EUR-Lex Access to European Union law
This document is an excerpt from the EUR-Lex website
Document 02014R0788-20140808
Commission Regulation (EU) No 788/2014 of 18 July 2014 laying down detailed rules for the imposition of fines and periodic penalty payments and the withdrawal of recognition of ship inspection and survey organisations pursuant to Articles 6 and 7 of Regulation (EC) No 391/2009 of the European Parliament and of the Council (Text with EEA relevance)
Consolidated text: Commission Regulation (EU) No 788/2014 of 18 July 2014 laying down detailed rules for the imposition of fines and periodic penalty payments and the withdrawal of recognition of ship inspection and survey organisations pursuant to Articles 6 and 7 of Regulation (EC) No 391/2009 of the European Parliament and of the Council (Text with EEA relevance)
Commission Regulation (EU) No 788/2014 of 18 July 2014 laying down detailed rules for the imposition of fines and periodic penalty payments and the withdrawal of recognition of ship inspection and survey organisations pursuant to Articles 6 and 7 of Regulation (EC) No 391/2009 of the European Parliament and of the Council (Text with EEA relevance)
02014R0788 — EN — 08.08.2014 — 000.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
COMMISSION REGULATION (EU) No 788/2014 of 18 July 2014 laying down detailed rules for the imposition of fines and periodic penalty payments and the withdrawal of recognition of ship inspection and survey organisations pursuant to Articles 6 and 7 of Regulation (EC) No 391/2009 of the European Parliament and of the Council (OJ L 214 19.7.2014, p. 12) |
Corrected by:
COMMISSION REGULATION (EU) No 788/2014
of 18 July 2014
laying down detailed rules for the imposition of fines and periodic penalty payments and the withdrawal of recognition of ship inspection and survey organisations pursuant to Articles 6 and 7 of Regulation (EC) No 391/2009 of the European Parliament and of the Council
(Text with EEA relevance)
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
This Regulation lays down rules for the implementation of Articles 6 and 7 of Regulation (EC) No 391/2009 by the Commission.
It sets out the criteria for establishing the amount of fines and periodic penalty payments, the decision-making procedure to impose a fine and a periodic penalty payment or to withdraw the recognition of a recognised organisation on the Commission's own initiative or at the request of a Member State.
Article 2
Definitions
For the purposes of this Regulation, the definitions set out in Article 2 of Regulation (EC) No 391/2009 shall apply.
In addition the following definition shall apply:
‘Member State concerned’ means any Member State that has entrusted a recognised organisation with the inspection, survey and certification of ships flying its flag for compliance with the international conventions, in accordance with Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations ( 3 ), including the Member State that has submitted the request for recognition of that organisation to the Commission, in accordance with Article 3 of Regulation (EC) No 391/2009.
CHAPTER II
FINES AND PERIODIC PENALTY PAYMENTS
Article 3
Identification of infringements
The Commission shall identify an infringement under Article 6(1) of Regulation (EC) No 391/2009 where:
the serious or repeated failure by a recognised organisation to fulfil one of the minimum criteria set out in Annex I of Regulation (EC) No 391/2009 or its obligations under Articles 8(4), 9, 10 and 11 of Regulation (EC) No 391/2009 reveals serious shortcomings in a recognised organisation's structure, systems, procedures or internal controls;
a recognised organisation's worsening performance, taking into account Commission Decision No 2009/491/EC ( 4 ), reveals serious shortcomings in that organisation's structure, systems, procedures or internal controls;
a recognised organisation has deliberately provided incorrect, incomplete or misleading information to the Commission in the course of its assessment or otherwise obstructed that assessment.
Article 4
Calculation of fines
Article 5
Assessment of the seriousness of an infringement
When assessing the seriousness of each infringement the Commission shall take into account all relevant aggravating and mitigating circumstances, in particular the following:
whether the organisation has acted with negligence or intent;
the number of actions or omissions of the recognised organisation which give rise to the infringement;
whether the infringement affects isolated offices, geographical areas or the entire organisation;
the recurrence of the actions or omissions of the recognised organisation giving rise to the infringement;
the duration of the infringement;
a misrepresentation of the actual condition of ships in the certificates and documents of compliance delivered by the recognised organisation, or the inclusion of incorrect or misleading information therein;
prior sanctions, including fines, imposed on the same recognised organisation;
whether the infringement results from an agreement between recognised organisations or a concerted practice, which have as their object or effect the breach of the criteria and obligations provided in Regulation (EC) No 391/2009;
the degree of diligence and cooperation of the recognised organisation in the discovery of the relevant actions or omissions, as well as in the determination of the infringements by the Commission.
Article 6
Assessment of the effects of an infringement
When assessing the effects of each infringement, in particular the extent to which safety and the protection of the environment have been compromised, the Commission shall take into account all relevant aggravating and mitigating circumstances, in particular the following:
the nature and extent of the deficiencies actually or potentially affecting the fleet certified by the organisation, which the said organisation, as a result of the infringement, has failed to detect or may not be able to detect, or has failed to or may not be able to request the timely correction of, taking into account in particularthe criteria for the detention of a ship laid down in Annex X of Directive 2009/16/EC of the European Parliament and of the Council ( 5 ) on port State control;
the proportion of the fleet certified by the organisation actually or potentially affected;
any other circumstances posing specific identifiable risks, such as the type of the ships actually or potentially affected.
Article 7
Periodic penalty payments
The Commission may decide, in light of the circumstances of the case, and in particular in view of the urgency of the remedial action to be undertaken by the organisation concerned, to increase the daily amount for periodic penalty payments up to the following limits:
when the recognised organisation exceeds the time limit established pursuant to paragraph 3 by more than 120 days, from the 121st to the 300th day from the expiry of the time limit, 0,005 % per day of the organisation's total average turnover, calculated in accordance with Article 9;
when the recognised organisation exceeds the time limit established pursuant to paragraph 3 by more than 300 days, from the 301st day from the expiry of the time limit, 0,01 % per day of the organisation's total average turnover, calculated in accordance with Article 9.
Article 8
Determination of maximum aggregate amount of fines and periodic penalty payments
The maximum aggregate amount of fines and periodic penalty payments imposed to the recognised organisation, as established in Article 6(3) of Regulation (EC) No 391/2009, shall be determined as follows:
the aggregate amount of the fines imposed on a recognised organisation in accordance with Article 4 within one business year for that organisation, taking into account the date of the decision to impose the fines and, in case of more than one decision imposing fines to that organisation, the date of the first decision imposing a fine on that organisation, shall not exceed 5 % of the total average turnover of that organisation calculated in accordance with Article 9;
the aggregate amount of the fines imposed on a recognised organisation in accordance with Article 4 within one business year for that organisation, determined in accordance with paragraph 1, and the periodic penalty payments imposed in the same decisions in accordance with Article 7(2) and accrued for as long as appropriate remedial action is not undertaken by the organisation shall not exceed 5 % of the total average turnover of that organisation calculated in accordance with Article 9. Without prejudice to Article 21, recovery by the Commission of the periodic penalty payments shall not exceed the 5 % ceiling;
the aggregate amount of the periodic penalty payments imposed on a recognised organisation in accordance with Article 7(1) and accrued for as long as appropriate preventive or remedial action is not undertaken by the organisation shall not exceed 5 % of the total average turnover of that organisation calculated in accordance with Article 9. Without prejudice to Article 21, recovery by the Commission of the periodic penalty payments shall not exceed the 5 % ceiling.
Article 9
Calculation of turnover
CHAPTER III
WITHDRAWAL OF RECOGNITION
Article 10
Withdrawal of recognition
In order to determine whether a repeated and serious failure constitutes an unacceptable threat to safety or the environment in accordance with Article 7(1)(a) and (b) of Regulation (EC) No 391/2009, the following elements shall be taken into account:
the information and circumstances referred to in Article 7(2) of Regulation (EC) No 391/2009, particularly in light of the circumstances referred to in Articles 5 and 6 of this Regulation;
the criteria and, as the case may be, thresholds defined in Commission Decision 2009/491/EC.
Article 11
Procedure to withdraw recognition at the request of a Member State
If, within the same time limit, the Commission concludes that the Member State's request is unjustified, it shall inform the requesting Member State, stating the reasons thereof and inviting that to submit its observations within a designated time limit, which shall not be less than three months. Within six months of receipt of these observations, the Commission shall either confirm that the request is unjustified or issue a statement of objections in accordance with the first subparagraph.
CHAPTER IV
COMMON PROVISIONS
Article 12
Statement of objections
The statement of objections shall include:
a detailed account of the recognised organisation's actions and omissions, including the description of the relevant facts and the identification of the provisions of Regulation (EC) No 391/2009, which the Commission considers to have been breached by the recognised organisation;
an identification of the evidence on which the relevant findings are based, including by reference to inspection reports, assessment reports, or any other relevant documents which have been previously communicated to the organisation concerned by the Commission or by the European Maritime Safety Agency acting on the Commission's behalf;
a notice that fines and periodic penalty payments or the withdrawal of recognition may be imposed by the Commission in accordance with Articles 6 or 7 of Regulation (EC) No 391/2009.
Article 13
Requests for information
In order to clarify the facts for the purposes of Article 12, the Commission may request in writing the recognised organisation to provide written or oral explanations, or particulars or documents, within a designated time limit, which shall not, in any event, be less than 4 weeks. In such a case the Commission shall inform the recognised organisation of the periodic penalty payments and fines that may be imposed for failing to comply with the request or when incurring unjustified delays in the provision of information or providing deliberately incorrect, incomplete or misleading information to the Commission.
Article 14
Oral hearing
Article 15
Periodic penalty payments for non-cooperation
Article 16
Access to the file
For the purposes of paragraph 4, internal documents of the Commission and the European Maritime Safety Agency may include:
documents or parts of documents pertaining to the internal deliberations of the Commission and its services and of the European Maritime Safety Agency, including the opinions and recommendations of the European Maritime Safety Agency addressed to the Commission;
documents or parts of documents forming part of the correspondence between the Commission and the European Maritime Safety Agency or between the Commission and Member States.
Article 17
Legal representation
The recognised organisation shall have the right to legal representation at all stages of the proceedings under this Regulation.
Article 18
Confidentiality, professional secrecy and the right to remain silent
Article 19
Decision
Article 20
Judicial remedies, notification and publication
Article 21
Recovery of fines and penalty payments
The Commission shall proceed with the recovery of the fines and the penalty payments by establishing a recovery order and issuing a debit note addressed to the recognised organisation concerned in accordance with Articles 78 to 80 and 83 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council ( 6 ) and Articles 80 to 92 of Commission Delegated Regulation (EU) No 1268/2012 ( 7 ).
Article 22
Limitation periods for the imposition of fines and periodic penalty payments
The right of the Commission to impose periodic penalty payments to a recognised organisation in accordance with Article 15 of this Regulation shall expire after three years from the date when the action or omission of the recognised organisation, for which the Commission requested appropriate preventive and remedial action, was committed.
Article 23
Limitation periods for the collection of fines and periodic penalty payments
The limitation periods referred to in paragraphs1 and 2 shall be suspended for as long as:
time to pay is allowed;
enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Union.
Article 24
Application of time limits
Article 25
Cooperation with national competent authorities
Information provided by the national competent authorities in response to a request from the Commission shall be used by the Commission only for the following purposes:
to carry out the tasks entrusted to it for the recognition and supervision of recognised organisations under Regulation (EC) No 391/2009;
as evidence for the purposes of decision-making under this Regulation, without prejudice to Articles 16 and 18 of this Regulation.
CHAPTER V
FINAL PROVISIONS
Article 26
Application
Events which occurred before the date of entry into force of Regulation (EC) No 391/2009 shall not give rise to any measures in accordance with this Regulation.
Article 27
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
( 1 ) OJ L 131, 28.5.2009, p. 11.
( 2 ) OJ L 324, 29.11.2002, p. 1.
( 3 ) OJ L 131, 28.5.2009, p. 47.
( 4 ) OJ L 162, 25.6.2009, p. 6.
( 5 ) OJ L 131, 28.5.2009, p. 57.
( 6 ) OJ L 298, 26.10.2012, p. 1.
( 7 ) OJ L 362, 31.12.2012, p. 1.