The European Commission announced this Friday the opening of an infringement procedure against Spain, France, and Italy for imposing the national flag requirement on towing and mooring vessels operating in their ports. Brussels considers that this demand violates the principles of proportionality and non-discrimination established in community regulations on port services.
The procedure begins with the sending of a letter of formal notice by the Commission's services, by which national authorities are warned of the irregularity detected and a two-month period is opened to adopt corrective measures. If the case is not resolved during that period, the community executive may extend the scope for dialogue by sending a notified opinion that allows for an additional one to two months of contacts before deciding whether to elevate the matter to the Court of Justice of the European Union.
The community executive explains that the regulation establishes principles of transparency, non-discrimination, and proportionality with the aim of ensuring compliance with social and labor legislation, including regulations on labor inspections, by imposing requirements on vessels that carry out towing or mooring operations in ports located in community territory.
The three member states indicated have established the obligation for vessels used for towing and mooring in their respective ports to fly their respective national flags. The argument conveyed to Brussels by these administrations is based on the concern that without this requirement, national social laws would not be applicable if the tug does not have a national flag.
Nevertheless, the European Commission has communicated with the opening of the inquiry that this interpretation "is not correct." The regulation already empowers member states to enforce national social and labor legislation, regardless of the flag that the vessel under inspection flies.
Community services add that, if member states decide to impose a flag requirement, it must be defined as "a flag of any EU member state, and not as the national flag of a specific member state." This clarification is fundamental to understanding Brussels' position, which does not question the power of states to set requirements, but rather the restrictive manner in which this power has been applied.
The infringement procedure falls within the oversight exercised by the European Commission over the correct application of community law in member states. The goal of this supervision is to ensure that national regulations do not establish discriminatory barriers that could fragment the European internal market or create distortions in competition among operators from different countries.
The three affected states now have two months to submit their observations and, if necessary, amend their national regulations to conform to community criteria. The response that Spain, France, and Italy provide will determine whether the procedure moves towards more complex phases or, conversely, whether a solution is reached through dialogue with Brussels.
In the area of port services, European regulations seek to balance the need to ensure adequate labor conditions with the principle of free provision of services in the single market. The interpretation that ultimately prevails in this case could set a precedent for similar situations in other European ports where specific regulations exist regarding the characteristics of vessels providing auxiliary services.