Cranes
Making cranes available
The starting point is that a municipal self-governing port is entitled to make cranes available to the port user.
The rental of the cranes can therefore be done as part of the port's operations and is not included in the activities to be advertised.
Buy/sell cranes
If a self-governing port wants to purchase additional cranes, it is subject to tender, while the sale of cranes is not subject to tender.
However, when selling cranes, the port must act in a financially sound manner, so it should try to determine the market value. This can be done through a professional assessment, reference prices, by offering the cranes for sale publicly or through a broker.
It is therefore possible for the port to sell its cranes to, for example, the local shipping company if it is on market terms.
The port cannot guarantee the buyer of the cranes any "monopoly" on being the only one to operate a crane at the port.
Collaboration for crane operation
When a self-governing port can "more" operate the cranes itself, it can also "less" cooperate with a company to do so.
The question is how the port should find a partner and on what terms the collaboration should take place. It is possible for the port to enter into a joint venture, a joint company or a concession to operate the port's cranes.
Regardless of which form of collaboration is chosen, the collaboration is generally not subject to procurement law.
However, the award of major concession contracts is regulated separately in the Concessions Directive.
According to both state aid rules and administrative law, the port must enter into the cooperation both financially sound and administratively objective.
For example, the port cannot enter into a partnership with "the first, the best", but must qualify the selection of a partner beforehand.
The most effective way to identify the market conditions is to initiate a short, structured process with several potential partners. The port should send a handful of potential partners a short description (prospectus) of the opportunity and ask them to express their interest.
Crane cooperation must also be entered into on market terms (price; distribution of contributions, risk and profit, management rights, etc.)
The decisive factor here is that the collaboration does not 1) transfer funds from the port to a private partner or 2) transfer risk from the private partner to the port.
In practice, it is assumed that the public authority in this respect acts economically soundly by consulting brokers, accountants, lawyers, etc.
The port cannot assume obligations in an ownership agreement that are unusual for a private investor or that relate to the port's responsibilities as a port authority.
In addition, the port should secure the usual investor rights - e.g. veto rights, the right to appoint management members, the right to exit the collaboration, etc.
Requires permission for cranes over 100 m
There are generally no special rules that require a port to have a separate permit for one of the port's customers to work with cranes over 100 meters.
The assumption is that it is the operator's responsibility to secure necessary permits and that this will be sufficient.
