A similar approach is discussed regarding a congestion fee in the way it is
collected and payable through the agent and the driver. The problem here as
described earlier is that it does not work as a fee in terms of basic Swedish
constitutional principles.
50 In the report to VINNOVA the authors Sallander and
Rendahl criticize the discussion on fees based on the following:
The first action carried out by the authors’ is to classify the proposed fee.
51
Furthermore, it is not enough to look at the national source but also at the EU
legal source that has an effect on the classification. It is also clearly pointed out that
in which way a charge is named, has no effect on its classification. This brings us
back to the fact that a fee could be considered a tax and therefore must be decided by
the Parliament. If the same fee or charge could be decided as an excise duty in the
form of a toll, it limits the right to introduce it to the EU legislator.
52
By just looking at the Swedish perspective on the matter of fees and taxes, there
has been enough discussion already that tax is decided by the Parliament. But when
it comes to a fee it could be decided by the municipality. If a fee could be considered
as such, the following has to be fulfilled: it must be paid on a voluntary basis, it must
be reciprocal to a direct and specific counter-performance and finally the fee must be
equivalent to service provided by the municipality.
53 If any of those prerequisites are
absent, then it is a tax. There is a clear element of mandate in the suggestions put
forward.
Another problem of introducing fees at the gates of the port of trucks entering the
area is the division between port ownership and port operator. In two of the four
ports examined, namely, Gothenburg and Stockholm, the container terminals are
operated by individual operators. In this respect both ports administer the respective
container terminals in the same way. The fees collected by the port are vessel
operational fees only. When it comes to terminal activities and fees related to that,
the Port Administration leaves that to terminal operators. Although, in the tenancy
agreement between terminal operators and Port Administration there is a fee added
to the tenancy calculated on the number of cargo entities lifted over the rail. A cost
that is, of course, transferred to the shipper or cargo owner from the terminal
operator. In the latter relation, this is not a fee decided by a public authority. But
infrastructure fee is collected by the Swedish Transport Board. The tax or fee is sent as a payment
slip by mail.
50 The legal discussion in the project on this item is carried out by Assistant Professor Ann-Sohpie
Sallander and Asssociate Professor Pernilla Rendahl, under section 3.4.2.3 Step 3: Identification of
the most relevant legal difficulties. In Environmental differentiated port dues—Final report, Styhre,
L., von Bahr, J., Bergqvist R., Bäckström, S., Gonzalez-Aregall, M., Hult C., Jivén, K., Karlsson,
R., Malmberg, L-G., Parsmo R., Rendahl P., Romson, Å., Sallander A-S., Sköld, S., Sterner, T.,
Vierth, I., Winnes, H. IVL Swedish Environmental Research Institute 2018 (to be published 2019).
51 In this case a discussion on a classification of the suggested “fee” as whether it is a tax, a fee, a
duty or charge having an equivalent effect.
52 The authors points out that “Charges having equivalent effect to a toll are forbidden by the EU
Treaty”.
53 See the Municipality Law 2 Chap 6 §.
Environmental Challenge in Port Development: The Legal Perspective in. . .
451
collected and payable through the agent and the driver. The problem here as
described earlier is that it does not work as a fee in terms of basic Swedish
constitutional principles.
50 In the report to VINNOVA the authors Sallander and
Rendahl criticize the discussion on fees based on the following:
The first action carried out by the authors’ is to classify the proposed fee.
51
Furthermore, it is not enough to look at the national source but also at the EU
legal source that has an effect on the classification. It is also clearly pointed out that
in which way a charge is named, has no effect on its classification. This brings us
back to the fact that a fee could be considered a tax and therefore must be decided by
the Parliament. If the same fee or charge could be decided as an excise duty in the
form of a toll, it limits the right to introduce it to the EU legislator.
52
By just looking at the Swedish perspective on the matter of fees and taxes, there
has been enough discussion already that tax is decided by the Parliament. But when
it comes to a fee it could be decided by the municipality. If a fee could be considered
as such, the following has to be fulfilled: it must be paid on a voluntary basis, it must
be reciprocal to a direct and specific counter-performance and finally the fee must be
equivalent to service provided by the municipality.
53 If any of those prerequisites are
absent, then it is a tax. There is a clear element of mandate in the suggestions put
forward.
Another problem of introducing fees at the gates of the port of trucks entering the
area is the division between port ownership and port operator. In two of the four
ports examined, namely, Gothenburg and Stockholm, the container terminals are
operated by individual operators. In this respect both ports administer the respective
container terminals in the same way. The fees collected by the port are vessel
operational fees only. When it comes to terminal activities and fees related to that,
the Port Administration leaves that to terminal operators. Although, in the tenancy
agreement between terminal operators and Port Administration there is a fee added
to the tenancy calculated on the number of cargo entities lifted over the rail. A cost
that is, of course, transferred to the shipper or cargo owner from the terminal
operator. In the latter relation, this is not a fee decided by a public authority. But
infrastructure fee is collected by the Swedish Transport Board. The tax or fee is sent as a payment
slip by mail.
50 The legal discussion in the project on this item is carried out by Assistant Professor Ann-Sohpie
Sallander and Asssociate Professor Pernilla Rendahl, under section 3.4.2.3 Step 3: Identification of
the most relevant legal difficulties. In Environmental differentiated port dues—Final report, Styhre,
L., von Bahr, J., Bergqvist R., Bäckström, S., Gonzalez-Aregall, M., Hult C., Jivén, K., Karlsson,
R., Malmberg, L-G., Parsmo R., Rendahl P., Romson, Å., Sallander A-S., Sköld, S., Sterner, T.,
Vierth, I., Winnes, H. IVL Swedish Environmental Research Institute 2018 (to be published 2019).
51 In this case a discussion on a classification of the suggested “fee” as whether it is a tax, a fee, a
duty or charge having an equivalent effect.
52 The authors points out that “Charges having equivalent effect to a toll are forbidden by the EU
Treaty”.
53 See the Municipality Law 2 Chap 6 §.
Environmental Challenge in Port Development: The Legal Perspective in. . .
451