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Document 02009L0021-20250105
Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag State requirements (Text with EEA relevance)
Consolidated text: Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag State requirements (Text with EEA relevance)
Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag State requirements (Text with EEA relevance)
02009L0021 — EN — 05.01.2025 — 001.001
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DIRECTIVE 2009/21/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 April 2009 on compliance with flag State requirements (OJ L 131 28.5.2009, p. 132) |
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DIRECTIVE (EU) 2024/3100 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 November 2024 |
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16.12.2024 |
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DIRECTIVE 2009/21/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 23 April 2009
on compliance with flag State requirements
(Text with EEA relevance)
Article 1
Subject matter
The purpose of this Directive is:
to ensure that Member States effectively and consistently discharge their responsibilities and obligations as flag States; and
to enhance safety and living and working conditions, and to prevent pollution from ships flying the flag of a Member State.
Article 2
Scope
This Directive shall apply to the administration of the Member State whose flag the ship is flying in respect of ships subject to certification and engaged in any type of international voyages.
Article 3
Definitions
For the purposes of this Directive, the following definitions shall apply:
‘ship’ means a ship or craft to which one or more Conventions apply, flying the flag of a Member State and in respect of which a certificate is required;
‘administration’ means the competent authorities of the Member State whose flag the ship is flying;
‘recognised organisation’ means an organisation recognised in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (recast) ( 3 );
‘certificates’ means statutory certificates issued in respect of the relevant IMO Conventions;
‘IMO audit’ means an audit conducted in accordance with the provisions of Resolution A.1067(28) on the Framework and Procedures for the IMO Member State Audit Scheme, in its up-to-date version, adopted by the International Maritime Organisation (IMO);
‘Conventions’ means the conventions, with the Protocols and amendments thereto, making the use of the III Code mandatory, and the related codes of mandatory status, in their up-to-date versions;
‘III Code’ means Resolution A.1070(28) (the IMO Instruments Implementation Code), adopted by the IMO, Part 2, with the exception of paragraphs 16, 18, 19, 20.3, 21, 29, 30, 31, 32, 34, 38, 39, 40 and 41 of that Part, in its up-to-date version;
‘flag State surveyor’ means a public sector employee, working exclusively for and duly authorised by the competent authority of a Member State, responsible for or performing surveys, verifications and audits of ships and companies covered by the relevant international mandatory instruments and fulfilling the independence requirement laid down in Article 8(1);
‘flag State inspector’ means:
a public sector employee, working exclusively for and duly authorised by the competent authority of a Member State; or
a person who is non-exclusively employed and who is duly authorised by the competent authority of a Member State, on an ad hoc basis or in a contractual situation with the competent authority of the Member State,
who may carry out flag State inspections, and who fulfils the qualification and independence requirements laid down in Article 8(1);
‘other personnel who assist in the performance of surveys’ means persons duly authorised by the administration of the Member State or by a recognised organisation acting on its behalf, who may assist flag State surveyors when carrying out surveys, as specified by the administration, and who fulfil the communication, qualification and independence requirements laid down in Article 8(1);
‘flag State inspection’ means an inspection not leading to certification, conducted to verify that the actual condition of the ship and its crew is in conformity with the certificates that it carries.
Article 4
Conditions for allowing a ship to operate upon granting the right to fly the flag of a Member State
Article 4a
Safety of ships flying the flag of a Member State
Member States shall take all necessary measures to ensure compliance with international rules, regulations and standards under the Conventions by ships entitled to fly their flag, including the following:
ensuring that a surveyor employed by a recognised organisation may perform the same tasks as flag State surveyors when authorised to do so by the competent authority of the Member State; and
carrying out flag State inspections to verify that the actual condition of the ship is in conformity with the certificates that it carries.
The flag State inspections referred to in point (b) of the first subparagraph may be carried out using a risk-based approach, which shall include the following criteria:
records of deficiencies and non-conformities from statutory surveys, audits and verifications performed by the flag State;
relevant accident investigation reports;
detentions or prohibition of operation notices issued by a port State control authority;
exceeding a port State control deficiency ratio established by each Member State;
records of deficiencies from flag State inspections carried out in accordance with national legislation as deemed appropriate by each Member State;
other relevant information considered to be necessary by the Member State.
Member States using a risk-based approach shall ensure that ships in respect of which no sufficient data is available for the calculation of the risk rating are inspected at least once every 5 years.
Member States not using a risk-based approach shall carry out flag State inspections using their own procedures, instructions and relevant information in compliance with the III Code. They shall ensure that every ship is inspected at least once every 5 years.
Article 4b
Safety and pollution prevention requirements
Article 4c
Training and capacity building
Article 5
Detention of a ship flying the flag of a Member State
Article 6
Electronic information and exchange
Member States shall ensure that the following information concerning ships flying their flag is made available in electronic format in its up-to-date version at the latest by 6 January 2031:
statutory certificates (full or interim) including dates of surveys, additional and supplementary surveys, if any, and audits;
identification of ships which ceased to fly the flag of the Member State concerned during the previous 12 months.
The Commission shall make that portal electronically accessible and free of charge for Member States.
That portal shall not contain personal data or confidential information.
The Commission shall ensure the interoperability of that portal with the ship information database referred to in Article 6a.
That portal shall be established by 6 January 2028 at the latest.
Article 6a
Ship information database
Without prejudice to national data protection requirements, Member States opting to use the ship information database:
may transfer to the ship information database information related to flag State inspections carried out in accordance with this Directive, including information concerning deficiencies and certificates; and
may use that database to issue, sign, endorse, extend and withdraw electronic certificates for their ships.
Such Member States shall ensure that the information referred to in the first subparagraph is compatible with the requirements of that database and interoperable.
Article 7
Monitoring of compliance and performance of Member States
Article 8
Quality management system and internal evaluation
The quality management system shall include the details of the responsibilities, of the authority and of the interrelation of personnel who perform surveys, inspections, audits and verifications and the flag State personnel who manage, perform and verify work relating to and affecting the flag State obligations. Such responsibilities shall be documented, specifying the type and scope of inspection work that may also be performed by non-exclusively employed flag State inspectors, and how such personnel shall communicate and report. The quality management system shall indicate the tasks that can be carried out by other personnel who assist in the performance of surveys.
Each Member State shall ensure that non-exclusively employed flag State inspectors, and other personnel who assist in the performance of surveys, have education, training and supervision commensurate with the tasks they are authorised to perform, and that they are able to apply flag State instructions, procedures and criteria.
Member States shall take appropriate measures to prevent conflicts of interests of all personnel who perform surveys, inspections, audits and verifications and regarding independence in relation to the work to be performed.
By 6 January 2028, the quality management system shall cover the aspects referred to in this paragraph.
The report shall identify and analyse the main reasons that led to the detentions and the deficiencies resulting in a low or medium performance status.
Article 9
Reports and Review
Every five years, and for the first time by 6 January 2028, the Commission shall present a report to the European Parliament and to the Council on the application of this Directive.
Article 9a
Exchange of best practices and experience
The Commission shall organise the exchange of best practices and experiences between Member States’ administrations and flag State experts and flag State inspectors, including, as appropriate, other relevant stakeholders, for the implementation of this Directive.
Member States’ administrations, flag State experts and flag State inspectors shall explore, together with the Commission, the possibility to develop guidance on elements such as the methodology for performing flag State inspections, the content and format of reporting or capacity building.
Article 9b
Information and data
The Commission shall establish an electronic reporting tool for the purposes of gathering information and data from the Member States under this Directive.
Member States shall inform the Commission once a year of the number of flag State inspections performed in accordance with Article 4a, indicating, for each flag State inspection, the IMO number of the ship, the date and the place.
Article 10
Committee procedure
Article 10a
Amendments to the Conventions and the III Code
The Commission may exclude amendments to the Conventions and the III Code from the scope of this Directive in accordance with the Conformity checking procedure set out in Article 5 of Regulation (EC) No 2099/2002.
Article 11
Transposition
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
By way of derogation from the first subparagraph of paragraph 1,
the Member States which do not have ships flying their flag and that fall within the scope of this Directive may derogate from the obligation to transpose and implement Article 6 of this Directive as long as that condition is fulfilled;
the Member States which do not have ships that fall within the scope of this Directive and have closed their register for such ships may derogate from the obligation to transpose and implement this Directive for as long as that condition is fulfilled.
Any Member State that intends to avail itself of one of the derogations referred to in the first subparagraph shall notify the Commission by 6 July 2027. Any subsequent change shall also be communicated to the Commission.
Those Member States may not allow ships falling within the scope of this Directive to fly their flag or register such ships in their national registry until they have completely transposed and implemented this Directive.
Article 12
Entry into force
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 13
Addressees
This Directive is addressed to the Member States.
( 1 ) OJ L 324, 29.11.2002, p. 1.
( 2 ) OJ L 167, 2.7.1999, p. 33.
( 3 ) See page 11 of this Official Journal.
( 4 ) Regulation (EC) 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208 5.8.2002, p. 1).
( 5 ) Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ L 131, 28.5.2009, p. 57).
( 6 ) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).