Legal provisions of COM(1996)255 - Harmonized safety regime for fishing vessels of 24 metres in length and over

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dossier COM(1996)255 - Harmonized safety regime for fishing vessels of 24 metres in length and over.
document COM(1996)255 EN
date December 11, 1997


Contents

Article 1 - Purpose

1. The purpose of this Directive is to lay down safety standards for seagoing fishing vessels of 24 metres in length and over, both new, and existing, in so far as the Annex to the Torremolinos Protocol applies to the latter, 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 their catch in the port of a Member State.

Recreational craft engaged in non-commercial fishing are excluded from the scope of this Directive.

2. This Directive is without prejudice to the provisions of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (6), its individual Directives and, in particular Council Directive 93/103/EC of 23 November 1993 concerning the minimum health and safety requirements for work on board fishing vessels (13th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (7).

Article 2 - Definitions

For the purpose of this Directive:

1. 'fishing vessel` or 'vessel` means any vessel equipped or used commercially for catching fish or other living resources of the sea;

2. 'new fishing vessel` means a fishing vessel for which:

(a) on or after 1 January 1999 the building or major conversion contract is placed; or

(b) the building or major conversion contract has been placed before 1 January 1999, and which is delivered three years or more after that date; or

(c) in the absence of a building contract, on or after 1 January 1999:

- the keel is laid, or

- construction identifiable with a specific ship begins, or

- assembly has commenced comprising at least 50 tonnes or 1 % of the estimated mass of all structural material, whichever is less;

3. 'existing fishing vessel` means a fishing vessel which is not a new fishing vessel;

4. 'Torremolinos Protocol` means the Torremolinos Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977, together with the amendments thereto;

5. 'Certificate` means the certificate of compliance referred to in Article 6;

6. 'length` means, unless provided otherwise, 96 % of the total length on a waterline at 85 % of the least moulded depth measured from the keel line, or the length from the foreside of the stem to the axis of the rudder stock on that waterline, if that be greater. In vessels designed with rake of keel the waterline on which this length is measured shall be parallel to the designed waterline;

7. 'operating` means catching or catching and processing fish or other living resources of the sea without prejudice to the right of innocent passage in the territorial sea and the freedom of navigation in the 200 mile exclusive economic zone;

8. 'recognised organisation` means an organisation recognised in conformity with Article 4 of 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 (8).

Article 3 - General requirements

1. Member States shall ensure that the provisions of the Annex to the Torremolinos Protocol are applied to the fishing vessels concerned flying their flag, unless Annex I to this Directive provides otherwise.

Unless provided otherwise in this Directive, existing fishing vessels shall comply with the relevant requirements of the Annex to the Torremolinos Protocol not later than 1 July 1999.

2. Member States shall ensure that those requirements in Chapters IV, V, VII and IX of the Annex to the Torremolinos Protocol which apply to vessels of 45 metres in length and over are also applied to new fishing vessels of 24 metres in length and over, flying their flag, unless Annex II to this Directive provides otherwise.

3. However, Member States shall ensure that vessels flying their flag operating in specific areas shall comply with the provisions for the relevant areas, as defined in Annex III.

4. Member States shall ensure that vessels flying their flag shall comply with the specific safety requirements laid down in Annex IV.

5. Member States shall prohibit fishing vessels flying the flag of a third country from operating in their internal waters or territorial sea or landing their catch in their ports unless they are certified by their flag State administration to comply with the requirements referred to in paragraphs 1, 2, 3 and 4 and in Article 5.

6. Marine equipment listed in Annex A.1 to Directive 96/98/EC and complying with the requirements of the latter, when placed on board a fishing vessel to comply with the provisions of this Directive, shall be automatically considered to be in conformity with such provisions, whether or not these provisions require that the equipment must be approved and subjected to tests to the satisfaction of the administration of the flag State.

Article 4 - Specific requirements, exemptions and equivalents

1. If a Member State or a group of Member States considers that certain situations due to specific local circumstances or the vessel's particulars require specific safety measures for fishing vessels operating in a certain area, and if the need therefore is demonstrated, they may, subject to the procedure in paragraph 4, adopt such specific safety measures to take account of local circumstances such as the nature and climatic conditions of the waters these vessels operate in, the length of their journeys, or their particulars, such as their construction material.

The measures adopted shall be added in Annex III.

2. Member States shall apply the provisions of Regulation 3, paragraph 3 of Chapter 1 of the Annex to the Torremolinos Protocol, for adopting measures containing exemptions, subject to the procedure laid down in paragraph 4 of this Article.

3. Member States may adopt measures allowing equivalents in accordance with Regulation 4, paragraph 1 of Chapter 1 of the Annex to the Torremolinos Protocol, subject to the procedure laid down in paragraph 4 of this Article.

4. A Member State which avails itself of the provisions of paragraphs 1, 2 or 3 shall follow the following procedure:

(a) The Member State shall notify the Commission of the measures which it intends to adopt, including particulars to the extent necessary to confirm that the level of safety is adequately maintained.

(b) If, within a period of six months from the notification, it is decided, in accordance with the procedure laid down in Article 9, that the proposed measures are not justified, the said Member State may be required to amend or not to adopt the proposed measures.

(c) The adopted measures shall be specified in the relevant national legislation and communicated to the Commission, which shall inform the other Member States of all particulars thereof.

(d) Any of such measures shall be applied to all fishing vessels when operating under the same specified conditions, without discrimination with regard to their flag or to the nationality of their operator.

(e) The measures referred to in paragraph 2 shall only apply as long as the fishing vessel operates under the specified conditions.

Article 5 - Standards for design, construction and maintenance

The standards for the design, construction and maintenance of hull, main and auxiliary machinery, electrical and automatic plants of a fishing vessel shall be the rules in force at the date of its construction, specified for classification by a recognised organisation or used by an administration.

For new vessels, these rules shall be in accordance with the procedure and subject to the conditions laid down in Article 14(2) of Directive 94/57/EC.

Article 6 - Surveys and certificates

1. Member States shall issue to fishing vessels flying their flag and complying with Articles 3 and 5, a certificate of compliance with the terms of this Directive, supplemented by a record of equipment and, where appropriate, exemption certificates. The certificate of compliance, record of equipment and exemption certificate shall have a format as laid down in Annex V. The certificates shall be issued by the administration of the flag State or by a recognised organisation acting on its behalf after an initial survey, carried out by the exclusive surveyors either of the administration of the flag State itself or of a recognised organisation or of the Member State authorised by the flag State to carry out surveys, in accordance with Regulation 6, paragraph (1)(a) of Chapter 1 of the Annex to the Torremolinos Protocol.

2. The periods of validity of the certificates referred to in paragraph 1 shall not exceed those established in Regulation 11 of Chapter 1 of the Annex to the Torremolinos Protocol. Renewal of the certificate of compliance, shall be issued after periodical surveys, in accordance with Regulation 6 of Chapter 1 of the Annex to the Torremolinos Protocol, have been carried out.

Article 7 - Control provisions

1. Fishing vessels operating in the internal waters or territorial sea of a Member State or landing their catch in its ports and not being fishing vessels flying the flag of that Member State shall be subject to control by the Member State, in accordance with Article 4 of the Torremolinos Protocol and without discrimination with regard to flag or nationality of the operator, in order to verify that they comply with this Directive.

2. Fishing vessels, which are not operating in the internal waters or territorial sea of a Member State nor landing their catch in the ports of a Member State and flying the flag of another Member State, shall be subject to control by the Member State, when in its ports, in accordance with Article 4 of the Torremolinos Protocol and without discrimination with regard to flag or nationality of the operator, in order to verify that they comply with this Directive.

3. Fishing vessels flying the flag of a third State, which are not operating in the internal waters or territorial sea of a Member State nor landing their catch in the ports of a Member State, shall be subject to control by the Member State, when in its ports, in accordance with Article 4 of the Torremolinos Protocol, in order to verify their compliance with the Torremolinos Protocol, once it has entered into force.

Article 8 - Adaptations

In accordance with the procedure laid down in Article 9:

(a) provisions may be adopted and incorporated for:

- a harmonised interpretation of provisions of the Annex to the Torremolinos Protocol which have been left to the discretion of the administrations of individual contracting parties, as far as necessary to ensure their consistent implementation in the Community,

- the implementation of this Directive without broadening its scope.

(b) Articles 2, 3, 4, 6 and 7 of this Directive may be adapted and its Annexes may be amended in order to apply, for the purpose of this Directive, subsequent amendments to the Torremolinos Protocol which have entered into force after the adoption of this Directive.

Article 9 - Committee

1. The Commission shall be assisted by the committee established by Article 12(1) of Directive 93/75/EEC.

2. Where reference is made to this Article, the following procedure shall apply:

(a) The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

(b) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

(c) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.

If, on the expiry of eight weeks from the date of the referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

Article 10 - Notification to IMO

The Presidency of the Council and the Commission shall inform the IMO of the adoption of this Directive, whereby reference shall be made to Article 3(5) of the Torremolinos Protocol.

Article 11 - Penalties

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

Article 12 - Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1999. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member States.

2. Member States shall immediately communicate to the Commission all provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.

Article 13 - Entry into force

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.

Article 14 - Addressees

This Directive is addressed to the Member States.