Port operations

Approval

What government approvals are required in your jurisdiction for a port operator to commence operations following construction? How long does it typically take to obtain approvals?

The port operator will require various approvals, some concerning his or her reliability, such as a general business licence, and others concerning the port facilities and their operation. Obtaining these approvals should not take more than a few months.

Typical services

What services does a port operator and what services does the port authority typically provide in your jurisdiction? Do the port authorities typically charge the port operator for any services?

Most port services are privatised and will be provided by the port operator or other privately organised service providers. The port authority will usually only provide services that are related to public law obligations and security issues.

Access to hinterland

Does the government or relevant port authority typically give any commitments in relation to access to the hinterland? To what extent does it require the operator to finance development of access routes or interconnections?

The hinterland access of a port as a vital part of the port’s infrastructure will usually be considered in the general planning of the port under public law. Also, the agreements on the planning and construction of a new port usually provide for sufficient hinterland access by road, railway or inland navigation. If and to what extent a port operator participates in the financing of such hinterland access depends on the relevant agreements, and is therefore subject to the negotiations of the parties involved.

Suspension

How do port authorities in your jurisdiction oversee terminal operations and in what circumstances may a port authority require the operator to suspend them?

Port authorities will oversee compliance with the relevant approval conditions and take care of general security issues. Suspension of port operations will only be a remedy of last resort. Before a suspension is issued, other less restrictive measures such as fines will be deployed.

Port access and control

In what circumstances may the port authorities in your jurisdiction access the port area or take over port operations?

Port authorities may enter the port area to the extent required to fulfil their public duties, or if provided for in any relevant agreement with the port operator. There are no practically conceivable circumstances in which the port authorities would take over the port operations themselves.

Failure to operate and maintain

What remedies are available to the port authority or government against a port operator that fails to operate and maintain the port as agreed?

If the port operator does not operate and maintain the port as agreed, the port authorities’ remedies will depend on the content of the relevant agreements and of the approvals whose terms have been violated. Contractual remedies include specific performance, damages, contractual penalties and rescission, while remedies in connection with the violation of public law approvals include penalty payments and fines, as well as substitute performance or even the revocation of an approval. The most common remedies are contractual penalties and fines.

Transferrable assets

What assets must port operators transfer to the relevant port authority on termination of a concession? Must port authorities pay any compensation for transferred assets?

Whether the port operator must transfer any suprastructures or is entitled or obliged to remove such assets depends on the contractual basis for the concession.

Under German statutory civil law, any assets that the operator adds to the port as replacement of equipment provided by the port authority as lessor need to be handed to the port authority without compensation, unless the port authority rejects the assets. Movable assets added by the port operator may principally be removed by him or her, or remain in the port area in return for a compensation by the port authority.

If the concession is based on a hereditary building right, immovable assets, such as buildings, that were constructed by the port operator remain in the port area, with the port authority as owner. In turn, the port authority as owner of the land and grantor of the hereditary building right is principally obliged to compensate the port operator for the loss of rights.