Explanatory Memorandum to COM(2016)369 - Amendment of Directive 2009/45/EC on safety rules and standards for passenger ships - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)369 - Amendment of Directive 2009/45/EC on safety rules and standards for passenger ships. |
|---|---|
| source | COM(2016)369  |
| 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.
Directive 2009/45/EC of the European Parliament and of the Council 2 was put in place to attain a high level of safety and to remove barriers to trade, by setting harmonised safety standards at an appropriate level for passenger ships and craft operating domestic services. This Directive incorporates at EU level for domestic voyages the provisions of the SOLAS Convention which establishes detailed technical requirements for vessel construction, stability, fire protection and life-saving equipment. Correspondingly, it applies to ships made of steel and equivalent material, and to high-speed craft. In addition, it includes specific access and public information requirements for persons with reduced mobility or disabilities.
Directive 2009/45/EC has brought about a common high safety level across the EU and important internal market benefits. On the other hand, the experience has shown that since the entry into force of its predecessor in 1998 3 , the implementation has given rise to a number of questions as regards the clarity and adequacy of some of its definitions, scope and procedures.
Furthermore, several key safety aspects for small ships below 24 meters in length have not been harmonised, reflecting the fact that these ships are more sensitive to local operational conditions. In addition, the Directive already gave Member States the flexibility to apply national rules when they find the harmonised standards for small ships impracticable and/or unreasonable. In this regard, the fitness check showed that the Directive currently applies only to 70 out of 1950 small ships, the key safety aspects of which have been already defined by Member States. As a result, such requirements should be re-evaluated.
Moreover, the fitness check revealed that several Member States certify aluminium ships under this Directive while few others do not. This creates an uneven situation that undermines the objective of achieving a common, high safety level for passengers sailing domestically in the EU Member States. It results from a different interpretation of the Directive's scope related to the definition of an equivalent material and the applicability of the corresponding fire safety standards.
It is therefore proposed to clarify and simplify the safety rules and standards for passenger ships so that they are, in line with the Commission's REFIT programme, easier to update, monitor and enforce. In view of increasing legal clarity and certainty, the proposal also removes a number of outdated, redundant and inconsistent legal references.
The proposal amends the corresponding definitions and requirements of Directive 2009/45/EC.
In addition, the proposal provides for the alignment of Directive 2009/45/EC with the changes brought about by the Treaty of Lisbon in regard of the powers of the Commission to adopt delegated and implementing acts.
1.2Consistency with existing policy provisions in the policy area
The proposal is fully consistent with the simplification proposals amending Council Directive 98/41/EC 4 and the proposal replacing Council Directive 1999/35/EC 5 . 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
Directive 2009/45/EC has been mainly modelled and shaped on the international requirements and driven by a number of shipping casualties involving loss of human lives. Although common safety standard for ships engaged on international voyages have been set by international safety regulations such as SOLAS Convention, they do not apply to passenger ships engaged on domestic voyages.
The proposal ensures that the common level of safety established by Directive 2009/45/EC for ships operating on domestic voyages within EU waters is preserved, which could not be achieved by unilateral action at the level of Member States. At the same time, the proposal reiterates the need for and added value of differences in standards where local operating conditions may so require.
In light of the internal market objective and the freedom to provide maritime transport services within Member States, the proposal also ensures that Directive 2009/45/EC continues to facilitate the transfer of ships between national registers and to allow for the competition on domestic voyages to take place on equal footing, without compromising the safety level.
2.3Proportionality
As evidenced by the accident statistics, the existing legislation has achieved a high level of passenger safety. The regulatory cost related to EU safety standards have not proved to be disproportionate in comparison to national standards that would have been needed otherwise. The estimated differences in regulatory costs represent merely a minor fraction compared to the total construction, operation and maintenance costs.
Besides clarifying a number of definitions, the removal of some unnecessary requirements without compromising the high level of safety is one of the objectives of this simplification initiative. As a result, the proposal removes ships below 24 metres in length from the scope of Directive 2009/45/EC. Given that small ships are built mainly from materials other than steel, the vast majority of this fleet is currently not covered by the harmonised EU safety standards (96%). This implies that most of vessels below 24 m are already certified under national legislation.
Furthermore, the wide range of services that these vessels are built for (e.g. daily or overnight passages, touristic daily cruising, calling to ports with specific constrains or infrastructures) produces a very broad range of designs and technical solutions. This makes identifying a common set of detailed rules fitting such a variety of services for smaller vessels extremely challenging.
The current regulatory approach of Directive 2009/45/EC consisting in prescriptive standards designed primarily for steel (or aluminium) ships was therefore re-evaluated for such ships. In addition, accidents recorded for small ships outside the scope of EU standards do not demonstrate any specific safety concern (5 fatalities over the last 4 years, all of them occupational accidents). Furthermore, unlike for bigger ships, small ships tend to be operated in the same Member State until the end of their operational life and their transfer between Member States is limited.
2.4Choice of the instrument
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 safety level, ensures the enforcement of the rules, but leaves the choice of practical and technical procedures to be applied to each Member State.
The most adequate legal solution was found to be a proposal amending Directive 2009/45/EC. Alternative option of proposing a new Directive was discarded on the basis of the limited number of clearly identifiable changes to the current Directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
3.1Ex-post evaluations/fitness checks of existing legislation
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)Exclude passenger ships below 24 m in length from the scope of the Directive 2009/45/EC and consider developing guidelines or standards for small vessels and vessels built in non-steel or equivalent materials, based on functional requirements as part of a goal based standard framework.
Contents
• Clarify that for the purposes of Directive 2009/45/EC aluminium is a material equivalent to steel and clarify the corresponding fire insulation requirements (e.g. definitions of spaces which should be additionally fire insulated).
• Clarify that offshore service vessel for wind-farms fall outside the scope of Directive 2009/45/EC.
• Clarify that traditional ships fall outside the scope of Directive 2009/45/EC and clarify their definition.
• Removing the reference to 'where the shipwreck persons can land',
• Removing the notion of 'place of refuge'.
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 8 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.
Industrial stakeholders insisted that the key principles of the current legal framework remained unchanged (highlighting the costs of safety upgrade for aluminium ships in some Member States) 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 aluminium ships should be built according to the Directive's safety standards).
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 9 .
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 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
The simplification potential of this proposal primarily consists of non-measurable impacts such as legal clarity, certainty and simplicity, stemming from the clarification of the scope of the Directive and simpler definition of sea areas.
A deadline should be set for ships built in an equivalent material and greater than 24 m in length before the entry into force of this Directive to comply with the technical requirements laid down in the Directive. Sufficient transition period should smooth the adjustment to the maximum extent possible. Concerning the sea areas, the proposal would primarily eliminate redundant or outdated criteria and influence the drawing of sea areas for Member States to the minimum extent only.
The proposal also increases legal clarify by eliminating a number of redundant, incorrect or inconsistent references.
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, 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
Definitions and scope
Article 2 is amended to eliminate a number of redundant, inconsistent or incorrect references, in particular related to the Intact Stability Code (missing reference added), High Speed Craft Code (reference corrected), bow height definition (redundant part deleted), port area (aligned with the definition of a sea area), place of refuge (removed as redundant in line with the simplification of sea area definitions), port State (replacing host State in line with the review of Directive 1999/35/EC), and recognised organisation (updated reference).
Article 2 is also amended to provide for new definitions of traditional ship (moved from Article 3 and updated to take into account definition of traditional ship in Directive 2002/59/EC of the European Parliament and of the Council 10 ), sailing ship (new definition), pleasure yacht and craft (moved from Article 3 and further aligned with SOLAS), tender (new definition), and equivalent material (moved from Annex 1 and amended to clarify that ships built from such materials have to be certified according to this Directive).
Article 3 is amended to exclude ships below 24 metres from the scope of the Directive, to remove incorrect reference to passenger from the heading of points (a) and (b), and to clarify that the Directive does not apply to sailing ships, tenders and ships referred to in the SPS code (including offshore supply vessels).
Classes of passenger ships and application
Article 4 is amended to simplify the definitions of sea areas C and D (references to the criteria of where the shipwrecked persons can land and distance to place of refuge removed), and to clarify that the sea areas is established by Member States in such a manner that the inner border of sea area D is clearly delimited.
Article 5 is amended to update the reference to the host State (replaced by port State), and to update the reference to Directive 2009/16/EC of the European Parliament and of the Council 11 and Directive 2014/90/EC of the European Parliament and of the Council 12 .
Safety requirements
Article 6 is amended to update the reference to Directive 2009/15/EC of the European Parliament and of the Council 13 , to remove the repetitive point (c), to update the reference to the host State (replaced by port State), to clarify that the conversion requirement is meant to apply to all ships (when converted in a passenger ships), not only to existing passenger ones (by transferring point (e) into a new paragraph 5), to remove redundant part of the DSC Code reference in the fourth subparagraph of paragraph 4(a), to remove outdated point (f), and to insert a new date of application for ships built in equivalent material before the entry into force of this Directive.
Articles 7 and 8 are amended to remove the outdated parts.
Additional safety requirements, equivalents, exemptions and safeguard measures
Article 9 is amended to remove the incorrect reference to Annex 1 from paragraph 2 and to facilitate the notification of measures provided for in this Article by means of a database established for such purpose.
Committee and amendment procedure
Articles 10 and 11 are brought in line with the Treaty on the Functioning of the European Union in regard to powers of the Commission to adopt delegated and implementing acts. Article 10a has been added for the same reason (exercise of delegation power).
Certificates
Article 13 is amended to clarify that only ships fulfilling the requirements of this Directive are provided with a Passenger ship Safety Certificate, and to clarify that this certificate has to include all measures provided for under Article 9, not only the exemptions.
International dimension
Article 14 is amended in order to be brought in line with Treaty on the Functioning of the European Union concerning external representation.
Evaluation provisions
Article 16a has been added to specify the evaluation provisions.