Legal provisions of COM(2003)229-2 - Enhancing ship and port facility security - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2003)229-2 - Enhancing ship and port facility security. |
|---|---|
| document | COM(2003)229  |
| date | March 31, 2004 |
Contents
- Article 1 - Objectives
- Article 2 - Definitions
- Article 3 - Joint measures and scope
- Article 4 - Communication of information
- Article 5 - Alternative security agreements or equivalent security arrangements
- Article 6 - Provision of security information prior to entry into a port of a Member State
- Article 7 - Exemptions from the provision of security information prior to entry into a port
- Article 8 - Security checks in Member State ports
- Article 9 - Implementation and conformity checking
- Article 10 - Integration of amendments to international instruments
- Article 11 - Committee procedure
- Article 12 - Confidentiality
- Article 13 - Dissemination of information
- Article 14 - Sanctions
- Article 15 - Entry into force
Article 1 - Objectives
2. The Regulation is also intended to provide a basis for the harmonised interpretation and implementation and Community monitoring of the special measures to enhance maritime security adopted by the Diplomatic Conference of the IMO on 12 December 2002, which amended the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention) and established the International Ship and Port Facility Security Code (ISPS Code).
Article 2 - Definitions
1. 'special measures to enhance maritime security of the SOLAS Convention' means the amendments, as attached as Annex I to this Regulation, inserting the new Chapter XI-2 into the Annex to the SOLAS Convention of the IMO, in its up-to-date version,
2. 'ISPS Code' means the International Ship and Port Facility Security Code of the IMO, in its up-to-date version,
3. 'Part A of the ISPS Code' means the Preamble and the mandatory requirements forming Part A of the ISPS Code, as attached as Annex II to this Regulation, concerning the provisions of Chapter XI-2 of the Annex to the SOLAS Convention in its up-to-date version,
4. 'Part B of the ISPS Code' means the guidelines forming Part B of the ISPS Code, as attached as Annex III to this Regulation, regarding the provisions of chapter XI-2 of the Annex to the SOLAS Convention, as amended, and of Part A of the ISPS Code, in its up-to-date version,
5. 'maritime security' means the combination of preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts,
6. 'focal point for maritime security' means the body designated by each Member State to serve as a contact point for the Commission and other Member States and to facilitate, follow up and inform on the application of the maritime security measures laid down in this Regulation,
7. 'competent authority for maritime security' means an authority designated by a Member State to coordinate, implement and monitor the application of the security measures laid down in this Regulation in respect of ships and/or one or more port facilities. The competences of this authority may differ depending on the tasks assigned to it,
8. 'international shipping' means any maritime transport service by ship from a port facility of a Member State to a port facility outside that Member State, or conversely,
9. 'domestic shipping' means any transport service by ship in sea areas from a port facility of a Member State to the same port facility or another port facility within that Member State,
10. 'scheduled service' means a series of sailings organised in such a way as to provide a service linking two or more port facilities:
(a) either on the basis of a published timetable;
(b) or with a regularity or frequency such as to constitute a recognisable systematic service,
11. 'port facility' means a location where the ship/port interface takes place; this includes areas such as anchorages, waiting berths and approaches from seaward, as appropriate,
12. 'ship/port interface' means the interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons or goods or the provision of port services to or from the ship,
13. 'intentional unlawful act' means a deliberate act, which, by its nature or context, could harm the vessels used for international or national maritime traffic, their passengers or their cargoes, or the port facilities connected therewith.
Article 3 - Joint measures and scope
2. In respect of domestic shipping, Member States shall apply, by 1 July 2005, the special measures to enhance maritime security of the SOLAS Convention and Part A of the ISPS Code to Class A passenger ships within the meaning of Article 4 of Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships(5) operating domestic services and to their companies, as defined in regulation IX-1 of the SOLAS Convention, and to the port facilities serving them.
3. Member States shall, after a mandatory security risk assessment, decide the extent to which they will apply, by 1 July 2007, the provisions of this Regulation to different categories of ships operating domestic services other than those referred to in paragraph 2, their companies and the port facilities serving them. The overall level of security should not be compromised by such a decision.
Member States shall notify the Commission of such decisions when they are adopted, as well as of the periodic review, which must take place at intervals of no more than five years.
4. When implementing the provisions required pursuant to paragraphs 1, 2 and 3, Member States shall take fully into account the guidelines contained in Part B of the ISPS Code.
5. Member States shall conform to the following paragraphs of Part B of the ISPS Code as if they were mandatory:
- 1.12 (revision of ship security plans),
- 1.16 (port facility security assessment),
- 4.1 (protection of the confidentiality of security plans and assessments),
- 4.4 (recognised security organisations),
- 4.5 (minimum competencies of recognised security organisations),
- 4.8 (setting the security level),
- 4.14, 4.15, 4.16 (contact points and information on port facility security plans),
- 4.18 (identification documents),
- 4.24 (ships' application of the security measures recommended by the State in whose territorial waters they are sailing),
- 4.28 (manning level),
- 4.41 (communication of information when entry into port is denied or the ship is expelled from port),
- 4.45 (ships from a State which is not party to the Convention),
- 6.1 (company's obligation to provide the master with information on the ship's operators),
- 8.3 to 8.10 (minimum standards for the ship security assessment),
- 9.2 (minimum standards for the ship security plan),
- 9.4 (independence of recognised security organisations),
- 13.6 and 13.7 (frequency of security drills and exercises for ships' crews and for company and ship security officers),
- 15.3 to 15.4 (minimum standards for the port facility security assessment),
- 16.3 and 16.8 (minimum standards for the port facility security plan),
- 18.5 and 18.6 (frequency of security drills and exercises in port facilities and for port facility security officers).
6. Notwithstanding the provisions of paragraph 15.4 of Part A of the ISPS Code, the periodic review of the port facility security assessments provided for in paragraph 1.16 of Part B of the ISPS Code shall be carried out at the latest five years after the assessments were carried out or last reviewed.
7. This Regulation shall not apply to ships of war and troopships, cargo ships of less than 500 gross tonnage, ships not propelled by mechanical means, wooden ships of primitive build, fishing vessels or vessels not engaged in commercial activities.
8. Notwithstanding the provisions of paragraphs 2 and 3, Member States shall ensure, when ship security plans and port facility security plans are approved, that such plans contain appropriate provisions to ensure that the security of ships to which this Regulation applies is not compromised by any ship or port interface or ship-to-ship activity with any ships not subject to this Regulation.
Article 4 - Communication of information
2. Each Member State shall communicate to the Commission and the other Member States the contact details of the contact officials referred to in paragraph 4.16 of Part B of the ISPS Code and the information provided for in paragraph 4.41 of Part B of the ISPS Code when a ship is expelled from or refused entry to a Community port.
3. Each Member State shall draw up the list of port facilities concerned on the basis of the port facility security assessments carried out, and establish the scope of the measures taken to apply the provisions of paragraph 2 of regulation 2 (extent of application to port facilities which occasionally serve international voyages) of the special measures to enhance maritime security of the SOLAS Convention.
Each Member State shall communicate the said list to the other Member States and to the Commission by 1 July 2004 at the latest. The Commission and any Member State concerned shall also be given sufficient details of the measures taken.
Article 5 - Alternative security agreements or equivalent security arrangements
2. To that end, Member States may conclude among themselves, each acting on its own behalf, the bilateral or multilateral agreements provided for in the said SOLAS regulation. Member States may, in particular, consider such agreements in order to promote intra-Community short sea shipping.
The Member States concerned shall notify the agreements to the Commission and provide sufficient details of the measures to allow the Commission to consider whether the agreements compromise the level of security of other ships or port facilities not covered by the agreements. The details of the measures directly linked to national security, if any, may be omitted from the notification to the Commission.
The Commission shall examine whether the agreements guarantee an adequate level of protection, in particular as regards the requirements of paragraph 2 of the abovementioned SOLAS regulation 11, and whether they conform with Community law and are in accordance with the proper functioning of the internal market. If the agreements do not meet these criteria, the Commission shall within four months adopt a decision in accordance with the procedure referred to in Article 11(3); in such cases, the Member States concerned shall revoke or adapt the agreements accordingly.
3. The periodic review of such agreements provided for in paragraph 4 of regulation 11 of the special measures to enhance maritime security must take place at intervals of no more than five years.
4. Member States may adopt, for domestic shipping and the port facilities as referred to in Articles 3(2) and 3(3) of this Regulation, equivalent security arrangements as provided for in regulation 12 (equivalent security arrangements) of the special measures to enhance maritime security of the SOLAS Convention, provided such security arrangements are as least as effective as those prescribed in Chapter XI-2 of the SOLAS Convention and the relevant mandatory provisions of the ISPS Code.
The Member State concerned shall communicate to the Commission sufficient details of such arrangements when they are adopted, and the outcome of periodic reviews thereof, at the latest five years after they were adopted or last reviewed.
The conditions of application of such arrangements shall be subject to the Commission inspections provided for in Article 9(4), (5) and (6) of this Regulation under the procedures defined therein.
Article 6 - Provision of security information prior to entry into a port of a Member State
2. The information referred to in paragraph 1 shall be provided:
(a) at least 24 hours in advance; or
(b) at the latest, at the time the ship leaves the previous port, if the voyage time is less than 24 hours; or
(c) if the port of call is not known or if it is changed during the voyage, as soon as the port of call becomes known.
3. A report shall be kept of the procedure followed in respect of each ship subject to a security incident, as defined in paragraph 1.13 of regulation 1 (definitions) of the special measures to enhance maritime security of the SOLAS Convention.
Article 7 - Exemptions from the provision of security information prior to entry into a port
(a) the company operating the scheduled services referred to above keeps and updates a list of the ships concerned and sends it to the competent authority for maritime security for the port concerned,
(b) for each voyage performed, the information referred to in paragraph 2.1 of regulation 9 of the special measures to enhance maritime security of the SOLAS Convention is kept available for the competent authority for maritime security upon request. The company must establish an internal system to ensure that, upon request 24 hours a day and without delay, the said information can be sent to the competent authority for maritime security.
2. When an international scheduled service is operated between two or more Member States, any of the Member States involved may request of the other Member States that an exemption be granted to that service, in accordance with the conditions laid down in paragraph 1.
3. Member States shall periodically check that the conditions laid down in paragraphs 1 and 2 are being met. Where at least one of these conditions is no longer being met, Member States shall immediately withdraw the privilege of the exemption from the company concerned.
4. Member States shall draw up a list of companies and ships granted exemption under this Article, and shall update that list. They shall communicate the list and updates thereof to the Commission and any Member State concerned.
5. Notwithstanding the provisions of paragraphs 1 and 2, a Member State may, on security grounds and on a case-by-case basis, request the provision of the information referred to in paragraph 2.1 of regulation 9 of the special measures to enhance maritime security of the SOLAS Convention prior to entry into a port.
Article 8 - Security checks in Member State ports
2. Where the officer conducting the certificate verification referred to in paragraph 1 has clear grounds for believing that the ship is not in compliance with the requirements of the special measures to enhance maritime security of the SOLAS Convention and of the ISPS Code, but does not belong to an authority which in that Member State is responsible for carrying out the measures provided for in paragraphs 1.2 and 1.3 of regulation 9 of the special measures to enhance maritime security of the SOLAS Convention, s/he shall immediately refer the matter to the said authority.
Article 9 - Implementation and conformity checking
2. Member States shall designate a focal point for maritime security by 1 July 2004.
3. Each Member State shall adopt a national programme for the implementation of this Regulation.
4. Six months after the date of application of the relevant measures referred to in Article 3, the Commission, in cooperation with the focal point referred to in paragraph 2, shall start a series of inspections, including inspections of a suitable sample of port facilities and relevant companies, to monitor the application by Member States of this Regulation. These inspections shall take account of the data supplied by the focal point referred to in paragraph 2, including monitoring reports. The procedures for conducting such inspections shall be adopted in accordance with the procedure referred to in Article 11(2).
5. The officials mandated by the Commission to conduct such inspections in accordance with paragraph 4 shall exercise their powers upon production of an authorisation in writing issued by the Commission and specifying the subject-matter, the purpose of the inspection and the date on which it is to begin. The Commission shall in good time before inspections inform the Member States concerned by the inspections.
The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections.
6. The Commission shall communicate the inspection reports to the Member State concerned, which shall indicate sufficient details of the measures taken to remedy any shortcomings within three months of receipt of the report. The report and the list of measures taken shall be communicated to the Committee referred to in Article 11(1).
Article 10 - Integration of amendments to international instruments
2. The integration of amendments to the international instruments referred to in Article 2 in respect of ships operating domestic services and the port facilities serving them to which this Regulation applies, in so far as they constitute a technical update of the provisions of the SOLAS Convention and the ISPS Code, shall be decided in accordance with the procedure referred to in Article 11(2). The procedure for checking conformity established by paragraph 5 shall not apply in these cases.
3. In accordance with the procedure referred to in Article 11(2), provisions may be adopted in order to define harmonised procedures for the application of the mandatory provisions of the ISPS Code, without broadening the scope of this Regulation.
4. For the purposes of this Regulation and with a view to reducing the risks of conflict between Community maritime legislation and international instruments, Member States and the Commission shall cooperate, through coordination meetings and/or any other appropriate means, in order to define, as appropriate, a common position or approach in the competent international fora.
5. A procedure for checking conformity is hereby established in order to exclude from the scope of this Regulation any amendment to an international instrument only if, on the basis of an evaluation by the Commission, there is a manifest risk that such an amendment will lower the standard of maritime security or be incompatible with Community legislation.
The procedure for checking conformity may be used solely to make amendments to this Regulation in the fields expressly covered by the procedure referred to in Article 11(2) and strictly within the framework of exercise of implementing powers conferred on the Commission.
6. In the circumstances referred to in paragraph 5, the procedure for checking conformity shall be initiated by the Commission, which, where appropriate, may act at the request of a Member State.
The Commission shall submit to the Committee set up in Article 11(1), without delay, after the adoption of an amendment to an international instrument, a proposal for measures with the aim of excluding the amendment in question from this Regulation.
The procedure for checking conformity, including, if applicable, the procedures set up in Article 5(6) of Decision 1999/468/EC, shall be completed at least one month before the expiration of the period established internationally for the tacit acceptance of the amendment concerned or the envisaged date for the entry into force of said amendment.
7. In the event of a risk as referred to in the first subparagraph of paragraph 5, Member States shall refrain, during the course of the procedure for checking conformity, from taking any initiative intended to integrate the amendment in national legislation or to apply the amendment to the international instrument concerned.
8. All relevant amendments to international instruments that are integrated in Community maritime legislation, in accordance with paragraphs 5 and 6, shall be published, for information purposes, in the Official Journal of the European Union.
Article 11 - Committee procedure
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 one month.
3. Where reference is made to this paragraph, Articles 6 and 7 of Decision 1999/468/EC shall apply having regard to the provisions of Article 8 thereof.
The periods laid down in Article 6(b) and (c) respectively of Decision 1999/468/EC shall be set at one month.
4. The Committee shall adopt its Rules of Procedure.
Article 12 - Confidentiality
The Member States shall take equivalent measures in accordance with relevant national legislation.
Any personnel carrying out security inspections, or handling confidential information related to this Regulation, must have an appropriate level of security vetting by the Member State of the nationality of the personnel concerned.
Article 13 - Dissemination of information
2. Member States shall, as far as possible and in accordance with applicable national law, treat as confidential information arising from inspection reports and answers of Member States when it relates to other Member States
3. Unless it is clear that the inspection reports and answers shall or shall not be disclosed, Member States or the Commission shall consult with the Member State concerned.
Article 14 - Sanctions
Article 15 - Entry into force
It shall apply from 1 July 2004, apart from the provisions of Articles 3(2) and (3), and 9(4), which shall enter into force on and apply from the dates specified therein.
This Regulation shall be binding in its entirety and directly applicable in all Member States.