Legal provisions of COM(2023)271 - Amendment of Directive 2009/16/EC on port State control - Main contents
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| dossier | COM(2023)271 - Amendment of Directive 2009/16/EC on port State control. |
|---|---|
| document | COM(2023)271  |
| date | November 27, 2024 |
Article 1
Amendments to Directive 2009/16/EC
Directive 2009/16/EC is amended as follows:
(1) Article 2, first paragraph, is amended as follows:
(a) point 1 is amended as follows:
(i) point (d) is replaced by the following:
‘(d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (the “STCW Convention”);’;
(ii) the following points are added:
‘(l) the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (the “BWM Convention”);
(m) the Nairobi International Convention on the Removal of Wrecks, 2007 (the “Nairobi Convention”);
(n) the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 (the “Hong Kong Convention”).’;
(b) point 3 is deleted;
(c) the following point is inserted:
‘8 a. “Inspection” means a verification of the condition of the ship, its equipment and its crew, based on the applicable Conventions and carried out by an inspector. The inspection is not a survey for the issuing, endorsement or renewal of statutory certificates, and the ensuing inspection report provided to the master of the ship is not a certificate.’;
(d) points 11, 12 and 13 are replaced by the following:
‘11. “Initial inspection” means an inspection on board a ship by an inspector, including at least the checks required under Article 13(1).
12. “More detailed inspection” means an inspection that includes the elements of an initial inspection where the ship and its equipment and crew as a whole or, as appropriate, parts thereof, are subjected, in the circumstances specified in Article 13(3), to an in-depth examination covering the ship’s construction, equipment, manning, living and working conditions and compliance with on-board operational procedures.
13. “Expanded inspection” means an inspection that includes at least the items listed in Annex VII and the elements of an initial inspection. An expanded inspection may include a more detailed inspection whenever there are clear grounds in accordance with Article 13(3).’;
(e) point 20 is replaced by the following:
‘20. “Statutory certificate” means a certificate issued by or on behalf of a flag State in accordance with the applicable Conventions.’;
(2) Article 3 is amended as follows:
(a) paragraphs 3 and 4 are replaced by the following:
‘3. When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment of that ship and its crew is not more favourable than that of a ship flying the flag of a State party to that Convention. Such a ship shall be subject to a more detailed inspection in accordance with procedures established under the Paris MoU. However, a ship flying the flag of a State which is not a party to the CLC 92, the Bunkers Convention, 2001, or the Nairobi Convention shall not be automatically subject to a more detailed inspection if that ship carries the relevant certificate issued by a State which is a party to those conventions and the inspector performing the inspection decides that a more detailed inspection is unnecessary. That decision and the reasons therefore shall be recorded in the inspection database.
4. Fishing vessels of less than 24 metres in length, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive. For the purposes of this Directive, a fishing vessel’s length shall be determined in accordance with the Cape Town Agreement of 2012 on the Implementation of the Provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977.’;
(b) the following paragraph is inserted:
‘4a. Member States may carry out port State control inspections of fishing vessels of 24 metres in length and over. The Commission, in cooperation with the State signatories to the Paris MoU, may adopt guidelines establishing the detailed arrangements for such a parallel and separate specific port State control regime for those fishing vessels.’;
(3) in Article 5, the following paragraph is inserted:
‘2a. Inspections of ships carried out by a Member State that exceed the annual inspection commitment of that Member State by 20 % or more shall not be taken into account when calculating the annual inspection commitments of the parties to the Paris MoU.’;
(4) Article 6 is replaced by the following:
‘Article 6
Detailed arrangements for compliance with the inspection commitment
1. A Member State which fails to carry out the inspections required under Article 5(2), point (a), shall nevertheless be regarded as complying with that requirement if such missed inspections do not exceed 10 % of the total number of Priority I ships calling at its ports and anchorages, irrespective of their risk profile.
2. Notwithstanding the percentage of missed inspections referred to in paragraph 1, Member States shall prioritise the inspection of ships which, according to the information provided by the inspection database, call at ports within the Union infrequently.
3. Notwithstanding the percentage of missed inspections referred to in paragraph 1, for Priority I ships calling at anchorages, Member States shall prioritise the inspection of ships with a high risk profile which, according to the information provided by the inspection database, call at ports within the Union infrequently.’;
(5) in Article 7, the title and paragraphs 1 and 2 are replaced by the following:
‘Article 7
Detailed arrangements for a balanced inspection commitment across the Union
1. A Member State in which the total number of calls of Priority I ships exceeds its inspection share referred to in Article 5(2), point (b), shall be regarded as complying with its annual inspection commitment if the number of inspections carried out by that Member State corresponds to at least its inspection share as referred to in Article 5(2), point (b), and that Member State does not miss more than 40 % of the total number of Priority I ships calling at its ports and anchorages.
2. A Member State in which the total number of calls of Priority I and Priority II ships is less than 150 % of the inspection share referred to in Article 5(2), point (b), shall nevertheless be regarded as complying with its annual inspection commitment if that Member State carries out inspections of two thirds of Priority I and Priority II ships of the total number of Priority I and Priority II ships calling at its ports and anchorages.’;
(6) Article 8 is amended as follows:
(a) paragraphs 1, 2 and 3 are replaced by the following:
‘1. A Member State may decide to postpone the inspection of a Priority I or Priority II ship in any of the following circumstances:
(a) if the inspection could be carried out at any subsequent call of the ship in the same Member State within 15 days of the actual time of departure, provided that the ship does not call at any other port within the Union or the Paris MoU region in between, except any ports of the ship’s flag State;
(b) if the inspection could be carried out in another port of call within the Union or the Paris MoU region within 15 days of the actual time of departure, provided that the State in which such a port of call is located has agreed in advance to carry out that inspection; or
(c) if the inspection of a ship, including ro-ro passenger ships or high-speed passenger craft operating on a regular service, could be carried out in the same port of call within 15 days of the actual time of departure.
Where a Member State decides to postpone an inspection pursuant to the first subparagraph, that postponed inspection shall not count towards that Member State’s compliance with its annual inspection commitment referred to in Articles 6 and 7 if the postponed inspection is recorded as such in the inspection database.
2. Where an inspection is not carried out on a Priority I or Priority II ship for operational reasons, it shall not be counted as a missed inspection, provided that the reason for not carrying out the inspection is recorded in the inspection database and any of the following exceptional circumstances apply:
(a) the competent authority considers that the inspection would create a risk to the safety of inspectors, the ship or its crew, or to the port, or to the marine environment;
(b) the ship call at port takes place only during night time; or
(c) the duration of the ship call is too short for the inspection to be carried out satisfactorily.
Where the circumstances under point (b) apply, Member States shall take the measures necessary to ensure that ships which regularly call during night time are inspected as appropriate.
3. If an inspection is not carried out on a ship at anchorage, it shall not be counted as a missed inspection if:
(a) the ship is inspected in another port or anchorage within the Union or the Paris MoU region in accordance with Annex I within 15 days of the actual time of departure;
(b) the ship call at port takes place only during night time or the duration of the call is too short for the inspection to be carried out satisfactorily, and the reason for not carrying out the inspection is recorded in the inspection database; or
(c) the competent authority considers that the inspection would create a risk to the safety of inspectors, the ship or its crew, or to the port or to the marine environment, and the reason for not carrying out the inspection is recorded in the inspection database.’;
(b) the following paragraph is added:
‘4. If an inspection is not carried out due to extraordinary and unforeseen circumstances it shall not be counted as a missed inspection and the reason for not carrying out the inspection shall be recorded in the inspection database. Those circumstances shall be duly justified and reported to the Commission.’;
(7) Article 9 is deleted;
(8) in Article 10, paragraphs 2 and 3 are replaced by the following:
‘2. The risk profile of a ship shall be determined by a combination of generic, historical and environmental risk parameters as follows:
(a) Generic parameters
Generic parameters shall be based on the type, age, flag, recognised organisations involved and company performance in accordance with Annex I, Part I.1, and Annex II.
(b) Historical parameters
Historical parameters shall be based on the number of deficiencies and detentions during a given period in accordance with Annex I, Part I.2, and Annex II.
(c) Environmental parameters
Environmental parameters shall be based on the number of deficiencies relating to Marpol 73/78, AFS 2001, the BWM Convention, CLC 92, the Bunkers Convention, 2001, the Nairobi Convention and the Hong Kong Convention in accordance with Annex I, Part I.3, and Annex II.
3. The Commission shall adopt implementing acts laying down the methodology for the consideration of generic risk parameters relating in particular to the flag State criteria and company performance criteria adopted under the Paris MoU in 2019 establishing high, medium and low performance lists. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(2).’;
(9) Article 13 is amended as follows:
(a) in paragraph 1, point (c) is replaced by the following:
‘(c) is satisfied with the overall condition, including hygiene, of the ship, including the engine room and accommodation.’;
(b) paragraph 2 is deleted;
(10) Article 14 is amended as follows:
(a) paragraph 1 is replaced by the following:
‘1. The following categories of ships are eligible for an expanded inspection in accordance with Annex I, Part II, 3A and 3B:
(a) ships with a high risk profile;
(b) passenger ships, bulk carriers, oil tankers, gas carriers, noxious liquid substances (NLS) tankers or chemical tankers, older than 12 years of age;
(c) ships with a high risk profile or passenger ships, bulk carriers, oil tankers, gas carriers, NLS tankers or chemical tankers, older than 12 years of age, in cases of overriding or unexpected factors;
(d) ships subject to an inspection following a refusal of access order issued in accordance with Article 16 and Article 21(4).’;
(b) paragraph 3 is deleted;
(c) paragraph 4 is replaced by the following:
‘4. An expanded inspection shall be carried out, as far as possible, by no fewer than two port State control inspectors. If this is not possible, the reasons shall be duly recorded in the inspection database. The scope of an expanded inspection, including the risk areas to be covered, is set out in Annex VII. The Commission shall adopt implementing acts laying down detailed arrangements to ensure uniform conditions for the application of Annex VII. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(2).’;
(11) Article 14a is amended as follows:
(a) paragraph 4 is replaced by the following:
‘4. Article 11, point (a), and Article 14 shall not apply to ro-ro passenger ships and high-speed passenger craft on a regular service that are inspected under this Article.’;
(b) the following paragraph is inserted:
‘4a. The operator or master of the ship shall ensure that sufficient time is available in the operating schedule to allow the inspections provided for in point 1.1 and point 2(a) of Annex XVII to be carried out.’;
(12) Article 16 is amended as follows:
(a) paragraphs 1 to 4 are replaced by the following:
‘1. A Member State shall refuse access to its ports and anchorages to any ship which:
(a) flies the flag of a State that appears on the low performance list, adopted in accordance with the Paris MoU on the basis of information recorded in the inspection database and published annually by the Commission, and which has been detained more than twice in the course of the preceding 36 months in a port or anchorage of a Member State or of a State signatory to the Paris MoU; or
(b) flies the flag of a State that appears on the high or medium performance list, adopted in accordance with the Paris MoU on the basis of information recorded in the inspection database and published annually by the Commission, and which has been detained more than twice in the course of the preceding 24 months in a port or anchorage of a Member State or of a State signatory to the Paris MoU.
The first subparagraph of this paragraph shall not apply in the situations referred to in Article 21(6).
The refusal of access shall be applicable as soon as the ship leaves the port or anchorage where it has been the subject of a third detention and where a refusal of access order has been issued.
2. The refusal of access order shall be lifted only after a period of three months has passed from the date of issue of that order and when the conditions listed in points 3 to 6 of Annex VIII are met.
If the ship is subject to a second refusal of access order, that refusal of access order shall be lifted only after a period of 12 months.
3. Any subsequent detention in a port or anchorage of a Member State or of a State signatory to the Paris MoU shall result in the ship being refused access to any port or anchorage within the Union. Such a third refusal of access order may be lifted after a period of 24 months has passed from the date of issue of that order and only if:
(a) the ship flies the flag of a State whose detention rate appears neither on the low performance list nor on the medium performance list;
(b) the statutory and classification certificates of the ship are issued by an organisation or organisations recognised under Regulation (EC) No 391/2009 of the European Parliament and of the Council (*);
(c) the ship is managed by a company with a high performance according to Annex I, Part I.1; and
(d) the conditions listed in points 3 to 6 of Annex VIII are met.
Any ship not meeting the criteria listed in the first subparagraph, after a period of 24 months has passed from the date of issue of the refusal of access order, shall be permanently refused access to any port or anchorage within the Union.
4. Any subsequent detention after a third refusal of access order, in a port or anchorage within the Union, of a ship flying the flag of a State that appears on the medium or low performance list shall result in the ship being permanently refused access to any port or anchorage within the Union.
(*) Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (OJ L 131, 28.5.2009, p. 11).’;
(b) the following paragraphs are inserted:
‘4a. A ship flying the flag of a State that appears on the high performance list, that has been refused access three times or more and that is detained in a port or anchorage of the Union at the time of its first inspection in the Union since that third or any subsequent refusal of access, shall:
(a) be refused access to any Union port or anchorage for a period of 24 months, if the statutory and classification certificates of the ship are issued by an organisation or organisations recognised under Regulation (EC) No 391/2009;
(b) be permanently refused access to any Union port or anchorage if the statutory and classification certificates of the ship are not issued by an organisation or organisations recognised under Regulation (EC) No 391/2009.
4b. Refusal of access periods for multiple detentions shall be extended by 12 months in cases where a refusal of access measure in accordance with Article 21(4) applies.’;
(13) in Article 17, the first paragraph is replaced by the following:
‘On completion of an inspection, the inspector shall draw up an inspection report in accordance with Annex IX. The master of the ship shall be provided with a copy of the inspection report.’;
(14) in Article 19, paragraph 4, the first subparagraph is replaced by the following:
‘4. If the inspection reveals that the ship is not equipped with a functioning voyage data recorder, and the use of such recorder is compulsory in accordance with Directive 2002/59/EC of the European Parliament and of the Council (*), the competent authority shall ensure that the ship is detained.
(*) 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 and repealing Council Directive 93/75/EEC (OJ L 208, 5.8.2002, p. 10).’;
(15) in Article 20, paragraph 1 is replaced by the following:
‘1. The owner or operator of a ship or the owner or operator’s representative in the Member State shall have a right of appeal against any detention or refusal of access by the competent authority. An appeal shall not cause the detention or refusal of access to be suspended.’;
(16) Article 21 is amended as follows:
(a) paragraph 4 is replaced by the following:
‘4. Member States shall take measures to ensure that access to any port or anchorage within the Union is refused to ships referred to in paragraph 1 of this Article and to detained ships as referred to in Article 19(2), which:
(a) proceed to sea without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or
(b) are permitted to proceed to sea on condition that they comply with the applicable requirements of the Conventions by subsequently calling at the repair yard indicated pursuant to paragraph 1 of this Article, but fail to do so.
The refusal of access order shall become applicable from the date of its issuing. The refusal of access order shall be lifted only after a period of 12 months has passed from the date of issue of that order and when the conditions listed in points 3 to 6 of Annex VIII are met.’;
(b) paragraphs 5 and 6 are replaced by the following:
‘5. In the circumstances referred to in paragraph 4, first subparagraph, point (a), the competent authority of the Member State where the ship was found to be defective shall immediately alert the competent authorities of all the other Member States.
In the circumstances referred to in paragraph 4, first subparagraph, point (b), the competent authority of the Member State in which the repair yard lies shall inform the authority of the Member State where the ship was found to be defective whether the ship has arrived. When the competent authority of the Member State where the ship was found to be defective becomes aware that the ship has not called at that repair yard, it shall immediately alert the competent authorities of all the other Member States.
In the circumstances referred to in paragraph 4, first subparagraph, point (b), if the repair yard indicated pursuant to paragraph 1 is not in a Member State and the competent authority of the Member State where the ship was found to be defective becomes aware that the ship has not called at that repair yard, it shall immediately alert the competent authorities of all the other Member States.
Before refusing access to the ship, the Member State may request consultations with the flag State administration of the ship concerned.
6. By way of derogation from paragraph 4, access by a ship as referred to in that paragraph to a specific port or anchorage may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, to reduce or minimise the risk of pollution or to have deficiencies rectified in accordance with paragraph 1, provided that the owner, operator or master of the ship has implemented adequate measures to ensure the safe entry of the ship concerned to that port or anchorage to the satisfaction of the competent authority of that Member State.’;
(17) in Article 22, paragraph 7 is replaced by the following:
‘7. In cooperation with Member States and the State signatories to the Paris MoU, and based on the expertise and experience gained at Member State level in the Union and under the Paris MoU, the Commission shall develop a professional training programme to support the training and the assessment of competences of port State control inspectors by Member States in order to complement the Paris MoU Training policy, with a view to harmonise port State control practices.
In cooperation with the Member States and the State signatories to the Paris MoU, the Commission shall, on a continuous basis, identify and respond to new training needs, providing input to amend the curricula, syllabi and content of the training programme for inspectors, especially as regards new maritime safety challenges related to environmental, social and labour issues and new technologies, as well as providing input in relation to the additional obligations arising from the relevant instruments.’;
(18) in Article 23, paragraphs 1 and 2 are replaced by the following:
‘1. Member States shall take appropriate measures to ensure that their pilots who are engaged in the berthing or unberthing of ships, or who are engaged on ships bound for a port or in transit within a Member State, immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are apparent anomalies which may prejudice safety, including the safe navigation of the ship or the safety of seafarers on board, or which may pose a threat of harm to the marine environment.
2. If port authorities or bodies, in the course of their normal duties, learn that a ship within their port has apparent anomalies which may prejudice safety, including the safe navigation of the ship or the safety of seafarers on board, or which may pose a threat of harm to the marine environment, such authority or body shall immediately inform the competent authority of the port State.’;
(19) in Article 24, paragraphs 2 and 3 are replaced by the following:
‘2. Member States shall take the appropriate measures to ensure that the information on the actual time of arrival and the actual time of departure of any ship calling at their ports or anchorages, together with an identifier of the port or anchorage concerned, is transferred within three hours of the arrival and departure time, respectively, to the inspection database through the Union maritime information exchange system “SafeSeaNet” referred to in Article 3, point (s), of Directive 2002/59/EC. Once they have transferred such information to the inspection database through SafeSeaNet, Member States are exempted from the provision of data in accordance with point 1.2 and point 2(a) and (b) of Annex XIV to this Directive.
3. Member States shall ensure that the information related to inspections performed in accordance with this Directive is transferred to the inspection database as soon as the inspection report is completed or the detention lifted.
Within 72 hours, Member States shall ensure that the information transferred to the inspection database is validated for publication purposes. The inspection report shall be validated, before its transfer to the database, if feasible, by a port State control inspector or another duly authorised employee of the competent authority who was not part of the team that carried out the inspection.’;
(20) the following Article is inserted:
‘Article 24a
Electronic certificates
The Commission shall, in close cooperation with the Member States, adopt implementing acts laying down the functional and technical specifications for a validation tool for electronic statutory certificates. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 31(2).’;
(21) Article 25 is replaced by the following:
‘Article 25
Exchange of information and cooperation
Each Member State shall ensure that its port authorities or bodies and other relevant authorities or bodies provide the competent authority with the following types of information in their possession:
(a) information concerning ships which have failed to notify any information in accordance with the requirements of this Directive, Directive 2002/59/EC and Directive (EU) 2019/883 of the European Parliament and of the Council (*), as well as, if appropriate, of Regulation (EC) No 725/2004;
(b) information concerning ships which have proceeded to sea without having complied with Article 7 of Directive (EU) 2019/883;
(c) information concerning ships which have been denied entry or expelled from port on security grounds;
(d) information on apparent anomalies reported in accordance with Article 23.
(*) Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for the delivery of waste from ships (OJ L 151, 7.6.2019, p. 116).’;
(22) Article 30 is replaced by the following:
‘Article 30
Monitoring of compliance and performance of Member States
In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Union’s port State control regime in accordance with Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.
Each Member State shall develop, implement and maintain a quality management system covering the operational parts of the port State-related activities of its administration directly involved in inspections. That quality management system shall be certified in accordance with applicable international quality standards by 6 July 2032.’;
(23) Article 30a is replaced by the following:
‘Article 30a
Delegated acts
The Commission shall adopt delegated acts in accordance with Article 30b, to amend Article 2, point (1), with regard to the list of Conventions set out therein, once such Conventions have been adopted as a relevant instrument under the Paris MoU, and to amend Annex VI in order to add to or update the list of procedures, guidelines, instructions and circulars, relating to port State control, adopted under the Paris MoU and set out in that Annex.’;
(24) the following Article is inserted:
‘Article 31a
Amendments to the Conventions
The amendments to the Conventions shall apply without prejudice to the conformity checking procedure set out in Article 5 of Regulation (EC) No 2099/2002.’;
(25) Article 33 is replaced by the following:
‘Article 33
Implementing acts
When adopting the implementing acts referred to in Articles 10(3), 14(4), 15(4), 18a(7), 23(5), 24a(1) and Article 27, second paragraph, in accordance with the procedures referred to in Article 31(2), the Commission shall take specific care to ensure that those acts take into account the expertise and experience gained with the inspection system in the Union and build upon the expertise of the Paris MoU.’;
(26) Article 35 is replaced by the following:
‘Article 35
Implementation review
The Commission shall, by 6 July 2032 and every 5 years thereafter, submit a report to the European Parliament and the Council on the implementation of, and compliance with, this Directive. On the basis of that report, the Commission shall determine whether it is necessary to submit a legislative proposal for the amendment of this Directive or for further legal acts in this area.
After the IMO has concluded the revision of its carbon intensity indicator (CII), the Commission shall assess the suitability of that CII as an environmental parameter used for the determination of a risk profile of a ship under this Directive. On the basis of that assessment, the Commission shall consider a legislative proposal, as appropriate.’;
(27) Annex I is replaced by the text set out in Annex I to this Directive;
(28) Annex II is replaced by the text set out in Annex II to this Directive;
(29) Annex III is deleted;
(30) Annex IV is replaced by the text set out in Annex III to this Directive;
(31) Annex VI is replaced by the text set out in Annex IV to this Directive;
(32) Annex VIII is replaced by the text set out in Annex V to this Directive;
(33) Annex XII is replaced by the text set out in Annex VI to this Directive.
Article 2
Transposition
1. Member States shall adopt and publish by 6 July 2027 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.
When Member States adopt those 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 reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.
3. By way of derogation from paragraph 1, Member States which do not have seaports and which can demonstrate that, of the total number of individual vessels calling annually over the three previous years at their river ports, less than 5 % are ships covered by this Directive, may derogate from the obligation to transpose and implement 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.
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