EC on port State control - Main contents

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dossier	COM(2016)371 - System of inspections for the safe operation of ro-ro ferry and high-speed passenger craft in regular service and amending ...
source	COM(2016)371
date	06-06-2016

1. CONTEXT OF THE PROPOSAL

1.1Reasons for and objectives of the proposal

In the spirit of the Commission's REFIT and Better Regulation agenda and as an immediate follow-up to the fitness check on EU passenger ship safety legislation ¹ , the Commission puts forward a set of proposals to bring about the identified simplification potential.

The objectives of this revision are to simplify and streamline the existing EU passenger ship safety regulatory framework, in order to (i) maintain EU rules where necessary and proportionate; (ii) ensure their correct implementation; and (iii) eliminate potential overlap of obligations and inconsistencies between related pieces of legislation. An overarching objective is to provide for a clear, simple and up-to-date legal framework that is easier to implement, monitor and enforce, increasing thus the overall safety level.

Council Directive 1999/35/EC ² provides for a number of types of inspection addressing particular safety characteristics of ro-ro ferries and high-speed craft (HSC). These address specific risks related to undivided vehicle decks giving rise to stability and fire vulnerabilities, very intense activity, the risks of cargo shift, water-tightness issues, hoistable ramps and wear & tear.

Notwithstanding the fact that the special inspection regime for these vessels remains necessary, the requirements of this Directive no longer match the realities. The situation today is significantly different compared to almost 20 years ago when Directive 1999/35/EC was adopted. At that time, the EU had 15 Member States and there were a significant number of ro-pax and HSC trading regularly between EU and third States. In addition, since then, the port State control regime has been strengthened, especially after Directive 2009/16/EC of the European Parliament and of the Council ³ came into force, establishing a risk-based inspection regime and including a minimum number of inspections on high risk ships that Member States must carry out.

Today, the vast majority of Member States combine or replace some of the inspections required under Directive 1999/35/EC with either flag State surveys or port State control inspections. This practice renders the implementation and enforcement of this Directive problematic, given the different scope of these inspections and regulatory overlaps. In particular, the legal framework allows for a port State control inspection to be replaced by a Directive 1999/35/EC survey. However, given that the scope of Directive 1999/35/EC survey does not include all elements covered by the port State control, this overlap in fact creates a regulatory gap.

It is therefore proposed to update, clarify and simplify the existing survey requirements for ro-ro ferries and HSC while maintaining the same level of safety and key delivery mechanisms. This is fully in line with the Commission's REFIT programme and aims to further rationalise the inspection effort of national administrations and to maximise the time in which the ship can be commercially exploited.

In this vein, in order to ensure clarity and coherence, the proposal repeals the current Directive and replaces it with a new Directive. It also includes ancillary changes to Directive 2009/16/EC.

1.2Consistency with existing policy provisions in the policy area

The proposal is fully consistent with the simplification proposals amending Directive 2009/45/EC of the European Parliament and of the Council ⁴ and Council Directive 98/41/EC ⁵ . It ensures consistency with Directive 2009/16/EC by including ancillary changes amending thereof. These ancillary changes are strictly limited to those necessary to ensure coherence with the present proposal and by no means impact on the forthcoming evaluation of Directive 2009/16/EC. The proposal is fully in line with the fitness check recommendations and the 2011 White Paper for the future of transport ⁶ that recognised the need to modernise the current EU passenger ship safety legislative framework.

1.3Consistency with other Union policies

The proposal delivers on the Commission's Better Regulation agenda by ensuring that the existing legislation is simple and clear, does not create unnecessary burden and keeps pace with evolving political, societal and technological developments. It also delivers on the goals of the 2018 Maritime Transport Strategy ⁷ by ensuring quality ferry services in regular intra-EU passenger transport.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

2.1Legal basis

Given that the proposal replaces the current Directive, the legal base remains Article 100(2) TFEU (ex Article 80(2) TEC), providing for measures in the field of sea transport.

2.2Subsidiarity

On request of the Member States ⁸ , the EU passenger ship safety legislation has been mainly modelled and shaped on the international requirements and in reaction to a number of major accidents (e.g. the accidents with the Herald of Free Enterprise, the Estonia). Most Member States are concerned as flag States as well as port States.

Although common rules have been adopted at EU level for passenger ships, including ro-ro ferries and HSC sailing on domestic voyages, this is not the case for international journeys where international conventions apply. International conventions allow for considerable derogation possibilities and divergent interpretations of the safety standards. Passengers travelling in the EU have the right to expect the same level of safety irrespective of the type of ships or service they are using.

In the absence of an enforcement mechanism at international level, the EU survey regime applicable to both domestic and international passenger ships remains a pre-requisite for maintaining a high standard of safety of life for passenger ships and eliminating substandard shipping. It also guarantees that competition takes place on an equal footing in EU waters for all operators irrespective of their nationality or the flag their ships and craft fly and without a distinction between international and domestic journeys. Therefore, harmonised conditions for the operation of ro-ro ferries and HSC to and from EU ports and common safety level could not be achieved by unilateral action at the level of Member States.

2.3Proportionality

In view of the latest technological and legal developments, the proposal to clarify existing requirements, remove overlaps and outdated concepts, is considered as the only proportionate and coherent option. It ensures that the current high level of safety is not compromised and allows for the better use of resources, better targeting and clearer safety requirements.

In accordance with the principle of proportionality, a Directive remains to be considered as the most suitable form for achieving the identified objectives. It establishes common principles and a harmonised level of safety, ensures the enforcement of the rules, but leaves the choice of practical and technical procedures to be applied to each Member State. In doing so, it leaves the responsibility to each Member State to decide on the implementation tools which best fit its internal system. A Directive also ensures that the simplification objective of this proposal is achieved to the maximum extent possible.

2.4Choice of the instrument

In order to ensure view of clear and consistent legal drafting, the most adequate solution was found to be the proposal for a new Directive replacing the existing one. Alternative option of proposing a set of amendments to the current Directive was discarded on the basis of the significant number of changes and their type to be brought to the current Directive.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

3.1Ex-post evaluations/fitness checks of existing legislation

The fitness check showed that the key objectives of the EU passenger ship safety legislation related to passenger safety and internal market are being overall met and remain highly relevant. The EU passenger ship safety legal framework resulted in a common safety level for passenger ships within the EU and a level playing field between operators as well as increased transfer of ships between Member States. The fitness check also showed that there is scope for further enhancing the level of safety as well as the efficiency and proportionality of some of the regulatory requirements. Recommendations to simplify, clarify and repeal a number of ambiguous, outdated or overlapping requirements have been made in a number of areas:

(a)Avoid overlaps between the specific surveys under Directive 1999/35/EC and the expanded inspections provided for under Article 14 of Directive 2009/16/EC and Commission Regulation (EU) No 428/2010.

(b)Avoid overlaps between the specific surveys under Directive 1999/35/EC and the annual flag State surveys provided for in the Directive 2009/21/EC (concerning international voyages) and Directive 2009/45/EC (concerning domestic voyages).

(c)Eliminate the redundant concept of the host state provided for under Directive 1999/35/EC (while retaining the possibility for joint inspections) and replace the term 'survey' by 'inspection'.

(d)Clarify that the time period between the two annual inspections of ro-pax vessels in Directive 1999/35/EC which are meant to take place at regular, six monthly intervals.

3.2Stakeholder consultations

Given the technical nature of the envisaged proposals, a targeted consultation has been chosen as the most adequate tool. National experts have been consulted in the framework of the Passenger Ship Safety Expert Group. A workshop was organised where the Member States as well as industry and passenger associations were invited to participate. The envisaged measures were presented on numerous occasions. In addition, the roadmap published on the Europa website ⁹ allowed all stakeholders to provide feedback by means of an online response form.

The consultation summary as well as detailed feedback on comments raised during the consultation process is provided in the Staff Working Document accompanying the proposal. The envisaged simplification measures were supported by the large majority of national experts, albeit a number of comments have been made with respect to exact wording of some of the proposals. All suggestions have been therefore carefully reviewed and proposals amended as appropriate. In addition, some experts raised questions concerning practical and technical implementation aspects, which have been addressed in the Staff Working Document accompanying the proposal and are embedded in the Implementation Plan.

Stakeholders from industry insisted that the key principles of the current legal framework remained unchanged while the passenger association called for upgrading the safety level and warned against its dilution. The proposal therefore ensures that the existing level of safety is maintained and, to the extent possible within the simplification framework, increased (e.g. by clarifying that the regularity of the two annual inspections under the current Directive is meant to take place at spaced out, six monthly intervals).

3.3Collection and use of expertise

This review builds primarily on the data collected during the fitness check process as reported in the Commission Staff Working Document Adjusting course: EU Passenger Ship Safety Legislation Fitness Check, adopted on 16 October 2015 ¹⁰ .

In addition to the data and consultation carried out in the framework of the fitness check, the preparation of this simplification proposal necessitated an input from technical and legal experts regarding the concrete formulation of technical definitions and a clear legal drafting. This expertise was gathered internally, in cooperation with the European Maritime Safety Agency (EMSA) and the Passenger Ship Safety Expert Group. It is reported on in the Staff Working Document accompanying the proposal.

3.4Impact assessment

The proposal is an immediate follow-up to the fitness check that identified the issues for simplification in detail and assessed the simplification potential. As highlighted in the roadmap, the envisaged measures are either not expected to generate any significant impacts (i.e. beyond those that are non-measurable such as legal clarity, certainty or simplicity) or no materially different solutions have been identified. In line with the Commission's Better Regulation Guidelines, a fully-fledged impact assessment has not been carried out.

Nonetheless, the simplification proposal is accompanied by a Commission Staff Working Document that recalls the recommendations of the fitness check and explains the rationale of the proposed solutions from the technical as well as legal perspective. It includes a summary and a feedback on the stakeholder consultation carried out in support of this initiative. An implementation plan is also attached.

3.5Regulatory fitness and simplification

To ensure that the existing legislation is fit for purpose is the main objective of this proposal. Its simplification potential primarily consists of non-measurable impacts such as legal clarity, certainty and simplicity. The main quantified element relates to the removal of overlaps and inconsistencies between the specific surveys under the current Directive, the expanded port State control inspections and the annual flag State surveys. The envisaged simplification will not only close the identified regulatory gap but is also expected to further rationalise the inspection effort of national administration and maximise the time in which the ship is commercially exploited.

The maximum combination potential has been estimated at ca. EUR 900.000 (i.e. reduction of ca. 670 self-standing surveys under this Directive per year for the entire EU, if the same ships continued in service as today), part of which has been already realised in practice by combining the various kind of inspections. Besides these monetary estimates, there is a significant burden for all the stakeholders related to the complexity of these inspection regimes, overlapping requirements spread across different pieces of legislation, expressed in different terms etc. This makes the implementation, monitoring and enforcement unnecessarily burdensome for all the parties involved.

3.6Fundamental rights

The proposal has no consequences for the protection of fundamental rights.

4. BUDGETARY IMPLICATIONS

The proposal has no implications for the Union budget.

5. OTHER ELEMENTS

5.1Implementation plans and monitoring, evaluation and reporting arrangements

The proposal is accompanied by an implementation plan that lists the actions needed to implement the simplification measures and identifies the main technical, legal and time-related implementation challenges.

Adequate monitoring and reporting arrangements have been identified, without creating new reporting obligations and administrative burdens. The key information on fleet, accidents and compliance will be collected with the assistance of EMSA, the inspection database (THETIS), Passenger Ship Safety Expert Group and on the basis of the European Marine Casualty Information Platform (EMCIP) database. Given that the full cycle of the envisaged EMSA implementation visits is estimated to last 5 years, the evaluation cycle of the EU passenger ship safety legislation should be set at 7 yearly intervals.

5.2Explanatory documents

Explanatory documents are not required as the simplification measures are not of substantial or complex nature.

5.3Detailed explanation of the specific provisions of the proposal

Scope and definitions

Article 1 delineates the scope of the Directive excluding those vessels subject to port State control inspections carried out in accordance with Directive 2009/16/EC. As a result, the scope is confined to ships providing regular ro-ro ferry and high-speed passenger craft services between ports within a Member State or between a port in a Member State and a port in a third State where the flag of the vessel is the same as that of the Member State in question.

Article 2 removes a number of redundant definitions and references such as 'passenger', 'host state', 'international voyages', 'exemption certificate'. It also deletes the reference to the investigation of marine casualties which is now covered by Directive 2009/18/EC of the European Parliament and of the Council ¹¹ . The definitions of a number of other concepts are updated to take account of changes in EU legislation or at the international level (IMO) and to ensure that definitions are brought into line with those found in Directive 2009/16/EC.

Pre-commencement inspections

Articles 3 and 4 provide for system of ship (rather than company) based inspections prior to the commencement of a regular service. The vessel must undergo an inspection in accordance with Annex II and a number of safety management issues set out in Annex I must also be verified. Article 4 provides for situations where a vessel has recently been inspected or is moved from one service to another with similar characteristics. The word 'inspections' rather than 'surveys' is used throughout the text as this more accurately reflects the type of regulated activity.

Regular inspections, inspection reports, prohibitions of departure, appeal and costs

Article 5 stipulates that ships falling within the scope of the Directive are inspected twice per year with a certain time-lag between inspections and that one of these inspections should be an in-service inspection during a regular crossing. It is also provided that the Member State can, if they wish, combine the inspection with a flag State survey which would have to be carried out in respect of a vessel on a yearly basis. This should result in a reduced burden on the administration as well as on the ship-operator.

In Articles 6, 7, 8, 9, 10 and 11, the provisions relating to the inspection reports, prohibitions of departure, appeals, costs, the inspection database and penalties are all brought into line with those provided in Directive 2009/16/EC. While Directive 2009/16/EC does not provide for a prohibition of departure order, this is inspired by the detention order in port State control.

Amendment procedure

Articles 12 and 13 are brought in line with the provisions of the Treaty on the functioning of the European Union concerning the exercise of the Commision powers in relation to delegated acts.

Amendment to Directive 2009/16/EC

Article 14 provides for ancillary amendment to Directive 2009/16/EC to ensure that the current content and frequency of ro-ro ferries and high-speed passenger craft inspections is maintained.

Repeal

Article 15 provides that Directive 1999/35/EC is repealed and refers to the corresponding correlation table in Annex IV.

Evaluation provisions

Article 16 specifies the evaluation provisions.