Explanatory Memorandum to 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. |
|---|---|
| source | COM(2003)229  |
| date | 02-05-2003 |
The International Maritime Organisation (IMO) began work on maritime security in February 2002. The Commission therefore considered it preferable to await the outcome of the discussions within the IMO rather than develop unilateral initiatives.
On 12 December 2002, after a five-day Diplomatic Conference, IMO adopted an amendment to the International Convention for the Safety of Life at Sea (SOLAS), and in particular a new chapter entitled 'Special measures to enhance maritime security', and an International Ship and Port Facility Security (ISPS) Code .
The purpose of these instruments is to take maritime security issues into account in connection with shipping and port facilities. i
IMO's work on maritime security is confined to ships to and port facilities which represent the ship/port interface. The Commission will be presenting a legislative initiative on security in Community ports.
It should be noted that this concerns all of the Member States as flag States and thirteen of them as port States.
The amendment to the SOLAS Convention and Part A of the ISPS Code consist entirely of mandatory provisions; Part B of the ISPS Code is made up of recommendations which the Contracting Governments are requested to implement. i
The main provisions of these international instruments are as follows.
The mandatory provisions (the amendment to the SOLAS Convention and Part A of the ISPS Code) are indispensable to enhancing maritime security.
They concern a requirement for ships to be permanently marked with their identification number and fitted with an automatic identification system (AIS) and a ship security alert system for spreading the alarm in the event of hostile action against the ship, and for them to be issued with a continuous synopsis record (CSR), a kind of identity document recording the history of the ship.
They also provide for a set of active and passive security measures based on three security levels (normal, increased, high), their implementation being linked to an overall risk assessment. They include the requirement to appoint people responsible for carrying them out (ship, company and port facility security officers), to prepare a security plan geared to the risk assessment (ship and port facility) and to issue an international ship security certificate, as well as arrangements for personnel training and exercises.
Provision is also made, depending on the potential risk to persons, property and the environment, for the possibility of drawing up a declaration of security between the ship and the host port facility to define the responsibilities of each. Another possibility is that a ship in port or about to enter port can be inspected by the port State authorities for security reasons. The duties and obligations of the various players (Contracting Governments, companies, ships' masters and port facilities) are clearly defined.
Part B of the ISPS Code consists of very detailed recommendations intended to provide guidance in implementing the mandatory provisions.
The Contracting Governments are responsible in particular for designating recognised security organisations (responsible for providing security services to port facilities and ships) and national or regional maritime security contact points, to manage the security levels and to exchange information on security matters. This part of the ISPS Code also contains detailed proposals for both ships and port facilities, regarding assessment of the risks and the security plans to be prepared, and personnel training and exercises. It also shows how and in what cases a declaration of security should be drawn up between the ship and the host port facility.
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The amendment to the SOLAS Convention and the ISPS Code must enter into force on 1 July 2004. This leaves very little time to complete all the necessary preparations, so some measures will have to be implemented in advance.
These international instruments contain provisions the scope of which has to be defined at Community level. Their application is confined to international shipping, while security has to be seen from a more global perspective that therefore has to embrace certain national modes of transport as well, though maintaining a gradation according to the nature of the risks and their consequences.
Certain provisions of the December 2002 amendment to the SOLAS Convention affect instruments which already form part of Community law, i.e.:
- amendments to Regulation 19V of the SOLAS Convention, 'Carriage requirements for shipborne navigational systems and equipment'. These rules relating to the automatic identification system (AIS) will have to be adapted pursuant to 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;
- amendments to Regulations 3 and 5 of Chapter XI of the SOLAS Convention, concerning the identification number and synopsis record of ships. These rules will be taken into account in particular pursuant to Council Directive 95/21/EC of 19 June 1995 concerning port State control of shipping.
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The Commission therefore considers that steps need to be taken to:
- guarantee and monitor at Community level achievement of the main objective of these international instruments, i.e. enhancing ship and port facility security;
- ensure harmonised implementation and equal conditions throughout the European Union for access to and monitoring of markets and activities related to the maritime sector.
Accordingly, the Commission:
- will adapt the abovementioned Directives 2002/59/EC and 95/21/EC following the committee procedure, so as to integrate into them relevant provisions of the new Regulations in the SOLAS Convention in addition to those in Chapter XI-2 of SOLAS and the ISPS Code,
- proposes that the European Parliament and the Council should adopt as soon as possible this Regulation on enhancing ship and port facility security, which transposes Chapter XI-2 of the SOLAS Convention and the ISPS Code, provides a basis for their harmonised interpretation and implementation, as well as Community monitoring, and extends some of their provisions to domestic maritime traffic.
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- Implementation of the amendment to the SOLAS Convention and the ISPS Code may vary from one Member State to another since these instruments contain some provisions which though mandatory are open to interpretation and adaptation, and others which are recommendations. There is a need for uniform implementation and uniform monitoring of ships from third countries visiting our shores and putting into our ports.
- Member States may adopt national measures of varying scope and applicable on different dates. Failure to harmonise these measures would be potentially damaging to the shipping industry. It could provoke imbalances in the level of security sought and might easily lead to distortions of competition between the Member States.
- The objective of enhancing maritime security cannot be achieved by measures confined to international shipping alone; there have to be measures covering domestic traffic as well, and only action at the Community level can guarantee this in a harmonised way.
- Finally, provisions need to be adopted which will encourage Member States to promote scheduled maritime traffic within the Community under satisfactory security conditions on fixed routes using dedicated port facilities.
- As regards achieving the objective of providing a basis for harmonised interpretation and implementation as well as Community monitoring of the special measures to enhance maritime security, by amending the SOLAS Convention and introducing the ISPS Code, the Regulation:
- makes mandatory certain provisions of Part B of the ISPS Code, which have the status of recommendations, in order on the one hand to raise the level of security sought and on the other hand to avoid variations in interpretation from one Member State to another. These provisions relate to the security plans and assessments of ships and port facilities, certain responsibilities of the Contracting Governments in the security field, and the company's obligation to supply the master with information on the ship's operators;
- calls upon Member States to conclude, for the purpose of promoting intra-Community short-sea traffic and in the light of regulation XI-2/11 of the SOLAS Convention, the agreements on security arrangements for scheduled maritime traffic within the Community on fixed routes using dedicated port facilities, without this compromising the general level of security sought. It puts in place a system for checking conformity prior to signature of these agreements;
- details the arrangements to be made by Member States for ports only occasionally serving international traffic;
- establishes the system of security checks prior to the entry of ships of whatever origin into a Community port, as well as that of security checks in the port;
- calls for a single national authority responsible for the security of ships and port facilities, and a timetable for early implementation of some of the measures it contains;
- provides for a process of inspections to check the arrangements for monitoring the implementation of national plans adopted pursuant to it;
- entrusts to the Agency set up by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency i the role of assisting the Commission in the performance of its tasks;
- lays down a procedure for the adaptation of its provisions.
- The Commission considers that the overall objective of maritime security can be reached only by applying certain measures to domestic shipping. It considers that in order to maintain uniform conditions of access to the market, these measures have to be taken uniformly in all the Member States, while ensuring that the measures are proportional to the potential risks. Passenger transport therefore takes priority but this must not be allowed to place excessive constraints on scheduled maritime services, provided that the general level of security sought is not compromised. Accordingly, the Regulation:
- extends all of the provisions of Chapter XI-2 of the SOLAS Convention and of Part A of the ISPS Code to include passenger ships engaged on domestic voyages during which they are required to be more than twenty nautical miles from the coast, and extends the provisions of the same texts relating to the making of security assessments, the preparation of security plans and the appointment of company and ship security officers to include other ships engaged in domestic traffic;
- establishes the security arrangements for passenger ships engaged on domestic voyages on scheduled lines, during which they are required to be more than twenty nautical miles from the coast;
- provides for possible exemption, under strict and constantly verifiable conditions, from the obligation of security checks prior to entry into a port for ships engaged on a scheduled service within a Member State or between two or more Member States.
- Legal considerations
The Commission proposes to base the Regulation on Article 80 i of the EC Treaty, without prejudice to Member States' national security legislation and any measures that might be taken on the basis of Title VI of the Treaty on European Union.
Article 1:
This article sets out the objectives of the Regulation.
Article 2:
This article contains the definitions of the main terms used in the Regulation. Most of them are based on those used in the special measures to enhance maritime security adopted by the IMO Diplomatic Conference on 12 December 2002, amending the SOLAS Convention, and in the ISPS Code.
Article 3:
This article defines the common measures and the scope of the Regulation.
The special measures to enhance maritime security amending the SOLAS Convention and the ISPS Code apply to the following types of ships engaged on international voyages:
- passenger ships, including high-speed passenger craft;
- cargo ships, including high-speed craft, of 500 gross tonnage and upwards;
- mobile offshore drilling units;
- port facilities serving international traffic.
This Regulation extends all of the measures in the IMO documents to passenger ships engaged on domestic voyages during which they are required to be more than twenty nautical miles from the coast, and to the port facilities serving them.
It also extends the provisions of the special measures to enhance maritime security in the SOLAS Convention and the ISPS Code concerning the making of security assessments, the preparation of security plans and the appointment of company and ship security officers to include other ships engaged in domestic traffic (passenger ships, including high-speed passenger craft; cargo ships, including high-speed craft, of 500 gross tonnage and upwards) and to the port facilities serving them.
Part B of the ISPS Code contains a set of recommendations for the implementation of IMO's mandatory instruments (special measures to enhance maritime security amending the SOLAS Convention and Part A of the ISPS Code), of which Member States must take the utmost account.
To raise the level of security of shipping in the Community and to avoid variations in interpretation from one Member State to another, which could cause, amongst other things, distortions of competition, this Regulation is intended to make the following sections of Part B of the ISPS Code mandatory:
- 1.12 on continuous checking of the relevance of ship security plans, and their revision;
- 1.16 on the security assessments of port facilities, and their periodical revision;
- 4.1 on protection of the confidentiality of security plans and assessments;
- 4.5 on the minimum competency of the recognised security organisations which can be authorised by Member States to assess the security of port facilities and, on behalf of the competent administrations of the Member States, to approve and verify the ship security plans and certify ships' conformity with regard to security;
- 4.8 on the establishment by Member States of the security level for ships and port facilities;
- 4.14, 4.15 and 4.16 on the establishment of central or regional contact points with regard to port facility security plans and the security information to be supplied to ship, company and port facility security officers;
- 4.18 on identification documents for government officials appointed to inspect security measures;
- 4.24 on ships' application of the safety measures recommended by the State in whose territorial waters they are sailing;
- 4.28 on observance of the new requirements generated by security tasks when ships' crews are selected;
- 4.41 on the communication of information between States when entry into port is denied or the ship is expelled from port;
- 4.45 on the treatment of ships from a State which is not party to the Convention;
- 6.1 on the company's obligation to furnish the master with information on the ship's operators;
- 8.3 to 8.10 on the minimum standards to be observed with regard to assessment of the security of the ship;
- 9.2 on the minimum standards to be observed with regard to assessment of the ship security plan;
- 13.6 and 13.7 on the frequency of security training, drills and exercises for ships' crews and for company and ship security officers;
- 15.3 and 15.4 on the minimum standards to be observed with regard to the assessment of the security of a port facility;
- 16.3 and 16.8 on the minimum standards to be observed with regard to the security plan of a port facility;
- 18.5 and 18.6 on the frequency of security training and exercises in port facilities and for port facility security officers.
Article 4:
This article confirms the obligation for each Member State to communicate to the International Maritime Organisation the information requested under regulation 13 (communication of information) of the special measures to enhance maritime security in the SOLAS Convention, and creates this obligation towards the Commission and the other Member States. This information concerns the national authorities responsible for ship and port facility security, the existence of approved port facility security plans, the contact points available at all times to receive and act upon the various types of alert and maritime security information and to give appropriate advice or assistance, the authorisation of recognised security organisations, agreements on other security arrangements and any equivalent security arrangements.
Article 5:
This article gives Member States the possibility of concluding amongst themselves the bilateral or multilateral agreements provided for in regulation 11 (concerning alternative security arrangements) of the special measures to enhance maritime security in the SOLAS Convention, and in particular those necessary for promoting scheduled short-sea shipping within the Community on fixed routes between port facilities located within their territories.
The third indent of paragraph 2 allows the Commission to evaluate the draft agreements before they are concluded, under the safeguard procedure.
Paragraph 4 allows Member States to adopt security arrangements for passenger ships engaged on a scheduled domestic service during which they are required to be more than twenty nautical miles from the coast, and for the port facilities serving them, without the general level of security being compromised. In the inspections provided for in article 10 the Commission will assess the monitoring of these measures.
Article 6:
This article makes provision for port facilities in ports which only occasionally serve international maritime traffic, where it might be disproportionate to apply all the security rules in this Regulation on a permanent basis. In the light of the security assessments it will carry out, each Member State will draw up a list of the ports concerned and alternative measures providing an adequate level of protection. It will communicate all this information to the Commission, and only the list to the other Member States.
Article 7:
This article introduces the obligation for any ship declaring its intention to enter a port of a Member State to provide in advance the information concerning its International Ship Security Certificate and the security level it is currently operating and the level at which it has operated previously, as well as any other practical security-related information.
The article requires Member States to appoint a 'competent authority for port security' with the task of coordinating, for each Community port, the application of the security measures laid down by this Regulation for ships and port facilities.
Finally, Member States are required to keep a record of the procedure followed for each ship.
Article 8:
This article provides for the possibility of exempting from these security checks prior to entry into a port ships engaged on scheduled services within a Member State or between two or more Member States. This exemption is tied to a requirement for the shipping company to keep at the disposal of the authorities of the Member States concerned a list of the ships involved and all the information normally required in each case.
The list of companies and ships involved is sent to the Commission by each Member State concerned.
Article 9:
Security checks in port are normally carried out by the competent security authorities of the Member States.
However, the presence of the international ship security certificate on board the ship may also be checked by the port State control inspectors as provided for by Council Directive 95/21/EC of 19 June 1995 concerning port State control, i as amended by Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001. i
This article therefore provides for complementarity of action by the administrations concerned when different administrations are involved.
Article 10:
This article sets out Member States' obligations as regards administration, monitoring and provision of resources necessary for achieving the objectives of the Regulation, and requires them to adopt a national plan for implementing its provisions.
It provides for the setting up of a single national authority responsible for ship and port facility security, which will be the Commission's contact point for implementation of the Regulation.
In paragraph 3 it sets out a timetable for the early implementation of certain measures, in accordance with resolution 6 adopted by the IMO Diplomatic Conference on 12 December 2002, in order for the security system to be up and running by 1 July 2004, the date fixed by IMO. This timetable covers the following measures:
- the appointment of a single national authority, as described in the previous paragraph, by 1 January 2004;
- the making of ship and port facility security assessments and the appointment of ship, company and port facility security officers by 1 March 2004;
- the approval of the ship and port facility security plans by 1 May 2004;
- the issuing of the international ship security certificates by 1 June 2004.
In paragraphs 4 to 6 it sets out a process whereby inspections supervised by the Commission are put in place to check the effectiveness of procedures for monitoring the implementation of each national system.
Paragraph 7 confers on the Agency created by Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, i and in accordance with its rules, the role of assisting the Commission in its tasks.
Article 11:
This article regulates the possibility for the Commission, following the regulatory procedure, to implement further amendments of the SOLAS Convention and of the ISPS Code, and in the light of experience to make mandatory provisions of Part B of the ISPS Code in addition to those which this Regulation already makes mandatory, or to establish a harmonised system for applying those Part B provisions which have been made mandatory.
Article 12:
The Commission is assisted by a committee acting in accordance with the regulatory procedure (Article 5 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission i) and the safeguard procedure (Article 6 of that Decision).
This committee is that established by Article 3 of 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) i.
Article 13:
This article calls upon Member States to institute effective, proportionate and dissuasive penalties for infringement of this Regulation.
Article 14:
In order to keep to the 1 July 2004 time limit set by IMO for implementing the provisions of the special measures to enhance maritime security amending the SOLAS Convention and the ISPS Code, and to assist with gradual and ordered implementation, this Regulation will enter into force on the twentieth day following its publication in the Official Journal of the European Union.
It will be applicable as from 1 July 2004, apart from the provisions of Article 10 i, which will enter into force and be applicable on the dates specified by that article. Article 10 i concerns:
- the appointment of a single national authority by 1 January 2004;
- the making of ship and port facility security assessments and the appointment of ship, company and port facility security officers by 1 March 2004;
- the approval of the ship and port facility security plans by 1 May 2004;
- the issuing of the international ship security certificates by 1 June 2004.
Annex 1:
This annex contains Chapter XI-2 (Special measures to enhance maritime security) of the SOLAS Convention.
Annex 2:
This annex contains Part A of the ISPS Code.
Annex 3:
This annex contains Part B of the ISPS Code.