EC on compliance with flag State requirements - Main contents

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dossier	COM(2023)272 - Amendment of Directive 2009/21/EC on compliance with flag State requirements.
document	COM(2023)272
date	June 1, 2023

Article 1

Amendments to Directive 2009/21/EC

Directive 2009/21/EC is amended as follows:

(1) Article 3 is amended as follows:

(a) point (e) is replaced by the following:

‘(e) ‘IMO audit’ means an audit conducted in accordance with the provisions of Resolution A 1067(28) (“Framework and Procedures for the IMO Member State Audit”), in its up-to-date version, adopted by the International Maritime Organisation (IMO);’

(b) the following points are added:

‘(f) ‘Conventions’ means the Conventions, with the Protocols and amendments thereto, and related codes of mandatory status, in their up-to-date version, as defined in Article 2(1) of Directive 2009/16/EC of the European Parliament and of the Council ³⁴, with the exception of the Maritime Labour Convention, 2006 (MLC 2006);

(g) ‘III-Code’ means parts 1 and 2 of Resolution A.1070(28) (“IMO Instruments Implementation Code”), adopted by the International Maritime Organisation (IMO), with the exception of paragraphs 16.1, 18.1, 19, 29, 30, 31 and 32 of part 2;

(h) ‘flag State surveyor’ means a public-sector employee, duly authorised by and working exclusively for the competent authority of a Member State to carry out surveys and audits related to the statutory certificates and fulfilling the independence requirement specified in Article 8(1);

(i) ‘flag State inspector’ means a public-sector employee, working exclusively for and duly authorised by the competent authority of a Member State to carry out supplementary flag State inspections, and who fulfils the independence requirement specified in Article 8(1), and the minimum criteria specified in Annex XI to Directive 2009/16/EC;

(j) ‘other personnel assisting in the performance of inspections’ means a person not exclusively employed by, but in a contractual situation with the competent authority of the Member State, and duly authorised by the competent authority of the Member State who may carry out certain inspections, other than statutory surveys, specified by the competent authority, and who fulfils the criteria of communication, qualification and independence specified in Article 8(1);

(k) ‘Supplementary flag State inspection’ means an on-board inspection not leading to certification;

(j) ‘HSSC’ means Resolution A. 1156(32) (“Survey Guidelines under the Harmonized System of Survey and Certification (HSSC), 2021, in its up-to-date version, adopted by the International Maritime Organisation (IMO);’

(2) In article 4, paragraph 1 is replaced by the following:

‘1. Prior to allowing a ship to operate, which has been granted the right to fly its flag, the Member State concerned shall ensure that the ship in question complies with the applicable international rules and regulations. In particular, it shall verify the safety records of the ship using the inspection reports and certificates contained in database referred to in article 6a. It shall, if necessary, consult with the losing flag State in order to establish whether any outstanding deficiencies or safety issues identified by the latter remain unresolved.’

(3) The following Articles 4a to 4c are inserted:

‘Article 4a

Safety of ships flying the flag of a Member State

1. In respect of international shipping Member States shall apply in full the mandatory flag State related provisions laid down in the IMO Conventions in accordance with the conditions and in respect of the ships referred to therein and shall apply the III-Code in Annex to this Directive, with the exception of paragraphs 16.1, 18.1, 19, 29, 30, 31 and 32 of part 2.

2. Member States shall take all necessary measures to ensure compliance with international rules and standards by ships entitled to fly their flag. Those measures shall include the following:

(a) prohibiting ships from sailing until such ships can proceed to sea in compliance with international rules and standards;

(b) ensuring that ships entitled to fly their flag have been surveyed in accordance with the survey guidelines under the Harmonized System of Survey and Certification (HSSC); and,

(c) carrying out supplementary flag State inspections of ships to verify that the actual condition of the ship is in conformity with the certificates it carries.

3. Member States shall ensure that any deficiencies confirmed or revealed by an inspection carried out in accordance with paragraph 2(c) are rectified.

4. On completion of any inspection carried out, the flag State inspector shall draw up a report on the basis of Annex IX to Directive 2009/16/EC.

‘Article 4b

Safety and pollution prevention requirements

1. Each Member States shall ensure that its administration relies on appropriate resources, commensurate with the size and type of its fleet, in particular for meeting the obligations provided for in Article 4a and paragraphs 2 and 3 of this Article.

2. Each Member State shall ensure the oversight of the activities of flag State surveyors, flag state inspectors and recognised organisations and participate in the EU Recognised Organisation oversight scheme specified by the high level group on flag State matters referred to in Article 9a(1).

3. Each Member State shall develop or maintain a design review and technical decision-making capability commensurate with the size and type of its fleet.

4. In order to ensure harmonisation of the supplementary flag State inspections referred to in Article 4a(2) point (c), the Commission, after consulting the high level group on flag State matters referred to in Article 9a(1), shall adopt implementing acts to define the uniform measures to determine the minimum requirements for the implementation of the obligations provided for by paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 10(2).’

‘Article 4c

Common capacity building of flag State personnel

1. Member States shall ensure that the personnel responsible for or performing surveys, inspections and audits on ships and companies undergo the harmonised scheme specified in paragraph 2.

2. The Commission, seeking the advice of the high level group on flag State matters referred to in Article 9a(1), shall develop a common capacity building scheme (post-qualification at national level) and keep it updated, considering new technologies and in relation to new or additional obligations arising from the relevant international instruments, for Member States flag State surveyors and inspectors.

(4) Article 5 is amended as follows:

(a) the sole paragraph is numbered as paragraph 1.

(b) the following paragraph 2 is added:

‘2. Member States shall develop and implement an appropriate control and monitoring programme, using, as appropriate, the Union Maritime Information and Exchange System (‘SafeSeaNet’) referred to in Article 22a(3) of Directive 2002/59/EC of the European Parliament and of the Council ³⁵ and Annex III thereto, for providing a timely response to situations in paragraph 1 of this Article as well as safety incidents and alleged pollution.’

(5) Article 6 is replaced by the following:

‘Article 6

Electronic information and exchange

1. Member States shall ensure that at least the following information concerning ships flying their flag is kept and is made accessible in an electronic format compatible and interoperable with Union maritime safety databases:

(a) particulars of the ship (name, IMO number, etc.);

(b) statutory certificates (full, interim or temporary) including dates of surveys, additional and supplementary surveys, if any, and audits;

(c) identification of the recognised organisations involved in the certification and classification of the ship;

(d) identification of the competent authority which has inspected the ship under port State control provisions and the dates of the inspections;

(e) outcome of the port State control inspections (deficiencies: yes or no; detentions: yes or no);

(f) identification of ships which have ceased to fly the flag of the Member State concerned during the previous 12 months

(g) report(s) following a flag State survey or inspection carried out in accordance with Article 4a(2) paragraphs (b) or (c).

2. The information shall be communicated to the inspection database provided for in Article 6a. The master shall also be provided with a copy of the report.’

(6) The following Article 6a is inserted:

‘Article 6a

Inspection database

1. The Commission shall develop, maintain and update an inspection database containing the information specified in Article 6. All Member States shall be connected to that database. That database shall be based on the inspection database referred to in Article 24 of Directive 2009/16/EC and shall have similar functionalities to that database.

2. Member States shall ensure that the information related to inspections carried out in accordance with this Directive, including information concerning deficiencies, is transferred without delay to the inspection database as soon as the report(s) according to Article 4a(4) is completed.

3. The Commission shall ensure that the inspection database makes it possible to retrieve any relevant data concerning the implementation of this Directive based on inspection data provided by Member States.

4. Member States shall have access to all the information recorded in the inspection database referred to in paragraph 1 of this Article and the inspection system provided for in Directive 2009/16/EC. Nothing in this Directive shall prevent the sharing of such information between relevant competent authorities within and between Member States, with the Commission or with the European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council ³⁶.

5. Member States shall ensure that Statutory certificates referred to in Article 6(1) paragraph b, shall be transmitted electronically to the inspection database referred to in paragraph 1 of this Article using the functional and technical specifications for a harmonised electronic reporting interface provided for in Article 24a of Directive 2009/16/EC.’

(7) Article 7 is replaced by the following:

‘Article 7

Monitoring of compliance and performance of Member States

1. Member States shall take the necessary measures to undergo the IMO audit of their administration at least once every seven years, and shall publish the outcome of the audit as well as any corrective actions in the Global Integrated Shipping Information System (GISIS) database set up by the IMO. Member States shall also make the same information available to the public, in accordance with relevant national legislation on confidentiality.

2. Member States shall ensure that the Commission, assisted by EMSA, is allowed to participate as an observer in the IMO auditing process and, that any Audit report and the information on subsequent action taken is immediately made available to the Commission.

3. In order to ensure the effective implementation of this Directive and to monitor the overall functioning of flag State compliance and the EU Recognised Organisation oversight scheme the Commission shall collect the necessary information and carry out visits to Member States, in accordance with Article xx of Regulation (EU) xx/xx of the European Parliament and of the Council ³⁷ [EMSA Regulation to be adopted],’

(8) Article 8 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘Each Member State shall implement and maintain a quality management system covering all registers under its authority for all the flag State-related activities of its administration. Such quality management system shall be certified in accordance with the applicable international quality standards.

The quality management system shall include defined responsibilities, authority and interrelation of all flag State personnel, including other personnel assisting in the performance of inspections who manage, perform and verify work relating to and affecting safety and pollution prevention. Such responsibilities shall be documented, specifying what type and scope of inspection work that may be performed by other personnel assisting in the performance of inspections, and also specify how such personnel shall communicate and report.

Each Member State shall ensure that other personnel assisting in the performance of inspections have education, training and supervision commensurate with the tasks they are authorized to perform.

All personnel performing a survey or an inspection shall sign a declaration of absence of conflict of interest attesting to their independence in relation to the work to be performed, which shall be kept by the Member State responsible authority.’

(b) the following paragraphs are added:

‘2a. Member States shall evaluate their performance annually and identify areas for possible improvement, based on results of the activities performed in the framework of the quality management system referred to in paragraph 1 of this Article and the flag State performance referred to in paragraph 2b of this Article, as well as Article 7.

2b. In order to ensure a common harmonised performance scheme for the purposes of paragraph 2a, the Commission, after consulting the high level group on flag State matters referred to in Article 9a(1), shall adopt implementing acts to define the details for a revised performance scheme in paragraph 2 of this Article. Those implementing acts shall be adopted in accordance with Article 10.2.

Measures to evaluate the performance of the flag States, shall take into consideration, inter alia, flag State inspection results, port State control detention rates, casualty statistics, communication and information processes, annual loss statistics (excluding constructive total losses) and other performance indicators as may be appropriate, to determine whether staffing, resources and administrative procedures are adequate to fulfil the flag State obligations.

2c. The Commission shall make available and maintain on a public website information about the performance of flag States.’;

(9) Article 9 is deleted.

(10) The following new Articles are inserted:

‘Article 9a

High level group on flag State matters

1. The Commission shall establish a high level group on flag State matters for discussing flag State issues and facilitate exchanges of experience between the Member States’ national authorities, flag State experts and inspectors, including as appropriate those from the private sector.

The high level group on flag State matters shall be composed of representatives of the Member States and of the Commission, assisted by EMSA.

It shall adopt its rules of procedure.

2. The high level group on flag State matters shall have the following tasks, inter alia:

(a) make recommendations for a common approach to flag State inspections; procedures and guidelines for the control of ships;

(b) assist the Commission in the development of a common reporting format, including timing for flag State inspections/ Recognised Organisation (RO) monitoring;

(c) assist the Commission in the development of the technical method for what constitutes appropriate resources, commensurate with the size and type of fleet, referred to in Article 4b;

(d) assist the Commission in identifying measures that may be developed in order to improve the capacity building referred to in Article 4c, in particular as regards keeping up-to-date knowledge about changes in conventions and emanating due to new technologies;

(e) develop and implement the EU RO oversight and monitoring scheme referred to in Article 7;

(f) provide guidance on how to use the information in the relevant Union maritime databases for preparation of flag State inspections/RO monitoring, with a view to increase efficiency in the use/pooling of resources for ROs monitoring e.g. by focus areas;

(g) assist the Commission in the technical development of the performance criteria referred to in Article 8(2b);

(h) assist the Commission in developing guidance, templates and similar for the reporting obligations referred to in Article 9b;

(i) assist in analysing flag State performance, QMS audits and, IMO Audits comparing findings and follow-up action, with a view to identifying best practices;

(j) assist the Commission in identifying measures that may be developed in order to establish:

(i) harmonised procedures for the application of exemptions and equivalents applied in accordance with the IMO Conventions;

(ii) harmonised interpretations of issues left to the discretion of the administrations in the Conventions;

(iii) apply unified interpretations for provisions laid down in the Conventions.

‘Article 9b

Information and data

The Commission shall establish an electronic reporting tool for the purposes of gathering information and data from the Member States in relation to this Directive. Member States shall periodically, and at least once a year, inform the Commission, about:

(a) administering safety and pollution prevention requirements

(i) size and age of flagged fleet in terms of number and gross tonnes of conventional ships;

(ii) the number of flag State inspectors/surveyors/auditors and other personnel assisting in the performance of inspections;

(iii) the number of flag State surveys, inspections and audits carried out as flag States;

(iv) the number of ships flagging-in and flagging-out by type of ship and by originating country or destination country;

(b) quality management and audits

(i) planned or confirmed dates for IMO Audit;

(ii) planned or confirmed dates for Quality Management System audit as well as cope of quality management system certification

(c) delegation of authority

(i) Recognised Organisations authorised, functions delegated and certificates issued on behalf of the Member State

(11) Article 10 is replaced by the following:

‘Article 10

Committee procedure

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. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.’

(12) The following Article 10a is inserted:

‘Article 10a

Delegated Acts

The Commission shall be empowered to adopt delegated acts in accordance with Article 10b, concerning amendments to Annex 1, in order to take account of new flag State related provisions and commitments developed at international level, in particular, in the IMO.

The amendments to the IMO Conventions and to the IMO Instruments Implementation Code (III CODE) may be excluded from the scope of this Directive pursuant to Article 5(2) of Regulation (EC) No 2099/2002.‘

(13) The following Article 10b is inserted:

‘Article 10b

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 10a shall be conferred on the Commission for a period of five years from [xx] 202X. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 10a may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 10a shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’

(14) The text set out in the Annex to this Directive is added as Annex to Directive 2009/21/EC.

Article 2

Transposition

1. Member States shall adopt and publish, by [OP: Please insert a date: one year from the date of entry into force of this amending Directive] the laws, regulations and administrative provisions necessary to comply with this Directive.

When Member States adopt those provisions, 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 twentieth 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.