Does the form of ownership affect what can be required of the port in relation to divestment of port land, e.g. for housing development? And if so, which one?
Common to self-governing ports and public limited company ports is that the municipality (and management) has an obligation to safeguard and act in accordance with the port's interests and the purpose clause in the Ports Act.
For self-governing ports, the division of powers between the owner municipality and the port management follows from section 9. For self-governing ports, section 9 implies that there is a functional division of powers, according to which the port board can act independently within the framework set by the municipal council, so that the municipal council does not have the authority to decide independently on the sale of areas unless there is a recommendation from the port board.
The owner municipality can thus stipulate that any decision to sell off land requires the approval of the municipal council, but that the municipal council cannot make such a decision itself.
For public limited company ports, the considerations are similar, although the regulatory provision (section 10 of the Ports Act) refers to the rules of the Companies Act. It follows from the liability rules in the Companies Act that the owner and the board of directors must act in the interests of the company (= the port) and not cause it harm (§361 and 362). Even though the municipality as a shareholder (quite extraordinarily) will be able to propose the divestment at an extraordinary general meeting, the municipality will still have to safeguard the port's interests, and thus the municipality must exercise a great deal of due diligence if the management points out such circumstances in a divestment that may conflict with the port's interests (strategic and/or financial).
At the same time, the municipality must ensure that there is no confusion between the municipality's role as planning authority (according to which an actual winding down of the port's activities must take place through local planning) and the municipality's obligations as owner of the capital shares in the port.
