(1)

The safety of Union shipping and of citizens using it and the protection of the environment should be ensured at all times.

(2)

It is important to take into account the on-board living and working conditions of seafarers and the training and qualifications of seafarers, in line with Directive 2013/54/EU of the European Parliament and of the Council (3) and Directive (EU) 2022/993 of the European Parliament and of the Council (4), given that health, safety, security and the human factor are closely interlinked and that it is of utmost importance to prevent any damage caused by human error.

(3)

Under the provisions of the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) and of the conventions for which the International Maritime Organization (IMO) is the depository (‘IMO Conventions’), the States which are party to those instruments are responsible for adopting laws and regulations and for taking all other measures which may be necessary to give those instruments full effect so as to ensure that, in terms of safety of life at sea and the protection of the marine environment, a ship is fit for the service for which it is intended.

(4)

To ensure the effectiveness of the IMO Conventions in the Union, all Member States should take the necessary measures to discharge the responsibilities and obligations laid down in those conventions with respect to ships flying their flag. To that end, Member States should discharge their responsibilities and obligations as flag States effectively and consistently in accordance with IMO Resolution A.1070(28) on the IMO Instruments Implementation Code (the ‘III Code’), adopted on 4 December 2013, which contains the mandatory provisions to be implemented by flag States. In accordance with Article 91(1) of UNCLOS, there must be a genuine link between a vessel and its flag State, as interpreted by international jurisprudence that is reflected in the duties of a flag State.

(5)

Without prejudice to the provisions concerning force majeure laid down in the IMO Conventions, Member States should be able to, in crisis situations that may endanger the physical integrity of personnel responsible for or performing surveys, inspections, audits and verifications, introduce restrictions on such activities, while allowing ships to continue to operate.

(6)

The following international instruments in their latest versions refer to the application of the III Code: the International Convention for the Safety of Life at Sea of 1974; the International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 relating thereto; the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 relating thereto; the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers of 1978; the International Convention on Load Lines of 1966, and the Protocol of 1988 relating thereto; the International Convention on Tonnage Measurement of Ships of 1969; and the Convention on the International Regulations for Preventing Collisions at Sea of 1972.

(7)

Flag State surveyors are authorised by the administrations of the Member States to survey and certify ships. Such surveyors may be assisted by other personnel, for instance personnel inspecting radio installations. However, such personnel should not include technicians involved in the servicing of life-saving appliances or surveyors that are not directly involved in the survey of the merchant shipping fleet.

(8)

Section 22 of the III Code states that a flag State should take all necessary measures to ensure compliance with international rules and standards by ships entitled to fly its flag and by entities and persons under its jurisdiction, so as to ensure compliance with its international obligations. In particular, section 22.2 refers to inspections to verify that the actual condition of the ship and its crew is in conformity with the certificates it carries. The periodicity of such inspections should be established by the Member States either by using a risk-based approach or by using their own procedures and instructions, including quantitative or qualitative criteria.

(9)

At international level, the responsibility to investigate maritime accidents falls on the flag State, while at Union level the fundamental principles governing the investigation of maritime accidents, such as the independence of the investigative bodies in the Member States, are regulated by Directive 2009/18/EC of the European Parliament and of the Council (5). This Directive applies without prejudice to Directive 2009/18/EC.

(10)

The administrations of the Member States should be able to rely on adequate resources for carrying out their flag State obligations, according to the size and type of their fleet and based upon the relevant IMO requirements. Minimum criteria and inspection targets related to those resources should be established on the basis of the practical experience of the Member States, including the use of non-exclusively employed inspectors, in accordance with the III Code.

(11)

Without prejudice to the relevant national legislation, Member States may allow flag State surveyors and flag State inspectors who work exclusively for the competent authority of a Member State to carry out other work, such as scientific or academic activities, provided that it does not give rise to conflicts of interest or impede their independence.

(12)

Flag State surveyors, flag State inspectors and other personnel who assist in the performance of surveys should have the education, training and supervision necessary to carry out the tasks that they are authorised to perform. The Commission, assisted by the European Maritime Safety Agency (EMSA), and in cooperation with Member States should develop a voluntary training programme to support flag State administrations in this respect and should facilitate coordination and exchange of information and best practices. Such training programme should be kept updated and take into account new or additional obligations arising from the instruments and Conventions, such as those relating to new technologies, social matters and other relevant developments.

(13)

The establishment and development of a database providing essential information in electronic format on ships flying the flag of a Member State and ensuring the possibility of issuance of electronic certificates should contribute to an enhanced exchange of information among Member States. The development of a common and uniform database for issuance of electronic certificates, including the tools for checking the validity of those certificates, would facilitate and contribute to a tangible breakthrough towards maritime digitalisation within the Union. Such a database would support the operational needs of its users, in particular those Member States that have not been in a position to develop their own systems for electronic certificates, and also contribute to a more efficient use of available limited resources.

(14)

For monitoring and inspection purposes, essential information, such as the particulars of the ship, its registered owner and its certificates, should be available to all authorities concerned and to the Commission.

(15)

Member States should continue to demonstrate their compliance with the mandatory IMO instruments, as required by 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 IMO on 4 December 2013.

(16)

In order to further enhance the quality of the ships flying the flag of a Member State and to ensure a level playing field between administrations of the Member States, a quality certification of administrative procedures, that is included in the quality management system in accordance with ISO or equivalent standards, is needed. It should cover the operational parts of the activities of the administration related to survey, flag State inspection, audit, verification and certification under the responsibility of the Member State as flag State, whether national (first registers) or international (second or overseas registers). Furthermore, all relevant activities, including the details of the responsibilities, of the authority and of the interrelation of personnel, and means of reporting and communication of all flag State personnel who perform or are involved in surveys or inspections, as well as other personnel who assist in the performance of inspections, who are non-exclusively employed by the competent authority of the Member State, and who may assist in carrying out inspections other than statutory surveys or flag State inspections, should be clarified. The quality management system should ensure that the tasks assigned to recognised organisations under the scope of Directive 2009/21/EC of the European Parliament and of the Council (6) are carried out in compliance with the flag State’s instructions, and should include the necessary control measures in that respect. In order to ensure the independence of personnel concerned, Member States should take appropriate measures to prevent conflicts of interest of such personnel in relation to the work they are to perform.

(17)

In coordination with the International Labour Organisation (ILO), the Commission and the Member States are encouraged to continue to advocate for the improvement of the living and working conditions of seafarers.

(18)

An electronic reporting tool for the purposes of further improving the consistent collection of relevant statistics and maritime data and information from Member States should be established.

(19)

The measures necessary for the implementation of this Directive with regard to the ship information database should be adopted. In order to ensure uniform conditions for the implementation of Directive 2009/21/EC, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (7).

(20)

The Commission should set up a forum for Member State experts dealing with flag State matters, as well as other stakeholders, when necessary, to regularly exchange information and best practices and to develop guidance on issues such as procedures for ship inspections, training resources for inspectors, risk-based criteria that can be used to improve the effectiveness of inspections, the possible development of a common harmonised performance scheme, criteria for analysing flag State performance with a view to identifying best practices and any other issue relevant to the implementation of Directive 2009/21/EC.

(21)

In order to avoid a disproportionate administrative burden in the transposition of this Directive, Member States may, as long as the relevant conditions are fulfilled, apply certain exemptions. Member States which do not have ships flying their flag that fall within the scope of Directive 2009/21/EC should not be obliged to transpose and implement Article 6 of Directive 2009/21/EC as regards the sharing of information related to ships. Member States which do not have ships flying their flag that fall within the scope of Directive 2009/21/EC and have closed their register for such ships should not be obliged to transpose and implement Directive 2009/21/EC.

(22)

EMSA should provide support for the implementation of Directive 2009/21/EC, notably by providing relevant training for flag State surveyors and flag State inspectors, if so requested by Member States.

(23)

Since the objectives of this Directive, namely to enhance maritime safety and to prevent pollution from ships, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale or effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(24)

Directive 2009/21/EC should therefore be amended,

(1)

in Article 1, paragraph 1 is replaced by the following:

(2)

Article 2 is replaced by the following:

(3)

Article 3 is amended as follows:

(4)

in Article 4, paragraph 1 is replaced by the following:

(5)

the following Articles are inserted:

(*1)  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).’;"

(6)

Article 5 is replaced by the following:

(7)

Article 6 is replaced by the following:

(8)

The following Article is inserted:

(*2)  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).’;"

(9)

Article 7 is replaced by the following:

(10)

Article 8 is replaced by the following:

(11)

Article 9 is replaced by the following:

(12)

the following Articles are inserted:

(13)

Article 10 is replaced by the following:

(*3)  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).’;"

(14)

the following Article is inserted:

(15)

in Article 11 the following paragraph is added: