COM(2016) 47 final
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
on the progress in the implementation of Regulation (EC) No 391/2009 and Directive 2009/15/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations
As part of the Third Maritime Safety package, the European Parliament and the Council adopted in 2009 Regulation (EC) No 391/2009 of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations (the Regulation) and Directive 2009/15/EC of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (the Directive). This report aims to inform the European Parliament and the Council on the progress in the implementation of this legislation in accordance with Article 17 of the Regulation and Article 12 of the Directive respectively.
The Regulation and the Directive repealed Council Directive 94/57/EC and form one coherent piece of legislation which provides the regulatory framework for ship inspection and survey organisations (otherwise called recognised organisations or ROs) in the EU.
The Directive governs the relations between the Member States, in their capacity as flag States, and the recognised organisation(s) which they authorise to carry out tasks on their behalf for the statutory certification of the ships flying their flags.
The Regulation lays down recognition criteria and obligations for recognised organisations, covering both statutory and classification activities. These requirements are of a structural and systemic nature, largely based on international standards. They aim at ensuring that EU recognised organisations strictly apply their rules and procedures on the basis of a stringent quality assurance system, with respect to all ships classed in their registers regardless of flag.
The Regulation also governs the granting and withdrawal of EU recognition, provides for the periodic assessment of ROs by the Commission and lays down a system of penalties in case of non-compliance.
If a Member State wishes to authorise an organisation to carry out on its behalf inspections and surveys related to statutory certificates for compliance with the international conventions, it has to entrust these duties only to a recognised organisation, which means an organisation recognised in accordance with the Regulation.
The recognition process is managed centrally and the recognition is granted by the Commission. Once recognised at EU level, the organisation is free to conclude bilateral agreements with any Member State, and the latter cannot refuse but only restrict the number of recognised organisations it authorises under its flag.
The Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) assists the Commission in the implementation of this legislation as per Article 6 (resp. 12) of the Directive (resp. of the Regulation).
3.List of Recognised Organisations (ROs)
3.1.Legal basis for recognition and continuation of existing recognitions
The following provisions of the Regulation govern the recognition process and the continuation of recognitions granted before 2009 under Council Directive 94/57/EC:
Article 4: recognition decision to be granted by the Commission in accordance with the examination procedure provided in Regulation (EU) No 182/2011; relevant legal entity that should hold the recognition; limited recognition; publication of the list of ROs;
Article 15: continuation of recognitions and review of limited recognitions granted under Directive 94/57/EC before the entry into force of the Regulation;
Article 16: verification of the legal entity that should hold the recognition; decision to amend the recognitions as appropriate.
3.2.Changes in the list
There were thirteen organisations holding EU recognition in 2007. Since then, the list has evolved as follows:
The limited recognition of the 'Registro Internacional Naval, SA' (RINAVE) expired on 18 April 2008 and was not renewed;
Ten organisations retained their recognitions (without limitation) at the entry into force of the Regulation in 2009 in accordance with Article 15 of the Regulation;
The recognition of the Polish Register of Shipping (PRS) was retained and extended without limitations in accordance with Article 15 of the Regulation;
The limited recognition of the Hellenic Register of Shipping (HRS) expired on 30 August 2010 and was not renewed;
More recently, the list of ROs changed as follows:
In 2013, following the merger of 'Det Norske Veritas' (DNV) and 'Germanischer Lloyd' (GL), the Commission amended the recognition of DNV and granted it to the new relevant legal entity 'DNV GL AS' in accordance with Article 4 and Article 16 of the Regulation;
In 2014, the Commission granted recognition to the 'Croatian Register of Shipping' (CRS) in accordance with Article 4 of the Regulation;
In 2015, the Commission amended the recognitions of four organisations pursuant to Article 16 of the Regulation and granted each of them to the relevant legal entity which should hold the recognition.
3.3.List of EU recognised organisations as from May 2015
Pursuant to Article 4(5) of the Regulation, the Commission draws up, updates and publishes a list of the organisations recognised in accordance with the Regulation.
To this end, the Commission adopted Commission Decision (EU) 2015/669 of 24 April 2015 repealing Decision 2007/421/EC on the publication of the list of recognised organisations which have been notified by Member States in accordance with Council Directive 94/57/EC which empowers the Director-General for Mobility and Transport to publish the list of recognised organisations and to update it where necessary.
The updated list was published on 19 May 2015 as a Notice from the European Commission (2015/C 162/06); it comprises eleven organisations: American Bureau of Shipping (ABS); Bureau Veritas SA — Registre international de classification de navires et d’aeronefs (BV); China Classification Society (CCS); Croatian Register of Shipping (CRS); DNV GL AS; KR (Korean Register); Lloyd’s Register Group LTD (LR); Nippon Kaiji Kyokai General Incorporated Foundation (ClassNK); Polish Register of Shipping (PRS); RINA Services S.p.A.; Russian Maritime Register of Shipping (RS).
4.Use of ROs by Member States in their capacity as Flag State
4.1.Transposition of Directive 2009/15/EC
Pursuant to Article 13 of the Directive, the Member States had to complete the transposition of the Directive by 17 June 2011. The completeness of the transposition of the Directive by the Member States was assessed by the Commission and was found overall satisfactory.
4.2.Working relationships between the Member States and the ROs
Article 5 of the Directive provides that Member States which decide to authorise a recognised organisation establish a formal 'working relationship' with the RO concerned in a form of a written formal agreement or equivalent legal arrangements. Pursuant to paragraph 4 of this Article, each Member State has to communicate to the Commission precise information about the working relationships with ROs.
All Member States which use one or several ROs provided the information about their working relationship as required, including changes or updates where appropriate. The Commission verified that the said agreements are in line with the requirements.
All Member States except one have concluded agreements with one or several ROs. The number of agreements concluded by each Member State ranges from one to ten, with an average of six ROs authorised per Member State.
The number of agreements concluded by EU ROs with Member States ranges from one to twenty-five, with an average of fourteen agreements per RO.
Pursuant to Article 8 of the Directive, a Member State may suspend or withdraw the authorisation of a RO if it considers that the RO concerned can no longer carry out on its behalf the tasks specified in Article 3 (inspection, surveys and/or issuance of statutory certificate). In such case, the Member State shall inform the Commission without delay and give substantiated reasons thereof. The Commission did not record any such notification since the entry into force of the Directive.
4.3.Monitoring of ROs by Member States
Each Member State has to satisfy itself that the ROs acting on its behalf effectively carry out the functions entrusted to them in respect of the ships flying its flag. For this purpose, each Member State shall on a biennial basis monitor every RO acting on its behalf and share the results of this monitoring with the Commission and the other Member States (Article 9 of the Directive).
In general, Member States fulfilled this obligation and provided their monitoring reports to the Commission as required. However the Directive does not provide any specific requirement as to the structure, contents and level of details of the monitoring reports. Thus the completeness and quality of the reports varies significantly from one Member State to another. The Commission has started a discussion with the Member States with a view to agreeing on a list of minimum elements to be covered by the reports.
Member States have also to carry out monitoring of ROs in their capacity as port States (Article 10 of the Directive) and notify the Commission and the other Member States of "cases of ships representing a serious threat to safety and the environment or showing evidence of particularly negligent behaviour of the recognised organisations". To date, the Commission did not record any such notification from Member States.
5.Oversight and monitoring of ROs at EU level
Pursuant to Article 8 of the Regulation, "All the recognised organisations shall be assessed by the Commission, together with the Member State which submitted the relevant request for recognition (…) at least every two years." "The assessment may include a visit to regional branches of the recognised organisation as well as random inspection of ships, both in service and under construction, for the purpose of auditing the recognised organisation's performance". The assessment is performed by the Commission with a view to (1) verifying that the ROs meet the obligations under the Regulation and fulfil the minimum criteria set out in Annex I of the Regulation; (2) analysing any specific items of non-conformity and their (potential) consequences in terms of safety and protection of the environment.
Visits and inspections
The Commission tasked the European Maritime Safety Agency (EMSA) to carry out, on its behalf, the necessary technical visits and inspections referred to above. This practice was codified by the last amendment to EMSA's Founding Regulation which provides that "The Agency shall carry out inspections on behalf of the Commission as required by binding legal acts of the Union regarding organisations recognised by the Union in accordance with Regulation (EC) No 391/2009 (…)".
The objective is to provide the Commission with the factual evidence and technical analysis needed for the assessment. This arrangement has also allowed EMSA to develop a strong expertise in this area and to maintain a pool of qualified inspectors.
In order to enhance the effectiveness and efficiency of the periodic assessments, a risk-based approach has been developed for the planning, preparation and conduct of the visits and inspections based on a broad range of information and data (e.g. previous assessments' findings, reports from Member States, fleet and staff statistics, newbuilding survey activity, casualties, port state control data, etc.).
From June 2009 when the Regulation entered into force until the end of 2014 (5.5 years), EMSA carried out 111 visits and inspections, including 31 visits of head offices, 66 visits of branch offices and 14 inspection of ships. Around 40% of the visits took place in the EU/EEA countries and 60% in third countries.
Assessment by the Commission and correction of deficiencies
The Commission periodically assesses ROs' compliance with the Regulation's obligations and minimum criteria in a comprehensive manner, on the basis of EMSA's findings, technical analysis and, as the case may be, recommendations.
The periodic assessment focuses on the systemic performance of the organisation and combines different analytical approaches with a view to determining the possible root-causes of the problems identified as well as the magnitude and gravity of their potential consequences. The assessment is addressed to the RO concerned with an extensive description and assessment of relevant items of non-compliance identified, with an invitation to undertake structural corrective and preventive actions in order to remedy those items of non-compliance and to prevent their reoccurrence.
The corrective and preventive actions put in place by the ROs have been very diverse and ranging from the adjustment of specific elements of their systems to their complete revamping. So far, the ROs have co-operated transparently and effectively which bears witness to their professionalism and commitment to safety.
At least once every two years, the consolidated results of the visits, inspections and assessments are discussed with the Member States in the COSS, providing also valuable information to the national administrations for the purpose of their own monitoring of the ROs they authorise in the framework of the Directive (section 4.3 above).
5.2.Enforcement and coercive powers of the Commission
Items of non-compliance of ROs with the Regulation are normally addressed in the framework of the periodic assessment (Article 8) which includes the follow-up of the implementation of relevant corrective actions undertaken by the ROs in response to the Commission's assessment as well as collective discussions on cross-cutting issues.
Notwithstanding the above, the Commission also has specific enforcement and coercive powers so that "failure by a recognised organisation to fulfil its obligations can be addressed in a prompt, effective and proportionate manner" (recital (10) of the Regulation), namely the possibility to request in a formal way that the RO implements preventive and remedial actions within specified deadlines (Article 5) and the possibility to impose fines and/or periodic penalty payments (Article 6).
Should the above measures fail to achieve their purpose or should the organisation otherwise present an unacceptable threat to safety or the environment, the Commission may withdraw the organisation's recognition, in accordance with the examination procedure and after the organisation concerned has been given the opportunity to submit its observations (Article 7).
So far, the Commission has not needed to make use of Articles 5, 6 or 7.
Pursuant to Article 14(2) of the Regulation and in the interests of transparency and legal certainty, the Commission adopted Commission Regulation (EU) No 788/2014 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, so that the methodology for the calculation of fines and periodic penalty payments by the Commission is known in advance by the organisations concerned, including specific criteria to appraise the gravity of the case and the extent to which safety or the protection of the environment has been compromised.
5.3.Safety and pollution prevention performance
Recognition is granted (and maintained) on the basis of the quality and safety performance of the organisation. The Regulation therefore provides (Article 14(1)) that the Commission adopts criteria to measure the effectiveness of ROs' rules and procedures as well as ROs' performance as regards the safety of, and the prevention of pollution from, their classed ships, having particular regard to the data produced by the Paris Memorandum of Understanding on Port State Control and/or by similar scheme, and to determine when such performance is to be considered an unacceptable threat to safety or the environment. A similar requirement existed in Directive 94/57/EC (repealed) which resulted in the adoption of Commission's Decision 2009/491/EC on criteria to be followed in order to decide when the performance of an organisation acting on behalf of a flag State can be considered an unacceptable threat to safety and the environment.
This Decision started to apply at the same time when the Regulation entered into force. It combines the Port State Control data (RO-related detentions) produced by the Paris and Tokyo MOUs and the US Coast Guard regime into an overall score.
The Commission implemented this Decision and shared the results with Member States on a regular basis. Since 2009 the EU recognised organisations consistently recorded a 'fair' to 'high' performance as measured by these criteria.
The Commission has started the ground work for the implementation of Article 14(1) of the Regulation that includes a review of Commission Decision 2009/491/EC.
6.1.The European Economic Area
Both the Regulation and the Directive are relevant to the European Economic Area (EEA) Agreement, as was also the case of (repealed) Council Directive 94/57/EC. Since 2009 however, the EEA Joint Committee has failed to incorporate them in the relevant Annex of the Agreement due to the opposition of some EEA EFTA States which have delayed the process up until now. Those States still apply Council Directive 94/57/EC. This has resulted in a number of discrepancies in the application of the requirements for ROs operating within the EEA – in contradiction with the objective of the EEA Agreement.
6.2.The IMO Code for Recognised Organisations
Recital (8) of the Directive provides that: "Worldwide a large number of the existing organisations recognised by International Maritime Organisation (IMO) Contracting Parties do not ensure either adequate implementation of the rules or sufficient reliability when acting on behalf of national administrations as they do not have reliable and adequate structures and experience to enable them to carry out their duties in a highly professional manner". Mindful that common rules and standards for ROs would have a greater impact on safety if they would be adopted and enforced at global level, the co-legislators indicated in recital (4) of the Regulation that "the Member States and the Commission should promote the development by the IMO of an international code for recognised organisations".
The Member States and the Commission actively contributed to the elaboration of the code within the relevant IMO committees. End of 2012, the final text of the IMO Code for Recognized Organizations (RO Code) was approved by the IMO but the Commission assessed that some amendments, if adopted, would conflict with the EU legislation in force or introduce severe contradictions.
This being a matter of EU competence, the Council established the position of the Member States at the IMO that was to authorise the Member States to give their consent to be bound by the code with the caveat that it is considered as minimum standard and that nothing in it shall be construed to restrict or limit the fulfilment of their obligations under EU law in relation to three specifically enumerated points.
Furthermore, as foreseen by the Regulation and the Directive in such cases, the Commission used the so-called 'conformity checking procedure' (safeguard mechanism) to prevent the automatic incorporation into Union law of certain provisions of the RO code which were either incompatible with the EU legislation in force or which could negatively impact on the EU safety standards. The Commission completed the procedure in December 2014, shortly before the entry into force of the RO Code.
7.Other mechanisms provided for in the Regulation
7.1.Article 10(1) – technical and procedural conditions for the mutual recognition of class certificate for materials, components and equipment
While furthering the objective of freedom to provide services for classification societies recognised by the EU, the Regulation requires the ROs to co-operate with each other with a view to aiming for harmonisation of their rules and procedures and to agreeing, in appropriate cases, on the technical and procedural conditions under which they will mutually recognise their class certificates for equipment, materials and components based on equivalent standards, taking the most demanding and rigorous standard as the reference. To a large extent, this mechanism draws on the principles of self-regulation and partnership with the relevant stakeholders of the maritime industry.
In accordance with Article 10(2) of the Regulation, the Commission assessed the implementation of the above provisions by the EU ROs and submitted a Report to the European Parliament and the Council at the end of July 2015, based on an independent study. The said report concludes inter alia that the scheme developed and implemented by the EU ROs is compliant with Article 10.1 of the Regulation.
7.2.Article 11 – setting up of an independent quality assessment and certification entity (QACE)
The Regulation provides that the ROs shall set up by 17 June 2011 and maintain an independent quality assessment and certification entity with the main objective to assess and certify the ROs' quality management system, issuing interpretations on quality management standards tailored for ROs' peculiarities, and adopting individual and collective recommendations to improve RO's internal control mechanisms.
The entity was founded in November 2010 in London, United Kingdom, as a private limited and community interest (non-profit) company, with the name 'QACE - Entity for the Quality Assessment and Certification and of Organisations Recognised by the European Union (CIC)'.
Pursuant to paragraphs 6 and 7 of Article 11, the Commission, with the assistance of EMSA, has assessed the development and operation of QACE for the past five years and reported on the results and follow-up of its assessment to the Member States at COSS.
The Commission is in general satisfied with QACE's development and the entity can now be considered as a self-standing organisation certified as compliant with ISO 9001:2008.
QACE's governance structure provides for a clear separation between the corporate and the operational activities, so that QACE appears to operate independently from the ROs.
As regard the assessment and certification of the ROs' quality management system, the Commission notes the efforts undertaken by QACE to co-operate with the private Quality System Certification Scheme managed by the International Association of Classification Societies and encourages further synergy insofar as it contributes to achieving the full implementation of the Regulation's requirement.
Having regard to the preceding sections, the Commission considers that the implementation of Directive 2009/15/EC and Regulation (EC) No 391/2009 progressed effectively since 2009, thanks to the combined effort of, and the co-operation between, the Member States, the Commission and EMSA.
Practically all provisions of the Regulation and of the Directive have been implemented as required, meaning that the various activities, mechanisms, schemes and working arrangements are now put in place and operative.
It seems yet too early to assess the impact of this legislation and priority should be given to further implementation of the existing framework.