Brussels, 27 September 2012
Ports: Reasoned opinion addressed to Spain for non-compliance with the EU Treaty of the regime organising the recruitment of port workers (dockers)
The Commission has sent today a reasoned opinion to Spain for obliging cargo-handling companies in several Spanish ports to financially participate in the capital of private companies managing the provision of dockers and not to allow them to resort to the market to employ their staff, unless the workforce proposed by this private company is not suitable or not sufficient. Cargo-handling providers from other Member States wishing to establish themselves in Spain might be discouraged from doing so because of the barrier this provision raises on the market for cargo-handling services. This is the second stage in the infringement procedure. If Spain fails to react satisfactorily, the Commission may refer the matter to the EU Court of Justice.
The EU rules
Treaty rules on freedom of establishment fully apply to the activities carried out by the entities in charge of recruiting port workers, so called "pools". The European Union requires the elimination of restrictions on freedom of establishment. In particular, the Treaty precludes any national measure which, even though not discriminatory on grounds of nationality, is liable to hinder or render less attractive the exercise of the freedom of establishment that is guaranteed by the Treaty. Therefore, while "pools", often provide sound training to workers and are an efficient tool for employers, they should not be used to prevent suitably qualified individuals or undertakings from providing cargo-handling services, or to impose on employers the workforce they don't need1.
The reason for lodging a formal complaint
Spanish Royal Legislative Decree 2/2011 of 5 September 2011 foresees that private companies recruiting and putting the dockers at the disposal of cargo-handlers, SAGEP (Sociedad Anónima de Gestión de Estibadores Portuarios), should be set up in "ports of general interest". These ports comprise, among others, the port of Barcelona, Algeciras, Valencia and Bilbao. The same law obliges all companies wishing to provide cargo-handling services to join and financially participate in the capital of a SAGEP. Cargo-handling companies can be exempted from this obligation only in very limited cases and if they provide services exclusively for themselves. Furthermore, regardless of whether the cargo-handling company is a member of SAGEP or not, it has to rely on workers recruited and put at its disposal by SAGEP. Only if the dockers proposed by SAGEP are not sufficient or not suitable, the cargo-handling companies may recruit workers from the market, but only for one working shift.
According to the assessment made by the Commission, there are other instruments, such as policies and strategies aiming at ensuring training for dockers and improving their competencies, to attain the claimed objective of protection of dock workers which are not in contradiction to the freedom of establishment and that are therefore more proportionate to that objective. Likewise, policies oriented towards the mobility of workers between ports in the same country or across the border, as well as flexible working arrangements, may have positive impact on dock labour.
The practical effect of a restriction on the freedom of establishment
Under the Spanish law the cargo-handling companies wishing to establish themselves in a Spanish port of general interest are obliged to gather sufficient financial resources to participate in a SAGEP and to hire SAGEP workers under conditions which they do not control. This causes a forced alteration of the companies' existing employment structures and recruitment policies. Such changes may entail serious disruption within companies and have significant financial consequences. Cargo-handling companies may consequently be discouraged from establishing themselves in Spanish ports of general interest.
The Commission's request takes the form of a reasoned opinion under EU infringement procedures. If Spain fails to inform the Commission within two months of measures taken to ensure full compliance with EU law, the Commission could refer the case to the EU Court of Justice.
For more information
On the September infringement package decisions: MEMO/12/708
On the general infringement procedure: MEMO/12/12
Communication from the Commission on a European Ports Policy of 2007 [COM (2007)616], paragraph 4.5.