LIFELINE FERRIES CAN BE PUBLIC

RMT helpline 0800 376 3706 :: february 2017 :: RMTnews 14 RMT has welcomed a review of ferries procurement policy by the Scottish government after the European Commission announced that lifeline ferry services can be exempted from re-tendering regulations under ‘Teckal’ case law The Teckal exemption removes the EU legal obligation on a public authority to tender public contracts when it can be proved that the public authority can provide services itself subject to various ‘control tests’. As a result the re-tendering of the Gourock-Dunoon contract which was due to be awarded in the spring has been postponed, with incumbent public sector operator Argyll Ferries in the running to retain the contract. Serco NorthLink’s current contract on the Northern Isles expires in April 2018. The Minister has said that the review would look at any extension required to the existing NIFS contract and that “discussions have already begun with Serco for a possible extension of the contract”. RMT is seeking confirmation of the exact duration of any contract extension and the existing contractual terms and conditions for NorthLink staff. CalMac’s contract with the Scottish government for the Clyde and Hebrides Ferry Service started in October 2016 and runs for a maximum of eight years until 2024. Any changes to procurement policy will not affect existing contractual terms and conditions on CalMac but the review will cover governance structures at CalMac and parent public sector company David MacBrayne Ltd, as well as Caledonian Maritime Assets Ltd. The Minister has committed to providing the union with further reassurances over any possible implications for CalMac staff. He also announced that the European Commission has accepted the union’s legal advice that public contracts for Scottish ferry services do not have to be subject to regular re- tendering requirements in EU Maritime Cabotage Regulation 3577/92. The union’s current legal advice also says that applying a Teckal exemption would not contravene EU rules on state aid. RMT general secretary Mick Cash said that the minister’s review had the potential to achieve meaningful change to the long term benefit of Scotland’s ferry passengers and staff. “The news that the European Commission has accepted that Scotland’s publicly contracted ferry services can be exempted from destabilising competition law bodes extremely well for the future stability of these lifeline public services. “We look forward to working with the Scottish government and others on how such an exemption will work in practice,” he said. RMT national secretary Steve Todd added that any and all pauses to existing re-tender processes should not affect continuity of employment rights and contractual terms and conditions of ferry workers. “It is extremely encouraging to learn of the European Commission’s positive response to a Teckal exemption. “This is firm ground on which to proceed in order to secure the future sustainability of Scotland’s ferries and the jobs and livelihoods which depend on them,” he said. RMT and the Scottish government made a joint approach to the EC in April last year, following legal advice to RMT that a Teckal exemption for lifeline Scottish ferry services could be granted. This is a vindication of RMT’s view that publicly contracted ferry services should be exempt from re-tendering requirements that pit passenger and worker interests against those of private companies seeking to profit from lifeline public services. RMT sought legal advice back in 2015 on the possibility of using precedents under ‘Teckal’ case law to exempt public contracts for Scottish ferry services from EU law which requires regular competitive tendering of public service contracts in the maritime sector. EU procurement law specialist Gordon Nardell QC published his legal advice in November 2015 which states: “In my view...the Teckal exemption is capable of applying to the operation of services governed by the 1992 Regulation....the relationship of the operating company (Calmac Ferries Limited) with the Scottish Ministers, and the nature of its activities, satisfy the control test...the functional test also appears to be satisfied”. During a debate in the Scottish Parliament in November 2015, former Transport Minister Derek Mackay MSP agreed to look at the case made in the union’s legal advice for a Teckal exemption. This resulted in a joint letter in April 2016 to the European Commission from the Scottish government and the union, making the case for a Teckal exemption for Scottish ferry services. The Scottish government review will look at the case for the Teckal exemption. RMT will be involved and continue to press for an exemption for lifeline Scottish ferry services from EU competition and state aid regulations. LIFELINE FERRIES CAN BE PUBLIC Ferry services can be exempted from European Union demands for privatisation under EU case law