Explanatory Memorandum to COM(2010)611 - Amendment of Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)611 - Amendment of Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency. |
|---|---|
| source | COM(2010)611  |
| date | 28-10-2010 |
FOLLOWING THE ACCIDENT OF THE OIL TANKER 'ERIKA' and the major oil pollution caused by this accident, the Commission proposed in late 2000 a Regulation setting up the European Maritime Safety Agency (EMSA) as a technical body with the aim to ensure a high, uniform and effective level of maritime safety and prevention of pollution by ships in the EU. The European Parliament and the Council adopted Regulation 1406/2002 on 27 June 2002. The Regulation entered into force in August of the same year, while EMSA started its activities in March 2003.
Regulation 1406/2002 has been modified three times since 2002, mainly due to the evolution of the EU's maritime legislation.
The first modification i to the EMSA founding Regulation was of a horizontal nature and concerned financial and budgetary procedures as well as transparency.
In the light of the “Prestige” accident in 2002 the second modification i which entered into force in May 2004 brought considerable new tasks to the Agency in particular regarding pollution preparedness and response. This second revision took also into account the development of EU competence in the area of maritime security, requesting the Agency to provide technical assistance to the Commission inspections in the framework of Regulation 725/2004 i on enhancing ship and port facility security. Furthermore, in the field of training of seafarers, EMSA was requested to assist the Commission in assessing seafarer certification procedures and training establishments in both EU and non-EU countries in line with the International Maritime Organization's STCW Convention (Standards of Training, Certification and Watchkeeping).
The third modification i provided EMSA with a multi-annual financial framework of 154 M EUR for the pollution response activities for the period 2007-2013.
However, these previous modifications have not been sufficient to address the new challenges ahead for EMSA, most of the challenges being external either to EMSA only or to EMSA and the EU as a whole.
Today, EMSA provides Member States and the Commission with technical and scientific assistance in order to help Member States to apply properly the Community legislation in the field of maritime safety, maritime security and prevention of pollution by ships, to monitor the implementation of this legislation and to evaluate the effectiveness of the measures in place and assist in the development of new measures. Some key figures from 2009 illustrate EMSA's different activities:
114 inspections in the areas of maritime safety, maritime security and prevention of pollution by ships
88 events organised with over 2.250 participants. This includes 694 people trained in 34 training sessions.
13 contracts covering 18 stand-by oil spill recovery vessels (of which 16 in the stand-by phase and 2 in the preparatory phase) for the different regional seas of the EU. Participation in 47 drills.
Over 3 million messages are exchanged per month in the EU vessel traffic monitoring system SafeSeaNet, with 2.000 users.
CleanSeaNet: 2107 possible oil slicks detected, 751 oil slicks verified by Member States and 194 oil slicks confirmed.
Long-Range Identification and Tracking of vessels (LRIT): Establishment and management of the EU LRIT data centre which covers more than 6.000 EU-flag ships.
Further comprehensive information on EMSA is available in the accompanying impact assessment report and on EMSA's website i.
THE OBJECTIVE OF THE PROPOSED MEASURE IS TO AMEND REGULATION 14 06/2002 by clarifying EMSA's existing tasks and role as well as by extending EMSA's tasks to new areas under development at international and/or EU level.
In its communication introducing the third maritime safety package in late 2005, the Commission indicated: “Implementation of the measures contained in this package will, where appropriate, involve the EMSA set up by Regulation 1406/2002 of the European Parliament and of the Council. Some of the measures are already provided for in that Regulation. The others will be the subject of a proposal to amend the Regulation setting up the Agency which the Commission intends to submit in the coming month”[6].
In its Communication "Strategic goals and recommendations for the EU's maritime transport policy until 2018" i, the Commission stated its intention to ' revise the mandate and the functioning of the European Maritime Safety Agency, in order to further enhance the technical and scientific assistance it can give to the Member States and the Commission '.
In its conclusions of 30 March 2009, the Council invited the Commission to develop measures regarding ' in view of the upcoming challenges, enhancing the work of the European Maritime Safety Agency for providing technical and scientific assistance to Member States and the Commission ' i
Following an invitation by the European Parliament and the Council i, the Commission services are working on a feasibility study regarding a European Coastguard service. The Commission services have concluded so far that synergies at EU level regarding certain coastguard operations could be reinforced through EMSA's activities. This could be further supported by extending EMSA's tasks in selected areas, in particular regarding the monitoring of maritime traffic and shipping routes as well as assistance to Member States in the tracking of possible polluters.
As foreseen by Article 22 of Regulation 1406/2002, EMSA's Administrative Board commissioned an independent external evaluation on the implementation of the regulation in late 2007. The study carried out by the consultancy company COWI assessed the impact of the EMSA founding Regulation, of the Agency and its working practices. The final report was presented to the Administrative Board in March 2008 i. The external evaluation attributes excellent marks to the Agency summarised in the following quote:
" It is the overall conclusion from the evaluation that the establishment of EMSA has filled a gap in the maritime safety area in the European Union. The Agency has quickly grown in terms of its tasks and importance to become a significant actor in the maritime safety area. The Agency has added value to the sector in general, and, in particular, to its two main stakeholders, the Member States and the Commission." i
However, the report also underlines the possibility for further improvements and clarifications.
2.2. Recommendations by EMSA’s Administrative Board
Based on the external evaluation, the Administrative Board issued recommendations i; which can be summarised as follows:
I. Changes to Regulation 1406/2002:
- amend article 22 of the Founding Regulation to provide for regular evaluations of the implementation of the EMSA regulation (every 5 years)
II. Recommendations related to the Agency and its working practises
- Continue to focus on activities which add value for its stakeholders;
- Develop a strategic plan covering a 5 year perspective;
- Continue in the efforts towards activity based costing and budgeting;
- Structure the annual work programmes to function as operational action plans for the given year;
- Develop the annual report to reflect actual achievements met against the targets;
- Developing project management capacity.
- Ensuring formal, periodic reviews of EMSA's effectiveness.
2.3. EMSA’s multi-annual strategy
In March 2010, EMSA's Administrative Board approved a multi-annual strategy for the period 2010-2014, in which 14 new themes for EMSA are outlined. The Commission supports the strategy subject to the availability of the required budgetary resources. While it considers that many of the 14 themes do not require changes to the EU legislation, in particular the EMSA-Regulation, it has taken into account the following themes in this proposal:
Theme 1 Accident Investigation: The new wording of Article 2(4)(b) reflects the multi-annual strategy.
Theme 4 Inspections: The idea of a horizontal analysis of inspections reports is reflected in Article 3 i. With regard to maritime security, it is suggested in Article 2(2)(b) that EMSA can provide technical assistance for all inspections under Regulation 725/2004 (ship-side and port facility-side). The question related to the recognition of security organisations (RSO) will be dealt with if appropriate in the specific EU legislation.
Theme 6 Maritime Surveillance: A reference to EMSA's contribution to maritime surveillance was added to Article 2(4)(a).
Theme 7 Coordination of maritime satellite information (GMES): A reference to EMSA's contribution to the implementation of EU-programmes like GMES was added to Article 2(2)(d).
Theme 9 Regional centre: In line with the strategy, the Commission suggests deleting the current limitation to vessel-traffic monitoring as other forms of technical advice, in particular training and access to operational services are also important within the regional context of the Mediterranean and the Black Sea (see change to Article 5(3)).
Theme 10 research: EMSA's expanded role with regard to EU research is highlighted in Article 2(2)(e).
Theme 11 neighbourhood countries: EMSA's new role with regard to the neighbourhood countries is reflected in Article 2 i.
While theme 13 'the human element' and theme 14 'e-maritime' do not require at this stage any modifications to the EMSA Regulation, the Commission foresees additional human resources in the financial statement attached to this proposal.
The Commission has used the external evaluation, the recommendations and the multi-annual strategy in the preparation of this proposal. Furthermore, it has considered the international and EU-wide developments which would require amendments to the EMSA Regulation (see the accompanying impact assessment).
The Commission proposes to maintain EMSA's current objectives and tasks. However, it is necessary to clarify some notions and to define more precisely EMSA’s assistance to the Commission, to the Member States and to other parties.
New tasks to EMSA arise from the implementation of the third maritime safety package . The Community legislator agreed in December 2008 on this ambitious and comprehensive legislative package covering Port State Control, classification societies, vessel traffic monitoring, accident investigation, indemnity of passengers, Flag State requirements and liability of shipowners. The formal adoption of the eight legislative acts took place in April 2009 and the implementation of the various measures is taking place over the next years i.
In the area of research , EMSA should become closer involved in EU maritime research and - through the analysis of research projects - identify the possible follow-up from a regulatory perspective. Furthermore, EMSA could assist the Commission in identifying research actions due to its comprehensive technical experience. However, EMSA will neither manage research projects nor duplicate work with the existing EU research structures.
The amendments seek also to clarify EMSA’s assistance to the Commission and to the Member States in various international and regional organisations in order to ensure that the Commission and the Member States receive the best possible technical advice. This concerns organisations like IMO, ILO, the Paris Memorandum of Understanding on Port State Control and other regional bodies (for example the Barcelona Convention, the Bonn Cooperation Agreement, the Bucharest Convention, the Helsinki Convention, the Lisbon agreement and the Arctic Council).
Furthermore, some of the high-value operational services operated by EMSA (SafeSeaNet, CleanSeaNet, LRIT, Port State Control etc.) can contribute significantly to other EU-policies, for example the integrated approach to maritime surveillance under the integrated EU maritime policy . The idea is to bring together and make interoperable different surveillance systems which are in place, under development or planned i. Another policy area where EMSA due to its expertise with processing satellite data can make a relevant contribution is the GMES programme ("Global Monitoring for Environment and Security"). In addition EMSA's expertise, systems, applications and data are of use when assessing and analysing the contribution of shipping related pressures such as ballast water, marine litter and underwater noise in the marine environment having in mind the objective of a good environmental status which is to be achieved according to the Marine Strategy Framework Directive i.
Furthermore, recently demonstrated risks of offshore oil operations to maritime transport and marine environment need to be taken into account. This revision clarifies that EMSA's response capabilities can also be used in case of marine pollution caused by other sources than vessels, notably by oil platforms. Indeed, in the framework of the EU Civil Protection Mechanism EMSA and many Member States of the EU have offered specific equipment and specialised pollution response vessels to the US authorities for assistance in the fight against the oil spill in the Gulf of Mexico. The Commission will further reflect to which extent EMSA might in the future contribute to the safety of offshore oil and gas exploration and production installations, having in mind that such activity is beyond the maritime transport sector and that the Commission in cooperation with the stakeholders is currently assessing the need to establish EU-rules.
The current EMSA Regulation makes technical cooperation with neighbouring countries very difficult. So far, only Norway and Iceland were able to participate in EMSA through the provisions of Article 17. Other third countries sharing a regional sea with the EU (Baltic Sea, Black Sea, the Mediterranean Sea and the Arctic Ocean) have expressed their interest in technical cooperation with EMSA in various fields (use of satellite images to track potential polluters, exchange of maritime traffic data, training activities, technical expertise, pollution response vessels). Cooperation activities by the Agency have been so far very limited due to the restrictive legal basis.
The Commission considers that EMSA's assistance to maritime security should not be extended beyond Regulation 725/2004 i. It is thus not foreseen to involve EMSA in the implementation of Directive 2005/65/EC on enhancing port security i. However, it is suggested to remove the current limitation of EMSA's assistance to the Commission inspections i in the framework of Regulation 725/2004 in the spirit of greater efficiency and flexibility. It is understood that within an inspection team, the team leader will allocate the different tasks to the experts according to their relevant experience. No additional resources for EMSA are foreseen through this modification.
After more than seven years of experience, EMSA's governance structure has proven robust. It is reasonable to maintain EMSA's institutional setting up as a so-called 'regulatory' agency of the Community with a large degree of autonomy. However, in a small number of areas, experience has shown that improvements and clarifications are necessary.
This concerns in particular the organisation of inspections by the Agency on behalf of the Commission. In this field the roles of the Agency, the Commission, the Administrative Board and the Member States need to be clarified: Member States' representatives at the Administrative Board are faced with a potential conflict of interest: on the one hand they decide on EMSA's activities and resources, in particular on the visits policy i, on the other hand they represent national administrations, which are themselves the subject of inspections by EMSA on behalf of the Commission to check the conformity of national regulations and practice with the applicable EU law. This potential conflict has led to discussions at Board meetings in particular at the time of agreeing EMSA's 'visits policy'.
While for the time being, major problems have fortunately been avoided, the problematic character of the underlying provisions requires corrective action by clarifying the roles of the different actors. In order to give the Member States, the Agency itself and the Commission the opportunity to provide input and to assume responsibility, the Commission proposes that- the Agency's operational working methods in the field of inspections be adopted by the Commission in comitology like in the case of EASA. The Administrative Board will continue its role, inter alia by deciding on the Agency's work programme and the budget.
- Other governance issues concern the management of the Agency. As recommended by EMSA's Administrative Board, the external evaluation of the Agency should be repeated at regular intervals thus requiring modifications to Article 22. A second recommendation concerns the development of a multi-annual strategy for EMSA, which should allow for a better strategic vision while the current planning is mainly conditioned by the annual budgetary cycle (see changes to Articles 10 and 15). Furthermore, due to EMSA's increased size, the function of Head of Departments should be enshrined in the Regulation.
- With regard to horizontal governance aspects affecting all EU agencies, the EU Institutions have launched a reflection exercise following the Commission communication of 2008 i. Therefore, the Commission has decided not to propose any changes of horizontal nature. However, the Commission would like to draw attention to the modified balance of voting rights between Commission and Member States in the Administrative Board, which has been altered considerably by the latest enlargements. While in 2002 at the first meetings of EMSA's Administrative Board, the Commission represented around 21 % of the votes (4 representatives out of a total of 19 representatives with voting rights), this share has now been reduced to around 13 % due to the enlargement to 27 Member States and is subject of further reductions in the next enlargements. The Administrative Boards take decisions by a two-thirds majority of all members with the right to vote (see Article 14), while the appointment of the Executive Directors requires a four-fifths majority (see Article 16). The Commission considers that the initial intentions of the European legislator regarding the institutional balance within EMSA's Administrative Board should be re-established in the medium term without increasing further the membership of the Administrative Board (currently 31 members with voting rights and 6 members without the right to vote i).
The Impact Assessment report and the summary are attached to the proposal. The Impact Assessment Board issued its opinion on 22 June 2008 providing a number of recommendations for improvements of the draft report, which have been incorporated in the final version.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- Previous modifications of the EMSA Regulation
- EMSA's current situation
- 114 inspections in the areas of maritime safety, maritime security and prevention of pollution by ships
- 65 substantial technical reports
- 2. OBJECTIVE AND JUSTIFICATION OF THE PROPOSED MEASURE
- 2.1. EMSA's external evaluation
- III. Other/general recommendations
- 2.4. EMSA's tasks
- 2.5. Governance aspects
- 2.6. Impact Assessment
- 3.1 . Legal basis
- 3.2. Subsidiarity and proportionality principles
- 3.3. Choice of instrument
- 5. CONTENT OF THE PROPOSAL
- Article Subject Changes
- Appointment New version
- 5.1.1. Changes to Article 1 (Objective)
- 5.1.2. Changes to Article 2 (Tasks)
- 5.1.3. Changes to Article 3 (Inspections)
- 5.1.4. Changes to Article 5 (Legal status, administrative arrangements, regional centres)
- 5.1.5. Changes to Article 10 (Administrative Board)
- 5.1.6. Changes to Article 15 (Executive Director)
- 5.1.7. Changes to Article 16 (Appointment of the Executive Director and the Heads of Department)
- 5.1.8. Changes to Article 18 (Budget)
- 5.1.9. Changes to Article 22 (Evaluation)
- 5.1.10. Changes to Article 23
The legal basis for the proposal is Article 100 i TFEU, which has served as legal basis for Regulation 1406/2002.
The principles of subsidiarity and proportionality are fully respected. The independent external evaluation (see above under point 2.1.) has confirmed the need for an EU intervention in order to assist the Member States and the Commission to attain the required level of maritime safety, maritime security and the protection of the marine environment within the EU. Furthermore, the effectiveness of the Agency's activities has been acknowledged. The proposed measures are proportionate as they amend only those parts of the existing Regulation where clarifications or modifications are necessary.
A Regulation is the most appropriate instrument in order to amend an existing Regulation.
The proposal has a modest budgetary implication insofar as the Agency receives a limited number of new or extended tasks, for which EMSA would need 18 posts to ensure effective and efficient operation. However, in the light of the current budgetary situation, the Commission has agreed with the Agency a considerable redeployment effort, as a result of which 6 of these posts will be provided by EMSA itself through internal redeployment. This means that the Budgetary authority would need to decide in the forthcoming annual budgetary procedures only on a total of 12 additional posts for the Agency's establishment plan to be phased in between 2012 and 2014 (5 posts in 2012, 4 posts in 2013 and 3 posts in 2014). This corresponds entirely to the Agency's Multi-Annual Staff Policy Plan for the years 2011-2013 adopted by EMSA's Administrative Board in March 2010 and transmitted to the Budgetary Authority as part of the documentation for the budgetary procedure 2011. The budgetary impact of this proposal is thus limited to a total of approximatively 3.9 M EUR for the period 2012-2015 (for further details see the attached financial statement and the impact assessment).
The Commission takes the view that after the important increase of human resources for EMSA in the years 2005 to 2008 (EMSA received a total of 126 additional posts in these 4 years), the Agency is now in a consolidation phase, as demonstrated already in the establishment plans for 2009 to 2011 which foresee modest increases despite EMSA's activities and tasks growing quickly. Before suggesting any further extension of tasks requiring additional resources, the Commission with the assistance of the Agency will continue to screen EMSA's activities and resources to ensure also for the future that all possibilities for redeployment within the Agency are used.
The proposal contains 2 articles. The first article specifies the proposed modifications to Regulation 1406/2002, while the second Article is related to the entry into force of the Regulation. The following table gives an overview of the changes to Regulation 1406/2002, while details are given in the ensuing sections:
Objectives New version
Tasks New version
Inspections New version
Transparency No change
Legal Status Small changes in paragraphs 3 and
Staff No change
Privileges No change
Liability No change
Languages No change
Administrative Board Small changes in paragraph 2: modification of point (c), points (ca) and (cb) added, deletion of point (g), changes to point (i) and simplification in point (l)
Composition No change
Chairman No change
Meetings No change
Voting No change
Executive Director Changes in paragraph 2 (modification of point (a), insertion of points (aa) and (ab), modifications of point (b) and (d), deletion of point (g)) and deletion of paragraph 3.
Third countries No change
Budget Small change in paragraph
Control No change
Fraud No change
Financial provisions No change
Evaluation Small change in paragraph
Start New version
Entry into force No change
As stated above, the objectives of the Regulation remain unchanged. Therefore, the Commission proposes only some small amendments to Article 1.
As the Article has become difficult to read in its current version, the Commission proposes a new version, which respects the previous structure. The intention is to provide greater clarity of EMSA's tasks in a user-friendly format. The proposed Article consists of 5 paragraphs. The introductory paragraph sets out the fields of activities of the Agency mirroring the clarification operated in Article 1. The Commission's ultimate responsibility for the implementation of the EU acquis is recalled in recital 4. Paragraphs 2 to 5 set out EMSA's different tasks in relation to the various addressees.
In order to correctly reflect the institutional role for EMSA in the implementation of EU legislation, the Commission proposes a new wording for Article 3. The reference to the policy defined by the Administrative Board has been deleted. Indeed, deciding on a 'visits policy' which affects the home administration could create a conflict of interests for the representatives of the Member States . Instead, the Commission proposes following the example of the European Aviation Safety Authority with regard to the establishment of the Agency's operational working methods in this field i. This ensures the involvement of all interested parties (the Agency, the Member States, the Commission) while respecting the institutional roles and responsibilities.
With the proposed change to paragraph 3, the Commission seeks to overcome a current limitation for regional centre focussing exclusively on vessel traffic monitoring issues in the context of Directive 2002/59. The proposed change does not imply that the Commission will submit a request for establishing a regional centre to EMSA's Administrative Board. The feasibility of such regional centre will first have to be clearly demonstrated.
The proposed change to paragraph 4 reflects EMSA's ever growing involvement in maritime transport issues at regional and international level – e.g. through LRIT and the development of maritime surveillance in the EU. This requires the Agency to enter into administrative cooperation with other bodies. The Executive Director represents the Agency and may therefore commit the Agency through administrative agreements, which are not international treaties. For the sake of transparency, appropriate information of the Administrative Board is required.
The Commission suggests the following amendments to paragraph 2 of Article 10:
- In point (c) the reference to article 2 needs to be adapted;
- The new points (ca) and (cb) refer to the adoption by the Administrative Board of EMSA's multi-annual strategy and the multi-annual staff policy plan,
- As a consequence of the change to article 3, point (g) has to be deleted;
- In point (i), the new posts of Heads of Department have to be reflected ;
- In point (l), the simplification operated in Article 15(2)(g) below regarding the separate report on anti-pollution measures allows a consequential simplification.
The Commission suggests some changes to Article 15, paragraph 2 regarding the Executive Director. Many of them are simply an editorial consequence of changes to other articles. Finally, paragraph 3 can be deleted as the content has been moved to Article 16.
5.1.7. Changes to Article 16 (Appointment of the Executive Director and the Heads of Department)
Due to the increased size of the Agency (up to 242 people employed in 2010), the Executive Director needs support at management level. EMSA's organisation chart foresees since June 2008 three Heads of Department as intermediate management level which corresponds with the situation in other EU agencies of comparable size. The new wording does therefore not require any new posts in EMSA's establishment plan. The title of the Article is changed and the appointment of the Heads of Department by the Executive Director following the favourable opinion of the Administrative Board is established.
Due to the global nature of the LRIT network, EMSA will exchange maritime data with other data centres including a detailed billing system. While the current EMSA Regulation foresees already charges for different services as one source of the Agency's revenue (see Article 18(1)(c)), the technical term of fees should be added. Unlike other EU agencies, it is neither expected nor intended to finance a considerable part of EMSA's revenue through charges. The EU contribution will remain the main source of EMSA's funding.
As recommended by EMSA's Administrative Board, the provisions on the Agency's external evaluation should not remain a unique exercise but should be repeated at regular intervals.
The provisions of this article regarding the start of EMSA's activities are outdated and can be deleted. The article can therefore become the standard committee article. In the maritime safety area, a single Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) was created in 2002 by Regulation (EC) No 2099/2002, which should assist the Commission also with regard to this Regulation. It is recalled that the Agency's operational working methods in the field of inspections (Article 3) are subject to comitology procedures.