Miller Magazine Issue: 126 June 2020

76 77 ARTICLE ARTICLE MILLER / JUNE 2020 MILLER / JUNE 2020 sed by the profile Committee to the plenary for the se- cond, hopefully final reading. What we can see in its final i.e. Committee’s wording may be divided to ‘The Good, the Bad, and the Money’. So, let’s start with the money, which is last but not least, and only logical. For the normal IWT functioning the inevitable and obligatory costs of consist of the fol- lowing: * Fairway dredging and navigational aids mainte- nance: this item is to be organised and controlled by the corresponding executive authority – now it’s State Servi- ce of Maritime and Inland Water Transport (Marine Ad- ministration or MarAd) – and financed by the new Fund of WWT Development, the ways of filling it in being omitted, the procedures to be adopted by Government, although the bill envisages granting concessions to both processes; * Locks passing: this item is charged on hydroelectric power plants which in fact operate them, and the cost should resolve in the common electric power tariff which would be next to nihil for a single customer; * Bridges raising: this item is also charged on the operating entities i.e. regional and local motorways aut- horities, and potentially private road owners and con- cessionaires – subject to a strict and commonly agreed schedule; * RIS (river information system): the system had already been established back in 2011 in the very slow course of European integration within the public mono- poly marine pilotage service – the state enterprise (SE) Delta-Lotsman (Delta-Pilot), which was later in 2014 in- tegrated as a branch in SE Ukrainian Sea Ports Authority (USPA), where it still exists, fully equipped and normally funded on account of the Delta-Pilot earnings (pilotage on all approach canals excluding port harbourages plus the dues for all the ex-port sea canals – Dnipro-Kherson, Dnipro-Bug-Mykolaiv, and the Danube navigable outlet) – it is to transfer from the SE Delta-Lotsman to MarAd, which is only logical, but to change its stable funding which even used to envisage the executives participation in the UNECE Inland Transport Sub-Committee sessions, to unknown sources as mentioned above; * Licensing: Article 54 clearly stipulates that the IWT cargo and passenger carriage activities are subject to li- censing, in accordance with the corresponding Law, the procedures to be provided and approved by Government; * Public monopoly: the pilotage services on IWW shall be provided only by a specialised public entity – which is rather illogical in the view of European integration and free market approach, particularly if remember that the service is based on a single physical entity’s personal ex- pertise and requiring no support from the public infrast- ructure, nor being a socially significant activity. Also, the river-going ships of the 4.5 m and less dra- ught are to be exempted from certain dues in the sea ports: when exercising a cabotage voyage – from admi- nistrative, canal, tonnage and sanitary dues; when exer- cising an international voyage – from the canal one only. Let’s count the pros or the good things here to stay Firstly, the Law would fasten a lot of belts loosened in the past and incorporate the EC directives – there are references to those in the draft itself and in the cover pa- pers. Acquis Communautaire seem to be highly respected in the draft, as well as the EU-issued licenses and IDs for vessels and crews. Secondly, a certain consensus is provided between the most distant points of the former versions, I think, the only possible one: there are no river dues nor special river authorities nor payments whatsoever for the ships except normal cargo/terminal ones – against the open access for any foreign flag vessels except the aggressor state as de- fined by Law (now it’s the Russian Federation). By the way, the same concerns the business – no companies re- gistered in or having any beneficiaries from the aggressor state are entitled to operate in Ukrainian IWT. Then, river terminals of Ukraine should comply with some maritime rules, in particular as concerns the ISPS Code, part of the SOLAS Convention, and some more international maritime regulations with regard to the en- vironment protection are applied too – those concerning the reception facilities at terminals. Any operational dredging, i.e. the fairway maintenance works in accordance with its certificate, are to be exemp- ted of all the existing ecology red tape as agreeing, per- mits etc. Any go-as-you-please lightings as well as floating stru- ctures near the banks should be expressly regarded out of law with the corresponding administrative penalty. All the tariffs imposed in the IWT activities except the terminal charges and freight rates are subject to the special National Commission on Transport Ta- riffs which should have been established due to the Law on Natural Monopoly of 2000, then recalled in Law on Ports in 2013. The main activities, funds for which are not yet identified, namely dred- ging and navaids, might be concessi- oned thanks to the new Law adopted last Autumn. Let’s count the contras or the bad things gone away What can’t but worry is the situation with funding the Fund, charging the charges, and paying the payments. On one hand, the fact that it is not clearly prescribed by the Law, would gain more flexibility to Government who in fact is going to take care of the matter. Like the Cabinet of Ministers of Ukraine Act No.211 about the Coronavirus quarantine which is changed weekly as per the pandemic development, the envisaged governmental procedures may also change according to the economic situation locally and worldwide, which is probably the best decision for the crisis times. But not for the stable and sustainable development. Ukrainian practice shows well that governments may change due to parliamentary metamorphoses, and some market players may become more preferable than others, which is far from what most of the business and EU ex- pect of our economy in particular and state in general. The drafters tried hard to bridge the gap between the required fairways maintenance cost which is assessed as above 200M UAH or 7.8M USD, and the business’s cra- ving for free in all senses passage from Kherson to Kyiv. The cover paper to the bill explains well that their hopes are pinned on certain but undisclosed percentage from the total excise duty levied in Ukraine from fuels. It is qu- ite unclear why this clause is not stipulated by the draft Law while it was present in some previous wordings. Yet there is the worst condition the business raves against. The clause stating that in case of the Fund’s insuffi- ciency the shortfalls may be covered on account of the port dues (meaning only the sea port dues) is truly hard to capture. It is hided in the very ending of the ending clauses and transitional provisions amongst the usual and formal and casual legal formulae which sound for most readers as some common bla-bla-bla. Yet the business has reacted ferociously. The loudest came European Busi- ness Association of Ukraine (EBA) – a forum uniting over 900 members, then Maritime Chamber of Ukraine – an alliance of marine sector professional associations – also took floor to criticise this very clause enabling in fact Uk- rainian MarAd to manage funds manually, which is high- ly non-productive, unfavourable for Ukrainian sea ports, and stinking corruption opportunities very strong. Nevertheless, with all the plus and minu- ses as set above, this Law must be passed as soon as possible, because it is a must, too little is missed, and most of the market players are going to win. Scar- cely has there ever been a law in the economic field that pleased each and every stakeholder well. And as well as the melting snow indicates where dogs walked, the newly passed Law on WWT with retreating Covid-19 is going to show what was right and what was wrong with it, but we are sure that the business will triumph on the whole, and we would be able to watch the Dnipro father as busy as the old man Thames, Danube, Rhine and so on and so forth. Only the leap into the river tells us what is called swimming. Martin Heidegger