Wednesday 24 September 2008
P6_TC2-COD(2005)0238

Position of the European Parliament adopted at second reading on 24 September 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council on port State control (recast)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1)	Council Directive 95/21/EC of 19 June 1995 on port State control of shipping (4) has been substantially amended several times. Since further amendments are to be made, it should be recast in the interests of clarity.

(2)	The Community is seriously concerned about shipping casualties and pollution of the seas and coastlines of Member States.

(3)	The Community is equally concerned about on-board living and working conditions.

(4)	Safety, pollution prevention and on-board living and working conditions may be effectively enhanced through a drastic reduction of substandard ships from Community waters, by strictly applying Conventions, international codes and resolutions.

(5)	To this end, Member States should endeavour to take the necessary steps to ratify the Maritime Labour Convention, 2006, of the International Labour Organisation, which contains provisions related to port State obligations in regulation 5.2.1.

(6)

Member States should take the necessary measures to adapt their national law to the provisions on limitation of liability of the recapitulative text of the 1976 International Maritime Organisation Convention on Limitation of Responsibility for Maritime Claims, as amended by the 1996 protocol (the 1996 Convention). Regarding the judgement of the Court of Justice of the European Communities in Case C-188/07 (5), it appears that compensation to third parties in respect of damage caused by waste falls under the ‘polluter pays’ principle enunciated in Council Directive 75/442/EEC of 15 July 1975 on waste (6) and in Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (7), opening up the right to be compensated for the totality of the damage caused, including where there is not complete coverage and beyond the national provisions on incorporation of conventions.

(7)

Responsibility for monitoring the compliance of ships with the international standards for safety, pollution prevention and on-board living and working conditions lies primarily with the flag State. Relying, as appropriate, on recognised organisations, the flag State fully guarantees the completeness and efficiency of the inspections and surveys undertaken to issue the relevant certificates. Responsibility for maintenance of the condition of the ship and its equipment after survey to comply with the requirements of Conventions applicable to the ship lies with the ship company. However, there has been a serious failure on the part of a number of flag States to implement and enforce international standards. Henceforth, as a second line of defence against substandard shipping, the monitoring of compliance with the international standards for safety, pollution prevention and on-board living and working conditions should also be ensured by the port State, while recognising that port State control inspection is not a survey and the relevant inspection forms are not seaworthiness certificates.

(8)	A harmonised approach to the effective enforcement of these international standards by Member States in respect of ships sailing in the waters under their jurisdiction and using their ports should avoid distortions of competition.

(9)	The shipping industry is vulnerable to acts of terrorism. Transport security measures should be effectively implemented and Member States should vigorously monitor compliance with security rules by carrying out security checks.

(10)	Advantage should be taken of the experience gained during the operation of the Paris Memorandum of Understanding on Port State Control (Paris MOU), signed in Paris on 26 January 1982.

(11)

The European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 (8), should provide the necessary support to ensure the convergent and effective implementation of the port State control system. The EMSA should in particular contribute to the development and implementation of the inspection database set up in accordance with this Directive and to a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

(12)

An efficient port State control regime should seek to ensure that all ships calling at a port within the European Union are regularly inspected. Inspection should concentrate on substandard ships, while quality ships, meaning those which have satisfactory inspection records or which fly the flag of a State complying with the Voluntary International Maritime Organisation (IMO) Member State Audit Scheme, should be rewarded by undergoing less frequent inspections. Such new inspection arrangements should be incorporated into the Community port State control regime as soon as its various aspects have been defined and on the basis of an inspection-sharing scheme whereby each Member State contributes fairly to the achievement of the Community objective of a comprehensive inspection scheme. Moreover, Member States should recruit and retain the requisite number of staff, including qualified inspectors, taking into account the volume and characteristics of shipping traffic at each port.

(13)

The inspection regime set up by this Directive takes into account the work carried out by the Paris MOU. Since any developments arising from the Paris MOU should be agreed at Community level before being made applicable within the EU, close coordination should be established and maintained between the Community and the Paris MOU in order to facilitate as much convergence as possible.

(14)

The Commission should manage and update the inspection database, in close collaboration with the Paris MOU. The inspection database should incorporate inspection data of the Member States and all States Parties to the Paris MOU. Until the Community maritime information system, SafeSeaNet, is fully operational and allows for an automatic record of the data concerning ships’ calls in the inspection database, Member States should provide the Commission with the information needed to ensure ║proper monitoring of the application of this Directive, in particular concerning the movements of ships. On the basis of the inspection data provided by Member States, the Commission should retrieve from the inspection database data on the risk profile of ships, on ships due for inspections and on the movement of ships and should calculate the inspection commitments for each Member State. The inspection database should also be capable of interfacing with other Community maritime safety databases.

(15)	Member States should endeavour to review the method of drawing the white, grey and black list of flag States in the framework of the Paris MOU, in order to ensure its fairness, in particular with respect to the way it treats flag States with small fleets.

(16)	The rules and procedures for port State control inspections, including criteria for the detention of ships, should be harmonised to ensure consistent effectiveness in all ports, which would also drastically reduce the selective use of certain ports of destination to avoid the net of proper control.

(17)

▐ Periodic and additional inspections should include an examination of pre-identified areas for each ship which, will vary according to the type of ship, the type of inspection and the findings of previous port State control inspections. The inspection database should indicate the elements to identify the risk areas to be checked at each inspection.

(18)	Certain categories of ships present a major accident or pollution hazard when they reach a certain age and should therefore be subject to an expanded inspection. The details of such expanded inspections should be specified.

(19)	Under the inspection regime set up by this Directive, the intervals between periodic inspections on ships depend on their risk profile which is determined by certain generic and historical parameters. For high-risk ships this interval should not exceed six months. ▐

(20)

Some ships pose a manifest risk to maritime safety and the marine environment because of their poor condition, flag ▐ and history. They should therefore be refused access to Community ports and anchorages, unless it can be demonstrated that they can be operated safely in Community waters. Guidelines should be established setting out the procedures applicable in the event of the imposition of such an access ban and of the lifting of the ban. In the interests of transparency, the list of ships refused access to Community ports and anchorages should be made public.

(21)

With a view to reducing the burden placed on certain administrations and companies by repetitive inspections, surveys under Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services (9), carried out on ro-ro ferries or high-speed passenger craft by a host State which is not the flag State of the vessel, and which include at least all the items of an expanded inspection, should be taken into account when calculating the risk profile of a ship, the intervals between inspections and the fulfilment of the inspection commitment of each Member State. In addition, the Commission should examine whether it is appropriate that Directive 1999/35/EC be amended in the future with a view to enhancing the level of safety required for the operation of ro-ro ferries and high-speed passenger craft to and from ports of Member States.

(22)	Non-compliance with the provisions of the relevant Conventions should be rectified. Ships which need to be the subject of corrective action should, where the observed deficiencies are clearly hazardous to safety, health or the environment, be detained until the shortcomings are rectified.

(23)	A right of appeal against detention orders by the competent authorities must be made available, in order to prevent unreasonable decisions which may cause undue detention and delay.

(24)

Authorities and inspectors involved in port State control activities should have no conflict of interests with the port of inspection or with the ships inspected, or of related interests. Inspectors should be adequately qualified and receive appropriate training to maintain and improve their competence in the conduct of inspections. Member States should cooperate in developing and promoting a harmonised Community scheme for the training and assessment of competences of inspectors.

(25)	Pilots and port authorities or bodies should be enabled to provide useful information on apparent anomalies found on board ships.

(26)	Complaints from persons with a legitimate interest regarding on-board living and working conditions should be investigated. Any person lodging a complaint should be informed of the follow-up action given to that complaint.

(27)	Cooperation between the competent authorities of Member States and other authorities or organisations is necessary in order to ensure an effective follow-up with regard to ships with deficiencies, which have been permitted to proceed, and for the exchange of information about ships in port.

(28)	Since the inspection database is an essential part of port State control, Member States should ensure that it is updated in the light of Community requirements.

(29)

Publication of information concerning ships and their operators or companies which do not comply with international standards on safety, health and protection of the marine environment may be an effective deterrent discouraging shippers from using such ships and an incentive to their owners to take corrective action. With regard to the information to be made available, the Commission should establish ║ close collaboration with the Paris MOU and take account of any information published in order to avoid unnecessary duplication. Member States should have to provide the relevant information only once.

(30)	All costs of inspecting, which warrant detention of ships, and those incurred in lifting a refusal of access, should be borne by the owner or the operator.

(31)	The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (10).

(32)

In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to Conventions, international codes and resolutions related thereto and to establish the rules of implementation for the provisions of Articles 7 and 9. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia by supplementing it with new-non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(33)

Since the objectives of this Directive, namely to reduce substandard shipping in waters under Member States’ jurisdiction through improvement of the Community’s inspection system for seagoing ships and the development of the means of taking preventive action in the field of pollution of the seas, cannot be sufficiently achieved by Member States and may, therefore, on account of their scale and effects, be better achieved at Community level, the Community may take measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.

(34)	The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with Directive 95/21/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

(35)	This Directive should be without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XV, Part B.

(36)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (11), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(37)

In order not to impose a disproportionate administrative burden on landlocked Member States, a de minimis rule should allow such Member States to derogate from the provisions of this Directive, which means that such Member States, as long as they meet certain criteria, are not obliged to transpose this Directive.

(38)

In order to take into account the fact that the French overseas departments belong to a different geographical area, are to a large extent Parties to regional port State control memoranda other than the Paris MOU and have very limited traffic flows with mainland Europe, the Member State concerned should be allowed to exclude those ports from the port State control system applied within the Community,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

The purpose of this Directive is to help to drastically reduce substandard shipping in the waters under the jurisdiction of Member States by:

(a)	increasing compliance with international and relevant Community legislation on maritime safety, maritime security, protection of the marine environment and on-board living and working conditions of ships of all flags;

(b)	establishing common criteria for control of ships by the port State and harmonising procedures on inspection and detention, building upon the expertise and experience within the Paris MOU;

(c)

implementing within the Community a port State control regime based on the inspections performed within the Community and the Paris MOU region, aiming at the inspection of all ships with the frequency depending on their risk profile, whereby ships posing a higher risk shall be subject to a more thorough inspection carried out at more frequent intervals.

Article 2

Definitions

For the purposes of this Directive the following definitions shall apply:

1)

‘Conventions’ means the following Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version: (a) the International Convention on Load Lines, 1966 (LL 66); (b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74); (c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78); (d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78); (e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72); (f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69); (g) the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147); (h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92).

2)	‘Paris MOU’ means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, in its up-to-date version.

3)	‘Framework and procedures for the Voluntary IMO Member State Audit Scheme’ means IMO Assembly Resolution A.974(24).

4)	‘Paris MOU region’ means the geographical area in which the States party to the Paris MOU conduct inspections in the context of the Paris MOU.

5)	‘Port’ means an area of land and water made up of such works and equipment as to permit, principally, the reception of ships, their loading and unloading, the storage of goods, the receipt and delivery of these goods, and embarkation and disembarkation of passengers.

6)	‘Ship’ means any seagoing vessel to which one or more of the Conventions apply, flying a flag other than that of the port State.

7)	‘Ship/port interface’ means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship.

8)	‘Ship at anchor’ means a ship in a port or another area within the jurisdiction of a port, but not at berth, carrying out a ship/port interface.

9)	‘Inspector’ means a public-sector employee or other person, duly authorised by the competent authority of a Member State to carry out port-State control inspections, and responsible to that competent authority.

10)	‘Competent authority’ means a maritime authority responsible for port State control in accordance with this Directive.

11)	‘Competent authority for maritime security’ means a competent authority for maritime security as defined in point 7 of Article 2, of Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (12). ▐

12)	‘Initial inspection’ means a visit on board a ship by an inspector, in order to check compliance with the relevant Conventions and regulations and including at least the checks required by Article 13(1).

13)

‘More detailed inspection’ means an inspection where the ship, its equipment and crew as a whole or, as appropriate, parts thereof are subjected, in the circumstances specified in Article 13(3), to an in-depth examination covering the ship’s construction, equipment, manning, living and working conditions and compliance with on-board operational procedures.

14)	‘Expanded inspection’ means an inspection, which covers at least the items listed in Annex VII. An expanded inspection may include a more detailed inspection whenever there are clear grounds in accordance with Article 13(3).

15)	‘Complaint’ means any information or report submitted by any natural or legal person with a legitimate interest in the safety of the ship, including an interest in safety or health hazards to its crew, on-board living and working conditions and the prevention of pollution.

16)	‘Detention’ means the formal prohibition for a ship to proceed to sea due to established deficiencies which, individually or together, make the ship unseaworthy.

17)	‘Refusal of access order’ means a decision issued to the master of a ship, to the company responsible for the ship and to the flag State notifying them that the ship will be refused access to all ports and anchorages of the Community.

18)	‘Stoppage of an operation’ means a formal prohibition for a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous.

19)

‘Company’ means the owner of the ship or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Safety Management (ISM) Code.

20)	‘Recognised organisation’means a classification company or other private body, carrying out statutory tasks on behalf of a flag State administration.

21)	‘Statutory certificate’ means a certificate issued by or on behalf of a flag State in accordance with the Conventions.

22)	‘Classification certificate’ means a document confirming compliance with SOLAS 74, Chapter II-1, Part A-1, Regulation 3-1.

23)	‘Inspection database’ means the information system contributing to the implementation of the port State control regime within the Community and incorporating the data related to inspections carried out in the Paris MOU region.

24)	‘1996 Convention’ shall mean the recapitulative text of the 1976 International Maritime Organisation Convention on Limitation of Responsibility for Maritime Claims, as amended by the 1996 protocol.

Article 3

Scope

1.   This Directive shall apply to any ship and its crew calling at a port or at an anchorage of a Member State to engage in a ship/port interface.

▐

France may decide that the ports covered by this paragraph do not include ports situated in the overseas departments referred to in Article 299(2) of the Treaty.

Where a Member State carries out an inspection on a ship in its territorial waters but outside a port, such a procedure shall be deemed to be an inspection for the purposes of this Directive.

Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant international Conventions.

Member States without sea ports may derogate from the application of this Directive, under certain conditions. The Commission shall adopt, in accordance with the regulatory procedure with scrutiny referred to in Article 31(3), the measures for the implementation of this derogation mechanism .

▐

2.   Where the gross tonnage of a ship is less than 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In applying this paragraph, Member States shall be guided by Annex 1 to the Paris MOU.

3.   When inspecting a ship flying the flag of a State which is not a party to one of the Conventions, Member States shall ensure that the treatment of that ship and its crew is not more favourable than that of a ship flying the flag of a State party to that Convention.

4.   Fishing vessels, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.

Article 4

Inspection powers

1.   Member States shall take all necessary measures, in order to be legally in a position to carry out the inspections referred to in this Directive on board foreign ships, in accordance with international law.

2.   Member States shall maintain appropriate competent authorities, to which the requisite number of staff, in particular qualified inspectors, for the inspection of ships is assigned, including through recruitment , and shall take appropriate measures to ensure that inspectors perform their duties as laid down in this Directive and in particular that they are available for carrying out the inspections required in accordance with this Directive.

Article 5

Member States shall take the necessary measures to adapt their national law to the provisions on limitation of liability under the 1996 Convention.

The principle of compensation to third parties in respect of damage caused by waste falling under the ‘polluter pays’ principle enunciated in Directive 75/442/EEC and in Directive 2004/35/EC opens up the right to be compensated for the totality of the damage caused, including where there is not complete coverage and beyond the national provisions on incorporation of conventions.

Member States may maintain or introduce provisions that are stricter than those of this Article.

Article 6

Inspection regime and annual inspection commitment

1.   Member States shall carry out inspections in accordance with the selection scheme described in Article 12 and the provisions in Annex I.

2.   In order to comply with its annual inspection commitment, each Member State shall

(a)	inspect all Priority I ships, referred to in Article 12(a), calling at its ports or anchorages, and

(b)

carry out annually a total number of inspections of Priority I and Priority II ships, referred to in Article 12(a) and (b), corresponding at least to its share of the total number of inspections to be carried out annually within the Community and the Paris MOU region. The inspection share of each Member State shall be based on the number of individual ships calling at ports or anchorages of the Member State concerned in relation to the sum of the number of individual ships calling at the ports or anchorages of each State within the Community and the Paris MOU region.

3.   With a view to calculating the share of the total number of inspections to be carried out annually within the Community and the Paris MOU region referred to in point (b) of paragraph 2, ships at anchor shall not be counted unless otherwise specified by the Member State concerned.

Article 7

▐ Compliance with the Community inspection regime

In accordance with Article 5, each Member State shall:

(a)	inspect all Priority I ships, as referred to in Article 12(a), calling at its ports and anchorages, and

(b)	carry out annually a total number of inspections on Priority I and Priority II ships , as referred to in Article 12 (a) and (b), which correspond at least to its annual inspection commitment.

▐

Article 8

Circumstances in which certain ships are not inspected

1.    In the following circumstances , a Member State may decide to postpone the inspection of a Priority I ship:

(i)	if the inspection may be carried out at the next call of the ship in the same Member State, provided that the ship does not call at any other port or anchorage in the Community or the Paris MOU region in between and the postponement does not exceed 15 days, or

(ii)	if the inspection may be carried out in another port of call within the Community or the Paris MOU region within 15 days, provided that the State in which that port of call is located has agreed ▐ to perform the inspection.

If an inspection is postponed, but not performed in accordance with points (i) and (ii) and not recorded in the inspection database, it shall be counted as a missed inspection against the Member State which postponed the inspection.

2.    Under the following exceptional circumstances , an inspection ▐ not performed on Priority I ships for operational reasons shall not be counted as a missed inspection, provided that the reason for missing the inspection is recorded in the inspection database, and if in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment.

▐

3.   If an inspection is not performed on a ship at anchor, it shall not be counted as a missed inspection provided that, if point (ii) applies, the reason for missing the inspection is recorded in the inspection database, and if:

(i)	the ship is inspected in another port within the Community or the Paris MOU region in accordance with Annex I within 15 days, or ▐

(ii)	in the judgement of the competent authority the conduct of the inspection would create a risk to the safety of inspectors, the ship, its crew or to the port, or to the marine environment ▐.

4.   The measures designed to amend non-essential elements of this Directive, by supplementing it, relating to the rules for the implementation of this Article shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3).

Article 9

Notification of arrival of ships

1.   The operator, agent or master of a ship which, in accordance with Article 14, is eligible for an expanded inspection and bound for a port of call or anchorage of a Member State shall notify its arrival at the first port of call or anchorage in the Community in accordance with the provisions of Annex III.

2.   On receipt of the notification referred to in paragraph 1 of this Article and in Article 4 of Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system (13), the port authority concerned shall transmit such information to the competent authority and to those of the ports of call or anchorages successively reached in the Community .

3.   Electronic means shall be used for the purposes of any communication provided for in this Article. Other means shall be used only when electronic means are not available.

4.   The procedures and formats developed by the Member States for the implementation of Annex III shall comply with ▐ Directive 2002/59/EC ▐.

Article 10

Ship risk profile

1.   All ships calling at a port or anchorage of a Member State shall , in the inspection database be attributed a ship risk profile which determines their respective priority for inspection, the intervals between the inspections and the scope of inspections.

2.   The risk profile of a ship shall be determined by a combination of generic and historical risk parameters as follows:

(a)	Generic parameters Generic parameters shall be based on the type, age, flag, recognised organisations involved and company performance in accordance with Annex I part I.1 and Annex II.

(b)	Historic parameters Historic parameters shall be based on the number of shortcomings and detentions during a given period, in accordance with Annex I part I.2 and Annex II.

3.    The Commission shall adopt, in accordance with the regulatory procedure with scrutiny laid down in Article 31(3) , the rules for the implementation of this Article, specifying in particular:

—	the values attributed to each risk parameter,

—	the combination of risk parameters corresponding to each level of ship risk profile,

—	the conditions for implementing the flag State criteria referred to in Annex I part I.1 point (c) (iii) concerning the proof of compliance with the relevant instruments.

▐

Article 11

Frequency of inspections

║ Ships calling at Community ports or anchorages shall be subject to periodic inspections or to additional inspections as follows:

(a)	Ships shall be subject to periodic inspections at predetermined intervals depending on their risk profile in accordance with Annex I part I. The interval between periodic inspections of high risk ships shall not exceed six months .

(b)

Ships shall be subject to additional inspections regardless of the period elapsed since their last periodic inspection as follows: — The competent authority shall ensure that ships to which overriding factors listed in Annex I part II 2A apply are inspected. — Ships to which unexpected factors listed in Annex I part II 2B apply may be inspected. The decision to undertake such an additional inspection is left to the professional judgement of the competent authority.

Article 12

Selection of ships for inspection

The competent authority shall ensure that ships are selected for inspection on the basis of their risk profile as described in Annex I part I and when overriding or unexpected factors arise in accordance with Annex I part II 2A and 2B.

With a view to the inspection of ships, the competent authority:

(a)	shall select ships which are due for a mandatory inspection, referred to as ‘Priority I’ ships, in accordance with the selection scheme described in Annex I part II 3A;

(b)	may select ships which are eligible for inspection, referred to as ‘Priority II’ ships, in accordance with Annex I part II 3B.

Article 13

Initial and more detailed inspections

Member States shall ensure that ships which are selected for inspection in accordance with Article 12 are subject to an initial inspection or a more detailed inspection as follows:

1.

On each initial inspection of a ship, the competent authority shall ensure that the inspector, as a minimum: (a) checks the certificates and documents listed in Annex IV required to be kept on board in accordance with Community maritime legislation and Conventions relating to safety and security; (b) verifies, where appropriate, whether outstanding deficiencies found during the previous inspection carried out by a Member State or by a State signatory to the Paris MOU, have been rectified; (c) satisfies himself of the overall condition of the ship, including the hygiene of the ship, and the engine room and accommodation.

2.	When, after an inspection referred to in paragraph 1, deficiencies to be rectified at the next port of call have been recorded in the inspection database, the competent authority of that next port may decide not to carry out the verifications referred to in paragraph 1(a) and (c).

3.

A more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements, whenever there are clear grounds for believing, after the inspection referred to in paragraph 1, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of one of the Conventions.

‘Clear grounds’ shall exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew.

Examples of ‘clear grounds’ are set out in Annex V.

Article 14

Expanded inspections

1.   The following categories of ships are eligible for an expanded inspection in accordance with Annex I part II 3A and 3B:

—	Ships with a high-risk profile,

—	Passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age,

—	Ships with a high-risk profile or passenger ships, oil tankers, gas or chemical tankers or bulk carriers, older than 12 years of age, presenting overriding or unexpected factors,

—	Ships subject to a re-inspection following a refusal of access order issued in accordance with Article 16.

2.    The operator or master of the ship shall ensure that sufficient time is available in the operating schedule to allow the expanded inspection to be carried out.

Without prejudice to control measures required for security purposes the ship shall remain in the port until the inspection is completed.

3.     On receipt of a pre-notification provided by a ship eligible for a periodic expanded inspection, the competent authority shall inform the ship if no expanded inspection will be carried out.

4.    The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission shall, in accordance with the procedures referred to in Article 31(2), adopt measures for the implementation of Annex VII.

Article 15

Safety and security guidelines and procedures

1.   Member States shall ensure that their inspectors follow the procedures and guidelines specified in Annex VI.

2.   As far as security checks are concerned, Member States shall apply the relevant procedures set out in Annex VI of this Directive to all ships referred to in Articles 3(1), 3(2) and 3(3) of Regulation (EC) No 725/2004, calling at their ports, unless they fly the flag of the port State of inspection.

3.   The provisions of Article 14 of this Directive concerning expanded inspections shall apply to ro-ro ferries and high-speed passenger craft, referred to in Article 2(a) and (b) of Directive 1999/35/EC.

When a ship has been surveyed in accordance with Articles 6 and 8 of Directive 1999/35/EC by a host State which is not the flag State of the ship, that specific survey shall be recorded as a more detailed or as an expanded inspection, as relevant, in the inspection database and taken into account for the purposes of Articles 10, 11 and 12 of this Directive and for calculating the fulfilment of the inspection commitment of each Member State in as much as all the items referred to in Annex VII are covered.

Without prejudice to a prevention of operation of a ro-ro ferry or a high-speed passenger craft decided in accordance with Article 10 of Directive 1999/35/EC, the provisions of this Directive concerning rectification of deficiencies, detention and refusal of access, follow-up to inspections, detentions and refusal of access, as appropriate, shall apply.

4.   If necessary, the Commission may, in accordance with the procedure referred to in Article 31(2), adopt the rules necessary to ensure harmonised implementation of paragraph 1 and 2 of this Article.

Article 16

Access refusal measures concerning certain ships

1.   A Member State shall ensure that any ship meeting the criteria specified in this paragraph is refused access to its ports and anchorages, except in the situations described in Article 21(6) if the ship:

—	flies the flag of a State which appears on the black list or grey list as defined by the Paris MOU on the basis of information recorded in the inspection database and as published annually by the Commission, and ▐

—	has been detained or issued with a prevention of operation order under Directive 1999/35/EC more than twice in the course of the preceding 36 months in a port of a Member State or of a State signatory of the Paris MOU.

For the purposes of this paragraph, the lists defined by the Paris MOU shall enter into force as from 1 July each year.

The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of the order and when the conditions referred to in paragraphs 4 to 10 of Annex VIII are met .

If the ship is subject to a second refusal of access, the period shall be increased to 12 months. Any subsequent detention in a Community port shall result in the ship being permanently refused access to any port or anchorage within the Community.

▐

2.   For the purpose of this Article, Member States shall comply with the procedures laid down in Annex VIII.

Article 17

Report of inspection to the master

On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector shall draw up a report in accordance with Annex IX. The ship’s master shall be provided with a copy of the inspection report.

Article 18

Complaints

All complaints shall be subject to a rapid initial assessment by the competent authority. This assessment shall make it possible to determine whether a complaint is justified, concrete and manifestly grounded.

Should that be the case, the competent authority shall take the necessary action on the complaint. It shall, in particular, ensure that the ship’s master and owner, as well as anyone else directly concerned by the complaint, including the complainant, can make their views known.

Where the competent authority deems the complaint to be manifestly unfounded, it shall inform the complainant of its decision and of the reasons therefor.

The identity of the complainant shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall ensure confidentiality during any interviews of crew members.

Member States shall inform the flag State administration, with a copy to the International Labour Organisation (ILO) if appropriate, of complaints which are not manifestly unfounded and of follow-up actions taken.

Article 19

Rectification and detention

1.   The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection are, or will be, rectified in accordance with the Conventions.

2.   In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained or that the operation in the course of which the deficiencies are revealed is stopped. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

3.   When exercising his professional judgement as to whether or not a ship is to be detained, the inspector shall apply the criteria set out in Annex X.

4.   If the inspection reveals that the ship is not equipped with a functioning voyage data recorder, when use of such a recorder is compulsory in accordance with Directive 2002/59/EC, the competent authority shall ensure that the ship is detained.

If that deficiency cannot be readily rectified in the port of detention, the competent authority may either allow the ship to proceed to the appropriate repair yard nearest to the port of detention where it may be readily rectified or require the deficiency to be rectified within a maximum period of 30 days, as provided for in the guidelines developed by the Paris MOU. For these purposes, the procedures laid down in Article 21 shall apply.

5.   In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the parties responsible ║ take the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

6.   In the event of detention, the competent authority shall immediately inform, in writing and including the inspection report ║, the flag State administration or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organisations responsible for the issue of classification certificates or statutory certificates in accordance with the Conventions shall also be notified where relevant.

7.   This Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control.

8.   When port State control is exercised under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship.

9.   In order to alleviate port congestion, a competent authority may allow a detained ship to be moved to another part of the port if it is safe to do so. However, the risk of port congestion shall not be a consideration when deciding on a detention or on a release from detention.

The competent authority shall inform the port authorities or bodies at its earliest convenience when a detention order is issued.

Port authorities or bodies shall cooperate with the competent authority with a view to facilitating the accommodation of detained ships.

Article 20

Right of appeal

1.   The owner or operator of a ship or his representative in the Member State shall have a right of appeal against detention or refusal of access by the competent authority. An appeal shall not cause the detention or refusal of access to be suspended.

2.   Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation and shall cooperate in particular in order to ensure that appeals are dealt with in a reasonable time .

3.   The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal and the practical arrangements relating thereto .

4.   When, as a result of an appeal or of a request made by the owner or the operator of a ship or his representative, a detention order or a refusal of access order is revoked or amended:

(a)	Member States shall ensure that the inspection database is amended accordingly without delay;

(b)	the Member State where the detention order or refusal of access order is issued shall, within 24 hours of such a decision, ensure that the information published in accordance with Article 26 is rectified.

Article 21

Follow-up to inspections and detentions

1.   Where deficiencies referred to in Article 19(2) cannot be rectified in the port of inspection, the competent authority of that Member State may allow the ship concerned to proceed directly to the appropriate repair yard nearest to the port of detention where follow-up action can be taken, as chosen by the master and the authorities concerned, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with. Such conditions shall ensure that the ship can proceed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

2.   Where the decision to send a ship to a repair yard is due to a lack of compliance with IMO Resolution A. 744(18), on Guidelines on the Enhanced Programme of Inspections during Surveys of Bulk Carriers and Oil Tankers, either with respect to a ship’s documentation or with respect to a ship’s structural failures and deficiencies, the competent authority may require that the necessary thickness measurements be ensured in the port of detention before the ship is allowed to sail.

3.   In the circumstances referred to in paragraph 1, the competent authority of the Member State in the port of inspection shall notify the competent authority of the State where the repair yard is situated, the parties mentioned in Article 19(6) and any other authority as appropriate of all the conditions for the voyage.

The competent authority of a Member State receiving that notification shall inform the notifying authority of the action taken.

4.   Member States shall take measures to ensure that access to any port or anchorage within the Community is refused to ships referred to in paragraph 1 which proceed to sea:

(a)	without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or

(b)	which refuse to comply with the applicable requirements of the Conventions by not calling into the ║repair yard indicated.

Such refusal shall be maintained until the owner or operator provides evidence to the satisfaction of the competent authority of the Member State where the ship was found defective, demonstrating that the ship fully complies with all applicable requirements of the Conventions.

5.   In the circumstances referred to in paragraph 4(a), the competent authority of the Member State where the ship was found to be defective shall immediately alert the competent authorities of all the other Member States.

In the circumstances referred to in paragraph 4(b), the competent authority of the Member State in which the repair yard lies shall immediately alert the competent authorities of all the other Member States.

Before denying entry, the Member State may request consultations with the flag administration of the ship concerned.

6.   By way of derogation from the provisions of paragraph 4, access to a specific port or anchorage may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, or to reduce or minimise the risk of pollution or to have deficiencies rectified, provided that adequate measures to the satisfaction of the competent authority of such Member State have been implemented by the owner, the operator or the master of the ship to ensure safe entry.

Article 22

Professional profile of inspectors

1.   Inspections shall be carried out only by inspectors who fulfil the qualification criteria specified in Annex XI and who are authorised to carry out port State control by the competent authority.

2.   When the required professional expertise cannot be provided by the competent authority of the port State, the inspector of that competent authority may be assisted by any person with the required expertise.

3.   The competent authority, the inspectors carrying out port State control and the persons assisting them shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall the inspectors be employed by, or undertake work on behalf of, non-governmental organisations which issue statutory and classification certificates or which carry out the surveys necessary for the issue of those certificates to ships.

4.   Each inspector shall carry a personal document in the form of an identity card issued by his competent authority in accordance with Commission Directive 96/40/EC of 25 June 1996 establishing a common model for an identity card for inspectors carrying out port State control (14).

5.   Member States shall ensure that the competence of inspectors and their compliance with the minimum criteria referred to in Annex XI are verified, before authorising them to carry out inspections and periodically thereafter in the light of the training scheme referred to in paragraph 7.

6.   Member States shall ensure that inspectors receive appropriate training in relation to changes to the port State control regime applied in the Community as laid down in this Directive and amendments to the Conventions.

7.   In cooperation with Member States, the Commission shall develop and promote a harmonised Community scheme for the training and assessment of competences of port State control inspectors by Member States.

Article 23

Reports from pilots and port authorities

1.   Member States shall take appropriate measures to ensure that their pilots engaged on the berthing or unberthing of ships or engaged on ships bound for a port or in transit within a Member State immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are apparent anomalies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

2.   If port authorities or bodies, in the course of their normal duties, learn that a ship within their port has apparent anomalies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority or body shall immediately inform the competent authority of the port State concerned.

3.   Member States shall require pilots and port authorities or bodies to report at least the following information, in electronic format whenever possible:

—	ship information (name, IMO identification number, Call Sign and flag),

—	sailing information (last port of call, port of destination),

—	description of apparent anomalies found on board.

4.   Member States shall ensure that proper follow-up action is taken on apparent anomalies notified by pilots and port authorities or bodies and shall record the details of action taken.

5.   The Commission may, in accordance with the regulatory procedure referred to in Article 31(2), adopt measures for the implementation of this Article, including a harmonised electronic format and procedures for the reporting of apparent anomalies by pilots and port authorities or bodies and of follow-up action taken by Member States.

Article 24

Inspection database

1.   The Commission shall develop, maintain and update the inspection database, building upon the expertise and experience of the Paris MOU.

The inspection database shall contain all the information required for the implementation of the inspection system set up under this Directive and shall include the functionalities set out in Annex XII.

2.     Member States shall take the appropriate measures to ensure that the information on the actual time of arrival and the actual time of departure of any ship calling at its ports is transferred to the inspection database through the national maritime information management systems referred to in Article 25(4) of Directive 2002/59/EC within one hour of the ship’s arrival and within three hours of its departure respectively.

3.   Member States shall ensure that the information related to inspections performed in accordance with this Directive is transferred to the inspection database as soon as the inspection report is completed or the detention lifted.

Within 72 hours, Member States shall ensure that the information transferred to the inspection database is validated for publication purposes.

4.   On the basis of the inspection data provided by Member States, the Commission shall be able to retrieve from the inspection database any relevant data concerning the implementation of this Directive, in particular on the risk profile of the ship, on ships’ due for inspections, on ships’ movement data and on the inspection commitments of each Member State.

Member States shall have access to all the information recorded in the inspection database which is relevant for implementing the inspection procedures of this Directive.

Member States and third States Parties to the Paris MOU shall be granted access to any data they have recorded in the inspection database and to data on ships flying their flag.

Article 25

Exchange of information and cooperation

Each Member State shall ensure that its port authorities or bodies and other relevant authorities or bodies provide the competent port State control authority with the following types of information in their possession:

—	information notified in accordance with Article 9 and Annex III,

—

information concerning ships which have failed to notify any information according to the requirements of this Directive, and to Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (15) and Directive 2002/59/EC, as well as, if appropriate, with Regulation (EC) No 725/2004,

—	information concerning ships which have proceeded to sea without having complied with Article 7 or 10 of Directive 2000/59/EC,

—	information concerning ships which have been denied entry or expelled from port on security grounds,

—	information on apparent anomalies in accordance with Article 23.

Article 26

Publication of information

The Commission shall make available and maintain on a public website the information on inspections, detentions and refusals of access in accordance with Annex XIII, building upon the expertise and experience under the Paris MOU.

Article 27

Publication of a list of companies with a low and very low performance

The Commission shall establish and publish regularly on a public website information relating to companies whose performance, in view of determining the ship-risk profile referred to in Annex I part I, has been considered as low and very low for a period of three months or more.

The Commission shall adopt, in accordance with the regulatory procedure referred to in Article 31(2), the rules for the implementation of this Article, ensuring that they take account of companies’ fleet size and specifying in particular the modalities of the publication.

Article 28

Reimbursement of costs

1.   Should the inspections referred to in Articles 13 and 14 confirm or reveal deficiencies in relation to the requirements of a Convention warranting the detention of a ship, all costs relating to the inspections in any normal accounting period shall be covered by the shipowner or the operator or by his representative in the port State.

2.   All costs relating to inspections carried out by the competent authority of a Member State under the provisions of Articles 16 and 21(4) shall be charged to the owner or operator of the ship.

3.   In the case of detention of a ship, all costs relating to the detention in port shall be borne by the owner or operator of the ship.

4.   The detention shall not be lifted until full payment is made or a sufficient guarantee is given for reimbursement of those costs.

Article 29

Data to monitor implementation

Member States shall provide the Commission with the information listed in Annex XIV at the intervals stated in that Annex.

Article 30

Monitoring of compliance and performance of Member States

In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Community’s port State control regime in accordance with Article 2(b)(i) of Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.

Article 31

Committee procedure

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) created by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 (16).

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.   Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 32

Amendment procedure

The Commission shall:

(a)	adapt the Annexes, except Annex I, in order to take into account amendments to Community legislation on maritime safety and security which have entered into force, and the Conventions, international codes and resolutions of relevant international organisations and developments in the Paris MOU;

(b)	amend the definitions referring to Conventions, international codes and resolutions and Community legislation which are relevant for the purposes of this Directive.

Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 31(3).

The amendments to the international instruments referred to in Article 2 may be excluded from the scope of this Directive, pursuant to Article 5 of Regulation (EC) No 2099/2002.

Article 33

Implementing rules

When establishing the implementing rules referred to in Articles 8(4), 10(3), 14(3), 15(4), 23(5) and 27 in accordance with the procedures referred to in Article 31(2) and (3), the Commission shall take specific care that these rules take into account the expertise and the experience gained with the inspection system in the Community and in the Paris MOU.

Article 34

Penalties

Member States shall lay down a system of penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties provided for shall be effective, proportionate and dissuasive.

Article 35

Review

The Commission shall review the implementation of this Directive, in particular with a view to a uniform application of the Community inspection regime , no later than 18 months from … (17). The review will examine, inter alia, the fulfilment of the overall Community inspection commitment laid down in Article 6, the number of port State control inspectors in each Member State, the number of inspections carried out, and the compliance with the annual inspection commitment by each Member State and the implementation of Articles 7 and 8.

The Commission shall communicate the findings of the review to the European Parliament and the Council and shall determine on the basis of the review whether it is necessary to propose an amending Directive or further legislation in this area.

Article 36

Implementation and notification

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles … and points … of Annexes … [articles or subdivisions thereof, and points of Annexes which have been changed as to their substance by comparison with the earlier Directive] not later than 18 months after the date fixed in Article 38. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive .

2.   When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

3.   Member States shall communicate to the Commission the text of the main provisions of national law adopted in the field covered by this Directive.

4.   In addition, the Commission shall inform the European Parliament and the Council on a regular basis of progress in the implementation of this Directive within the Member States.

Article 37

Repeal

Directive 95/21/EC, as amended by the Directives listed in Annex XV, Part A, is hereby repealed, with effect from … (18), without prejudice to the obligations of Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XV, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex XVI.

Article 38

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Articles … and points … of annexes … [articles or subdivisions thereof, and points of annexes which are unchanged by comparison with the earlier Directive] shall apply from … (19).

Article 39

Addressees

This Directive is addressed to the Member States.

---

(1)  OJ C 318, 23.12.2006, p. 195.

(2)  OJ C 229, 22.9.2006, p. 38.

(3)  Position of the European Parliament of 25 April 2007(OJ C 74 E, 20.3.2008, p. 584), Council Common Position of 6 June 2008 (OJ C 198 E, 5.8.2008, p. 1) and Position of the European Parliament of 24 September 2008.

(4)  OJ L 157, 7.7.1995, p. 1. ║.

(5)   Judgement of 24 June 2008 (Commune de Mesquer) — not yet published in the ECR.

(6)   OJ L 194, 25.7.1975, p. 39.

(7)   OJ L 143, 30.4.2004, p. 56.

(8)  OJ L 208, 5.8.2002, p. 1. ║.

(9)  OJ L 138, 1.6.1999, p. 1. ║.

(10)  OJ L 184, 17.7.1999, p. 23. ║.

(11)  OJ C 321, 31.12.2003, p. 1.

(12)  OJ L 129, 29.4.2004, p. 6.

(13)  OJ L 208, 5.8.2002, p. 10.

(14)  OJ L 196, 7.8.1996, p. 8.

(15)  OJ L 332, 28.12.2000, p. 81. ║.

(16)  OJ L 324, 29.11.2002, p. 1. ║.

(17)  The date referred to in Article 36(1).

(18)  OJ: date of entry into force of this Directive.

(19)   Date of entry into force of this Directive.