility of participation to - or co-operation with - other companies, or granting concessions, presupposes the existence of the possibility of entry of other operators into the market. This pro-competitive interpretation fits with the general tendency of the legislator to introduce commercial criteria and to rationalise the operation of the port sector.
However, this first element of liberalisation seems to depend totally upon the discretion of OLP SA. In fact, it is necessary to recognise that, despite the abolition of the legal monopoly, OLP SA retains de facto exclusive rights in the provision of port services. The resulting conflict of interests between the regulatory and the commercial functions persists.
In this context, the application of competition rules, and especially the so-called essential facility theory, may not be excluded even before the entry into force of the EC directive on port services. Once adopted, this directive will prescribe the introduction of tender procedures ensuring the non-discriminatory access to the market of interested operators, as well as the financial distinction of regulatory and commercial activities.