Dr DRAGAN BOLANČA, Full Professor Faculty of Law, University of Split THE LEGAL STATUS OF THE SEAPORTS OPEN TO PUBLIC TRAFFIC IN THE REPUBLIC OF CROATIA (Portorož, 26-28 May 2016)  

1. INTRODUCTION CONSTITUTION of 1990 MARITIME CODE of 1994 SEA PORTS ACT of 1995 (hereafter – SPA) MARITIME DOMAIN AND SEA PORTS ACT of 2003 (hereafter – CMDSPA)

2. THE PORTS IN CMDSPA Port means a seaport ie. water space and the land space with developed and undeveloped coast directly connected with the space, as well as breakwaters, installations, plants and other facilities designed for landing, anchoring and protecting of ships, yachts and carrier boats, embarkation and disembarkation of passengers, loading and unloading of goods, storage and other handling of goods, manufacturing, refinement and finishing of goods, as well as other economic activities in economic, traffic and technological relation with these activities - art. 2 (1) CMDSPA divides ports as ports open to public traffic and special purpose ports - art. 40

In the port open to public traffic any physical and legal person on terms of equality can use the port according to its purpose and within the capacity of the available facilities - art. 2 (2) The port for a special purpose is a port for the needs of a physical or legal person (nautical tourism port, industrial port, shipyard, fishery port etc.) or government body (military port) - art. 2 (3) The mentioned ports can be ports open for international traffic and ports open for domestic traffic - art. 40 (2)

By their size and importance for the Republic of Croatia, public ports are divided into: 1. ports of special (international) economic interest for the Republic of Croatia, 2. ports of county importance, 3. ports of local importance - art. 42 (1) By their importance for the Republic of Croatia, the special purpose ports are divided into: 1. ports of importance for the Republic of Croatia, 2. ports of county importance – art. 42 (3)

3. THE PORTS AS MARITIME DOMAIN maritime domain is a public domaine of interest for the Republic of Croatia, which is under its special protection, and is used and/or exploited under the conditions and in the manner prescribed by CMDSPA - art. 3 (1) maritime domain consists of coastal sea waters and territorial sea, their seabed and underground, as well as a section of land that is by its nature intended for general use or has been declared as such, as well as everything that is permanently connected with such section of land, on or under the surface - art. 3 (2)

As a part of land shall be considered coast, ports, embankments, sandbanks, rocks, reefs, beaches, mouths of rivers flowing into sea, canals connected with sea and live inanimate natural resources on seabed and in underground - art. 3 (3) res extra comercium (right of ownership or any other property right can not be acquired on maritime domain on any basis) – art. 5 (2) superficies solo cedit (buildings ond other structures on maritime domain shall be considered as belonging to the maritime domain) – art. 5 (1)

4. PORT ASSETS Port assets consist of movable and immovable assets There are basically two categories of immovable assets in the port (art. 2 (7) and (8): port infrastructure includes docks and other land areas of a port, breakwaters and other infrastructure facilities (ex. port roads and railroads, water-supply network, sewer network, power-supply network, telephone network, port-traffic safety facilities etc.)

port superstructure includes structures built in dock area (administrative buildings, warehouses, silos, reservoirs etc.) all immovables located within the port area are maritime domain and may not be subject to ownership or any other property right nota bene other major cargo-handling facilities as permanently installed cranes etc. are not port superstructure (prekrcajna oprema – port facilities) – art. 2 (9)

5. REGIME OF CONCESSION The use of a maritime domain can be general or special use - art. 6 (2) General use of a maritime domain shall mean that everybody has the right to use the maritime domain in accordance with its nature and purpose - art. 6 (3) Special use of a maritime domain shall mean every use which is not general use or economic exploitation of the maritime domain – art. 6 (4)

Economic exploitation of a maritime domain shall be the exploitation of the maritime domain for performing of economic activities, with or without using of the existing buildings and other structures on the maritime domain and with or without construction of new buildings and other structures on the maritime domain - art. 6 (5) Concession is a right under which a part of maritime domain is partially or fully excluded from general use and is given for special use or economic exploitation to physical and legal persons, in compliance with spatial plans - art. 2 (5) Concession can be granted after the limit of maritime domain has been determined and entered into land register – art. 7 (4)

The types of port activities that may be performed in public ports are: 1. mooring of ships, yachts and fishing, sporting and other boats and floating vessels; 2. loading, unloading, trans-shipment, transport and storage of goods and other materials; 3. embarkation and disembarkation of passengers and vehicles; 4. other economic activities in direct economic, traffic or technological relation with these activities - art. 65 (1)

The right to perform port activities, use the existing infrastructure and superstructure and build new infrastructure and superstructure shall be acquired on the basis of a concession (art. 66 (1)) which consists of the act of concession and concession’s agreement - art. 23 and art. 25 The concession can be granted to a legal or physical person who is registered for business operation and who meets the condition regulated by CMDSPA – art. 66 (2) Port Authority grants a concessionaire a concession for one port activity and single concessionaire cannot be granted a concession for performing of all port activities - art. 66 (4) concessions are granted by the Port Authority: 1. for a period of up to 10 years - art. 67 (2), 2. for period of up to 99 years - art. 67 (1) and (3), 3. for period between 30 and 50 years

Types of concession are (art. 66 (5) 1. concession for port activities that does not require exclusive use of the existing infrastructure and superstructure or building new infrastructure and superstructure in dock area, 2. concession for performing of other economic activities specified in art. 65, paragraph 1, clause 4 of CMASPA, that do not require use of the existing infrastructure and superstructure or building of new infrastructure and superstructure in dock area, 3. concession for performing of port activities that requires use of the existing infrastructure and superstructure and/or building of new infrastructure and superstructure in dock area, 4. concession for performing of other economic activities that require the use of the existing infrastructure and superstructure and/or building of new infrastructure and superstructure in dock area

Concessions are granted on the basis of a public tender or request of the concession applicant – art. 67 (2) and (3) The choice of concessionaire should be based on the applicant’s competitiveness in terms of: investment and business plans, quality of service, organization and equipment, know-how, financing, concession charge offered, impact on the port’s overall turnover, environment protection etc. The concession period should be determined having in mind the time necessary for the amortization of the investments planned by the concessionaire - art. 67 (5) The concession charges, in turn, should be determined taking into account, inter alia, the extent of the planned investment. In summary, the duration of the concession and the amount of the concession charge should be so balanced as to protect investment and guarantee the return of capital

Port authority can revoke concession – art. 99 (1) Port authority shall keep register of concessions in writing and electronic form – art- 72 (1)