Chapter 3. Transport

Maritime freight transport

Maritime transport is the most important modality of international freight transport in Romania. Approximately 60% of the goods imported and exported by Romania in 2014 were transported by sea, followed by road and inland waterways.

According to the NIS, in 2014 maritime freight transport generated overall revenues equal to EUR 75.3 million, with 284 people employed. In addition, in 2014 all shipping-related activities generated an overall value of EUR 366 million, with approximately 240 active firms and about 5 320 people employed.

As shown in the table below, freight shipping operations in Consţanta are mainly run by international shipping companies, whereas Romanian ship owners have gradually disappeared.

The maritime freight transport had a sharp decrease during the outbreak of the global financial crisis, reaching a positive evolution in terms of volume in the last five years, with a CAGR of approximately +4%. Figure 3.19 shows the evolution of maritime freight transport during the period between 2005 and 2014.

Figure 3.19. Maritime freight transport in Romania

Source: NIS, Goods transport, by mode of transport (database), http://bit.ly/21a7Nxe (accessed on 26 January 2016).

 https://doi.org/10.1787/888933361613

Figure 3.20 shows that Romania has suffered from the economic downturn which is reflected in the drop in imports. Since 2008, the volume of goods imported has been constantly decreasing.

Figure 3.20. Total volume of maritime freight transport in Romania (thousands of tonnes)

Source: Eurostat, Maritime transport – Goods (database), http://bit.ly/1yussbN (accessed on 26 January 2016).

 https://doi.org/10.1787/888933361626

According to the NIS, the main categories of goods that were transported by sea in 2014 were: agricultural products (33.36%), coal and lignite, crude petroleum and natural gas (18.53%), coke and refined petroleum products (10.05%), metal ores and other mining and quarrying products (8.39%), basic metals (5.41%), chemicals (5.19%), secondary raw materials and municipal wastes (3.05%), wood and products of wood (1.34%), non-metallic mineral products (1.31%) and food products (1.24%). Demand is therefore coming mainly from the following industry sectors: agriculture, energy, extraction and chemicals.

Inland waterway freight transport

According to the NIS, inland waterways freight transport generated an overall value of about EUR 95.5 million in 2014. Employment in this sector reached 1 719 people in the same year. There are 90 active companies in inland waterway freight transport, of which 75 % have 1 to 10 employees, 15% have 11 to 50 employees, and the remaining 10% exceed 50 employees. The number of active firms active in inland waterway freight transport decreased from 112 in 2008 to 90 in 2014 and the employment recorded a decrease of -17% in the same period.

The major player in this sector is Compania De Navigaţie Fluvială Română NAVROM S.A., with an annual volume of over ten million tonnes of goods transported. NAVROM operates towards both internal routes such as Galaţi, Consţanta, Cernavodă, Medgidia, Mahmudia, etc. and external routes such as Ukraine, Serbia, Hungary, Austria and Germany. NAVROM is the incumbent company in the inland waterway freight sector, having being privatised by the Romanian government in 1998.48

According to the NIS, the first ten inland waterway freight companies in 2014 were:

The above table shows a highly concentrated subsector in which the largest company, NAVROM, holds a market share of over 50%. Moreover, there is significant disparity between NAVROM’s market share and the remaining companies.

Figure 3.21 shows the evolution of inland waterway transport over the period 2005-14.

Figure 3.21. Total inland waterway freight transport in Romania

Source: NIS, Goods transport, by mode of transport (database), http://bit.ly/21a7Nxe (accessed on 26 January 2016).

 https://doi.org/10.1787/888933361639

After a fast recovery and a significant increase in inland waterway freight transport in 2010, the volume of goods handled by inland waterways registered a constant decline in the period from 2011 to 2014, with a CAGR of -3.4%.

On the Danube, three types of transport operate: i) internal, ii) transit and iii) import/export. International transport represents a significant share (28% in 2010, 20% in 2011, 33% in 2012, 36% in 2013 and 32% in 2014) of the total volume of goods transported by inland waterways. Transit has an important share (over 15% in the period between 2009 and 2014), showing that the Danube River is an advantageous transport modality and represents an efficient alternative to rail and road transport.

Figure 3.22. Inland waterway freight transport in Romania, volume of goods carried (thousands of tonnes)

Source: Eurostat, Inland waterways transport by type of vessel (database), http://bit.ly/1yussbN (accessed on 26 January 2016).

 https://doi.org/10.1787/888933361643

According to the NIS, the main categories of goods that were transported in 2014 by inland waterways were: metal ores and other mining products (44.97%), products of agriculture (31.18%), coal and lignite, crude petroleum and natural gas (8.09%), chemicals (5.69%), coke and refined petroleum products (4.7%) and basic metals (2.76%). Hence, demand is driven by the following industry sectors: extraction, energy, agriculture and chemicals.

Description of obstacle

Article 122 (m) of the Government Emergency Ordinance No. 195/2002 regarding the traffic on public roads states that the repairing, adjusting, reconstructing and dismantling of vehicles are to be undertaken only by authorised operators. The authorisation is granted by the Romanian Automotive Register (RAR), the technical specialised body designated by the Ministry of Transport (MoT) as the competent authority in the field of road vehicles, road safety, environmental protection and quality assurance.

In order to obtain this authorisation, vehicle repair garages must provide the following documents: i) a copy of the certificate, issued by the RAR, attesting the professional ability of the garage manager, ii) the “criminal record” of the economic operator’s manager, iii) a copy of the company registration certificate issued by the National Trade Register Office, iv) a copy of the tax registration certificate issued by the National Agency for Fiscal Administration, v) a copy of the certificate of incumbency issued by the National Trade Register Office with the corresponding activity field, and vi) a list of the equipment used for providing the service. The opening of a garage is subject to an authorisation tax with the amount depending on the number of technical activities planned to be carried out in it.

In addition, for the authorisation to be maintained, the vehicle repair garages must annually obtain a visa. The visa is granted by the RAR after checking the technical ability of the vehicle repair garages by verifying the existence and conformity of the equipment used for performing the garages’ activities. The vehicle repair garages must pay an annual tax for the abovementioned audit of their technical ability.

Harm to competition

The authorisation requirement constitutes an administrative burden that may reduce the number of operators and raise administrative costs.

Policymakers’ objective

The objective of the provision is to ensure public safety on the roads.

Legal frameworks from other European countries such as France, the United Kingdom and Spain do not require an authorisation in order to run a vehicle repair garage.

In France, starting up a garage is subject to proving the professional qualifications of the person who leads the activity of the operator. Such a person must possess a certificate of professional competence, a certificate of professional studies, a degree or the equivalent of a degree issued by a national directory of professional certifications, or have three years of relevant experience working in the European Economic Area.

Also, French legislation establishes the obligation of garages to be registered in the National Register of Professions. In order to be enrolled in the abovementioned register, the manager of the garage must have attended a preparatory course that is organised by the regional Chamber of Commerce and Industry.

For the registration, the manager of the garage must submit the following documents: i) a statement of intent to create the garage, ii) a statement concerning any (or no) criminal record of the manager iii) the certificate granted by the Chamber of Commerce and Industry attesting to the completion of the preparatory course, iv) a copy of the identity card of the manager.

In the United Kingdom, there seems to be no obligation for the manager of a garage or for the employees directly involved in repairing vehicles to pass an exam or to have a diploma in order to prove their professional qualifications. To convince customers that the garage is reputable, the garage owner joins a trade association with codes of practice that have been approved by the Trading Standards Institute or a trading-standards approved scheme such as “Buy With Confidence”. The membership inspection regime to which garages voluntarily submit ensures that they are monitored in terms of their premises, equipment, technical training, customer care and operation of the code of practice and of their individual ability to quickly remedy any problem, as it arises, to their customers’ satisfaction.

Recommendation

We recommend that the provisions be repealed. The obligation to obtain an authorisation in order to run a vehicle repair garage is disproportionate to the envisaged aim of public safety on roads. The quality of the repairs performed by the garages could be ensured by requiring the manager of the garage to possess a certificate of professional studies or a degree issued, for instance by the RAR, in case the manager does not have a certificate of professional studies. Also, the employees directly involved in repairing, adjusting, reconstructing and dismantling vehicles should have a certificate of professional studies.

Moreover, the policymakers’ objective – public safety on the roads – is supposed to be achieved through periodic technical inspection. According to Government Ordinance No. 81/200058 all vehicles and trailers must be inspected at regular intervals by the RAR or by bodies authorised by the RAR. The ordinance provides a basis for checking that vehicles throughout Romania are in a roadworthy condition and meet the same safety standards as when they were first registered.

Therefore, no authorisation should be required for the garage to operate. Instead, the garage should be checked by the RAR in order to prove that its manager possesses a certificate of professional studies or a degree issued by the RAR and that its employees have certificates of professional studies.

Description of obstacle

According to Article 1 of Annex 5 of MoT Order No. 1214/2015 on the approval of norms establishing the conditions for obtaining a professional attestation by road transport staff, in order to transport goods with vehicles exceeding the applicable dimension and/or weight limits, so-called “abnormal load transport”, drivers must obtain a certificate of professional competence. This provision only applies to drivers who use vehicles registered in Romania for transport.

An abnormal vehicle is one that due to its construction exceeds at least one of the maximum dimensions of axle, bogie or total weights (for unloaded vehicles) authorised by Directive No. 96/53/EC and national legislation. The legal dimensions and weights vary between countries, and between regions within a country.59

The abnormal load transport certificate for drivers is required in Romania in addition to the general certificate, called the “certificate of professional competence”.

Harm to competition

The professional certificate for abnormal load transport affects drivers and operators, provides less flexibility in replacing the drivers for these types of transport because an operator needs a driver with an additional certificate in order to transport goods in abnormal vehicles. Also, the provision increases the administrative burden of road transport operators. Moreover, the provision applies only to those drivers who perform transport operations with vehicles registered in Romania. Therefore, besides the additional cost and administrative burden, it discriminates in favour of foreign transport operators with drivers operating vehicles registered in other countries. We did not find a similar requirement in any other European Union Member States.

Policymakers’ objective

There is no official recital for this particular provision. However, it seems that the objective of the provision is to ensure public safety on roads.

The relevant Romanian provision exceeds the requirements of European legislation. Thus, in order to enhance road safety in Europe by ensuring a common level of training and the achievement of the necessary skills and competences for professional drivers, European Directive No. 2003/59 requires a mandatory initial qualification and periodic training for truck drivers, with both attested by the certificate of professional competence. The directive does not require an additional certificate of professional competence for drivers in order to carry out road transport of goods with vehicles exceeding applicable length or weight limits.

Recommendation

The provision requiring an abnormal load transport certificate for drivers should be abolished. Professional qualification requirements concerning abnormal load can be addressed in the initial training undertaken for obtaining the certificate of professional competence. In other EU Member States, such as the United Kingdom and Spain, there is no obligation to obtain a certificate of professional competence for “abnormal load transport”. Thus, the courses related to the abnormal load should be part of the general course. This abolition will harmonise Romanian legislation with that of other EU Member States.

Description of obstacle

Currently only one undertaking in Romania, IPROCHIM SA, is entrusted with issuing certificates of conformity with respect to superstructures fitted on vehicles transporting dangerous goods, and transporting packaging containing dangerous goods. The list, which includes only IPROCHIM, was issued by the Ministry of Economy (MoE) and approved by the Order of the MoE No. 971/2014.

Any undertaking aiming to perform the activity of issuing certificates must first submit a request to the MoE proving that it fulfills the conditions stipulated by Order No. 2737/2012 of the MoE.60

In our understanding, all these conditions are clear and non-discriminatory. Thus, theoretically, any legal person established in Romania and registered in the Trade Register who proves that they can perform specific tasks regarding conformity assessment and inspection of specialised superstructures, should be appointed and designated by the MoE as a certificate-issuing body.

The main shareholder of IPROCHIM SA is the MoE, which owns 72.99% of its shares. The ministry is also in charge of authorising the operators who wish to issue such certificates of conformity. This creates a certain conflict of interest resulting from the fact that the MoE acts as a regulator, operator, and the authority empowered to authorise operators. In practice, requests for authorisation have been submitted by undertakings interested in acting as a certificate-issuing body which did not receive an official response, although, according to Romanian legislation, the MoE should answer within 30 days of receiving an application.

Harm to competition

IPROCHIM SA currently holds a monopoly in the market, leading to higher costs for transport operators who need to obtain a certificate of conformity with respect to superstructures.

Recommendation

Given that the conditions for authorising the performance of this activity set forth in Order No. 2737/2012 of the MoE are clear and non-discriminatory, and considering that operators whose application was rejected or not answered may challenge this decision in court, no recommendation concerning the relevant provisions is given. However, the MoE needs to act in a diligent manner in the light of its potential conflict of interest when receiving requests for authorisations submitted by undertakings interested in acting as a certificate-issuing body.

Description of obstacle

Article 15 of the Methodological Norms approved by Order No. 980/2011 of the MoT,61 which regulates the criteria that must be fulfilled by an undertaking in order to become a road transport operator, both on its own account and for hire/reward, requires the applying undertaking to have professional competence. Undertakings shall thus appoint a transport manager who must have a certificate of competence, fulfill the requirement of good repute, permanently manage the transport activities of the undertaking and must be an employee, director, owner, shareholder or manager of the undertaking. Additionally, the transport manager must reside in the European Union. Finally, this article provides that a natural person can be a transport manager only within one single undertaking.

The requirements of the Romanian legislation are in line with European Regulation No. 1071/2009 – but the obligation of the transport manager to lead only one single undertaking is more stringent.

Thus, according to Article 4 of European Regulation No. 1071/2009, transport managers can either be direct employees or persons so closely linked to the business that they have a real, direct connection with the operator. They can also be independent third parties, such as transport consultants, in the case where the operator does not have a transport manager with a genuine link to the undertaking. According to Article 4 para. (2), a transport manager who does not have a genuine link to the undertaking may serve up to four separate transport operators, as long as their combined fleet does not exceed 50 vehicles. The European regulation provides that Member States may decide to lower the number of undertakings and/or the size of the total fleet of vehicles which the manager may manage.

However, even if the Member States can determine the maximum number of transport operators led by a manager, the Romanian provision makes no link to the total combined fleet of operators, which seems to be the relevant criterion.

Policymakers’ objective

There is no official recital for the provision. It should ensure the quality of transport manager services, since, if a transport manager works for several separate undertakings at the same time, he may not always be available to brief drivers (e.g. on the characteristics of the goods transported, or on the route to choose to avoid delays or additional charges) or to respond to the client’s demands.

Harm to competition

Romanian transport managers are prevented from expanding their business by covering more than one undertaking. This also raises costs for Romanian undertakings, especially for the small ones, which must bear the cost of hiring their own transport manager.

Recommendation

We recommend modifying the relevant Romanian legislation by inserting the provision from the EU legislation, where transport managers can cover up to 4 undertakings and up to 50 vehicles.

More restrictive provisions than those in the EU regulation are not justified, notably due to the fact that Romanian freight hauliers generally have small fleets, so managers can carry out their tasks for more than one operator.62 If the restriction is lifted, the costs of the services performed by a transport manager may drop when he operates as an independent transport manager, and can provide services for more undertakings.

Description of obstacle

According to Order No. 181/2008 of the MoT,64 undertakings authorised to perform the installation, repair and/or verification of tachographs and speed limit devices must use only spare parts provided by the manufacturer of those tachographs and speed limit devices, or by suppliers appointed by the manufacturer.

Harm to competition

This provision is likely to eliminate other producers of spare parts for tachographs and speed limit devices. It may also raise costs for transport operators, as it prevents competition on the spare parts aftermarket.

Recommendation

Even though this restriction is likely to exclude other producers of spare parts for tachographs and speed limit devices, and may raise costs for freight hauliers, the restriction seems proportional to the objective served, namely to promote road safety by avoiding the manipulation of these devices. Thus, no recommendation is made.

Description of obstacle

Law No. 265/200866 stipulates that the appointment of road safety auditors/inspectors is made for territorial areas and gives preference to individuals residing in those areas or close to those areas where the auditor/inspector needs to be appointed.

Road safety auditors/inspectors are professional individuals in charge of verifying road construction projects in terms of safety. They also periodically check the existing road infrastructure.

Harm to competition

These provisions create an entry barrier and favour auditors residing in the area where road infrastructure should be inspected in relation to auditors from other areas.

Policymakers’ objective

The law implements European Directive No. 2008/96 on road infrastructure safety management, which requires the establishment and implementation of procedures relating to road safety impact assessment, road safety audit, the management of road network safety, and inspections by Member States. Although the Directive stipulates the criteria for the appointment of road safety auditors, it makes no reference to territorial criteria.

There is no official recital for these specific restrictions. However, this may be necessary in order to make the deployment of auditors/inspectors’ activities more efficient in terms of costs and time.

Recommendation

This restriction exceeds the Directive No. 2008/96/EC requirements, and the appointment of road safety auditors/inspectors should not be linked to the geographical residence of the auditor/inspector. We recommend abolishing the provisions.

Description of obstacle

According to Government Ordinance No. 43/1997 on the road regime, as further amended and supplemented, managers of national roads apply tariffs in addition to the Romanian vignette to authorise access to the national road network for vehicles registered in a foreign country that is not a member of the European Union. These tariffs are established through bilateral agreements between Romania and third countries.

The provision authorises Romania to charge differential tariffs to third country hauliers as opposed to Romanian and EU hauliers. It may therefore lead to discriminatory treatment of third country hauliers.

Harm to competition

These provisions discriminate in favour of national and EU transport operators against those from a non-EU country.

Policymakers’ objective

During bilateral talks with third countries, Romania negotiates these additional tariffs together with the number of authorisations which are granted to third country hauliers, taking into consideration the interests of Romanian hauliers.

Recommendation

Even though this restriction is likely to create an entry barrier that discriminates against operators who are not members of European Union, it is our understanding that this restriction is justified for reasons of public interest. Thus, no recommendation for change is made for the specific provision.

Description of obstacle

Government Ordinance No. 27/2011 on road transport, as further amended and supplemented, provides that own-account transport operators, and transport operators who transport goods for hire or reward using a vehicle with a maximum permitted weight above 3.5 tonnes, are required to display on their vehicles a plate containing information related to the dimensions and maximum weight authorised for the vehicle. The plate must be displayed if vehicles do not have a manufacturer’s plate or the manufacturer’s plate does not contain the necessary information.

According to MoT Order No. 980/2011 if the vehicle has a trailer and/or a semi-trailer, it is necessary to have a plate for each trailer in addition to the plate for the vehicle.

In order to obtain the plate it is necessary that the dimensions and maximum weight of the vehicles, trailers and semi-trailers are established. This activity is currently performed exclusively by the RAR. According to the RAR website, there are two ways of establishing the dimensions and maximum weight: i) for vehicles without a towing device the dimensions and weight are established by the RAR based on the information from its database and the vehicle identity card and ii) for vehicles with a towing device, trailers and semi-trailers, the dimensions and weight are established by measuring them. In this case, each of them are measured separately. Thus, not all the vehicles are measured. However, in both the abovementioned cases, fees are received by the RAR.

Policymakers’ objective

In Romania as well as in Europe, heavy goods vehicles must comply with certain rules on weight and dimensions, for road safety reasons, and to avoid damaging roads, bridges and tunnels. These rules are established by European Directive No. 96/53 and Romanian legislation.67

The obligation to display a plate is required by Romanian law so that law enforcers can verify the compliance of the transport operators with the abovementioned legislation.

Harm to competition

Article 6 of European Directive No. 96/53 authorises Romania to opt for a regulatory system whereby information related to the vehicle’s dimensions and maximum weight is included on a plate. However, the same article from the directive stipulates that the information can also result from “a single document issued by the competent authorities of the Member State in which the vehicle is registered or put into circulation. Such a document shall bear the same headings and information as the plates.”

The requirement to display on vehicles a plate containing information related to the dimension and maximum weight authorised for the vehicle applies for all operators established in Romania. It represents an unnecessary burden for road transport operators and may also lead to a rise in costs for national operators compared to EU operators, who do not have such an obligation.

The total cost generated by the obligation to display such a plate on vehicles is approximately EUR 55 per vehicle. As mentioned above, if the vehicle has a trailer and/or a semi-trailer, it is necessary to have a plate for each, thus adding a EUR 55 charge for each additional trailer or semi-trailer. Approximately EUR 45 of this sum corresponds to the fee charged by the RAR for measuring the vehicle’s dimensions. The difference corresponds to the price of the plate. When the provision came into force in January 2014, in order to comply with the plate requirement Romanian transport operators had to purchase these plates, generating an estimated total cost of around EUR 6.3 million.

Recommendation

We recommend repealing this provision. The objective of the provision to verify the compliance of transport operators with the rules on weights and dimensions can be achieved through documentation, such as the vehicle identity card or the periodical technical inspection certificate, which should be carried by the vehicle driver. The vehicle identity card is the single document by which the vehicle is registered and put into circulation. It is issued by the RAR and contains the same headings and information as those appearing on the plate (the manufacturer’s name, identification number, dimensions and weight of the vehicle). The transport operator should keep the original vehicle identity card or a certified copy of it in case the operator is not the owner of the vehicle (for instance, in case of a lease). The periodical technical inspection certificate is issued automatically and free of charge by the RAR or by a body authorised by the RAR to perform periodical technical inspection. It is issued after the performance of the mandatory technical inspection that can include also measuring the vehicles. The periodical technical inspection certificate does not currently contain information referring to the vehicle’s dimensions and weight, but it can be inserted by the issuer. Both the vehicle identity card and the periodical technical inspection certificate should also be kept for trailers and semi-trailers. Carrying an identity card or a periodical technical inspection certificate by the vehicle driver would be in line with EU legislation regarding the vehicle’s dimensions and maximum weight.

According to our estimates, the benefits for road freight transport operators of abolishing the plate requirement for vehicles with maximum weight > 3.5 tonnes, would be approximately EUR 1.14 mln a year.

Description of obstacle

According to MoT Order No. 980/2011 approving the Methodological Norms on the application of the provisions regarding the organisation and performance of road transport and related activities established by Government Ordinance No. 27/2011 on road transport, as further amended and supplemented, road transport operators must obtain a copy of the transport licence for each vehicle in their fleet, which must be renewed annually, although the road freight transport licence issued to transport operators is valid for a period of 10 years.

A copy of the transport licence must be carried on the vehicle on all journeys, and must be presented to any enforcement official upon request. Each copy states the registration number of the vehicle, and cannot be used for any other vehicle in the same transport operator’s fleet.

Harm to competition

The requirement to obtain a copy of the licence for transport of goods by road for hire or reward is in line with Article 4 of EU Regulation 1072/2009. However, the fact that this copy costs approximately EUR 58 per vehicle per year and that it applies only to one registered vehicle increases the costs for hauliers established in Romania. Also, the provision increases the administrative burden for transport operators, as they must obtain a copy every year.

Policymakers’ objective

The transport of goods by road, both on own account and for hire or reward, should be conditional on the possession of a transport licence. For hire or reward transport the licence is called a “Community licence”, and for own-account transport the licence is called a “transport certificate”. Transport operators are required to have a copy of the licence for each vehicle in their fleet. According to point 9 of EU Regulation 1072/2009, the obligation to carry a copy of the transport licence should facilitate effective controls by enforcement authorities regarding the compliance with the authorisation requirement of transport operators.

Research indicates that in some European countries the validity of a copy of the Community licence has the same validity as the licence itself. For example, in Estonia, a copy of the licence is issued for 10 years if the applicant does not require it for a shorter period, and not for longer than the term of validity of the Community licence (10 years). In the United Kingdom and Spain the Community licence is issued for a five-year period, as well as a copy of the Community licence, and it is not specific to one vehicle – it does not contain the vehicle registration number. Also, in Spain a copy costs EUR 5.99 for five years.68

Recommendation

We recommend that the provisions should be modified. There is no need to impose an annual renewal of the copy when the licence is issued for a 10-year period. The copy should be issued at the same time as the licence, and it should be made available for the same period of time as the duration of the licence to which it refers, i.e. 10 years. Although we agree that the number of copies should be the same as the number of vehicles in the operator’s fleet, there is no reason to require specific copies for the registration number of the vehicle. This requirement increases the administrative burden on the operator. For instance, when a truck is sold and another is bought instead, the operator is not able to use the same copy of the licence and he must obtain a new one with a new registration number. Moreover, the cost of the copy should not exceed the administrative cost of issuing it.

The benefits arising from modifying this provision should have a significant impact on costs for freight transport operators, and may lower the overall cost of freight transport services if these savings are passed on to the customer. Moreover, the extension of validity of the licence copy for the entire duration of the transport licence, i.e. up to 10 years, will remove an unnecessary administrative burden for freight transport operators.

The benefits of freight transport operators from modifying the provision are estimated to be around EUR 7.1mln a year.

Description of obstacle

According to Article 7 of the Regulation on Railway Infrastructure Capacity Allocation, approved by Government Decision No. 1696/2006, any request for infrastructure capacity allocation is subject to financial and technical analysis carried out by the infrastructure manager, CFR SA. CFR SA has the right to reject a path allocation requested by railway operators when statistics related to freight transport operating on that route show an under-use below 20% for the timetable in place. This right of refusal and the threshold are also mentioned in the CFR SA Network Statement – Article 7 para. 1) (b) of Annex XV. There are no further details to facilitate calculation of the under-utilisation rate by railway undertakings or to ensure a suitable level of predictability in relation to the CFR SA decision-making process.

Harm to competition

Possible discrimination against private operators could occur due to the fact that the provision is too vague, simply mentioning CFR SA’s right to refuse a path allocation and the 20% threshold, without offering any guidance and transparency about the infrastructure manager’s decision-making process. Any CFR SA refusal to grant access to the railway infrastructure may represent a serious limitation to the provision of services or even market entry. The insufficient legal provision may encourage CFR SA to favour CFR Marfă over its competitors.

Policy objective

The provision aims to transpose Article 27 para. 2) of Directive No. 2001/14/EC, which states that the railway infrastructure manager is entitled to optimise the use of the infrastructure and may terminate a route allocation in case a railway’s operator utilisation rate is underperforming compared to the operational plan (“use it or lose it principle”). The provision therefore should deal with minimising sub-optimal use of capacity.

International comparison

Similar considerations are made by capacity allocation bodies across the EU – e.g. in the United Kingdom, the infrastructure manager, Network Rail, considers whether the entry of a new operator affects the timetable of existing services and could potentially lead to sub-optimal use of capacity.74 Still, no estimated percentage of an underperformance utilisation rate is stipulated within the UK Network Code, but there is a clear description of what qualifies as a failure-to-use case that may justify the rejection of capacity allocation based on sub-utilisation.75 Accordingly, a rejection is justified, e.g. any time the access beneficiary fails to make use of a train slot76 which has been included in the working timetable77 and which relates to the quantum access right.78

Recommendation

We recommend making the provision clearer. Railway undertakings should be provided with guidelines, included both in Government Decision No. 1696/2006 approving the Regulation on Railway Infrastructure Capacity Allocation and in the CFR SA Network Statement. Those guidelines should describe in detail i) instances that can be accounted for to trigger the 20% underperformance threshold by the infrastructure manager, and ii) instances which fall outside the application of this threshold since they do not fall under the responsibility of the railway operator. Acceptable reasons for under-utilisation may include seasonal factors, e.g. commodities for which demand varies during the course of the year, non-economic issues beyond the railway undertaking’s control, a strike or other industrial action. However, these instances should be quantified to the best possible extent in order to facilitate calculation of the underutilisation rate by railway undertakings.

Description of obstacles

According to Article 5 para. (1) of Government Ordinance No. 89/2003 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, when dealing with a request for access to some facilities and services,79 such as a power supply system, fuel supply, freight terminals, etc., the infrastructure manager can reject such requests if there are alternative options in the market. These “alternative options” are not specified or defined.

In addition, Article 18 para. (3) of Emergency Government Ordinance No. 12/1998 on freight railway transport and the reorganisation of the Romanian National Railways Company states that access to infrastructure and services provided in terminals and ports linked to the railway infrastructure can be restricted when there are “viable alternatives” in the market. Again, no definition of “viable alternative” is provided.

Harm to competition

The absence of any explanation of what an “alternative option”/“viable alternative” may be and how it should be assessed makes the provisions unclear and leaves significant discretion to the infrastructure manager, CFR SA. Thus, CFR SA can easily favour CFR Marfă over its competitors by simply limiting their access to essential infrastructure and services.

Policy objective

The provision in Government Ordinance No. 89/2003 was supposed to transpose Article 5 of Directive No. 2001/14/CE, aiming at efficient allocation of capacity. However, there is no justification for the lack of a definition for “alternative options”/“viable alternatives”, in either the provisions of Government Ordinance No. 89/2003 or the provisions of the Emergency Government Ordinance No. 12/1998.

International comparison

A definition of “alternative option” can be found in other EU national legislation, e.g. in Section 2.23 et seq. of the UK Guidance on Appeals to the Office of Rail Regulation under the Railways Infrastructure. The UK Guidance provides several assessment parameters for establishing an alternative option, such as commercial viability and availability, and gives examples for a non-viable alternative (e.g. when using another facility is certain to increase the operator’s costs, so that the rail freight transporter wanting to use the facility could no longer perform the transport at a competitive price).

Recommendation

We recommend making both provisions clearer, so that an unambiguous definition of “alternative option”/“viable alternative” can be provided as further guidance to rail freight transporters. The definition should be in line with Directive No. 2012/34/EU, notably Article 3 para. (10) and Article 13, providing the meaning of “viable alternatives” and the conditions of access to services. This definition should be made available in the CFR SA Network Statement, in accordance with Article 27 and Annex IV of Directive 2012/34/EU.

Description of obstacle

Government Decision No. 581/1998 on setting up the National Railway Company “CFR SA”, Annex No. 1 Article 19 subparagraph (o) allows the CFR SA board of administration to approve tariffs for specific services, other than those related to infrastructure access, including, for example, freight terminals, train path preparation, storage on CFR’s land and train path reservation, etc.80

Access tariffs for such services are established unilaterally by CFR SA. They can give rise to some form of discrimination against operators competing with CFR Marfă, as CFR SA and CRF Marfa belong to the same holding group.

Furthermore, since CFR Marfă was established (in 1998), 26 CFR SA terminals have been used by CFR Marfă free of charge, before ultimately being transferred to CFR Marfă (in 2003). CFR Marfă therefore has the possibility to limit or even completely prevent access to its terminals or to discriminate by using unfair terms against private freight operators.

Harm to competition

CFR SA may use its discretion to grant CFR Marfă undue advantages over its competitors. The restriction of competition on the freight transport market could be quite serious due to the fact that CFR Marfă owns a large number of terminals81 that it received from CFR SA.

Freight terminals are generally difficult or impossible to replicate by the market, so it is unlikely that a viable alternative can be found. If either CFR SA or CFR Marfă decide to subject access to their own terminals to unfair and/or discriminatory charges, this may lead to a serious restriction of competition in the rail freight transport market.

The Romanian Competition Authority has fined CFR Marfă in the past for i) applying dissimilar and far higher tariffs to equivalent transactions with other private trading parties compared to state-owned ones (e.g. CFR Călători, the state-owned passenger rail operator, which was provided with services within CFR Marfă terminals) and ii) refusal to deal and conclude contracts with private rail operators for services within CFR Marfă terminals.82

Policy objective

The objective of the provision is not officially described in the provision. However, CFR SA tariffs are claimed to be the same for every transport operator. Regarding CFR Marfă tariffs, there is no official justification.

International comparison

In our research into European experience, we found some discriminatory practices related to charging. A number of cases have been dealt with by German competition and regulatory authorities in which the German infrastructure manager (which is part of the German incumbent holding group) was accused of having introduced discriminatory charges. For instance, the competition authority found that the charging system TPS 1998 allows for charges for DB Regio to be 25%-40% lower than that of its competitors. The German regulator also pinpointed the use of “regional factors” in track access charging (i.e. definition of charges applicable to specific parts of the rail network) which were discriminatory against competitors of the incumbent. 83

Another case concerns DB Energie, the Deutsche Bahn (DB) subsidiary responsible for providing electricity to the rail network. DB Energie applied volume discounts that favour DB operating subsidiaries since only they benefit from the maximum discount available. As a result, competing rail undertakings paid electricity charges 15-20% higher than those paid by DB. In February 2012 BNetzA, the German rail regulator, required that DB Energie reduce the fee by 23%, which it has agreed to do. However, DB Energie did not keep its promise to abolish the discriminatory discount system as of 1 January 2013.84

Italy seems to have faced the same situation as Romania regarding the infrastructure manager (RFI) and the incumbent rail operator (Trenitalia) being under the same state ownership and regarding the assignment to the latter of a large number (61) of freight terminals due to a contract between RFI and Trenitalia in 2002.

In the Report on the Separation between the Railway Infrastructure Management Company and Train Operators (2003),85 the Italian Competition Authority highlighted the potential distortion of competition stemming from the fact that other facilities, such as freight terminals and maintenance infrastructures, are owned directly and/or managed by Trenitalia, Italy’s state-owned rail operator.

Recommendation

We recommend that CFR SA publishes guidelines explaining the methodology it uses to calculate its tariffs, notably with reference to the costs related to each of its essential services. Also, as long as terminal ownership by CFR Marfă continues and as long as CFR Marfă is a state-owned company, CFR Marfă should be under the same obligation as CFR SA to grant access to its terminals to competing railway operators. Notably, both CFR SA and CFR Marfă should grant fair, transparent and non-discriminatory conditions for accessing their terminals (“FRAND terms”).86 This would be in line with Article 10 of Directive No. 2012/34/EU which provides that railway undertakings must be granted the right to access the railway infrastructure in all Member States for the purpose of operating all types of rail freight services under equitable, non-discriminatory and transparent conditions.

Compliance with FRAND terms should be ensured by an independent regulatory body, such as the Rail Supervisory Council. As Directive No. 2012/34/EU requires (Article 56 para. (5), the national regulatory body shall have the necessary organisational capacity in terms of human and material resources, which shall be proportionate to the importance of the rail sector in the Member State. In addition, the Romanian Rail Supervisory Council capabilities need to be strengthened as to be in line with Directive No. 2012/34/EU requirements.

Description of obstacles

In order to verify transport safety, railway products are tested by authorised laboratories. These laboratories are authorised by AFER, the Romanian Railway Authority. The conditions for the authorisation are mentioned in the Annexes to Order No. 410/1999,105 issued by the MoT. However, the mentioned Annexes are not published and they can be obtained only by request from AFER.

Similarly, Article 4 para. (2) of the Regulation on Railway Infrastructure Capacity Allocation, approved by Government Decision No. 1696/2006, refers to the issuing of a MoT Order establishing the conditions for granting CFR SA special rights to allocate public railway infrastructure. As no such Order has been published, it is still unclear whether it was ever issued.

Harm to competition

The lack of transparency may lead to unclear conditions for operators and increase administrative costs.

Justification

We found no justification for the non-publication of the Annexes to Order No. 410/1999, or for not publishing the Order mentioning which special rights are granted to CFR SA.

Recommendation

We recommend that the regulatory framework be more transparent and approachable. The Annexes to Order No. 410/1999 should be published in order to make all the authorisation requirements known to interested operators. To this end, the Annexes should be published both in the Official Gazette and on AFER’s website.

The Order of the Ministry of Transport establishing the conditions for granting CFR SA special rights to allocate public railway infrastructure, if issued, should also be published in the Official Gazette.

Description of obstacle

In order to ensure the safety of rail transport, railway products are only tested by authorised independent laboratories. Although these laboratories are authorised by AFER for a 10-year period, the authorisation is subject to a mandatory renewal every two years at the end of which these independent testing laboratories need to show they still fulfill all the authorisation requirements, as requested by Article 4 para. (2) of Annex No. 1 of Order No. 410/1999.

Harm to competition

The rather short period of two years may act as an administrative burden which reduces the incentive for independent testing laboratories to invest resources into entering or staying in the business, since there is a risk that their authorisation will not be renewed at the end of the two-year period. Other EU Member States such as Italy have already adopted a five-year renewal term.

Justification

We found no justification for the two-year period.

Recommendation

We recommend extending the renewal period to five years which would be in line with Article 10 of Commission implementing Regulation (EU) No. 402/2013.

Description of the obstacle

Article 2 of the Order of the Ministry of Transport No. 547/2014 states that the Ministry of Transport, through the Romanian Naval Authority, authorises economic operators to perform pilotage services. Further, it sets out that the port administration and/or authorities managing maritime canals may perform pilotage services without an authorisation, unlike private operators, for which an authorisation by the Ministry of Transport is mandatory.

Harm to competition

The provision may offer state-owned port authorities an unfair competitive advantage as they do not need an authorisation. One can conclude that it is not necessary for port authorities to fulfill the conditions stipulated in Annex 1 of the abovementioned order regarding the authorisation requirements for pilotage operators and port authorities are not verified to that effect. Moreover, the possibility of coexistence of two forms of pilotage service provision to vessels by the port administration and by private parties may lead to a wide range of potential abuses of market power, such as refusal to supply and/or excessive pricing. Thus, port authorities (state operators) and private operators should not be subject to different legal and administrative regimes when performing the same services in competition.

Policy makers’ objective

The justification for these provisions may be that port authorities are required by law to ensure pilotage services, having the alternative to provide pilotage services either directly themselves or through third parties.

Recommendation

Pilotage services should be provided either directly by the port authority or through a third party provider, but not by both. When being outsourced, the services agreement to the private operator should be granted through a tendering procedure subject to fair and non-discriminatory terms.

Our recommendation refers to public tendering and its aim is the introduction of competition for the right to provide pilotage services and therefore to enter the market, so the competition is for the market itself.

Description of the obstacle

In order to be authorised by the Ministry of Transport through the ANR, pilotage service providers must have a minimum number of pilots employed per port. Article 1 of the Annex regarding criteria for pilotage operator authorisation set by the Order of the Ministry of Transport No. 547/2014 requires companies to have a minimum of 8 pilots in Consţanta, 4 pilots in Midia and 2 pilots in Mangalia. However, the port authority Compania Naţională Administraţia Porturilor Maritime S.A. has unilaterally established additional, more restrictive, terms and conditions for the provision of pilotage services. For example, for the ports of Consţanta, Mangalia and Midia, it requires that companies have at least 21 pilots servicing those three ports, without the companies being able to serve only one port. These additional criteria are established through the framework services agreement, approved by the board of directors of Compania Naţională Administraţia Porturilor Maritime S.A. Consequently, an operator who might obtain an authorisation for pilotage services under the conditions required by the abovementioned Order of the Ministry of Transport, will in practice not be able to conclude a service agreement with the port authority if it does not additionally fulfill its stricter criteria.

Harm to competition

The minimum number of 21 pilots set by the port authority, which is higher than the minimum number required by the Order of the Ministry of Transport, constitutes an entry barrier for smaller operators who do not have such a large number of pilots at their disposal.

The number of pilots has also been subject to an investigation by the RCC with regard to possible abuse of their dominant position by Compania Naţională Administraţia Porturilor Maritime S.A. At the time of writing (March 2016), the investigation is ongoing.

A comparison with other ports indicates that the tariffs for pilotage services charged in Romanian maritime ports are 2 or 3 times higher than those charged in other EU ports handling a comparable total volume of goods (gross weight), such as Barcelona, Valencia, Genoa and Koper.

Figure 3.25. Pilotage tariffs in different ports throughout Europe

Note: For Burgas and Varna, an average tariff has been determined based on the tariffs of the two port areas of Burgas/the five port areas of Varna. For Mersin an average between the tariffs for container vessels and the tariffs for other cargo vessels is also used. For Valencia and Barcelona, the tariffs used are the maximum rates set by the port authorities.

Source: Relevant port websites: http://bit.ly/1QJpHw6, http://bit.ly/1TLkDxw, http://bit.ly/1V9lEik, http://bit.ly/2522pvA, http://bit.ly/21tjHwV, http://bit.ly/1YVR8bM, http://bit.ly/21tkMoC, http://bit.ly/1TLmxOJ accessed on 7 January 2016,

 https://doi.org/10.1787/888933361670

Policy makers’ objective

The objective of a minimum number of pilots is that pilotage services should be provided non-stop, 24 hours a day, 7 days a week.

Recommendation and benefits

Further to the above, we recommend the following:

The current provision requiring a certain number of pilots should be abolished. The law should not impose a minimum number of pilots per port, but instead require a minimum service level, such as a maximum ship waiting time for pilots to be on board. Each pilotage company shall make its own assessment and shall make its own decision regarding the number of pilots necessary to reach the required service level.

Moreover, pilotage services shall not be granted directly by the port authority, but instead they should be tendered in an open procedure. The introduction of a more transparent procedure like this would ensure more reliable, better quality services for freight shippers and lower costs for the port authority, which is the contracting authority for pilotage services. For the port authority savings to be passed on to freight shippers, the port authority should implement a cost-based approach in the pricing process of the pilotage services provided by it. The required service level must also be transparent, non-discriminatory, objective and relevant to the category and nature of the port services concerned.

We estimate that the introduction of tendering procedures in granting the right of operating pilotage services by the port authority to economic operators would generate savings for the port authority, which is the contracting authority for pilotage services, and further savings for freight shippers, if the port authority were to pass on the savings to its customers, of approx. EUR 3.4 million (mln) a year, as shown in Annex 3.A4. Moreover, the establishment of an independent regulatory body to monitor the activity of the port authority when setting pilotage tariffs may contribute to a further reduction in these tariffs.

Description of the obstacle

According to Article 51 of Government Ordinance No. 22/1999, pilotage of seagoing ships in the ports of Sulina, Tulcea, Galaţi and Brăila is provided by the Autonomous Administration “Administraţia Fluvială a Dunării de Jos” Galaţi by its own pilots, by pilots authorised by the Autonomous Administration “Administraţia Fluvială a Dunării de Jos” Galaţi under a contract for services concluded or by a concession agreement.

The same provision provides that pilotage of ships on the Danube route between Brăila and Sulina are performed in accordance with Article 31 and Article 33 regarding pilotage services of the 1948 Belgrade Convention, ratified by Romania under Decree 298/1948. The abovementioned articles of the Belgrade Convention state that pilotage of vessels is provided by pilots who “depend on port administrations”, and that they are “recruited from among the citizens of the Danube country members of the Administrations concerned”.

Harm to competition

The possibility of the coexistence of two forms of pilotage services provision to vessels by the port administration and by private parties may lead to a wide range of potential abuses of market power, such as a refusal to supply and/or excessive pricing. “Administraţia Fluvială a Dunării de Jos” Galaţi may abuse its exclusive rights granted by the law in order to operate pilotage and harbour manoeuvres. It may also reduce the number of authorised operators and/or their incentive to compete against its own services.

The provisions of the Belgrade Convention should be applied by the signatory states in accordance with the realities of the present times, in the light of the Treaty on the Functioning of the European Union. However, the condition regarding the pilot’s nationality should not be applicable as it is a discriminatory condition in the recruitment process.

Policy makers’ objective

The justification for Article 51 of Government Ordinance No. 22/1999 may be that port authorities are required by law to ensure pilotage services, having the alternative to provide pilotage services either directly themselves or by third parties.

Also, the provision is in line with the Convention regarding the regime of navigation on the Danube, signed in Belgrade on 18 August 1948, ratified by Romania under Decree No. 298/1948.

Recommendation

We recommend that the provision is amended so that pilotage services are either offered by the port authority or outsourced to private companies. When outsourced, the right to provide pilotage services shall be granted through a tendering process under fair and non-discriminatory terms. The port authority should not act both as regulator and service provider in the same port.

Description of the obstacle

Currently, vessels flying the Romanian flag benefit from large discounts on pilotage tariffs compared to foreign-registered vessels. Regarding the pilotage service provided in the ports of Consţanta, Midia and Mangalia by the port authority, the price list available on the port authority website110 indicates that pilotage tariffs will be reduced by 50% for ships registered in Romanian maritime ports.

Harm to competition

Discounts granted to vessels flying the Romanian flag violate the principle of non-discrimination based on the grounds of nationality established by EU law.

Policy makers’ objective

There is no objective justification for the port authority to apply tariffs on a discriminatory basis.

Recommendation

The pilotage tariffs should be set by port authorities based on a transparent cost-based approach. Further, the autonomy of port authorities in setting these tariffs should be balanced by allowing an independent regulatory body the right to supervise them, see below.

To the same effect, to discourage excessive or discriminatory tariffs and to avoid the abuse of the market power of ports, in some countries regulators intervene and set prices. For example, in the Netherlands, pilots are organised in a corporation called Nederlandse Loodsencorporatie (NLc) and do not compete with each other. The Netherlands Authority for Consumers and Markets sets the annual pilotage tariffs based on a tariff proposal submitted by the NLc following an assessment in order to establish whether or not the tariffs are unreasonably high.111

Description of the obstacle

Article 2 of the Order of the Ministry of Transport No. 548/2014 states that the Ministry of Transport, through the ANR, authorises economic operators to perform towage services. Furthermore, the same provision stipulates that the port administration may operate towage services for maritime vessels without authorisation, unlike private operators for whom an authorisation by the Ministry of Transport is mandatory.

Harm to competition

This provision may offer state-owned port authorities an unfair competitive advantage as they do not need an authorisation. One can conclude that it is not necessary for port authorities to fulfill the conditions stipulated in Annex 1 of the abovementioned order regarding the authorisation requirements for towage operators, and port authorities are not verified to that effect. Moreover, the possibility of the coexistence of two forms of towage service provision to vessels by the port administration and by private parties may lead to a wide range of potential abuses of market power, such as refusal to supply and/or excessive pricing.

Policy makers’ objective

The justification for these provisions may be that port authorities are required by law to ensure towage services, with the possibility of providing towage services either directly themselves or by concluding services agreements with private operators.

Recommendation

Port authorities and private operators should not be subject to different legal and administrative regimes when performing the same competing service. We do not recommend that towage services should be provided in competition, but rather that towage services should be provided by the port authority, as is currently the case, for safety and security reasons. The provision should be amended so as to allow towage services to be either provided directly by the port authority or to be outsourced. When outsourced, the services agreement with private operators should be granted through a tendering process subject to fair and non-discriminatory terms.

Description of the obstacle

Article 1 and Article 2 of the Annex to the Order of the Ministry of Transport No. 548/2014 set out criteria to be fulfilled in order to be authorised as a towage operator by the Ministry of Transport, through the ANR. One of the criteria is that an operator needs to have a minimum number of tugboats for each category of vessels requesting authorisation. The vessel categories are defined depending on the length of the vessel and its maximum gross tonnage. An operator may require authorisation for one or more vessel categories. For example, the provisions require at least one tugboat with a hook traction strength of a minimum of 5 tonnes for towage of vessels up to 120 metres in length and weighing 1 000 tonnes; 4 tugboats for towage vessels over 250 metres, etc. Although the abovementioned order is in force, the port authority Compania Naţională Administraţia Porturilor Maritime S.A. unilaterally established additional terms and conditions for the provision of towage services in its ports. For the ports of Constanţa, Mangalia and Midia, the port authority requires companies to have at least 17 towage vessels servicing these three ports, without the companies being able to serve only one port. These additional criteria are established through the framework services agreement, approved by the board of directors of Compania Naţională Administraţia Porturilor Maritime S.A. Consequently, an operator who might obtain an authorisation for towage services under the conditions required by the abovementioned Order of the Ministry of Transport, will in practice not be able to conclude a service agreement with the port authority if it does not additionally fulfill its stricter criteria.

Harm to competition

The minimum number of tugboats set by the port authority, which is higher than the minimum number required by the Order of the Ministry of Transport, constitutes an entry barrier to smaller operators who do not have such a large number of tugboats at their disposal. Moreover, large investments are required in order to acquire tugboats.

The minimum number of tugboats has also been subject to an investigation by the Romanian Competition Council with regard to a possible abuse of dominant position by Compania Naţională Administraţia Porturilor Maritime S.A. At the time of writing (March 2016), the investigation is ongoing.

Figure 3.26 shows that the towage tariffs charged in the Port of Consţanta are similar to those charged in other ports throughout Europe. Actually, in some cases, tariffs charged in the Port of Consţanta are below the average tariffs charged by other ports.

Figure 3.26. Towage tariffs in different ports throughout Europe

Note: For Burgas and Varna, an average tariff has been determined based on the tariffs of the three port areas of each port. For Valencia and Barcelona, the tariffs used are the maximum rates set by the port authorities.

Source: http://bit.ly/1U4laew, http://bit.ly/1QUCX3H, http://bit.ly/1S1UYNQ, http://bit.ly/1QV3QG7, http://bit.ly/1MkqOkv, http://bit.ly/1Pa4Gcs, http://bit.ly/1QUETcD, http://bit.ly/1WnzIDl (accessed on 7 January 2016).

 https://doi.org/10.1787/888933361689

Policy makers’ objective

The objective of a minimum number of tugboats is that towage services should be provided non-stop, 24 hours a day, 7 days a week. Also, this specific number of tugboats is requested in order to ensure safe navigation.

Recommendation and benefits

The current provision regarding the minimum number of tugboats should be abolished. Instead, a minimum service level should be required by law, such as the maximum ship waiting time for a tugboat. Consequently, each towing operator shall make its own assessment and shall make its own decision regarding the number of tugboats necessary to reach the required service level.

Towage services shall not be granted directly by the port authority, but instead they should be open to public tender. Introducing a public tendering procedure for towage services is estimated, as shown in Annex No. 3.A5, to generate savings of approx. EUR 3.1 mln a year for the port authority, which is the contracting authority for towage services. This would also be further savings for freight shippers, if the port authority were to pass on the savings to its customers. For the benefits to be passed on to freight shippers, the port authority should implement a cost-based approach in the pricing process of the towage services it provides and the tariffs should also be validated by an independent regulatory body.

Description of the obstacle

Article 3 para.1 of the Order of the Ministry of Transport and Infrastructure No. 250/2011 on the compliance by Romania with its flag state obligations stipulates that before allowing a ship which has been granted the right to fly the Romanian flag to operate, the ANR shall take the measures it considers appropriate to ensure that the ship in question complies with the applicable international rules and regulations, especially by verifying the safety records of the ship by all reasonable means and, if necessary, by consulting with the “losing” flag state (the state under which the ship is no longer registered) in order to establish whether any outstanding deficiencies or safety issues identified by the latter remain unresolved. Nevertheless, the provision does not state expressly the measures to be taken and the means of control in order to ensure the ship’s compliance with international ship safety rules, as well as the instances in which the ANR shall consult with the losing flag state.

Harm to competition

The ANR enjoys significant discretion when carrying out this task. This may lead to abuse of power by placing some market operators at a competitive disadvantage in comparison with others. For example, the authority may apply different measures to ship owners in equivalent situations, thereby leading to significant differences of administrative and operative costs for shipowners.

Policy makers’ objective

The objective of the provision is to harmonise the national legislation with European legislation. This provision aims to transpose Article 4 of European Directive No. 2009/21/EC on compliance with flag state requirements. However, discretion granted to Member States by European legislation needs to be specified by national law, which has not been done in Romania.

Recommendation

We recommend to amend the provision in order to indicate the activities that the ANR is entitled to carry out in order to verify compliance with safety rules by vessels.

Description of the obstacle

Article 6 para. 1 of the Order of the Ministry of Transport and Infrastructure No. 249/2011 on the inspection, technical supervision and certification of maritime vessels flying the Romanian flag and carrying out international voyages, establishes that the ANR may suspend or terminate the agreement concluded with a recognised authorised organisation in charge of inspecting vessels if it considers that the recognised organisation can no longer be authorised to carry out the tasks even though this organisation meets the minimum criteria established for such activity under Annex 1 of European Regulation No. 391/2009.

Organisations recognised under European Regulation No. 391/2009 are authorised to perform inspection, technical supervision and certification for vessels flying the Romanian flag through agreements concluded by the ANR.

Harm to competition

The Romanian legal provision establishes the sanction of suspending or terminating the agreement of an organisation authorised to provide inspection services of Romanian-flagged vessels, without specifying the conditions under which this can be done. This may lead to a lack of transparency, predictability and possible abuses by the ANR.

Policy makers’ objective

The objective is to harmonise the national legislation with European legislation. The provision aims to transpose Article 8 of Directive No. 2009/15/EC, which gives the Member States the possibility to suspend or withdraw authorisation, where a Member State considers that a recognised organisation can no longer be authorised to carry out the tasks on its behalf.

Recommendation

The provision should be amended in order to specify the instances in which the ANR is entitled to suspend or terminate the mandate of an organisation authorised to provide inspection services of Romanian-flagged vessels.

Description of the obstacle

According to Article 49 of Methodological Norms of 11 September 2007 for the enforcement of the provisions of Appendix VI to the International Convention for the Prevention of Pollution from Ships (MARPOL) 1973, enforced by Government Decision No. 1105/2007, the ANR has the power to suspend the licence of a supplier of liquid fuels for seagoing ships if it is proven that they have supplied improper liquid fuel which does not fulfill the qualitative requirements regarding air pollution as well as to withdraw the authorisation in case of more than one infringement. Article 50 further provides that if an authority included in the MARPOL list115 establishes that an inadequate fuel has been supplied from Romania, the ANR may, before suspending or withdrawing its authorisation, warn the supplier to adopt remedies in order to bring the fuel within the designated parameters. The ANR may require the supplier to prove that the remedial measure has been taken and may also suspend or withdraw the authorisation of the liquid fuel supplier if it does not apply remedial measures, continues to supply inadequate liquid fuel or cannot prove that it has applied remedial measures.

Harm to competition

This provision may lead to more advantageous treatment for some bunkering companies. It grants the ANR significant discretion as to whether a company may only be warned or whether its licence should be suspended or withdrawn for supplying inadequate fuel.

Policy makers’ objective

The actions of the ANR (warning, suspending or withdrawing the licence) are issued depending on the gravity and the repeatability of the situations in which an improper liquid fuel has been provided. The authority, however, aims to remedy the quality of the improper liquid fuel provided by the bunkering companies and to suspend or withdraw the licence only in cases where remedial measures are not carried out.

Recommendation

We recommend that the relevant provision (Article 50 para. 2) be amended in order to clearly establish the instances in which a warning is the proportional and adequate measure to be taken, as well as the instances that require the suspension or withdrawal of the company’s authorisation.

Description of the obstacle

Crewing agencies carry out the recruitment and placement of crew on vessels. Economic operators wishing to act as crewing agencies must receive an authorisation from the ANR. According to Article 2, para. 3 subparagraph f) from the Annex of Government Decision No. 83/2003, as a condition for authorisation, they must prove that they have already concluded a services agreement or a pre-contractual agreement with a shipowner.

Harm to competition

The requirement to have concluded an agreement or a pre‐contractual agreement with a shipowner may discourage entry into the market by those new economic operators who have the required professional competence to act as crewing agencies but who do not have an agreement or a pre-contractual agreement with a ship-owner. This is a kind of chicken and egg dilemma because it is also difficult to get a contract with a shipowner without being a recognised agency.

Policy makers’ objective

There is no objective justification for a crewing agency to have an agreement concluded with a shipowner prior to authorisation. According to the Ministry of Transport, the condition aims to be a protection measure for the crew from bankruptcy or liability. However, this justification is rather related to another condition for crewing agencies’ authorisation stipulated by the same provision: the establishment of a permanent financial guarantee in the amount of a minimum of USD 100 000.

Recommendation

The contract requirement should be abolished. There is no match between the requirement and the policy objective since shipowners can always cause liability to crew even if the latter has been employed through an authorised crewing agent.

Description of the obstacle

Article 7 of the Order of the Ministry of Transport No. 1447/2008 establishing technical requirements for inland waterway vessels gives the ANR the power to grant derogations from the application of all or part of the provisions of the abovementioned order concerning technical requirements for certain categories of inland waterway vessels, depending on vessel capacity. Technical requirements refer to shipbuilding, safety clearance, freeboard and draught marks, manoeuvrability, steering system, engine design and electrical equipment, etc.

Harm to competition

The derogation may grant preferential treatment to some operators in comparison with others.

Policy makers’ objective

The objective is to harmonise national legislation with European legislation. This provision is in line with Article 7 of Directive No. 2006/87/EC. The directive enables the Member State to grant derogations to certain categories of vessel, but the Romanian law transposing the directive does not specify any criteria to be met in order to obtain derogation.

Recommendation

The provision regarding the derogations should be amended in order to expressly state the conditions required to be fulfilled by a market operator in order to be granted derogation from the provisions of this order.

Description of the obstacle

In order to co-ordinate the traffic of maritime and inland waterway vessels, to establish the entry/exit order and the transit of vessels, as well as the allocation of berths in the ports of Galaţi, Brăila and Tulcea, co-ordination commissions for the movement of vessels have been established.

The Order of the Ministry of Transport No. 251/2011 sets out the founding of the co‐ordination commissions for each port and their structure. The measures established by the commissions are mandatory for all economic operators performing services in the ports of Galaţi, Brăila and Tulcea, such as transport operators, loading/unloading operators, pilotage and towage operators, etc.

Article 5 of the Order of the Ministry of Transport and Infrastructure No. 251/ 2011 on establishing the commissions for the co-ordination of maritime and inland waterway vessel movement in the ports of Galaţi, Brăila and Tulcea stipulates that economic operators who provide loading and unloading services in the ports of Brăila, Galaţi and Tulcea must establish their plan for loading and unloading rail wagons on a daily basis with CFR Marfă, the state-owned rail freight operator.

There are currently other rail freight operators operating in the ports of Galaţi, Brăila and Tulcea in addition to CFR Marfă. Unlike CFR Marfă, they are not involved in scheduling the activities of loading and unloading of wagons but have to comply with the timetable established by their competitor, CFR Marfă.

Harm to competition

Other railway operators may be disadvantaged by the fact that the timetable for loading and unloading rail wagons in the ports mentioned is established by CFR Marfă, their competitor.

Policy makers’ objective

This exclusive right to establish the timetable for loading and unloading rail wagons should ensure a more efficient use of port logistics and also guarantee railway transport services safety within the port. Most likely, this provision has been maintained over time since the successor of CFR Marfă, the National Company of Romanian Railways, has historically been the only railway freight operator in the market.

Recommendation

We recommend that the provision should be abolished. The timetable for loading and unloading rail wagons should be established by committees co-ordinating the movement of maritime and inland waterway vessels in the ports of Galaţi, Brăila and Tulcea, so that all rail freight operators transporting goods in these ports benefit from equivalent and non-discriminatory conditions.