7.12.2004   

EN

Official Journal of the European Union

C 302/23

1.1

The Commission with its Communication (1) on Enhancing Maritime Transport Security and with its proposal (2) for a Regulation on Enhancing Ship and Port Facility Security addressed the ship and ship/port interface security concerns and proposed specific action currently going through the legislative process. However, the proposed Regulation stopped at the part of the port which represents the ship/port interface, i.e., the terminal.

1.2

The EESC with its opinion (3) welcomed the proposed action and supported the Commission's intention as a second step to pursue the implementation of additional Community measures that would secure the port and its interface with the hinterland.

1.3

The second, and more difficult, step of the Commission's initiative acknowledges the need for a comprehensive port security policy in view of the vulnerability of the wider port areas that provide an essential link with the total transport chain and passenger flows.

2.1

The proposal complements the security measures introduced by the Regulation on Enhancing Ship and Port Facility Security by ensuring that, as a result, the entire port is covered by a security regime. The Directive will guarantee the proper security levels for Community ports and will ensure the harmonised implementation of security measures covering the entire port areas.

2.2

The Commission asserts that the anticipated IMO and ILO joint measures in the form of a voluntary Code of Practice on Port Security, currently under development, will not guarantee the early establishment of the required security regime. Hence, pro-active EU action is necessary, preferably in the form of a Directive to introduce the required flexibility.

2.3

The proposed Directive will allow the maintenance of existing port security regimes that comply with its principles and framework requirements. More particularly, the Directive requires the obligation to carry out security assessments, to define security levels, to develop and approve security plans, to designate responsible security authorities, to designate security officers, to establish security committees and to support the implementation of the measures.

3.1

Events and actions since the 11 September terrorist attacks vindicated predictions that the war on terrorism is bound to last for long. The tragic events in Madrid on 11 March 2004 brought to the fore the vulnerability of the whole transport system to terrorist attacks and proved that absolute security can never be achieved. In its exploratory opinion on transport security (4) and its subsequent opinion (5) regarding maritime transport security, the EESC maintained that the EU should take the lead internationally in developing a broader framework for security which will address the causes of terrorism and not only seek to prevent it or eliminate its effects.

3.2

Maritime security being a global problem has received adequate global and EU attention. However, rail security appears to be largely focused on national level initiatives whilst terrorism in road and inland waterways transport has thus far received relatively little attention. The EESC underlines that unless the other modes of transport bear their share of responsibility, the ‘weakest link’ will be the target of terrorists in order to infiltrate into the system. It is unrealistic to expect ports to fill the security gaps of other modes of transport and unfair to impose upon them the financial burden.

3.3

The EESC reiterates that measures aimed at fighting terrorism should be coupled with measures aimed at fighting traditional security problems (organised crime, piracy, fraud, smuggling and illegal immigration). Such security problems exist in the wider port areas and should have been addressed as a matter of urgency, as requested by the EESC. In this connection, the EESC regrets that a number of EU Member States are not as yet parties to the Suppression of Unlawful Acts (SUA) Convention and its Protocol and underlines the necessity and urgency of prompt ratifications that would reinforce the legal means for the fight against terrorism.

3.4

The EESC (6) supported EU action to ensure a reciprocal and collaborative arrangement with the US giving equal treatment for all cargoes (containers) originating from the EU and to transfer/integrate the bilateral arrangements in a multilateral agreement under the auspices of the World Customs Organisation (WCO). Similar reciprocal arrangements should be pursued with other regions/countries supported by a system of exchange of information. Where necessary, the agreements should provide for technical cooperation and financial aid to developing countries to upgrade their port security infrastructure.

3.5

The framework of the proposed measures is similar to the one established for the port facilities (terminals). Its significant new element is the extension of the geographical scope to cover the entire port areas, to be defined by the Member States in line with similar action undertaken by the US. The EESC believes that the purpose could have been best served by way of expanding the scope of Regulation (EC) 725/2004 (7). Nevertheless, the EESC acknowledges the constrains for the early extension of the full security regime of the aforementioned Regulation to cover the wider port areas and the need to afford to Member States, through the Directive, the required flexibility to implement appropriate measures in view of the significant variety of Community ports and the diverse activities within them. The flexibility should not lead to big differences of measures in EU ports that may result in the classification of foreign ports as ‘safe’ and blacklisting of ‘unsafe’ in terms of detecting illegal immigrants and terrorists as they may lead to market distortion and could jeopardise the smooth flow of international trade.

3.6

The EESC reiterates its view (8) that with the advent of EU enlargement, the Mediterranean Sea acquires an enhanced role. Its vicinity to areas from where potential security problems might arise emphasises the need for a Mediterranean dimension to maritime transport security. The EESC welcomed (9) the development of a Euro-Mediterranean Transport Network and the incorporation of maritime security in its objectives. It agreed that it is essential that the Mediterranean partners strengthen security measures and the Euro-Mediterranean Institute for Safety and Security was considered as a first step towards this goal.

3.7

In its present form the Directive focuses on administrative aspects. The directive does not define harmonised procedures for the application of the details related to the Annexes. Instead, it provides the possibility for future adaptations. The EESC realises the urgency to enhance security beyond the ship/port interface but underlines that it would have been more prudent to take stock of the progress achieved thus far at international level in this regard, and in particular in IMO, ILO and World Customs Organisation (WCO) and to provide prompt and clear guidance for the realisation of its objective.

3.8

The EESC notes that the Directive does not create new obligations in areas already covered by Regulation (EC) 725/2004 (10), or indeed in the expanded port areas. However, it takes the opportunity to reiterate the basic principle that port security measures should be balanced in relation to the objectives they pursue, their costs and impact on traffic and trade flows. Hence, it is necessary to consider carefully their need and assess whether they are realistic and practically feasible. The measures should respect the fundamental rights and observe the principles recognised in particular by the Charter of Fundamental Rights of the European Union so as not to restrain the personal human rights of the citizens nor the constitutional order, thus serving the purpose of terrorists. Therefore, care should be exercised to avoid:

3.9

The cost of compliance with the additional measures to secure the geographical area of the significantly wider port, namely access restrictions, cargo and luggage control and identification of persons will multiply for most ports, as the expansion of the application of the security measures will involve additional arrangements in terms of infrastructure, equipment, manpower and training. The EESC, recalling its earlier opinions on financing of security costs, reiterates its invitation to the Commission to devise a EU scheme for financing the implementation of the measures. The EESC specifically asserted that ‘although part of the cost of compliance will be passed on to customers, in the interest of the fairness EU governments should also bear part of some costs since terrorism is a reaction to policies of governments’. Moreover, the EESC reiterates its call for an overall impact study by the Commission about the financial implications of the increased maritime security measures and joins the EP in its similar request.

3.9.1

Seaports are critical national assets. Measures aimed at securing the entire port area logically qualify as being of general public interest. Public funding of such measures would, therefore, not be subject to the State aid rules of the EU treaty. Given the fact that Member States, however, have the choice in granting public support for such measures or not, a harmonised approach should be developed at EU level to avoid distortion of competition. This approach, which also takes into account financing of port facility security measures, should be based on the following principles:

3.9.2

Estimates on port security costs are extremely difficult to derive. However, by way of comparison port security costs in the EU are expected to be higher than in the US for geographical reasons due to the larger number of EU ports. It is anticipated that comparatively speaking the cost of compliance for big ports (11) and small ports will be huge.

3.10

Failure to react swiftly to new terrorist realities may result in costly multi-billion port shutdowns. Hence, the danger of security may become a non-tariff barrier to trade.

4.1

Ports are generally well defined in terms of geographical coverage and administration and within them diverse activities co-exist. Normally the boundaries of ports cover port facilities and not vice-versa, as implied by Article 2.4, or indeed by the definition of ‘port’ οr ‘seaport’ in Article 3. The definition seems to imply that the port area is lesser than the area of the ‘port facility’ which includes in addition anchorages, waiting berths and approaches from seaward. Therefore, clarification of the notion on ‘taking precedence’ is required in Article 2.4.

4.2

As a first step, the port security plan, being a master plan, has to be compatible with the decisions already made during the implementation process of the ISPS-code and Regulation (EC) 725/2004 (12), regarding criteria for port facilities. It should encompass the integrated security plans for port facilities within the boundaries of the port. Eventually the subordinate port facilities should function as sections of the port and their security plans should be part of the overall port security plan, adjusted where necessary to be harmonised and coordinated with its comprehensive objectives and consequently the port security authority should have the ultimate authority and responsibility.

4.3

The advisory role of the envisaged port security committees will enhance the effective implementation of the port security plan. The EESC presumes that the committees will be established by the port security authorities, also for the purpose of identifying the elements of the port security plan. The EESC supports the participation of seamen and port workers representatives in ports security committees for the purpose of arriving at practical solutions.

4.4

Cargo and passengers should not be subject to double-checking when entering the port area and then eventually when entering the port facility area. Moreover, a practical approach is required regarding the mobility of the ship's crew, visitors and ship suppliers.

4.5

Inspections of compliance with port security measures in one Member State by security officials of another Member State should be carried out under the authority of the European Commission (Article 17.2 and 14.3).

5.1

The tragic events in Madrid on 11 March 2004 vindicated the fears that the whole transport system is vulnerable to terrorist attacks and the belief that absolute security can never be achieved.

5.2

The EESC underlines that unless all modes of transport bear their share of responsibility, the ‘weakest link’ will be the target of terrorists in order to infiltrate into the system. It is unrealistic to expect ports to fill the security gaps of other modes of transport and unfair to impose upon them the financial burden.

5.3

The EESC firmly believes that a policing strategy is not a secure strategy in a non-secure world. Hence, the EU should take the lead internationally in developing a broader framework for security which will address the causes of terrorism and not only seek to eliminate its effects.

5.4

The EESC fully supports the proposed Directive to implement security measures in the wider port areas. The flexibility afforded to Member States under the proposed Directive should not result in the classification of foreign ports as ‘safe’ and blacklisting of ‘unsafe’ as they may lead to market distortion and could jeopardise the smooth flow of international trade.

5.5

The EESC reiterates that measures aimed at fighting terrorism should be coupled with measures aimed at fighting traditional security problems (organised crime, piracy, fraud, smuggling and illegal immigration).

5.6

Seaports are critical national assets. Measures aimed at securing the entire port area logically qualify as being of general public interest. Public funding of such measures would therefore not be subject to the State aid rules of the EU treaty. A harmonised approach of the Member States in granting public support should be developed at EU level to avoid distortion of competition. The EESC reiterates its invitation to the Commission to devise an EU scheme for financing, where necessary, the implementation of the measures. Hence, the EESC believes that the economic dimensions of port security are a major issue for international trade and should be addressed by the EU as a matter of urgency.

5.7

The security measures in port areas should respect the fundamental rights and observe the principles recognised by the Charter of Fundamental Rights of the European Union so as not to restrain the personal human rights of the citizens nor the constitutional order.

5.8

The EESC underlines the urgent need to give a Mediterranean dimension to the EU port security policy which becomes vital with the EU enlargement.