ISSN 1725-2423

Official Journal

of the European Union

C 184E

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Information and Notices

Volume 51
22 July 2008


Notice No

Contents

page

 

III   Preparatory Acts

 

COUNCIL

2008/C 184E/01

Common Position (EC) No 15/2008 of 6 June 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system ( 1 )

1

2008/C 184E/02

Common Position (EC) No 16/2008 of 6 June 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive 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 (Recast) ( 1 )

11

2008/C 184E/03

Common Position (EC) No 17/2008 of 6 June 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC ( 1 )

23

 


 

(1)   Text with EEA relevance

EN

 


III Preparatory Acts

COUNCIL

22.7.2008   

EN

Official Journal of the European Union

CE 184/1


COMMON POSITION (EC) No 15/2008

adopted by the Council on 6 June 2008

with a view to adopting Directive 2008/…/EC of the European Parliament and of the Council of … amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system

(Text with EEA relevance)

(2008/C 184 E/01)

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)

With the adoption of Directive 2002/59/EC (4), the European Union reinforced its capacity for preventing situations posing a threat to the safety of human life at sea and to the protection of the marine environment.

(2)

Since this Directive concerns the amendment of Directive 2002/59/EC, most of the obligations it contains will not be applicable to Member States without sea shores and sea ports. Consequently, the only obligations which will be applicable to Austria, the Czech Republic, Hungary, Luxembourg or Slovakia are those obligations concerning ships flying the flag of those Member States, without prejudice to Member States' duty of cooperation to ensure continuity between maritime and other modal traffic management services, in particular river information services.

(3)

Under this Directive Member States that are coastal States should be able to exchange information, which they gather in the course of maritime traffic monitoring missions, which they carry out in their areas of competence. The Community maritime information exchange system ‘SafeSeaNet’ (hereinafter referred to as ‘SafeSeaNet’), developed by the Commission in agreement with the Member States, comprises, on the one hand, a data exchange network and, on the other hand, a standardisation of the main information available on ships and their cargo (advance notice and reporting). It thus makes it possible to locate at source and communicate to any authority accurate and up-to-date information on ships in European waters, their movements and their dangerous or polluting cargoes, as well as marine incidents.

(4)

Accordingly, in order to guarantee operational use of the information gathered in this way, it is essential that the infrastructure necessary for the data collection and exchange referred to in this Directive and implemented by the national administrations be integrated into the SafeSeaNet.

(5)

Of the information notified and exchanged pursuant to Directive 2002/59/EC, that concerning the precise characteristics of dangerous or polluting goods carried by sea is particularly important. Accordingly, and in the light of recent maritime accidents, coastal authorities should be allowed easier access to the characteristics of the hydrocarbons being carried by sea, an essential factor in choosing the most suitable control techniques, and, in an emergency, provided with a direct link with those operators who have the best knowledge of the goods being carried.

(6)

The automatic ship identification systems (AIS — Automatic Identification System) referred to in the International Convention for the Safety of Life at Sea of 1 November 1974 make it possible not only to improve the possibilities of monitoring these ships but above all to make them safer in close navigation situations. AIS have accordingly been integrated into the enacting terms of Directive 2002/59/EC. Considering the large number of collisions involving fishing vessels that have clearly not been seen by merchant ships or which have not seen the merchant ships around them, extension of that measure to include fishing vessels with a length of more than 15 metres is very much to be desired. In the framework of the European Fisheries Fund, financial assistance may be provided for the fitting on board of fishing vessels of safety equipment such as AIS.

(7)

The obligation to fit AIS should be understood also to require that AIS be maintained in operation at all times except where international rules or standards provide for the protection of navigational information.

(8)

It would be useful to study what synergies might be possible between AIS and the positioning and communication systems used in the context of the common fisheries policy, such as the satellite-based vessel monitoring system. For this purpose, the Commission, in cooperation with the Member States, should study the feasibility and determine the detailed rules for integrating AIS with the positioning and communication systems used in the context of the common fisheries policy. Investigation of the possibilities of integrating these systems should take account of the needs and requirements of controlling fishing fleets, particularly as regards the security and confidentiality of the data transmitted.

(9)

Directive 2002/59/EC provides that Member States are to adopt special measures in respect of ships posing a potential hazard due to their behaviour or condition. It therefore seems desirable to add to the list of these ships those which do not have satisfactory insurance cover or financial guarantees or which have been reported by pilots or port authorities as having apparent anomalies which may prejudice their safe navigation or create a risk for the environment.

(10)

In accordance with Directive 2002/59/EC, it seems necessary, in relation to the risks posed by exceptionally bad weather, to take into account the potential danger to shipping from ice formation. Therefore, where a competent authority designated by a Member State considers, on the basis of an ice forecast provided by a qualified meteorological information service, that the sailing conditions are creating a serious threat to the safety of human life or a serious threat of pollution, it should so inform the masters of the ships present in its area of competence or intending to enter or leave the port or ports in the area concerned. The authority concerned should be able to take any appropriate steps to ensure the safety of human life at sea and to protect the environment.

(11)

Directive 2002/59/EC provides that Member States are to draw up plans to accommodate, if the situation so requires, ships in distress in their ports or in any other protected place in the best possible conditions, in order to limit the consequences of accidents at sea. However, taking into account the Guidelines on Places of Refuge for Ships in Need of Assistance annexed to Resolution A.949(23) of the International Maritime Organisation of 13 December 2003 (hereinafter referred to as ‘IMO Resolution A.949(23)’), which were adopted subsequently to Directive 2002/59/EC and refer to ships in need of assistance when safety of life is not involved, rather than to ships in distress, that Directive should be amended accordingly.

(12)

On the basis of IMO Resolution A.949(23) and following the work carried out jointly by the Commission, the European Maritime Safety Agency (hereinafter referred to as the ‘Agency’) and the Member States, it is necessary to lay down the basic provisions that plans for accommodating ships in need of assistance should contain in order to ensure a harmonised and effective implementation of this measure and clarify the scope of obligations incumbent on the Member States.

(13)

IMO Resolution A.949(23) is to form the basis of any plans prepared by Member States in order to respond effectively to threats posed by ships in need of assistance. However, when assessing the risks associated with such threats, Member States may, in view of their special circumstances, take into consideration other factors, such as the use of sea water for the production of potable water as well as the generation of electricity.

(14)

When a ship is in need of assistance, a decision may have to be taken as regards the accommodation of that ship in a place of refuge. To this end, the authority concerned should make a preliminary evaluation of the situation on the basis of the information contained in the relevant plan for accommodation of ships in a place of refuge.

(15)

Plans for accommodating ships in need of assistance should describe precisely the decision-making chain with regard to alerting and dealing with the situations in question. The authorities concerned and their remits should be clearly described, as should the means of communication between the parties involved. The applicable procedures should ensure that an appropriate decision can be taken quickly on the basis of expertise and adequate information available to the competent authority.

(16)

When drawing up the plans, Member States should gather information on potential places of refuge on the coast so as to allow the competent authority, in the event of an accident or incident at sea, to identify clearly and quickly the most suitable areas for accommodating ships in need of assistance. This relevant information should contain a description of certain characteristics of the sites under consideration and the equipment and installations available to make it easier to accommodate ships in need of assistance or deal with the consequences of an accident or pollution.

(17)

It is important for the list of competent authorities responsible for deciding whether to accommodate a ship in a place of refuge, and the list of authorities responsible for receiving and handling alerts, to be published appropriately. It may also prove useful for the parties involved in a maritime assistance operation, including assistance and towing companies, and the authorities of neighbouring Member States likely to be affected by an emergency at sea, to have access to relevant information.

(18)

The specific function of the vessel traffic monitoring and ship's routing measures is to allow Member States to obtain a true knowledge of the ships using the waters under their jurisdiction and thus enable them to take more effective action against potential risks if necessary. Sharing the information gathered helps to improve its quality and makes it easier to process.

(19)

In accordance with Directive 2002/59/EC, Member States and the Commission have made substantial progress towards harmonising electronic data exchange, in particular as regards the transport of dangerous or polluting goods. SafeSeaNet, in development since 2002, should now be established as the reference network at Community level.

(20)

The progress made in the new technologies and in particular in their space applications, such as beacon-based ship monitoring systems, imaging systems or Global Navigation Satellite System (GNSS), now makes it possible to extend traffic monitoring further offshore and thereby to ensure better coverage of European waters, including by Long Range Identification and Tracking (LRIT) systems. There will have to be full cooperation within the Community on this work if these tools are to become an integral part of the vessel traffic monitoring and information system established by Directive 2002/59/EC.

(21)

In order to guarantee the best possible use, harmonised at Community level, of information gathered under Directive 2002/59/EC concerning maritime safety, the Commission should be able, if necessary, to process and use these data and disseminate them to the authorities designated by Member States.

(22)

In this context, the development of the ‘Equasis’ system has shown how important it is to encourage a ‘safe seas’ culture, especially in maritime transport operators. The Commission should be able to contribute to the dissemination, particularly via this system, of any information in relation to maritime safety.

(23)

Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) (5) centralises the tasks of the committees set up under the relevant Community legislation on maritime safety, prevention of pollution from ships and protection of living and working conditions on board. The existing committee should therefore be replaced by the COSS.

(24)

Amendments to the international instruments referred to should also be taken into account.

(25)

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 to the Commission (6).

(26)

In particular, the Commission should be empowered to amend Directive 2002/59/EC in order to apply subsequent amendments to the international conventions, protocols, codes and resolutions related thereto. Since those measures are of general scope and are designed to amend non-essential elements of that 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.

(27)

In accordance with Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (7), the Agency provides the Commission and Member States with the necessary support in implementing Directive 2002/59/EC.

(28)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (8), 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.

(29)

Directive 2002/59/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments

Directive 2002/59/EC is hereby amended as follows:

1)

in Article 2(2), the introductory wording shall be replaced by the following:

‘Unless otherwise provided, this Directive shall not apply to:’;

2)

Article 3 shall be amended as follows:

(a)

point (a) shall be amended as follows:

(i)

the introductory wording shall be replaced by the following:

‘“Relevant international instruments” means the following instruments, in their up-to-date version:’;

(ii)

the following indents shall be added:

‘—

“IMO Resolution A.917(22)” means International Maritime Organisation Resolution 917(22) entitled “Guidelines for the onboard use of AIS”, as amended by IMO Resolution A.956(23);

“IMO Resolution A.949(23)” means International Maritime Organisation Resolution 949(23) entitled “Guidelines on places of refuge for ships in need of assistance”;

“IMO Resolution A.950(23)” means International Maritime Organisation Resolution 950(23) entitled “Maritime assistance services (MAS)”;’;

(b)

point (k) shall be replaced by the following:

‘(k)

“competent authorities” means the authorities and organisations designated by Member States to perform functions under this Directive.’;

(c)

the following points shall be added:

‘(s)

“SafeSeaNet” means the Community maritime information exchange system developed by the Commission in cooperation with the Member States to ensure the implementation of Community legislation;

(t)

“scheduled service” means a series of ship crossings operated so as to serve traffic between the same two or more ports, either according to a published timetable or with crossings so regular or frequent that they constitute a recognisable systematic series;

(u)

“fishing vessel” means any vessel equipped for commercial exploitation of living aquatic resources;

(v)

“ship in need of assistance” means a ship in a situation, apart from one requiring rescue of persons on board, that could give rise to loss of the ship or an environmental or navigational hazard.’;

3)

the following Article shall be inserted:

‘Article 6a

Use of automatic identification systems (AIS) by fishing vessels

Any fishing vessel with an overall length of more than 15 metres and flying the flag of a Member State and registered in the Community, or operating in the internal waters or territorial sea of a Member State, or landing its catch in the port of a Member State shall, in accordance with the timetable set out in Annex II, part I(3), be fitted with an AIS (Class A) which meets the performance standards drawn up by the IMO.

Fishing vessels equipped with AIS shall maintain it in operation at all times. In exceptional circumstances, AIS may be switched off where the master considers this necessary in the interest of the safety or security of his vessel.’;

4)

Article 12 shall be replaced by the following:

‘Article 12

Obligations on the shipper

No dangerous or polluting goods shall be offered for carriage or taken on board any ship, irrespective of its size, in a port of a Member State unless a declaration has been delivered to the master or operator containing the following information:

(a)

the information listed in Annex I(2);

(b)

for the substances referred to in Annex I to the MARPOL Convention, the safety data sheet detailing the physico-chemical characteristics of the products, including their viscosity expressed in cSt at 50 °C and their density at 15 °C;

(c)

the emergency numbers of the shipper or any other person or body in possession of information on the physico-chemical characteristics of the products and on the action to be taken in an emergency.

It shall be the duty of the shipper to deliver to the master or operator such declaration and to ensure that the shipment offered for carriage is indeed the one declared in accordance with the first paragraph.’;

5)

the following points shall be added to Article 16(1):

‘(d)

ships which have failed to notify, or do not have, insurance certificates or financial guarantees pursuant to any Community legislation and international rules;

(e)

ships which have been reported by pilots or port authorities as having apparent anomalies which may prejudice their safe navigation or create a risk for the environment.’;

6)

the following Article shall be inserted:

‘Article 18a

Measures in the event of risks posed by the presence of ice

1.   Where the competent authorities consider, in view of ice conditions, that there is a serious threat to the safety of human life at sea or to the protection of their shipping areas or coastal zones, or of the shipping areas or coastal zones of other States:

(a)

they shall supply the master of a ship which is in their area of competence, or intends to enter or leave one of their ports, with appropriate information on the ice conditions, the recommended routes and the icebreaking services in their area of competence;

(b)

they may, without prejudice to the duty of assistance to ships in need of assistance and other obligations flowing from relevant international rules, request that a ship which is in the area concerned and intends to enter or leave a port or terminal or to leave an anchorage area, satisfy the strength and power requirements commensurate with the ice situation in the area concerned.

2.   The measures taken pursuant to paragraph 1 shall be based, as regards the data concerning the ice conditions, upon ice and weather forecasts provided by a qualified meteorological information service recognised by the Member State.’;

7)

the following subparagraph shall be added to Article 19(2):

‘To this end they shall communicate to the competent national authorities, on request, the information referred to in Article 12.’;

8)

Article 20 shall be replaced by the following:

‘Article 20

Accommodation of ships in need of assistance in places of refuge

1.   The acceptance or refusal of a ship in need of assistance in a place of refuge shall be the subject of a prior assessment of the situation carried out on the basis of the plan referred to in Article 20a and a decision taken by a competent authority.

2.   The authorities referred to in paragraph 1 shall meet regularly to exchange their expertise and improve the measures taken pursuant to this Article. They may meet at any time, on account of specific circumstances.’;

9)

the following Article shall be inserted:

‘Article 20a

Plans for the accommodation of ships in need of assistance

1.   Member States shall draw up plans for responding to threats presented by ships in need of assistance in the waters under their jurisdiction.

2.   The plans referred to in paragraph 1 shall be prepared after consultation of the parties concerned, on the basis of IMO Resolutions A.949(23) and A.950(23), and shall contain at least the following:

(a)

the identity of the authority or authorities responsible for receiving and handling alerts;

(b)

the identity of the competent authority for assessing the situation and taking a decision on acceptance or refusal of a ship in need of assistance in the place of refuge selected;

(c)

information on the coastline of the Member States, which will assist the assessment of a ship in need of assistance in a place of refuge, including the description of environmental, economic and social factors and natural conditions;

(d)

the assessment procedures for acceptance or refusal of a ship in need of assistance in a place of refuge;

(e)

the resources and installations suitable for assistance, rescue and combating pollution;

(f)

procedures for international coordination and decision-making;

(g)

the financial guarantee and liability procedures in place for ships accommodated in a place of refuge.

3.   Member States shall publish the name of the competent authority referred to in Article 20(1) and of the authorities appointed for receiving and handling alerts.

Member States shall communicate on request the relevant information concerning the plans to the neighbouring Member States.

In implementing the procedures provided for in the plans for accommodating ships in need of assistance, Member States shall ensure that relevant information is made available to the parties involved in the operations.

If requested by Member States, those receiving information in accordance with the second and third subparagraphs shall be bound by an obligation of confidentiality.

4.   Member States shall inform the Commission by … (9) of the measures taken in application of this Article.’;

10)

the following Article shall be inserted:

‘Article 22a

SafeSeaNet

1.   Member States shall establish maritime information management systems, at national or local level, to process the information referred to in this Directive.

2.   The systems set up pursuant to paragraph 1 shall allow the information gathered to be used operationally and shall satisfy, in particular, the conditions laid down in Article 14.

3.   To guarantee an effective exchange of the information referred to in this Directive, Member States shall ensure that the national or local systems set up to gather, process and preserve that information can be interconnected with SafeSeaNet. The Commission shall ensure that SafeSeaNet is operational on a 24 hours-a-day basis.’;

11)

Article 23 shall be amended as follows:

(a)

point (c) shall be replaced by the following:

‘(c)

extending the cover of the Community vessel traffic monitoring and information system, and/or updating it, with a view to enhanced identification and monitoring of ships, taking into account developments in information and communication technologies. To this end, Member States and the Commission shall work together to put in place, where necessary, mandatory reporting systems, mandatory maritime traffic services and appropriate ship's routing systems, with a view to submitting them to the IMO for approval. They shall also collaborate, within the regional or international bodies concerned, on developing long-range identification and tracking systems;’;

(b)

the following point shall be added:

‘(e)

ensuring the interconnection and interoperability of the national systems used for managing the information referred to in Annex I, and developing and updating SafeSeaNet.’;

12)

the following Article shall be inserted:

‘Article 23a

Processing and management of maritime safety information

1.   The Commission shall ensure, where necessary, the processing, use and dissemination to the authorities designated by the Member States, of the information gathered under this Directive.

2.   Where appropriate, the Commission shall contribute to the development and operation of systems for collecting and disseminating data relating to maritime safety, in particular through the “Equasis” system or any other equivalent public system.’;

13)

Article 28 shall be replaced by the following:

‘Article 28

Committee

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 of the European Parliament and of the Council (10).

2.   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.

14)

the following point shall be added to Annex II(I):

‘3.   Fishing vessels

Fishing vessels with a length of more than 15 metres overall are subject to the carrying requirement laid down in Article 6a according to the following timetable:

fishing vessels of overall length 24 metres and upwards but less than 45 metres: not later than … (11);

fishing vessels of overall length 18 metres and upwards but less than 24 metres: not later than … (12);

fishing vessels of overall length exceeding 15 metres but less than 18 metres: not later than … (13).

New built fishing vessels of overall length exceeding 15 metres are subject to the carrying requirement laid down in Article 6a as from … (9).’.

Article 2

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (9). They shall forthwith communicate to the Commission the text of those measures.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

Entry into force

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

Article 4

Addressees

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

For the Council

The President


(1)  OJ C 318, 23.12.2006, p. 195.

(2)  OJ C 229, 22.9.2006, p. 38.

(3)  Opinion of the European Parliament of 25 April 2007 (not yet published in the Official Journal), Council Common Position of 6 June 2008 and Position of the European Parliament of … (not yet published in the Official Journal).

(4)  OJ L 208, 5.8.2002, p. 10.

(5)  OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).

(6)  OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(7)  OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation (EC) No 1891/2006 (OJ L 394, 30.12.2006, p. 1).

(8)  OJ C 321, 31.12.2003, p. 1.

(9)  18 months from the entry into force of this Directive.

(10)  OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).’;

(11)  3 years from the entry into force of this Directive.

(12)  4 years from the entry into force of this Directive.

(13)  5 years from the entry into force of this Directive.


STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

In November 2005, the Commission adopted its proposal (1) for a Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system. This proposal was transmitted to the Council on 13 January 2006.

The European Parliament adopted its first-reading opinion on 25 April 2007.

The European Economic and Social Committee adopted its opinion on 13 September 2006 (2).

The Committee of the Regions adopted its opinion on 15 June 2006 (3).

In the framework of the codecision procedure (Article 251 TEC), the Council reached on 7 June 2007, a political agreement on the draft directive. Following legal/linguistic revision, the Council adopted its Common Position on 6 June 2008.

II.   OBJECTIVE

The main objective of the proposed Directive is to amend Directive 2002/59/EC in order to incorporate additional measures to enhance ship safety and environmental protection as well as to harmonise the implementation of the ‘places of refuge’.

The proposal includes in particular the development of the Community maritime safety information exchange system SafeSeaNet, the designation by Member States of an independent authority for the accommodation of ships in distress, measures to be taken in the presence of ice as well as the treatment of uninsured ships. Furthermore, the proposal suggests the use of automatic identification systems (AIS) to be made compulsory for fishing vessels longer that 15 metres and tightening of the shipper's information obligations.

III.   ANALYSIS OF THE COMMON POSITION

General

The Common Position on the above proposal, as agreed by the Council, updates the directive in force in order to contribute to enhanced maritime safety. Although the Council agrees with the Commission as regards the objective of the proposal, the Council's approach involved some adaptations aiming at increasing safety in fishing vessels with an overall length of more than 15 metres fitting them with automatic identification systems (AIS), establishing the rules for the acceptance or refusal of ships in need of assistance in places of refuge and enhancing ship monitoring through the SafeSeaNet information exchange system.

It should be noted that the Common Position also includes a number of changes other than those envisaged in the European Parliament's first-reading opinion as provisions from the Commission's proposal have been supplemented with new elements or entirely redrafted.

In addition, a number of drafting changes merely seek to clarify the text or to ensure the overall coherence of the directive.

Two major issues, the fitting of automatic identification systems (AIS) to fishing vessels and the accommodation of ships in places of refuge, were considered of major significance during the discussions within the concerned Council bodies.

Specific issues

A.   Use of automatic identification systems (AIS)

The use of automatic identification systems (AIS, class A) by fishing vessels with an overall length of more than 15 metres, which is one of the main feature of the amended directive, was accepted by the Council. Nonetheless, the Council considers that it is necessary to clearly identify to which vessels this obligation applies. To this end, Council's Common Position modifies the Commission proposal and determines precisely the conditions for this mandatory provision.

Furthermore, the Council accepted the European Parliament's amendment 17, and consequently, reference is made in the directive to the IMO Resolution A.917(22) (Guidelines for onboard use of AIS).

Moreover, the Council reviewed the implementation timetable (annex II(I)) proposed by the Commission in order to make sure that the time constraints are practically feasible for the concerned parties. In the Council's opinion, it is necessary to indicate that the shipping vessels equipped with AIS shall maintain it operational at all times except in some particular cases.

B.   Accommodation of ships in places of refuge

The Council is of the opinion that, as regards the accommodation of ships in places of refuge, Member States should apply the IMO guidelines on places of refuge for ships in need of assistance (IMO Resolution A.949(23)) that stipulate that the Member State has the right to admit or to refuse the access of a vessel to a place of refuge. The Council's modification of the Commission's proposal makes clear that the acceptance or refusal of a ship in need of assistance in a place of refuge shall be the subject to a prior assessment of the situation carried out on the basis of the plan for the accommodation and a decision taken by the competent authority. For the Council, it is necessary to ensure that the plans for the accommodation will be prepared on the basis of the IMO Resolutions A.949(23) (IMO Guidelines on places of refuge for ships in need of assistance) and A.950(23) (Maritime Assistance Services).

Furthermore, the Council, contrary to the Commission, is of the opinion that the plans for accommodation of ships in need of assistance should contain information on the coastline of the Member States, which should assist the assessment of a ship in need of assistance in a place of refuge. Related to the communication of these plans to neighbouring Member States, the Council introduced the possibility for Member States to impose confidentiality.

Another issue raised in the discussions within the Council bodies, in relation to the accommodation in places of refuge, was the role of ‘the competent authority’. The Council added an additional definition of ‘competent authority’ aiming at a better understanding of this term and describing the role of the competent authority. The objective of the Council is to leave sufficient flexibility to Member States in order to organise their competent authority, taking also due account of their internal administrative and organisational structures.

Other issues

In addition to the above mentioned two main issues, the Council further modified the Commission's proposal, in particular regarding measures in the case of ice conditions. On this matter, it was spelled out that the competent authorities should proceed without prejudice to the duty of assistance and to relevant international rules.

With regard to the proposed provision on financial guarantees establishing the possibility for Member States to request an insurance certificate or a financial guarantee to the ship's operator, the Council considers it inappropriate to refer to another Commission's proposal being examined in the framework of the codecision procedure (proposal on the civil liability and financial guarantees of shipowners).

In relation to the entry into force of the amended directive, the period granted to Member States in order to bring into force the national implementation measures for this draft directive was extended from 12 months to 18 months.

Concerning SafeSeaNet, the Council's Common Position includes a provision, on the basis of the European Parliament's amendment 65, according to which the Commission shall ensure that SafeSeaNet is operational on a 24 hours-a-day basis.

IV.   EUROPEAN PARLIAMENT'S AMENDMENTS

The Common Position incorporates some of the European Parliament's first-reading amendments, improving or clarifying the text of the proposed directive.

The Council accepted in full the amendments 17 and 65 of the European Parliament (as set out in doc. 8724/07) and agreed to redraft the amendments 22 and 23 so that Article 6a, 2nd paragraph, should read: ‘Fishing vessels, equipped with AIS, shall maintain it in operation at all times. In exceptional circumstances, AIS may be switched off where the master considers this necessary in the interest of the safety or security of his vessel’.

However, not all other European Parliament's amendments are reflected in the Common Position. For different reasons they were not acceptable to the Council. In this way, for example, the amendments 10, 11, 15, 18, 35 and 45 could not be accepted by the Council as they aim at the extension of the directive's scope. The amendments 5, 31, 32, 33 and 34, which are related to the competent authority, cannot be accepted by the Council as they are too specific and detailed. They would lead to organisational inflexibility and do not allow the possibility to take into consideration the specificities of the Member States. With regard to the use of AIS by fishing vessels, the Council supports the length proposed by the Commission, taking also account of the additional modifications thereto included in the Common Position. Therefore, the amendments 24, 50 and 51 could not be supported by the Council. The amendments 8, 9, 38, 39, 40 and 41 were considered by the Council as inappropriate as they refer to another proposal of the third maritime safety package which is still in the process of examination in the framework of the codecision procedure. Concerning the exchange of confidential information (amendments 7, 37, 44, 47 and 64), the Council is of the opinion that these amendments might raise some problems related to the confidentiality of the concerned information. Finally, on the amendments 50, 52, 53 and 54 specifying when the different fishing vessels shall be subject to the provisions of the directive, the Council considers that the implementation timetable included in the Common Position might be more appropriate for the concerned parties.

The Council also considers that some amendments could be more appropriate as recitals, such as the amendments 42 and 43.

V.   CONCLUSION

The Council is of the opinion that the Common Position enables Member States to take appropriate and preventive actions as well as to respond correctly to dangerous situations.

The Council looks forward to constructive discussions with the European Parliament with a view to the early adoption of the directive.


(1)  Doc. 5171/06 — COM(2005) 589 final.

(2)  OJ C 318, 23.12.2006.

(3)  OJ C 229, 22.9.2006.


22.7.2008   

EN

Official Journal of the European Union

CE 184/11


COMMON POSITION (EC) No 16/2008

adopted by the Council on 6 June 2008

with a view to adopting Directive 2008/…/EC of the European Parliament and of the Council of … on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (Recast)

(Text with EEA relevance)

(2008/C 184 E/02)

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 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (4) has been significantly amended on several occasions. Since further amendments are to be made, it should be recast in the interests of clarity.

(2)

In view of the nature of the provisions of Directive 94/57/EC it seems appropriate that its provisions be recast in two different Community legal instruments, namely a Directive and a Regulation.

(3)

In its Resolution of 8 June 1993 on a common policy on safe seas, the Council set the objective of removing all substandard vessels from Community waters and gave priority to Community action designed to secure the effective and uniform implementation of international rules by drawing up common standards for classification societies.

(4)

Safety and pollution prevention at sea may be effectively enhanced by strictly applying international conventions, codes and resolutions while furthering the objective of freedom to provide services.

(5)

The control of compliance of ships with the uniform international standards for safety and prevention of pollution of the seas is the responsibility of flag and port States.

(6)

Member States are responsible for the issuing of international certificates for safety and the prevention of pollution provided for under conventions such as the International Convention for the Safety of Life at Sea of 1 November 1974 (SOLAS 74), the International Convention on Load Lines of 5 April 1966 and the International Convention for the Prevention of Pollution from Ships of 2 November 1973 (MARPOL), and for the implementation of those conventions.

(7)

In compliance with such conventions all Member States may authorise to a varying extent recognised organisations for the certification of such compliance and may delegate the issue of the relevant certificates for safety and the prevention of pollution.

(8)

Worldwide a large number of the existing classification societies 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.

(9)

In accordance with SOLAS 74 Chapter II-1, Part A-1, Regulation 3-1, Member States are responsible for ensuring that ships flying their flag are designed, constructed and maintained in compliance with the structural, mechanical and electrical requirements of classification societies recognised by administrations. These societies therefore produce and implement rules for the design, construction, maintenance and inspection of ships and they are responsible for inspecting ships on behalf of the flag States and certifying that those ships meet the requirements of the international conventions for the issue of the relevant certificates. To enable them to carry out that duty in a satisfactory manner they need to have strict independence, highly specialised technical competence and rigorous quality management.

(10)

Ship inspection and survey organisations should be able to offer their services throughout the Community and compete with each other while providing equal levels of safety and of environmental protection. The necessary professional standards for their activities should therefore be uniformly established and applied across the Community.

(11)

The issue of the cargo ship safety radio certificate may be entrusted to private bodies having sufficient expertise and qualified personnel.

(12)

A Member State may restrict the number of recognised organisations it authorises in accordance with its needs, based on objective and transparent grounds, subject to control exercised by the Commission in accordance with a committee procedure.

(13)

This Directive should ensure freedom to provide services in the Community, accordingly the Community should be entitled to negotiate, with those third countries where some of the recognised organisations are located, in order to ensure equal treatment for the recognised organisations located in the Community.

(14)

A tight involvement of the national administrations in ship surveys and in the issue of the related certificates is necessary to ensure full compliance with the international safety rules even if the Member States rely upon recognised organisations, which are not part of their administration for carrying out statutory duties. It is appropriate, therefore, to establish a close working relationship between the administrations and the recognised organisations authorised by them, which may require that the recognised organisations have a local representation on the territory of the Member State on behalf of which they perform their duties.

(15)

Divergence in the financial liability regimes of the recognised organisations working on behalf of the Member States would impede the proper implementation of this Directive. In order to contribute to solving this problem it is appropriate to bring about a degree of harmonisation at Community level of the liability arising out of any marine casualty caused by a recognised organisation, as decided by a court of law, including settlement of a dispute through arbitration procedures.

(16)

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 (5).

(17)

In particular the Commission should be empowered to amend this Directive in order to incorporate subsequent amendments to the international conventions, protocols, codes and resolutions related thereto. 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.

(18)

Member States should nevertheless be left with the possibility of suspending or withdrawing their authorisation of a recognised organisation while informing the Commission and the other Member States of their decisions and giving substantiated reasons therefor.

(19)

Member States should periodically assess the performance of the recognised organisations working on their behalf and provide the Commission and all the other Member States with precise information related to such performance.

(20)

As port authorities, Member States are required to enhance safety and prevention of pollution in Community waters through priority inspection of ships carrying certificates of organisations which do not fulfil the common criteria, thereby ensuring that ships flying the flag of a third State do not receive more favourable treatment.

(21)

At present there are no uniform international standards to which all ships must conform either at the building stage or during their entire lifetime, as regards hull, machinery and electrical and control installations. Such standards may be fixed according to the rules of recognised organisations or to equivalent standards to be decided by the national administrations in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (6).

(22)

Since the objective of this Directive, namely to establish measures to be followed by the Member States in their relationship with organisations entrusted with the inspection, survey and certification of ships, operating in the Community, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at Community level, the Community may adopt 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 in order to achieve that objective.

(23)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the Directive 94/57/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

(24)

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

(25)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (7), Member States are encouraged to draw up, for themselves and in the interest 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.

(26)

Measures to be followed by ship inspection and survey organisations are laid down in Regulation (EC) No …/… of the European Parliament and the Council of … on common rules and standards for ship inspection and survey organisations (8),

HAVE ADOPTED THIS DIRECTIVE:

Article 1

This Directive establishes measures to be followed by the Member States in their relationship with organisations entrusted with the inspection, survey and certification of ships for compliance with the international conventions on safety at sea and prevention of marine pollution, while furthering the objective of freedom to provide services. This includes the development and implementation of safety requirements for hull, machinery and electrical and control installations of ships falling under the scope of the international conventions.

Article 2

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

(a)

‘ship’

means a ship falling within the scope of the international conventions;

(b)

‘ship flying the flag of a Member State’

means a ship registered in and flying the flag of a Member State in accordance with its legislation. Ships not corresponding to this definition are assimilated to ships flying the flag of a third country;

(c)

‘inspections and surveys’

means inspections and surveys that are mandatory under the international conventions;

(d)

‘international conventions’

means the International Convention for the Safety of Life at Sea of 1 November 1974, (SOLAS 74) with the exception of chapter XI-2 of the Annex thereto, the International Convention of Load Lines of 5 April 1966 and the International Convention for the Prevention of Pollution from Ships of 2 November 1973 (Marpol), together with the protocols and amendments thereto, and the related codes of mandatory status in all Member States, in their up-to-date version;

(e)

‘organisation’

means a legal entity, its subsidiaries and any other entities under its control, which jointly or separately carry out tasks falling under the scope of this Directive;

(f)

‘control’

means, for the purpose of point (e), rights, contracts or any other means, in law or in fact, which, either separately or in combination confer the possibility of exercising decisive influence on a legal entity or enable that entity to carry out tasks falling under the scope of this Directive;

(g)

‘recognised organisation’

means an organisation recognised in accordance with Regulation (EC) No …/…;

(h)

‘authorisation’

means an act whereby a Member State grants an authorisation or delegates powers to a recognised organisation;

(i)

‘statutory certificate’

means a certificate issued by or on behalf of a flag State in accordance with the international conventions;

(j)

‘rules and procedures’

means a recognised organisation's requirements for the design, construction, equipment, maintenance and survey of ships;

(k)

‘class certificate’

means a document issued by a recognised organisation certifying the fitness of a ship for a particular use or service in accordance with the rules and procedures laid down and made public by that recognised organisation;

(l)

‘cargo ship safety radio certificate’

means the certificate introduced by the 1988 Protocol amending SOLAS, adopted by the International Maritime Organisation (IMO).

Article 3

1.   In assuming their responsibilities and obligations under the international conventions, Member States shall ensure that their competent administrations can ensure appropriate enforcement of the provisions thereof, in particular with regard to the inspection and survey of ships and the issue of statutory certificates and exemption certificates as provided for by the international conventions. Member States shall act in accordance with the relevant provisions of the Annex and the Appendix to IMO Resolution A.847(20) on guidelines to assist flag States in the implementation of IMO instruments.

2.   Where for the purpose of paragraph 1 a Member State decides with respect to ships flying its flag:

(i)

to authorise organisations to undertake fully or in part inspections and surveys related to statutory certificates including those for the assessment of compliance with the rules referred to in Article 11(2) and, where appropriate, to issue or renew the related certificates; or

(ii)

to rely upon organisations to undertake fully or in part the inspections and surveys referred to in point (i);

it shall entrust these duties only to recognised organisations.

The competent administration shall in all cases approve the first issue of the exemption certificates.

However, for the cargo ship safety radio certificate these duties may be entrusted to a private body recognised by a competent administration and having sufficient expertise and qualified personnel to carry out specified safety assessment work on radio-communication on its behalf.

3.   This Article does not concern the certification of specific items of marine equipment.

Article 4

1.   In applying Article 3(2), Member States shall in principle not refuse to authorise any of the recognised organisations to undertake such functions, subject to the provisions of paragraph 2 of this Article and Articles 5 and 9. However, they may restrict the number of organisations they authorise in accordance with their needs provided there are transparent and objective grounds for so doing.

At the request of a Member State, the Commission shall, in accordance with the regulatory procedure referred to in Article 6(2), adopt appropriate measures.

2.   In order for a Member State to accept that a recognised organisation located in a third State is to carry out fully or in part the duties mentioned in Article 3 it may request the third State in question to grant reciprocal treatment to those recognised organisations which are located in the Community.

In addition, the Community may request the third State where a recognised organisation is located to grant reciprocal treatment to those recognised organisations which are located in the Community.

Article 5

1.   Member States which take a decision as described in Article 3(2) shall set out a ‘working relationship’ between their competent administration and the organisations acting on their behalf.

2.   The working relationship shall be regulated by a formalised written and non-discriminatory agreement or equivalent legal arrangements setting out the specific duties and functions assumed by the organisations and including at least:

(a)

the provisions set out in Appendix II of IMO Resolution A.739(18) on guidelines for the authorisation of organisations acting on behalf of the administration, while drawing inspiration from the Annex, Appendices and Attachment to IMO MSC/Circular 710 and MEPC/Circular 307 on a model agreement for the authorisation of recognised organisations acting on behalf of the administration;

(b)

the following provisions concerning financial liability:

(i)

if liability arising out of any marine casualty is finally and definitely imposed on the administration by a court of law or as part of the settlement of a dispute through arbitration procedures, together with a requirement to compensate the injured parties for loss of or damage to property or personal injury or death, which is proved in that court of law to have been caused by a wilful act or omission or gross negligence of the recognised organisation, its bodies, employees, agents or others who act on behalf of the recognised organisation, the administration shall be entitled to financial compensation from the recognised organisation to the extent that that loss, damage, injury or death was, as decided by that court, caused by the recognised organisation;

(ii)

if liability arising out of any marine casualty is finally and definitely imposed on the administration by a court of law or as part of the settlement of a dispute through arbitration procedures, together with a requirement to compensate the injured parties for personal injury or death, which is proved in that court of law to have been caused by any negligent or reckless act or omission of the recognised organisation, its employees, agents or others who act on behalf of the recognised organisation, the administration shall be entitled to financial compensation from the recognised organisation to the extent that that personal injury or death was, as decided by that court, caused by the recognised organisation; the Member States may limit the maximum amount payable by the recognised organisation, which must, however, be at least equal to EUR 4 million;

(iii)

if liability arising out of any marine casualty is finally and definitely imposed on the administration by a court of law or as part of the settlement of a dispute through arbitration procedures, together with a requirement to compensate the injured parties for loss of or damage to property, which is proved in that court of law to have been caused by any negligent or reckless act or omission of the recognised organisation, its employees, agents or others who act on behalf of the recognised organisation, the administration shall be entitled to financial compensation from the recognised organisation, to the extent that that loss or damage was, as decided by that court, caused by the recognised organisation; the Member States may limit the maximum amount payable by the recognised organisation, which must, however, be at least equal to EUR 2 million;

(c)

provisions for a periodical audit by the administration or by an impartial external body appointed by the administration into the duties the organisations are undertaking on its behalf, as referred to in Article 9(1);

(d)

the possibility for random and detailed inspections of ships;

(e)

provisions for reporting essential information about their classed fleet, and changes, suspensions and withdrawals of class.

3.   The agreement or equivalent legal arrangement may require the recognised organisation to have a local representation on the territory of the Member State on behalf of which it performs the duties referred to in Article 3. A local representation with legal personality under the law of the Member State and subject to the jurisdiction of its national courts may satisfy such a requirement.

4.   Each Member State shall provide the Commission with precise information on the working relationship established in accordance with this Article. The Commission shall subsequently inform the other Member States thereof.

Article 6

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 (9).

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 7

1.   This Directive may, without broadening its scope, be amended in order to:

(a)

incorporate, for the purposes of this Directive, subsequent amendments to the international conventions, protocols, codes and resolutions related thereto referred to in Articles 2(d), 3(1) and 5(2), which have entered into force;

(b)

alter the amounts specified in points (ii) and (iii) of Article 5(2)(b).

These 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 6(3).

2.   Following the adoption of new instruments or protocols to the international conventions referred to in Article 2(d), the Council, acting on a proposal from the Commission, shall decide, taking into account the Member States' parliamentary procedures as well as the relevant procedures within the IMO, on the detailed arrangements for ratifying those new instruments or protocols, while ensuring that they are applied uniformly and simultaneously in the Member States.

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

Article 8

Notwithstanding the minimum criteria specified in the Annex I of Regulation (EC) No …/…, where a Member State considers that a recognised organisation can no longer be authorised to carry out on its behalf the tasks specified in Article 3 it may suspend or withdraw such authorisation. In such case the Member State shall inform the Commission and the other Member States of its decision without delay and shall give substantiated reasons therefor.

Article 9

1.   Each Member State shall satisfy itself that the recognised organisations acting on its behalf for the purpose of Article 3(2) effectively carry out the functions referred to in that Article to the satisfaction of its competent administration.

2.   Each Member State shall carry out the task referred to in paragraph 1 at least on a biennial basis and shall provide the other Member States and the Commission with a report on the results of this monitoring at the latest by 31 March of the year following the years for which compliance has been assessed.

Article 10

In exercising their inspection rights and obligations as port States, Member States shall report to the Commission and to other Member States, and inform the flag State concerned, if they find that valid statutory certificates have been issued by recognised organisations acting on behalf of a flag State to a ship which does not fulfil the relevant requirements of the international conventions, or in the event of any failure of a ship carrying a valid class certificate and relating to items covered by that certificate. Only cases of ships representing a serious threat to safety and the environment or showing evidence of particularly negligent behaviour of the recognised organisations shall be reported for the purposes of this Article. The recognised organisation concerned shall be advised of the case at the time of the initial inspection so that it can take appropriate follow-up action immediately.

Article 11

1.   Each Member State shall ensure that ships flying its flag are designed, constructed, equipped and maintained in accordance with the rules and procedures relating to hull, machinery and electrical and control installation requirements of a recognised organisation.

2.   A Member State may decide to use rules it considers equivalent to the rules and procedures of a recognised organisation only on the proviso that it immediately notifies them to the Commission in conformity with the procedure under Directive 98/34/EC and to the other Member States and they are not objected to by another Member State or the Commission and are held, through the regulatory procedure referred to in Article 6(2) of this Directive, not to be equivalent.

3.   Member States shall cooperate with the recognised organisations they authorise in the development of the rules and procedures of those organisations. They shall confer with the recognised organisations with a view to achieving consistent interpretation of the international conventions.

Article 12

The Commission shall, on a biennial basis, inform the European Parliament and the Council of progress in the implementation of this Directive in the Member States.

Article 13

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (10). They shall forthwith inform the Commission thereof.

When they are adopted by Member States, these measures shall contain a reference to this Directive or shall be accompanied by such 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 directives repealed by this Directive shall be construed as references to this Directive. The methods of making such references shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 14

Directive 94/57/EC, as amended by the Directives listed in Annex I, Part A, shall be repealed with effect from … (11), without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B.

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

Article 15

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

Article 16

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

For the Council

The President


(1)  OJ C 318, 23.12.2006, p. 195.

(2)  OJ C 229, 22.9.2006, p. 38.

(3)  Opinion of the European Parliament of 25 April 2007 (OJ C 74 E, 20.3.2008, p. 632), Council Common Position of 6 June 2008 and Position of the European Parliament of … (not yet published in the Official Journal).

(4)  OJ L 319, 12.12.1994, p. 20. Directive as last amended by Directive 2002/84/EC (OJ L 324, 29.11.2002, p. 53).

(5)  OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(6)  OJ L 204, 21.7.1998, p. 37. Directive as last amended by Council Directive 2006/96/EC (OJ L 363, 20.12.2006, p. 81).

(7)  OJ C 321, 31.12.2003, p. 1.

(8)  OJ L …

(9)  Regulation (EC) No 2099/2002 of the European Parliament and of the Council establishing a Committee on Safe Seas and the prevention of pollution from Ships (COSS) (OJ L 324, 29.11.2002, p. 1). Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).

(10)  24 months after the date of entry into force of this Directive.

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


ANNEX I

Part A

Repealed Directive with its successive amendments

(referred to in Article 14)

Council Directive 94/57/EC

OJ L 319, 12.12.1994, p. 20

Commission Directive 97/58/EC

OJ L 274, 7.10.1997, p. 8

Directive 2001/105/EC of the European Parliament and of the Council

OJ L 19, 22.1.2002, p. 9

Directive 2002/84/EC of the European Parliament and of the Council

OJ L 324, 29.11.2002, p. 53

Part B

List of time-limits for transposition into national law

(referred to in Article 14)

Directive

Time-limit for transposition

94/57/EC

31 December 1995

97/58/EC

30 September 1998

2001/105/EC

22 July 2003

2002/84/EC

23 November 2003


ANNEX II

CORRELATION TABLE

Directive 94/57/EC

This Directive

Regulation (EC) No …/…

Article 1

Article 1

Article 1

Article 2(a)

Article 2(a)

Article 2(a)

Article 2(b)

Article 2(b)

Article 2(c)

Article 2(c)

Article 2(d)

Article 2(d)

Article 2(b)

Article 2(e)

Article 2(e)

Article 2(c)

Article 2(f)

Article 2(d)

Article 2(f)

Article 2(g)

Article 2(e)

Article 2(g)

Article 2(h)

Article 2(f)

Article 2(h)

Article 2(i)

Article 2(g)

Article 2(i)

Article 2(k)

Article 2(i)

Article 2(j)

Article 2(h)

Article 2(j)

Article 2(l)

Article 2(k)

Article 2(j)

Article 3

Article 3

Article 4(1) first phrase

Article 3(1)

Article 4(1) second phrase

Article 3(2)

Article 4(1) third phrase

Article 4(1) fourth phrase

Article 4(1)

Article 3(3)

Article 4(2), (3), (4)

Article 5

Article 6

Article 7

Article 5(1)

Article 4(1)

Article 5(3)

Article 4(2)

Article 6(1), (2), (3), (4)

Article 5(1), (2), (3), (4)

Article 6(5)

Article 7

Article 6

Article 12

Article 8(1) first indent

Article 7(1), point (a) of first subparagraph

Article 8(1) second indent

Article 13(1)

Article 8(1) third indent

Article 7(1), point (b) of first subparagraph

Article 7(1) second subparagraph

Article 13(1) (second subparagraph)

Article 8(2)

Article 7(2)

Article 8(2) second subparagraph

Article 13(2)

Article 9(1)

Article 9(2)

Article 10(1) introductory wording

Article 8

Article 10(1)(a), (b), (c), (2), (3), (4)

Article 11(1), (2)

Article 9(1), (2)

Article 11(3), (4)

Article 8(1)(2)

Article 12

Article 10

Article 13

Article 14

Article 11(1), (2)

Article 11(3)

Article 12

Article 9

Article 15(1)

Article 10(1)(2)

Article 15(2)

Article 10(3)

Article 15(3)

Article 10(4)

Article 15(4)

Article 10(5)

Article 15(5)

Article 10(6) first, second, third, fifth subparagraphs

Article 10(6) fourth subparagraph

Article 16

Article 13

Article 17

Article 16

Article 14

Article 15

Article 11

Article 14

Article 15

Article 16

Article 17

Article 18

Article 19

Annex

Annex I

Annex I

Annex II

Annex II


STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

In the framework of the codecision procedure (Article 251 TEC), the Council reached, on 30 November 2007, a political agreement on two separate legal instruments based on the related Commission proposal (1): a draft Directive on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (recast) and a Regulation on common rules and standards for ship inspection and survey organisations (recast). This document concerns the part of the Commission proposal that constitutes the recast Directive (2).

Following legal/linguistic revision, the Council adopted its Common Position on 6 June 2008.

In taking its position, the Council took account of the opinions of the European Economic and Social Committee (3) and of the Committee of Regions (4). A large number of the European Parliament's amendments, adopted at first reading on 25 April 2007 (5), were integrated or reflected in the related text, whether it forms part of the Directive or the Regulation according to the Council's position.

The proposal aims at recasting successive amendments to Directive 94/57/EC establishing common rules and standards for organisations that inspect ships and issue ships' certificates, the so-called ‘recognised organisations’. Furthermore, certain provisions of the existing Directive are amended with a view to simplification or harmonisation or in order to reinforce the current rules, e.g. by strengthening the control of recognised organisations and by reforming the system of penalties against those that do not fulfil the minimum recognition criteria.

II.   ANALYSIS OF THE COMMON POSITION

a)   Form of the legal act

The main issue raised during the discussions in the Council bodies was the form of the legal act proposed by the Commission. Several provisions in the proposed Directive must be understood to either impose obligations directly or to devolve competence on the Commission to impose such obligations on individuals, in this case the recognised organisations. This was confirmed by the Council Legal Service in its opinion of 8 October 2007 (doc. 13616/07) that advised to adopt the act in the form of a Regulation or, alternatively, to redraft the provisions in question or to split the act into one Directive and one Regulation.

In its political agreement, the Council agreed to split the text into two separate instruments, a Directive and a Regulation. The Directive includes the provisions addressed to the Member States concerning their relationship with recognised organisations; while the Regulation contains all provisions related to the recognition at Community level, i.e. the granting and the withdrawal of the recognition by the Commission, the obligations and criteria to be fulfilled by the organisations to be eligible for Community recognition as well as possible sanctions against recognised organisations that fail to fulfil these obligations and criteria.

b)   Main issues related to the Directive

The Council was able to agree on almost all main elements of the Commission proposal concerning the relationship of Member States with organisations entrusted with the inspection, survey and certification of ships. The related provisions contain only a few changes compared to the corresponding provisions of the existing Directive 94/57/EC.

The modifications of the text by the Council were either necessary for editorial or terminological reasons or concern the following issues:

 

Firstly, in line with the existing Community system, under which Member States can delegate their powers to recognised organisations to inspect ships and issue certificates under the relevant international conventions, the Council is of the view that, if a Member State does no longer wish to authorise a specific recognised organisation to act on its behalf, it is up to the Member State concerned to suspend or withdraw the authorisation. The text of the Common Position does not specify any procedure, apart from the obligation to inform the Commission and other Member States without delay of the suspension or withdrawal and to give substantiated reasons for this measure.

 

Secondly, in accordance with the amended Comitology Decision (6), the Council introduces in its Common Position the regulatory procedure with scrutiny for the adaptation of the Directive to amendments to the international conventions, protocols, codes and resolutions.

 

Thirdly, the Council deems it appropriate to specify the timeframe for the information by the Commission on the implementation of the Directive by Member States and provides that this will be done every two years.

III.   AMENDMENTS

The Council took account of the views expressed by the European Parliament in its first reading of the proposal. The following elements of the EP's opinion are reflected in the Council's Common Position, some of them partly or in principle: amendments 3, 7, 9, 11, 13, 20, 29, 30, 31, 34, 35, 36, 37 and 51.

The Council was unable to accept a set of amendments (4, 5, 8, 27 and 48) for terminological reasons. Amendments 30 and 31 are in the Council's view partly not acceptable as they would considerably change the existing rules for harmonising the financial liability of recognised organisations arising out of an incident. The Council does not agree with amendments 46 and 47 because they are too prescriptive and not consistent with the Council's approach to the delegation of powers attributed to Member States. Finally, amendments 1, 21, 28, 33 and 49 are not entirely clear or seem to be redundant.

IV.   CONCLUSION

The Council believes that its Common Position is the appropriate way to provide, by means of this Directive, for measures to be followed by Member States in their relationship with ship inspection and survey organisations, while all provisions related to the recognition of these organisations at Community level are laid down in the parallel Regulation.

The text of the Common Position reflects a large number of the European Parliament's amendments. The Council looks forward to engaging in constructive discussions with the European Parliament with a view to reaching an agreement as soon as possible.


(1)  The Commission transmitted on 30 January 2006 its proposal for a recast Directive on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (doc. 5912/06 MAR 11 ENV 50 CODEC 95).

(2)  The Council's Common Position on the draft Regulation is set out in doc. 5726/08, the related statement of reasons in doc. 5726/08 ADD 1.

(3)  CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195-201).

(4)  CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).

(5)  Doc. 8724/07 CODEC 389 MAR 28 ENV 206 (not yet published in the Official Journal).

(6)  Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ L 200, 22.7.2006, p. 11).


22.7.2008   

EN

Official Journal of the European Union

CE 184/23


COMMON POSITION (EC) No 17/2008

adopted by the Council on 6 June 2008

with a view to adopting Directive 2008/…/EC of the European Parliament and of the Council of … establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC

(Text with EEA relevance)

(2008/C 184 E/03)

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)

A high general level of safety should be maintained in maritime transport in Europe and every effort should be made to reduce the number of marine casualties and incidents.

(2)

The expeditious holding of technical investigations into marine casualties improves maritime safety, as it helps to prevent the recurrence of such casualties resulting in loss of life, loss of ships and pollution of the marine environment.

(3)

The European Parliament, in its resolution of 21 April 2004 on improving safety at sea (4), has urged the Commission to present a proposal for a directive on investigating shipping accidents.

(4)

Article 2 of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter referred to as ‘UNCLOS’) establishes the right of coastal States to investigate the cause of any marine casualty occurring within their territorial seas which might pose a risk to life or to the environment, involve the coastal State's search and rescue authorities, or otherwise affect the coastal State.

(5)

Article 94 of UNCLOS establishes that flag States are to cause an inquiry to be held, by or before a suitably qualified person or persons, into certain casualties or incidents of navigation on the high seas.

(6)

Regulation I/21 of International Convention for the Safety of Life at Sea of 1 November 1974 (hereinafter referred to as ‘SOLAS 74’), the International Convention of Load Lines of 5 April 1966 and the International Convention for the Prevention of Pollution from Ships of 2 November 1973 lay down the responsibilities of flag States to conduct casualty investigations and to supply the International Maritime Organisation (IMO) with relevant findings.

(7)

The Code for the Implementation of Mandatory IMO Instruments annexed to Resolution A.973(24) of the IMO Assembly of 1 December 2005 recalls the obligation of flag States to ensure that marine safety investigations are conducted by suitably qualified investigators, competent in matters relating to marine casualties and incidents. That Code further requires flag States to be prepared to provide qualified investigators for that purpose, irrespective of the location of the casualty or incident.

(8)

Account should be taken of the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(20) of the IMO Assembly of 27 November 1997 (hereinafter referred to as the ‘IMO Code for the Investigation of Marine Casualties and Incidents’), which provides for implementation of a common approach to the safety investigation of marine casualties and incidents and for cooperation between States in identifying the contributing factors leading to marine casualties and incidents. Account should also be taken of Resolution A.861(20) of the IMO Assembly of 27 November 1997 and Resolution MSC.163(78) of the Maritime Safety Committee of IMO of 17 May 2004, which provide a definition of voyage data recorders.

(9)

While conducting safety investigations of marine casualties and incidents, Member States should take into account the Guidelines on fair treatment of seafarers in the event of a maritime accident annexed to Resolution A.987(24) of the IMO Assembly and the Governing Body of the International Labour Organisation of 1 December 2005, or any other recommendations or instruments relating to the human factor adopted by relevant international organisations, as far as they are applicable to technical safety investigations.

(10)

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 (5) requires Member States to define, in the framework of their respective legal systems, a legal status that will enable them and any other substantially interested Member State to participate, to cooperate in, or, where provided for under the IMO Code for the Investigation of Marine Casualties and Incidents, to conduct any marine casualty or incident investigation involving a ro-ro ferry or high-speed passenger craft.

(11)

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 (6) requires Member States to comply with the IMO Code for the Investigation of Marine Casualties and Incidents and ensure that the findings of the accident investigations are published as soon as possible after its conclusion.

(12)

Conducting a safety investigation of casualties and incidents involving seagoing vessels, or other vessels in port or other restricted maritime areas, in an unbiased manner is of paramount importance for effectively establishing the circumstances and causes of such casualty or incident. Such an investigation should therefore be carried out by qualified investigators under the control of an independent body or entity in order to avoid any conflict of interest.

(13)

Member States should, in compliance with their legislation as regards the powers of the authorities responsible for the judicial inquiry and in collaboration with those authorities, where appropriate, ensure that those responsible for the technical inquiry are allowed to carry out their tasks under the best possible conditions.

(14)

Member States should ensure that their legal systems enable them and any other substantially interested Member States to participate or cooperate in, or conduct, accident investigations on the basis of the provisions of the IMO Code for the Investigation of Marine Casualties and Incidents.

(15)

A Member State may delegate to another Member State the task of leading a marine casualty or incident safety investigation (hereinafter referred to as ‘safety investigation’) or specific tasks of such investigation, if mutually agreed.

(16)

Member States should make every effort not to charge for costs for assistance requested in the framework of safety investigations involving two or more Member States. Where assistance is requested from a Member State that is not involved in the safety investigation, Member States should agree on the reimbursement of costs incurred.

(17)

Under Regulation V/20 of SOLAS 74, passenger ships and ships other than passenger ships of 3 000 gross tonnage and upwards constructed on or after 1 July 2002 must carry voyage data recorders to assist in accident investigations. Given its importance in the formulation of a policy to prevent shipping accidents, such equipment should be systematically required on board ships making national or international voyages which call at Community ports.

(18)

The data provided by a voyage data recording system, as well as by other electronic devices, can be used both retrospectively after a marine casualty or incident to investigate its causes and preventively to gain experience of the circumstances capable of leading to such events. Member States should ensure that such data, when available, are properly used for both purposes.

(19)

Regulation (EC) No 1406/2002 of the European Parliament and of the Council (7) requires the European Maritime Safety Agency (hereinafter referred to as ‘the Agency’) to work with the Member States to develop technical solutions and provide technical assistance related to the implementation of Community legislation. In the field of accident investigation, the Agency has the specific task of facilitating cooperation between the Member States and the Commission in the development, with due regard to the different legal systems in the Member States, of a common methodology for investigating maritime accidents according to agreed international principles.

(20)

In accordance with Regulation (EC) No 1406/2002, the Agency facilitates cooperation in the provision of support given by the Member States in activities concerning investigations, and in analysing existing accident investigation reports.

(21)

The safety recommendations resulting from a safety investigation should be duly taken into account by the Member States.

(22)

Since the aim of the technical safety investigation is the prevention of marine casualties and incidents, the conclusions and the safety recommendations should in no circumstances determine liability or apportion blame.

(23)

Since the objective of this Directive, namely to improve marine safety in the Community and thereby reduce the risk of future marine casualties, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or the effects of the action, be better achieved at Community level, the Community may adopt 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 in order to achieve that objective.

(24)

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 (8).

(25)

In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to the international conventions, protocols, codes and resolutions related thereto and to adopt or modify the common methodology for investigating marine casualties and incidents. 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.

(26)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (9), 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,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

1.   The purpose of this Directive is to improve maritime safety and the prevention of pollution by ships, and so reduce the risk of future marine casualties, by:

(a)

facilitating the expeditious holding of safety investigations and proper analysis of marine casualties and incidents in order to determine their causes; and

(b)

ensuring the timely and accurate reporting of safety investigations and proposals for remedial action.

2.   Investigations under this Directive shall not be concerned with determining liability or apportioning blame. However, Member States shall ensure that the investigative body or entity (hereinafter referred to as the ‘investigative body’) is not refraining from fully reporting the causes of the casualty or incident because fault or liability may be inferred from the findings.

Article 2

Scope

1.   This Directive shall apply to marine casualties and incidents that:

(a)

involve ships flying the flag of one of the Member States;

(b)

occur within Member States' territorial sea and internal waters as defined in UNCLOS; or

(c)

involve other substantial interests of the Member States.

2.   This Directive shall not apply to marine casualties and incidents involving only:

(a)

ships of war and troop ships and other ships owned or operated by a Member State and used only on government non-commercial service;

(b)

ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft not engaged in trade, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes;

(c)

inland waterway vessels operating in inland waterways;

(d)

fishing vessels with a length of less than 15 metres;

(e)

fixed offshore drilling units.

Article 3

Definitions

For the purposes of this Directive:

1)

‘IMO Code for the Investigation of Marine Casualties and Incidents’ means the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(20) of the IMO Assembly of 27 November 1997, in its up-to-date version.

2)

The following terms shall be understood in accordance with the definitions contained in the IMO Code for the Investigation of Marine Casualties and Incidents:

(a)

‘marine casualty’;

(b)

‘very serious casualty’;

(c)

‘marine incident’;

(d)

‘marine casualty or incident safety investigation’;

(e)

‘lead investigating State’;

(f)

‘substantially interested State’.

3)

The terms ‘ro-ro ferry’ and ‘high-speed passenger craft’ shall be understood in accordance with the definitions contained in Article 2 of Directive 1999/35/EC.

4)

‘Voyage data recorder’ (hereinafter referred to as ‘VDR’) shall be understood in accordance with the definition contained in Resolution A.861(20) of the IMO Assembly and Resolution MSC.163(78) of the IMO Maritime Safety Committee.

5)

‘Safety recommendation’ means any proposal made by either of the following:

(a)

the investigative body of the State conducting, or leading, the safety investigation on the basis of information derived from that investigation; or, where appropriate,

(b)

the Commission, acting on the basis of an abstract data analysis.

Article 4

Status of safety investigations

1.   Member States shall define, in accordance with their legal systems, the legal status of the safety investigation in such a way that such investigations can be carried out as effectively and rapidly as possible.

Member States shall ensure, in accordance with their legislation and, where appropriate, through collaboration with the authorities responsible for the judicial inquiry, that safety investigations are:

(a)

independent of criminal or other parallel investigations held to determine liability or apportion blame; and

(b)

not unduly precluded, suspended or delayed by reason of such investigations.

2.   The rules to be established by the Member States shall include, in accordance with the permanent cooperation framework referred to in Article 10, provisions for allowing:

(a)

cooperation and mutual assistance in safety investigations led by other Member States, or the delegation to another Member State of the task of leading such an investigation in accordance with Article 7; and

(b)

coordination of the activities of their respective investigative bodies to the extent necessary to attain the objective of this Directive.

Article 5

Obligation to investigate

1.   Each Member State shall ensure that a safety investigation is carried out by the investigative body referred to in Article 8 after very serious marine casualties:

(a)

involving a ship flying its flag, irrespective of the location of the casualty;

(b)

occurring within its territorial sea and internal waters as defined in UNCLOS, irrespective of the flag of the ship or ships involved in the casualty; or

(c)

involving a substantial interest of the Member State, irrespective of the location of the casualty and of the flag of the ship or ships involved.

2.   In addition, the investigative body shall decide whether or not a safety investigation of any other marine casualty or incident shall be undertaken.

In its decision, the investigative body shall take into account the seriousness of the casualty or incident, the type of vessel and/or cargo involved, and the potential for the findings of the safety investigation to lead to the prevention of future casualties and incidents.

3.   The scope and practical arrangements for the conduct of safety investigations shall be determined by the investigative body of the lead investigating Member State in cooperation with the equivalent bodies of the other substantially interested States, in such manner as appears to it most conducive to achieving the objective of this Directive, and with a view to preventing future casualties and incidents.

4.   Safety investigations shall follow the principles of the common methodology for investigating marine casualties and incidents developed pursuant to Article 2(e) of Regulation (EC) No 1406/2002. The Commission shall adopt or modify this methodology for the purposes of this Directive.

That measure, designed to amend non-essential elements of this Directive, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

The Commission and Member States shall develop guidelines on processes and best practice in safety investigations to be used in implementing the common methodology. These guidelines shall be updated periodically to take account of experience gained in the conduct of safety investigations.

5.   A safety investigation shall be started as promptly as is practicable after the marine casualty or incident occurs.

Article 6

Obligation to notify

A Member State shall require, in the framework of its legal system, that its investigative body be notified without delay, by the responsible authorities and/or by the parties involved, of the occurrence of all casualties and incidents falling within the scope of this Directive.

Article 7

Leading of, and participation in, safety investigations

1.   Member States shall avoid conducting parallel safety investigations into the same marine casualty or incident. They shall abstain from any measure which could unduly preclude, suspend or delay the conduct of a safety investigation falling within the scope of this Directive.

In cases of safety investigations involving two or more Member States, the Member States concerned shall cooperate with a view to rapidly agreeing which of them is to be the lead investigating Member State. They shall make every effort to agree on the procedures to investigate. In the framework of this agreement, other substantially interested States shall have equal rights and access to witnesses and evidence as the Member State conducting the safety investigation. They shall also have the right to see their point of view taken into consideration by the lead investigating Member State.

2.   Notwithstanding paragraph 1, each Member State shall remain responsible for the safety investigation and coordination with other substantially interested Member States until such time as it is mutually agreed which of them is to be the lead investigating State.

3.   Without prejudice to its obligations under this Directive and international law, a Member State may, on a case-by-case basis, delegate by mutual agreement to another Member State the task of leading a safety investigation or specific tasks for the conduct of such an investigation.

4.   When a ro-ro ferry or high-speed passenger craft is involved in a marine casualty or incident, the safety investigation procedure shall be launched by the Member State in whose territorial sea or internal waters as defined in UNCLOS the accident or incident occurs or, if occurring in other waters, by the last Member State visited by that ferry or craft. That State shall remain responsible for the safety investigation and coordination with other substantially interested Member States until it is mutually agreed which of them is to be the lead investigating State.

Article 8

Investigative bodies

1.   Member States shall ensure that safety investigations are conducted under the responsibility of an impartial permanent investigative body, and by suitably qualified investigators, competent in matters relating to marine casualties and incidents.

In order to carry out a safety investigation in an unbiased manner, the investigative body shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it.

Landlocked Member States which have neither ships nor vessels flying their flag will identify an independent focal point to cooperate in the investigation pursuant to Article 5(1)(c).

2.   The investigative body shall ensure that individual investigators have a working knowledge of, and practical experience in, those subject areas pertaining to their normal investigative duties. Additionally, the investigative body shall ensure ready access to appropriate expertise, as necessary.

3.   The activities entrusted to the investigative body may be extended to the gathering and analysis of data relating to marine safety, in particular for prevention purposes, in so far as these activities do not affect its independence or entail responsibility in regulatory, administrative or standardisation matters.

4.   Member States, acting in the framework of their respective legal systems, shall ensure that the investigators of its investigative body, or of any other investigative body to which it has delegated the task of safety investigation, where appropriate in collaboration with the authorities responsible for the judicial inquiry, be authorised to:

(a)

have free access to any relevant area or casualty site as well as to any ship, wreck or structure including cargo, equipment or debris;

(b)

ensure immediate listing of evidence and controlled search for and removal of wreckage, debris or other components or substances for examination or analysis;

(c)

require examination or analysis of the items referred to in point (b), and have free access to the results of such examinations or analysis;

(d)

have free access to, copy and have use of any relevant information and recorded data, including VDR data, pertaining to a ship, voyage, cargo, crew or any other person, object, condition or circumstance;

(e)

have free access to the results of examinations of the bodies of victims or of tests made on samples taken from the bodies of victims;

(f)

require and have free access to the results of examinations of, or tests made on samples taken from, people involved in the operation of a ship or any other relevant person;

(g)

interview witnesses in the absence of any person whose interests could be considered as hampering the safety investigation;

(h)

obtain survey records and relevant information held by the flag State, the owners, classification societies or any other relevant party, whenever those parties or their representatives are established in the Member State;

(i)

call for the assistance of the relevant authorities in the respective States, including flag-State and port-State surveyors, coastguard officers, vessel traffic service operators, search and rescue teams, pilots or other port or maritime personnel.

5.   The investigative body shall be enabled to respond immediately on being notified at any time of a casualty, and to obtain sufficient resources to carry out its functions independently. Its investigators shall be afforded status giving them the necessary guarantees of independence.

6.   The investigating body may combine its tasks under this Directive with the work of investigating occurrences other than marine casualties on condition that such investigations do not endanger its independence.

Article 9

Confidentiality

Member States, acting in the framework of their legal systems, shall ensure that the following records are not made available for purposes other than the safety investigation, unless the competent authority in that State determines that the interest in their disclosure outweighs the adverse domestic and international impact that such action may have on that safety investigation or on any future investigations:

(a)

all witness evidence and other statements, accounts and notes taken or received by the investigative body in the course of the safety investigation;

(b)

records revealing the identity of persons who have given evidence in the context of the safety investigation;

(c)

medical or private information regarding persons involved in the casualty or incident.

Article 10

Permanent cooperation framework

1.   Member States shall, in close cooperation with the Commission, establish a permanent cooperation framework enabling their respective investigative bodies to cooperate among themselves to the extent necessary to attain the objective of this Directive.

2.   The rules of procedure of the permanent cooperation framework and the organisation arrangements required therefor shall be decided in accordance with the regulatory procedure referred to in Article 18(2).

3.   Within the permanent cooperation framework, the investigative bodies in the Member States shall agree, in particular, upon the best modalities of cooperation in order to:

(a)

enable investigative bodies to share installations, facilities and equipment for the technical investigation of wreckage and ship's equipment and other objects relevant to the safety investigation, including the extraction and evaluation of information from VDRs and other electronic devices;

(b)

provide each other with the technical cooperation or expertise needed to undertake specific tasks;

(c)

acquire and share information relevant for analysing casualty data and making appropriate safety recommendations at Community level;

(d)

draw up common principles for the follow-up of safety recommendations and for the adaptation of investigative methods to the development of technical and scientific progress;

(e)

establish confidentiality rules for the sharing, in the respect of national rules, of witness evidence and the processing of data and other records referred to in Article 9, including in relations with third countries;

(f)

organise, where appropriate, relevant training activities for individual investigators;

(g)

promote cooperation with the investigative bodies of third countries and with the international maritime accidents investigation organisations in the fields covered by this Directive;

(h)

provide investigative bodies conducting safety investigations with any pertinent information.

Article 11

Costs

1.   Where safety investigations involve two or more Member States, the respective activities shall be free of charge.

2.   Where assistance is requested of a Member State that is not involved in the safety investigation, Member States shall agree on the reimbursement of costs incurred.

Article 12

Cooperation with substantially interested third countries

1.   Member States shall cooperate, to the maximum extent possible, with other substantially interested third countries in safety investigations.

2.   Substantially interested third countries shall, by mutual agreement, be allowed to join a safety investigation led by a Member State under this Directive at any stage of the investigation.

3.   The cooperation of a Member State in a safety investigation conducted by a substantially interested third country shall be without prejudice to the conduct and reporting requirements of safety investigations under this Directive. Where a substantially interested third country is leading a safety investigation involving one or more Member States, Member States may decide not to carry out a parallel safety investigation, provided that the safety investigation led by the third country is conducted in accordance with the IMO Code for the Investigation of Marine Casualties and Incidents.

Article 13

Preservation of evidence

Member States shall adopt measures to ensure that the parties concerned by casualties and incidents under the scope of this Directive make every effort to:

(a)

save all information from charts, log books, electronic and magnetic recording and video tapes, including information from VDRs and other electronic devices relating to the period preceding, during and after an accident;

(b)

prevent the overwriting or other alteration of such information;

(c)

prevent interference with any other equipment which might reasonably be considered pertinent to the safety investigation of the accident;

(d)

collect and preserve all evidence expeditiously for the purposes of the safety investigations.

Article 14

Accident reports

1.   Safety investigations carried out under this Directive shall result in a published report presented in a format defined by the competent investigative body and in accordance with the relevant sections of Annex I.

Investigative bodies may decide that a safety investigation, which does not concern a very serious marine casualty and the findings of which do not have the potential to lead to the prevention of future casualties and incidents, shall result in a simplified report to be published.

2.   Investigative bodies shall make every effort to make the report referred to in paragraph 1 available to the public within 12 months from the day of the casualty. If it is not possible to produce the final report within that time, an interim report shall be published within 12 months from the date of the casualty.

3.   The investigative body of the lead investigating Member State shall send a copy of the final, simplified or interim report to the Commission. It shall take into account the possible observations of the Commission on final reports for improving the editorial quality in the way most conducive to achieving the objective of this Directive.

Article 15

Safety recommendations

1.   Member States shall ensure that safety recommendations made by the investigative bodies are duly taken into account by the addressees and, where appropriate, be given an adequate follow-up in accordance with Community and international law.

2.   Where appropriate, an investigative body or the Commission shall make safety recommendations on the basis of an abstract data analysis.

3.   A safety recommendation shall in no circumstances determine liability or apportion blame for a casualty.

Article 16

Early alert system

Without prejudice to its right to give an early alert, the investigative body of a Member State shall, at any stage of a safety investigation, if it takes the view that urgent action is needed at Community level to prevent the risk of new casualties, inform the Commission without delay of the need to give an early alert.

If necessary, the Commission shall issue a note of warning for the attention of the responsible authorities in all the other Member States, the shipping industry, and to any other relevant party.

Article 17

European database for marine casualties

1.   Data on marine casualties and incidents shall be stored and analysed by means of a European electronic database to be set up by the Commission, which shall be known as the European Marine Casualty Information Platform (EMCIP).

2.   Member States shall notify the Commission of the entitled authorities that will have access to the database.

3.   The investigative bodies of the Member States shall notify the Commission on marine casualties and incidents in accordance with the format in Annex II. They shall also provide the Commission with data resulting from safety investigations in accordance with the EMCIP database scheme.

4.   The Commission and the Member States shall develop the database scheme and a method for the notification of data within the appropriate timescale.

Article 18

Committee

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 of the European Parliament and the Council (10).

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 two 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 19

Amending powers

The Commission may update definitions in this Directive, and the references made to Community acts and to IMO instruments in order to bring them into line with Community or IMO measures which have entered into force, subject to observance of the limits of this Directive.

Those measures, designed to amend non-essential elements of this Directive, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

Acting in accordance with the same procedure, the Commission may also amend the Annexes.

Amendments to the IMO Code for the Investigation of Marine Casualties and Incidents may be excluded from the scope of this Directive pursuant to Article 5 of Regulation (EC) No 2099/2002.

Article 20

Additional measures

Nothing contained in this Directive shall prevent a Member State from taking additional measures on maritime safety which are not covered by this Directive, provided that such measures do not infringe this Directive or in any way adversely affect the attainment of its objective.

Article 21

Penalties

Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

Article 22

Amendments to existing acts

1.   Article 12 of Directive 1999/35/EC shall be deleted.

2.   Article 11 of Directive 2002/59/EC shall be deleted.

Article 23

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … (11).

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. Member States shall determine how such reference is to be made.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 24

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.

Article 25

Addressees

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

For the Council

The President


(1)  OJ C 318, 23.12.2006, p. 195.

(2)  OJ C 229, 22.9.2006, p. 38.

(3)  Opinion of the European Parliament of 25 April 2007 (not yet published in the Official Journal), Council Common Position of 6 June 2008 and Position of the European Parliament of … (not yet published in the Official Journal).

(4)  OJ C 104 E, 30.4.2004, p. 730.

(5)  OJ L 138, 1.6.1999, p. 1. Directive as amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).

(6)  OJ L 208, 5.8.2002, p. 10.

(7)  OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation (EC) No 1891/2006 (OJ L 394, 30.12.2006, p. 1).

(8)  OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(9)  OJ C 321, 31.12.2003, p. 1.

(10)  OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).

(11)  24 months after the date of entry into force of this Directive.


ANNEX I

SAFETY INVESTIGATION REPORT CONTENT

Foreword

This identifies the sole objective of the safety investigation, that a safety recommendation shall in no case create a presumption of liability or blame, and that the report has not been written, in terms of content and style, with the intention of it being used in legal proceedings.

(The report should make no reference to witness evidence nor link anyone who is referred to in the report to a person who has given evidence during the course of the safety investigation.)

1.   Summary

This part outlines the basic facts of the marine casualty or incident: what happened, when, where and how it happened; it also states whether any deaths, injuries, damage to the ship, cargo, third parties or environment occurred as a result.

2.   Factual information

This part includes a number of discrete sections, providing sufficient information that the investigating body interprets to be factual, substantiate the analysis and ease understanding.

These sections include, in particular, the following information:

2.1.

Ship particulars

Flag/register,

Identification,

Main characteristics,

Ownership and management,

Construction details,

Minimum safe manning,

Authorised cargo.

2.2.

Voyage particulars

Ports of call,

Type of voyage,

Cargo information,

Manning.

2.3.

Marine casualty or incident information

Type of marine casualty or incident,

Date and time,

Position and location of the marine casualty or incident,

External and internal environment,

Ship operation and voyage segment,

Place on board,

Human factors data,

Consequences (for people, ship, cargo, environment, other).

2.4.

Shore authority involvement and emergency response

Who was involved,

Means used,

Speed of response,

Actions taken,

Results achieved.

3.   Narrative

This part reconstructs the marine casualty or incident through a sequence of events, in a chronological order leading up to, during and following the marine casualty or incident and the involvement of each actor (i.e. person, material, environment, equipment or external agent). The period covered by the narrative depends on the timing of those particular accidental events that directly contributed to the marine casualty or incident. This part also includes any relevant details of the safety investigation conducted, including the results of examinations or tests.

4.   Analysis

This part includes a number of discrete sections, providing an analysis of each accidental event, with comments relating to the results of any relevant examinations or tests conducted during the course of the safety investigation and to any safety action that might already have been taken to prevent marine casualties.

These sections should cover issues such as:

accidental event context and environment,

human erroneous actions and omissions, events involving hazardous material, environmental effects, equipment failures, and external influences,

contributing factors involving person-related functions, shipboard operations, shore management or regulatory influence.

The analysis and comment enable the report to reach logical conclusions, establishing all of the contributing factors, including those with risks for which existing defences aimed at preventing an accidental event, and/or those aimed at eliminating or reducing its consequences, are assessed to be either inadequate or missing.

5.   Conclusions

This part consolidates the established contributing factors and missing or inadequate defences (material, functional, symbolic or procedural) for which safety actions should be developed to prevent marine casualties.

6.   Safety recommendations

When appropriate, this part of the report contains safety recommendations derived from the analysis and conclusions and related to particular subject areas, such as legislation, design, procedures, inspection, management, health and safety at work, training, repair work, maintenance, shore assistance and emergency response.

The safety recommendations are addressed to those that are best placed to implement them, such as ship owners, managers, recognised organisations, maritime authorities, vessel traffic services, emergency bodies, international maritime organisations and European institutions, with the aim of preventing marine casualties.

This part also includes any interim safety recommendations that may have been made or any safety actions taken during the course of the safety investigation.

7.   Appendices

When appropriate, the following non-exhaustive list of information is attached to the report in paper and/or electronic form:

photographs, moving images, audio recordings, charts, drawings,

applicable standards,

technical terms and abbreviations used,

special safety studies,

miscellaneous information.


ANNEX II

MARINE CASUALTY OR INCIDENT NOTIFICATION DATA

(Part of the European Marine Casualty Information Platform)

Note:

Underlined numbers mean that data should be provided for each ship if more than one ship is involved in the marine casualty or incident.

01.

Member Sate responsible/contact person

02.

Member Sate investigator

03.

Member State role

04.

Coastal state affected

05.

Number of substantially interested States

06.

Substantially interested States

07.

Notification entity

08.

Time of the notification

09.

Date of the notification

10.

Name of the ship

11.

IMO number/distinctive letters

12.

Ship flag

13.

Type of marine casualty or incident

14.

Type of ship

15.

Date of the marine casualty or incident

16.

Time of the marine casualty or incident

17.

Position — Latitude

18.

Position — Longitude

19.

Location of the marine casualty or incident

20.

Port of departure

21.

Port of destination

22.

Traffic separation scheme

23.

Voyage segment

24.

Ship operation

25.

Place on board

26.

Lives lost:

Crew

Passengers

Other

27.

Serious injuries:

Crew

Passengers

Other

28.

Pollution

29.

Ship damage

30.

Cargo damage

31.

Other damage

32.

Brief description of the marine casualty or incident


STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

In the framework of the codecision procedure (Article 251 TEC), the Council reached, on 7 June 2007, a political agreement on the draft Directive establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC (1). Following legal/linguistic revision, the Council adopted its Common Position on 6 June 2008.

In taking its position, the Council took account of the opinion of the European Parliament in its first reading on 25 April 2007 (2), as well as of the opinions of the Economic and Social Committee (3) and of the Committee of Regions (4). Furthermore, it considered the impact study carried out by the Commission during the examination of the proposed Directive.

The proposal aims at improving safety by establishing clear Community-wide rules on the independent technical investigations to be carried out following maritime casualties and incidents. The aim of such technical investigations is not to determine civil or criminal liability, but to establish the circumstances and to research the causes of maritime casualties or incidents in order to draw all possible lessons from them. The proposal is drawn up in compliance with the rules of international maritime law and in accordance with the definitions and recommendations in the IMO Code for the Investigation of Marine Casualties and Incidents.

II.   ANALYSIS OF THE COMMON POSITION

The Council agrees with the objective and most of the main elements of the Commission proposal that provide an adequate mechanism for ensuring appropriate return of experience from accidents and incidents in order to prevent other casualties. The approach adopted by the Council required, however, some modifications of the text, in particular with a view to ensuring the independence and discretion powers of the investigative body.

The following issues were considered of major importance during the examination of the proposed Directive in the Council bodies and are reflected in the Council's Common Position:

The Council is of the view that, in coherence with the nature of the legal act, Member States, and in particular their respective investigative bodies, should retain certain flexibility and discretion related to carrying out safety investigations. Contrary to the original proposal that provided for mandatory safety investigations for very serious and serious marine casualties and incidents, the text agreed by the Council limits the obligation for safety investigations to very serious marine casualties or incidents and requires the investigative body in all other cases of marine casualties or incidents to decide whether or not to undertake a safety investigation, taking account in particular of the seriousness of the casualty or incident and the possible lessons to be learned. In addition, in the Council's view, there is no need to refer explicitly to distress alerts as a specific category of incidents that require safety investigations.

Furthermore, and following the example of the railways sector (5), the Council deems it appropriate to emphasize that the investigative body shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it in order to carry out safety investigations in an unbiased manner. It is to be understood that each Member State, in accordance with its own administrative organisation, sets up the investigative body as a public structure with the greatest possible autonomy in terms of internal functioning. This structure can be linked to a bigger entity like a ministry or administration, but will have to be regulated by provisions guaranteeing its independence, particularly from other administrative authorities likely to be interested in any maritime accident. For reasons of proportionality, Member States, which have neither ships nor vessels flying their flag, will identify an independent focal point to cooperate in safety investigations involving a substantial interest of that Member State.

In line with the requirements laid down in Community Law for safety investigations in the air transport and railways sectors, the Council agrees with the European Parliament that safety investigations have to be differentiated from criminal investigations or other proceedings aimed at determining liability and apportioning blame. The text of the Common Position establishes that investigations under this Directive have no other aim than to determine the causes of casualties. At the same time, and in accordance with the IMO Code for the Investigation of Marine Casualties and Incidents, it stipulates that the investigative body should not refrain from full reporting to this effect because fault or liability may be inferred from the findings. In case national law does not provide for a clear separation of safety investigations from criminal or other administrative investigations, Member States have to ensure, by defining the legal status of safety investigations, that these can be carried out as effectively and rapidly as possible and are not unduly precluded or suspended by other investigations.

Concerning the scope of the Directive, the Council includes in its Common Position small fishing vessels with a length of more than 15 m, and not only vessels above 24 m length as in the original proposal. This is done for reasons of consistency with the Council's Common Position on the draft Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system. According to this draft Directive, these vessels are obliged to be equipped with AIS (Automatic Identification System) to improve the possibilities of monitoring these ships and to make them safer in close navigation situations. They should, therefore, also be covered by the Directive concerning the investigation of accidents.

Related to the methodology for investigating marine casualties and incidents, the Council deems it appropriate to provide for more flexibility, while establishing the bases for a continuous exchange of experience. Compared to the original proposal, Member States have more leeway in implementing the principles of the common methodology that is developed with the assistance of the European Maritime Safety Agency and adopted in accordance with the regulatory procedure with scrutiny. At the same time, based on the experience gained in the conduct of safety investigations, the Commission and the Member States will develop guidelines on processes and best practices to be used in implementing the common methodology.

III.   AMENDMENTS

In agreeing on its Common Position, the Council took account of the points of view expressed by the European Parliament in its first reading of the proposal. The following elements of the EP's opinion are reflected in the Common Position, some of them partly or in principle: amendments 3, 9, 10, 11, 22 and 23.

A number of other amendments were, however, not acceptable for the Council. With regard to amendments 2 and 19, the Council believes that the joint methodology should not deal with the findings of safety investigations but rather focus on procedural aspects. Amendments 5 and 8 are in the Council's view not compatible with its approach to the principle of differentiation between criminal and technical investigations. Amendments 7 and 20 could not be accepted because the Council believes that it is not appropriate to specify the competences of the European Maritime Safety Agency (EMSA) in this Directive. Amendments 12 and 13 would restrict the working methods of the investigative body or are too prescriptive. Amendments 14 and 26 could not be accepted because the Council attaches major importance to the principle of impartiality of the investigative body and is of the view that it is up to each Member State to set up this body in accordance with its own administrative structure. Amendment 16 is not compatible with the need to respect national law.

A set of other amendments (4, 6, 15, 17, 18 and 24) was rejected either because they were not entirely clear or they do not correspond to the Council's approach for a concise text.

IV.   CONCLUSION

The Council believes that the text of its Common Position is appropriate and balanced. It shares the aim of the European Parliament to establish a framework ensuring rapid safety investigations into maritime casualties and incidents. The Common Position includes some of the EP amendments adopted in first reading.

The Council reaffirms its engagement to start negotiations with the European Parliament on this text with a view to reaching an agreement as soon as possible.


(1)  The Commission transmitted its proposal on 13 February 2006.

(2)  Doc. 8724/07 CODEC 389 MAR 28 ENV 206 (not yet published in the Official Journal).

(3)  CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195-201).

(4)  CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).

(5)  Article 21 of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ L 164, 30.4.2004).