Repeal of the Port Services Regulations – Dividend or Complication?
18th March, 2024
With effect from 1 January 2024, the EU Port Services Regulation and accompanying domestic regulations (together the "Regulations") were repealed as part of the Government's drive to repeal or replace legacy EU legislation.
The Regulations contained some financial provisions that were always of limited applicability in the UK, due to the relative rarity of publicly-owned ports in the UK, and the existence of similar (albeit perhaps less extensive) provisions on port charges under UK law already.
The main practical impact of the Regulations in the UK related to the provision of port services. The Regulations aimed to promote an open market for provision of port services, specifically bunkering, mooring, towage, and waste collection. It did this in two key ways:
- By requiring port authorities to treat all potential port service providers in a transparent, objective and non-discriminatory way
- By allowing port authorities to regulate which entities could provide port services in their port by reference to set of minimum requirements, which port authorities were obliged to publish in the interests of transparency.
The Regulations were controversial from the outset, with many arguing that they imposed unnecessary “red tape” on UK Ports, and were not well suited to the UK’s port sector. A number of industry bodies opposed to the Regulations from the outset.
Coupled with the political imperative for the government to repeal EU legislation following Brexit, there was therefore little surprise when the government announced its intention in 2021 to repeal the Regulations. Lord Frost told the House of Lords:
“We also intend to repeal the EU’s Port Services Regulation – which is a very good example of a regulation that was geared heavily towards EU interests and never worked properly for the UK.”
The government carried out a short consolation on the proposed repeal in 2022, which only generated three responses. However, the proposed repeal was welcomed by industry bodies – the British Ports Association called it a “Brexit dividend”.
The current position
The Regulations were repealed with effect from 1 January 2024, and were not replaced – the government’s view was that the content of the Regulations was covered by “commercial practice within the framework of domestic law“.
What impact does this therefore have on UK port authorities? The repeal of the Regulations does reduce the number of rules to which UK ports are subject, which many would regard as a positive. However, it also means that there no longer any generally applicable rules on the regulation of port services in this country. Whilst the Regulations imposed requirements on ports, they also provided them with the ability to regulate how port services were provided in their ports by the publication of minimum requirements for those services.
The repeal of the Regulations therefore poses two potential immediate issues for UK port authorities:
- Many port authorities have adopted and published minimum standards for port services under the Regulations, given that they were in force for almost five years before repeal. Many service providers are providing port services under those minimum standards. There is therefore a question on the legal status of any minimum standards imposed under the Regulations – are they still valid and does the service provider need to continue to comply?
- In the absence of the express powers in the Regulations, does the port authority have the power to control who provides port services in its jurisdiction and/or to impose rules as to how those services are to be provided?
Action required?
The answer to both questions will in turn depend on the other powers of each port authority arising under its own legislation and byelaws. Many will have other statutory powers to control the provision of port services, but many may not.
Each port authority will need to undertake an individual assessment of its position, potentially increasing compliance burden in the short term.
Legal change almost always involves some level of disruption to business, so it is difficult to see the repeal of the Regulations as being a universally positive step.
If you would like help with any of the issues in this article, Ward Hadaway’s ports and maritime experts would be happy to assist. Please contact Steven Roper for further details.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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