Explanatory Memorandum to COM(2005)588 - Port State control (Recast) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)588 - Port State control (Recast). |
|---|---|
| source | COM(2005)588  |
| date | 23-11-2005 |
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- Grounds for and objectives of the proposal
1) Recast Directive 95/21/EC on port State control.
This text has been the subject of numerous amendments which have made it particularly complex. The recasting will clarify the provisions of the Directive to make them more understandable, in line with the 'better law-making' policy promoted by the Commission.
2) Reinforce and improve the effectiveness of port State control.
The latter objective results from a number of undertakings entered into by the Commission and requests made by the other institutions, in particular as a result of the PRESTIGE accident in November 2002. As early as 3 December 2002, the Commission adopted a Communication (COM(2002) 681 final of 3.12.2002) on improving safety at sea in response to the PRESTIGE accident, followed on 6 December 2002 by Council conclusions concerning ship safety and the prevention of pollution in which the Council invites the Commission to present as soon as possible a proposal aimed at reinforcing port State control procedures. Finally, it should be emphasised that in its Resolution adopted on 27 April 2004 following the work of the temporary committee on improving safety at sea (the MARE Committee), the European Parliament also called for an improvement and intensification of ship inspections in European Union ports.
- General context
The existing regulations are contained in Directive 95/21/EC and its successive amendments. Part of the objective of the proposed measure is precisely to recast these elements in a consolidated text.
In addition, the proposal aims to:
- amend certain provisions, with a view to either simplification or clarification (for example in the case of the expanded inspection programme) or reinforcement (this is the case in particular with provisions on the role of pilots in detecting faults and rules concerning the banning of substandard ships),
- add a number of new provisions in areas which were not covered by port State control, such as maritime safety, in order to take account of recent developments in international and Community law.
- Existing provisions in the area of the proposal
Directive 95/21/EC.
- Consistency with the other policies and objectives of the Union
The reinforcement of ship inspections will have a direct environmental impact by reducing the risks of accidents and consequently of the pollution that such accidents may cause.
Moreover, the measure will have positive economic repercussions as a result of this reduction of the risks of accidents and pollution. These changes are also designed to establish fairer competition conditions for maritime transport operators by reducing unfair competition from substandard vessels, which will be the subject of stricter penalties, and by granting the operators of quality vessels the benefit of less rigorous inspections.
Finally, the measure contributes to European Union social policy through the monitoring of onboard living and working conditions and the introduction of stricter rules regarding the following up of complaints made by seamen.
- Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents
In May 2004 and then in February 2005, the Commission held a twin series of consultation meetings with the representatives of the Member States and the shipping industry, on the basis of working documents from its services containing a detailed list of questions on the proposed changes.
The results of the consultations and impact studies carried out have confirmed:
- the added value of carrying out a complete recasting of the existing text to meet the need for clarity and regulatory simplification,
- the need to tighten up measures concerning those vessels posing the greatest risks, particularly through the strengthening of the banning regime,
- the importance of establishing the bases of a new inspection system ensuring that no vessel can evade inspection and that the inspection intervals are differentiated in favour of vessels of a high standard so as not to adversely affect their competitiveness through unjustified constraints.
The data collected and the detailed conclusions of the impact assessment are contained in the attached document SEC …/… .
- Collection and use of expertise
Scientific/expertise domains concerned
Maritime safety, safeguarding of human life, environmental protection and security.
Commission participation in Paris Memorandum groups of experts, studies entrusted to the European Maritime Safety Agency on certain points (example: overview of the application of the possibility of refused access to ports since the entry into force of the Directive, examination of the possible impacts of the new inspection regime), collection and analysis of information obtained from the database of the Paris Memorandum of Understanding on port State control.
Work of the European Parliament temporary committee on the improvement of maritime safety following the sinking of the tanker Prestige in 2002 (conclusions of the 'MARE' Committee).
Experts from EMSA and the Paris Memorandum.
The existence of potentially serious risks with irreversible consequences has been mentioned. The existence of such risks is universally accepted.
The advice of the Paris Memorandum experts helped to determine the scale of the problem and to isolate possible practical difficulties on subjects such as the inspection of ships at anchor. The work of the group of experts on the introduction of the new inspection regime, in which the Commission participated with the assistance of the Agency, allowed the broad lines of the future inspection regime to be determined.
The studies carried out by EMSA have revealed the shortcomings of the existing legislation, particularly those concerning the application of existing measures on refusal of access which have led to the proposed tightening up of the regime on this point. The experience gained by EMSA in managing the database on inspections of ro-ro passenger ships (under Directive 99/35/EC) has made it possible to propose a simplification and harmonisation of similar provisions in the two Directives.
The expert opinions are described in the impact assessment. Moreover, the Internet sites of the Paris Memorandum (www.parismou.org/) and EMSA (www.emsa.eu.int/) contain information on the application of the port State control regime (black lists of banned ships, black list of flags whose ships are most frequently detained).
- Impact assessment
The data collected and the detailed conclusions of the impact study are contained in the attached document SEC ../.. , which is summarised below:
The present arrangements are maintained. However, the status quo does not meet the demands made by the European Parliament and the Council or the undertakings made by the Commission following the PRESTIGE accident. It obliges Member States to apply conditions which have been overtaken by developments in international law or the situation within the EU. The balance sheet is therefore negative from an environmental and social point of view. From an economic point of view, although there are no extra administrative costs for the authorities, this option allows the unfair competition suffered by quality shipowners from substandard ships to persist.
Option 2: Resolve the problem through increased cooperation between Member States.
Cooperation between Member States, whether directly or through the Paris Memorandum, is legally conceivable only in areas not already covered by the Directive. This could, however, lead to a divergence between Community rules and the procedures applied under these intergovernmental agreements which would be extremely detrimental to the effective and harmonised application of port State control. The social, environmental and economic impacts would therefore be negative, particularly as some Member States are not parties to the Paris Memorandum.
Simply adopting a technical adaptation of the Directive has the advantage of leaving the existing framework in place and proposing only targeted changes to meet identified needs. The environmental, social and economic costs would therefore be low. However, its benefits are less than the more ambitious approach described in Option 4, particularly at the economic level, since although it tightens up sanctions on substandard vessels by making it easier to ban ships, it does not fully meet the objective of promoting high quality maritime transport.
This would involve replacing the present regime based on a quantitative approach (25% of ships inspected by Member State) by a more qualitative and global approach at EU level. The new inspection system would be more cost effective by concentrating inspection resources on high risk ships and relaxing inspections of vessels of a high standard, which would provide the environmental, social and economic advantages without the drawbacks.
The impact assessment is contained in the Commission legislative and work programme, the report of which is available on the Commission's Internet site:
europa.eu.int/comm/secretariat_general/impact ."
3)
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATIONS
- 2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
- Summary of responses and how they have been taken into account
- Methodology used
- Main organisations/experts consulted
- Summary of advice received and used
- Methods used to make the results of these expert opinions available to the public
- Option 1: No action
- Option 3: Simplification and improvement of the existing legislation
- Option 4: Modification of the existing regime
- 5) ADDITIONAL INFORMATION
- Refusal of access is a very effective dissuasive tool in the campaign against substandard vessels. The current rules will be
- Summary of the proposed measures
It is proposed to:
- recast Directive 95/21/EC on port State control and its successive amendments in a single text,
- make a number of amendments in order to update, complement and reinforce the Directive with a view to improving safety and security at sea, and the protection of seamen and the environment.
- Legal basis
Article 80 i of the Treaty.
- Principle of subsidiarity
The principle of subsidiarity applies insofar as the proposal does not affect an area where the Community has exclusive competence.
The objectives of the proposal cannot be achieved to a sufficient extent by the action of Member States for the following reasons.
Individual action by the Member States is by its nature incompatible with the objectives of port State control which seeks to ensure that in a particular geographical region, onboard inspections are carried out in a harmonised way.
Moreover, one of the objectives of action at regional level is to reduce costs and optimise through coordinated action the resources needed for an effective control of ships. Less rigorous application of port State control in a particular Member State would increase safety risks and might lead to the appearance of ports of convenience thus creating an unacceptable distortion of competition within the Community.
The objectives of the proposal can be achieved more effectively through Community action for the following reasons.
The proposal reinforces the provisions of an existing Directive.
Community action guarantees a harmonised application of inspection procedures in particular through the establishment of qualification standards and training programmes for inspectors, the sharing of information between Member States via a common information system and the following up of measures from one Member State to another (for example, in the matter of refusal of access).
The scope of the existing Directive is unchanged.
The proposal therefore conforms to the principle of subsidiarity.
- Principle of proportionality
The proposal conforms to the principle of proportionality for the following reasons.
The precise and detailed nature of the measures contained in the proposal is essential for the establishment of uniform inspection rules in the European Union.
The proposal combines greater effectiveness in removing substandard ships with better use of existing resources, while penalising reputable operators as little as possible..
- Choice of instruments
Proposed instrument(s): Directive.
Other instruments would not have been adequate for the following reasons.
This is primarily a question of recasting an existing Directive. Moreover, self-regulation is not a possibility since the objective of port State control is for the public authorities to check compliance with binding safety standards and to penalise failure to do so in a uniform and proportionate manner. A recommendation is excluded, since it would not make it possible to fix binding objectives and require compliance therewith by the Member States.
4)
The proposal has no budgetary implications for the Community.
- Simulation, pilot phase and transitional period
The proposal has been or will be the subject of a transitional period.
- Simplification
The proposal introduces a simplification of the legislative framework, of the administrative procedures applying to the public authorities (whether national or European).
In accordance with the objectives of European Union policy on better law-making, a number of improvements have been made in the presentation of the text: repeated or cross-references to other provisions in the text have been kept to a minimum. Moreover, in order to improve the legibility of the text, the provisions concerning procedures or technical details of inspections have been consigned to the Annex, to ensure that the operative part contains only the principles, objectives and essential elements.
For reasons of clarity, and having regard to the very considerable number of amendments of varying degrees of importance made in the recasting exercise, the main amendments proposed are set out below in a thematic form according to objective.
The simplification results from the removal of certain obligations considered to be obsolete (for example procedures applicable where no ISM certificates are carried onboard), and from harmonisation with procedures and tools put in place under other Directives (harmonisation of checks for ro-ro passenger ships with the expanded inspections provided for under Directive 95/21/EC).
The proposal forms part of the Commission programme updating and simplifying the Community acquis.
- Review/revision/sunset clause
The proposal contains a revision clause.
- Legislative recasting
The proposal involves a recasting of the legislative provisions in force.
- European Economic Area
This draft Act concerns a field covered by the EEA Agreement and should therefore be extended to the European Economic Area.
- Detailed explanation of the proposal by Article
Ensuring more effective application of the system of controls in ports and anchorages of the European Union (Articles 10 and 13)
As regards ports, the primary objective is to ensure that port State control is carried out in a uniform manner in ports of all States of the European Union. Thus the arrangements for banning a vessel will be based on detentions enforced in all Member States and not only in the Paris Memorandum ports as is the case in the present Directive. The proposal also lays down the inspection procedures applicable in anchorages.
Reinforcing the notification obligations on pilots (Article 17)
The Directive already contains an obligation for pilots to report defects. The PRESTIGE accident showed that information had not been transmitted by sea pilots in the Baltic approaches in the absence of a clear legal basis. The existing provisions have therefore been amended to extend this obligation to deep sea pilots, including those on ships in transit. Moreover, it is proposed to amend the provisions of the Directive to ensure that reports made by pilots and port authorities are followed up more effectively by the Member States.
Extending and simplifying access refusal measures (Article 10)
Refusal of access is a very effective dissuasive tool in the campaign against substandard vessels. The current rules will be
- extended to all ships: statistics show that bulk carriers and cargo ships are on average the most frequently detained in the European Union;
- simplified: the present criteria are obscure and difficult to implement. A clear message will be given, since the proposal is now based on two simple criteria: firstly, poor management of the vessel by its operator, as indicated by repeated detentions without a significant improvement in the condition of the vessel and secondly, inadequate monitoring by the flag State, attested to by its inclusion on the black and grey lists of the Paris Memorandum;
- tightened up: a minimum banning period is established in order to counter abuses already observed in the implementation of the Directive, in particular access refusals which are lifted too quickly, without any proper inspection of the condition of the vessel. Repeat offenders will be penalised more severely, with the ultimate possibility of permanent banning from European Union ports.
Tightening up requirements concerning administrations responsible for inspections and the competence of inspectors (Articles 4 and 16)
In accordance with international law, port State control can be exercised by a State only if the latter is fully in compliance with the rules that it imposes on foreign vessels in its ports. The Directive will restate this minimum requirement imposed on Member States of the European Union.
Moreover, the competent authorities must be in a position to carry out the compulsory inspections when the ships concerned are in port, including if necessary at weekends and on public holidays, in order to ensure that the vessels concerned do not evade inspection.
Finally, it is proposed to tighten up requirements concerning the professional profile of inspectors, by requiring Member States to regularly check their qualifications, particularly in the light of new rules resulting from amendments to the Directive or international conventions. The Commission will also establish, with the assistance of EMSA, harmonised rules on the qualifications and training of inspectors in order to reach a high level of competence of inspectors in the enlarged European Union.
Improving the planning, preparation and carrying out of inspections (Articles 7 and 18)
Under the improved cooperation between authorities pre-notifications received by ports and other bodies will have to be transmitted immediately to the inspectors, which will enable them to better plan and prepare their inspections.
Finally, it is laid down that when carrying out inspections, the inspector verifies whether defects detected but not corrected in a previous port have indeed been rectified in the meantime.
Improving the expanded inspection regime (Article 8)
Practical improvements have been made to the expanded inspection regime: ships eligible for an expanded inspection will be informed in advance by the inspector that they will be subjected to the expanded inspection on their arrival in port and, in return, will have to take appropriate measures to be available for such an inspection.
Moreover, with a view to simplification, the expanded inspection scheme will be applied to the categories of vessels concerned from a uniform minimum age (12 years).
Tightening up provisions concerning the human element (Article 12)
The Paris Memorandum statistics show a high number of anomalies connected with the qualifications of seamen onboard ships and their living and working conditions. Provisions tighten up controls on these aspects, in order in particular to respond to the worrying phenomenon of the increasing number of fraudulent certificates. Moreover, complaints by crew members regarding the safety and health of crews, living conditions and more generally the safety of the ship and the prevention of pollution will be dealt with systematically and seamen informed of the outcome of their complaint.
Controls regarding security (Article 7)
Maritime transport is particularly vulnerable to the risk of terrorist or other criminal acts. In order to facilitate the application of Regulation (EC) No 725/2004 of the European Parliament and of the Council on enhancing ship and port facility security, the inspection procedures established under the Paris Memorandum have been introduced in the Directive.
Greater transparency and wider dissemination of information on ships and operators (Article 20)
In order to reinforce the dissuasive effect on the operators of ships penalised under the Directive, the Commission, through the European Maritime Safety Agency, is planning to publish a black list of owners of ships which have been the subject of repeated detention or access refusal measures. A black list of ships banned under the terms of the Directive will also be published in accordance with the same procedures and updated constantly.
Facilitating monitoring by the Commission of the implementation of the Directive by the Member States (Article 23)
The existing provisions, which do not allow satisfactory control by the Commission of implementation of the Directive by the Member States, will be amended to enable the European Maritime Safety Agency, acting on behalf of the Commission, to obtain precise electronic data on ships' movements. On this basis, detailed analyses of the operation of the regime in the ports of the Member States can be carried out, which will make it possible for example to optimise inspection resources on the basis of traffic or avoid the risk of seeing 'ports of convenience' appear.
Establishment of a new inspection regime (Article 5)
The current port State control regime is based on compliance with the purely quantitative threshold of 25% of ships inspected by Member State, which not only allows many ships to pass through the net but also sometimes causes the authorities to carry out unjustified inspections solely to reach this figure. The approach proposed establishes a collective objective which is to inspect all ships calling at ports in the Union, with high risk ships being inspected more frequently and quality ships less so.
The new inspection regime will help to ease the burden of inspections on quality ships on the basis of criteria relating to the ship itself and its flag (in particular the fact that the flag State applies the IMO voluntary audit system). However, it should be stressed that this new regime must not lead to a weakening of the present system which would result in greater insecurity. In particular, the aim of the new regime should not be a reduction of the resources allocated by the Member States to port State control but their more effective use.
The principle is simple but its implementation is complex: a precondition of such a regime, if the development of ports of convenience is to be avoided, is that an objective mechanism is found which guarantees a fair – and verifiable – distribution of the number of inspections between the Member States.
The details of such a mechanism are currently being studied under the Paris Memorandum – where a specific task force has been set up – and in EMSA.
It is therefore proposed at this stage to incorporate the principles of this new inspection regime in the Directive, along with its essential elements: establishment of a risk profile applicable to ships, incentives for ships with a low risk profile and the adaptation of existing procedures relating to inspections and follow-up.
Subsequent amendments to the Directive which become necessary will be introduced through the 'comitology' procedure, once all the elements and practical details of the new inspection regime have been established.
However, until these technical details have been adopted and have entered into force at Community level, the existing regime continues to apply and in particular the threshold of 25% of individual ships inspected by Member State.