The European Commission has sent a reasoned opinion to Spain, France, and Italy for considering that the three member states maintain national flag requirements for vessels intended for port towing and mooring operations that do not comply with the provisions of the European Union on the provision of port services.
The procedure concerning Spain, identified as INFR(2025)4021, is now in a new phase after Brussels sent a letter of formal notice in January 2026. France is affected by case INFR(2025)2180 and Italy by INFR(2025)2181. The three countries have two months to respond to the opinion and adopt the measures required by the Commission. If the response is not satisfactory, the community executive may decide to refer the matters to the Court of Justice of the European Union.
The action is based on paragraphs 3 and 4 of Article 4 of Regulation (EU) 2017/352, which establishes the framework for the provision of port services, as well as on Article 49 of the Treaty on the Functioning of the European Union, regarding the freedom of establishment.
The European Regulation allows member states to impose certain conditions on port service providers. Among them is, under certain circumstances, a flag requirement for vessels used primarily in towing or mooring operations, with the aim of ensuring compliance with applicable social and labor regulations. These conditions must meet criteria of transparency, objectivity, non-discrimination, and proportionality.
The discrepancy raised by the Commission does not refer to the possibility of establishing a flag requirement, but to Spain, France, and Italy linking it specifically to their respective national flags. Brussels argues that if this condition is established, the flag of any member state of the European Union must be accepted and not exclusively that of the country where the service is provided.
The Commission also considers that member states already have, through the Regulation itself, the capacity to apply and control compliance with their social and labor legislation, including rules regarding labor inspections, regardless of the flag flown by the inspected vessel. For this reason, it understands that the exclusive requirement of a national flag is incompatible with paragraphs 3 and 4 of Article 4 and with the freedom of establishment provided for in Article 49 of the Treaty.
The issue has direct application in Spanish ports. In the case of the Port of Algeciras, the Particular Specifications of the port towing service published in the Official State Gazette in September 2025 establishes that the tugboats must be of Spanish flag and registered in the Ordinary Register. The document itself substantiates this condition in Article 4.3 of Regulation (EU) 2017/352 and Articles 8 and 256 of the consolidated text of the Ports of the State and Merchant Navy Law.
The reasoned opinion communicated on October 1 constitutes the preliminary phase to a possible referral of the case to the Court of Justice of the European Union. Spain must respond within the established deadline and inform the Commission of the measures adopted regarding the applicable flag conditions for these port services.
