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EU Challenges Spanish Port Labour Rules

by Ulrika Lomas, Tax-News.com, Brussels

28 September 2012


The European Commission has challenged the legality of Spanish rules that oblige 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.

The legislation in question, Spanish Royal Legislative Decree 2/2011 of September 5, 2011, requires that private companies recruiting and putting the dockers at the disposal of cargo-handlers, known as Sociedad Anonima de Gestion de Estibadores Portuarios (SAGEP) in Spain, should be set up in "ports of general interest".

In addition, cargo-handling companies wishing to establish themselves in a Spanish port of general interest are obliged to gather sufficient financial resources to financially participate in a SAGEP and to hire SAGEP workers under conditions which they do not control, causing a forced alteration of the companies' existing employment structures and recruitment policies. These ports of general interest comprise, among others, the ports of Barcelona, Algeciras, Valencia and Bilbao.

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 these SAGEP are not sufficient or not suitable, may the cargo-handling companies recruit workers from the market, but only for one working shift.

The Commission on September 27, 2012, sent a reasoned opinion to Spain stating its belief that the measures run contrary to EU rules. It argued that 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.

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 need, the Commission said.

The Commission recommended 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, it suggested.

Under the EU infringement process, Spain is required to detail measures to bring its scheme in full compliance with EU law within two months or the European Commission may refer the case to the EU Court of Justice.

TAGS: marine | European Commission | law | employees | contractors | Spain | Europe

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