Explanatory Memorandum to COM(2016)370 - Amending the directives on registration of persons sailing on board passenger ships and on reporting formalities for ships arriving in and/or departing from ports in the EU - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)370 - Amending the directives on registration of persons sailing on board passenger ships and on reporting formalities for ships ... |
|---|---|
| source | COM(2016)370  |
| 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 98/41/EC 2 provides for counting and registration of passengers and crew on board of passenger ships operating to and from the EU ports. It aims to ensure that the safety of passengers is not compromised by exceeding the maximum authorised number of persons on board and that search and rescue in the aftermath of any accident can be dealt with effectively.
Directive 98/41/EC was the first EU piece of legislation dealing with information on persons on board. Since 1998, however, other pieces of EU law and international conventions dealing with related issues have entered into force and new technological systems and solutions have been developed. This has resulted in increasingly complex and overlapping legal provisions dealing with the counting, registration and reporting of persons on board.
Although an effective search and rescue operation requires immediate access to accurate data as regards the persons on board, this has not always proved to be the case in practice. According to the current requirements, this information has to be stored in the company's system and be – at all times – readily available for transmission to the competent authority responsible for search and rescue. This requirement, dating to 1998, ignores the development of systems such as SafeSeaNet 3 and the National Single Window 4 and requires that the national competent authority contacts the shipping company in the event of an emergency. Moreover, the recorded data does not always include information on nationality (i.e. besides name, age and sex), making the assistance provided to victims and their relatives more difficult.
As a result, operators that already transmit such data to the National Single Window are exposed to double reporting regime. This has been pointed out by those Member States who in practice already make use of the Directive 2002/59/EC to fulfil their Directive 98/41/EC obligations. Furthermore, the implementation experience has revealed a number of ambiguous definitions and rather complex requirements, making some of the provisions difficult to monitor and enforce.
It is therefore proposed to update, clarify and simplify the existing requirements for counting and registration of passengers and crew on board passenger ships while enhancing the level of safety they provide for. This is fully in line with the Commission's REFIT programme and aims to exploit the digitalisation potential of recording, transmitting, accessing and protecting data.
The proposal amends the corresponding definitions and requirements of Directive 98/41/EC.
1.2Consistency with existing policy provisions in the policy area
The proposal is fully consistent with the simplification proposals amending Directives 2009/45/EC of the European Parliament and of the Council 5 and the new Directive replacing Council Directive 1999/35/EC 6 . The proposal is fully in line with the fitness check recommendations and the 2011 White Paper for the future of transport 7 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 8 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 9 , 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. Although requirements concerning information on passengers have been adopted at international level, this was not the case for passenger ships operating on domestic voyages.
The proposal ensures a common and coherent application of registration requirements established by Directive 98/41/EC for all ships operating to and from EU ports, which could not be achieved by unilateral action at the level of Member States. It ensures that Directive 98/41/EC keeps pace with legal and technological developments and therefore continues to enhance the safety and to facilitate search and rescue operation if an accident occurs.
The proposal also guarantees that competition continues to take 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. At the same time, the proposal clarifies the conditions for derogating from the requirements of Directive 98/41/EC where local operating conditions may so require.
2.3Proportionality
In view of the latest technological and legal developments, the proposal to remove outdated requirements, remove overlaps and clarify ambiguous requirements is considered as the only proportionate and coherent option. It ensures that the current high level of safety is maintained and further enhanced by using the means of electronic data transmission.
More specifically, the requirement to record the information on the persons on board in an existing electronic system (that in the event of an emergency allows the data to be immediately accessed by the competent authority) is considered to present a leap forward in comparison to the current safety level, without generating significant costs for operators or national administrations.
In this context, the requirement to approve passenger registration systems has proven to generate significant workload for some national administrations. Such workload, and the corresponding costs, have been evaluated as clearly excessive, namely vis-à-vis its narrow scope, given its partial overlap with the ISM code and given the difficulty to verify the approval in the absence of any certificates. The requirement for company passenger registration systems should be removed and focus oriented on the registration performance, i.e. on the accuracy and timeliness of recording the data in existing electronic systems.
As the experience has also shown, it is of outmost importance to have available from the very early stage of a post-accident phase not only the number and the list of persons on board but also their nationality. It is therefore proposed to register such information on the basis of a self-declaration of passengers, as it is currently the case for other information. This will ensure that those operators currently not recording such information face none or marginal cost of such additional data entry.
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 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.
In this regard, the most adequate legal solution was found to be a proposal amending Directive 98/41/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 level of safety 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)Eliminate double reporting of passengers requirements and align the existing reporting requirements for all operators by providing for:
• Recording the information on the number of persons on board in an existing electronic system that in the event of an emergency or accident allows for an immediate transmission of data to the competent authority instead of in the company system, before departing and before arriving to any EU port of call.
• Recording – for every voyage beyond 20 nautical miles – of the required information on crew and passengers in the same system as above instead of in the company system, before departing and before arriving to any EU port of call. Clarify the definitions of passenger registration requirements in Directive 98/41/EC, such as length of the voyage.
(b)Avoid overlaps and require – for every voyage beyond 20 nautical miles – the nationality of passengers to be registered and transmitted to the competent authority, using the same means and criteria as the ones in place for recording and transmitting the already required data on name, age, etc.
(c)Clarify the definitions of passenger registration requirements in Directive 98/41/EC, such as length of the voyage.
(d)Eliminate from Directive 98/41/EC the requirement for the approval of the passenger registration systems.
(e)Streamline the reporting mechanism of exemptions/equivalencies under Directive 2009/45/EC and Directive 98/41/EC.
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 10 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 (namely in relation to the self-declaration of passenger data) 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 exploiting the existing electronic systems and clarifying how the 20 nautical miles threshold should be calculated).
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 11 .
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
To ensure that the existing legislation is fit for purpose is the main objective of this proposal. Using the available means of electronic communication will allow achieving the policy objectives more effectively and efficiently. The simplification potential primarily consists of removing overlaps in reporting obligations, disproportionate requirements and of non-measurable impacts such as legal clarity, certainty and simplicity.
The double reporting requirements for operators that already transmit passenger and crew data to the National Single Window provide an additional and unnecessary burden for the industry. A lighter regime is envisaged for those (in principle smaller) operators that do not yet use the systems mentioned above. These companies operate mainly on very short domestic voyages (i.e. recording information only on the number of persons on board) and do not have computer systems or internet connection.
To neutralise any possible cost increase for these operators, it is envisaged that they would have a choice to transmit the number of persons on board via the Automatic Information System, a maritime broadcast system based on the transmission of very high frequency radio signals. This would allow the local search and rescue centre to easily retrieve the number of persons on board, at any point of time, regardless of the availability of a contact person.
Member States will be dispensed of approving the company passenger registration systems, albeit they will remain responsible for ensuring that the information is collected and recorded electronically in an accurate and timely manner.
3.6Fundamental rights
The proposal does not add additional categories or change the categories of personal data that have to be collected and recorded according to the existing requirements of Directive 98/41/EC. The only exception in this respect is the information on nationality of persons on board that is for the reasons explained above proposed to be added to the information already recorded (i.e. the family names of the persons on board, their forenames or initials, their gender, an indication of the category of age to which each person belongs, or the age, or the year of birth, and when volunteered by a passenger, information concerning the need for special care or assistance in emergency situations).
Nonetheless, Directive 98/41/EC needs to be modernised in correspondence with the legal developments in the area of personal data protection, in particular Regulation (EU) No XXX/2016 12 . In this regard, although the categories of data, purpose and recipients are clearly identified, the data retention period is not. Directive 98/41/EC requires that the company should not keep personal data longer than necessary for the purposes of this Directive, but does not indicate how long such period should be. The implementation experience has shown that the data retention period importantly differs across Member States – ranging from hours, weeks to months after the voyage has been (successfully) completed. It is therefore proposed to establish the retention period in this Directive (without prejudice to other legal requirements where such data is collected for different purposes with different retention period).
Furthermore, although the Directive stipulates that the company registration systems have to be protected against accidental or unlawful destruction or loss and unauthorised alteration, disclosure or access, it does not refer to EU law on the protection of personal data and does not include any guarantees regarding the accessibility of personal data. In this respect, the proposal is considered to provide for major improvement in the protection of personal data.
In addition, the proposal replaces the requirement to store personal data by the company by the requirement to transmit such data to an existing electronic system designed for such purpose (and to delete personal data when the transmission has been completed). The proposed transmission to the National Single Window caters for the confidentiality requirements (as defined in Article 8 of Directive 2010/65/EU) and complies with EU law on the protection of personal data. It equally provides for the restricted accessibility of such data that is to be provided to the relevant national authorities upon request (the exchange mechanism in the event of an emergency or in the aftermath of an accident being the SafeSeaNet system as defined in Directive 2002/59/EC). Equally to the National Single Window, the SafeSeaNet is driven by EU law on protection of personal data and provides for clearly defined security and access rights.
The relevant national authorities to whom access shall be granted for the purpose of this Directive are authorities for search and rescue designated by Member States. Upon request, in the event of an emergency or in the aftermath of an accident, the search and rescue authorities shall have immediate access to the information reported in accordance with Directive 98/41/EC.
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 align as far as possible the definitions with the proposal amending Directive 2009/45/EC and with the proposal for a new Directive replacing 1999/35/EC and to align the responsibility of the passenger registrar with the proposal to remove the requirement for the information required by this Directive to be retained by the company.
Article 3 is amended to clarify the scope of the Directive and to bring it in line with the definition of port areas as defined in accordance with the proposal amending Directive 2009/45/EC.
Information on persons on board
Article 4 is amended to replace the requirement to store the information on the number of persons on board in the company by recording it in the National Single Window or transmission by means of Automatic Identification System.
Article 5 is amended to introduce the information on nationality of persons on board and to replace the requirement to store the lists of passengers and crew by the company by recording it in the National Single Window. The list of required data entries is simplified, clarified and aligned as far as possible with reporting requirements into the National Single Window.
Article 6 is amended to align the reference with the proposed means of data transmission and to clarify the responsibilities of Member States with respect to passenger ships flying the flag of a third country.
Companies
Article 8 is amended to reflect the new role of the passenger registrar (i.e. not to store but to transmit the data) and to remove the requirement to set up a company passenger registration system. It is also amended to reflect EU law on protection of personal data and specifies that personal data shall be destroyed by the company once transmitted to the single window (without prejudice to other reporting obligations).
Exemptions
Article 9 is amended to remove the outdated reference to the exemption for regular services crossing the Strait of Messina. In light of the introduction of electronic transmission of data and given the proposed flexibility to transmit the number of persons on board, Article 9 is amended to remove the possibility to exempt operators from transmitting the number of persons on board to the competent authorities.
Article 9 is also amended to ensure that the exemption criteria reflect the proximity of search and rescue facilities which are no longer included in the new definition of protected sea areas. Finally, Article 9 is amended to simplify the notification of exemptions via a database to be established and maintained for this purpose and to align the procedures for objecting the exemptions within this Directive and with Directive 2009/45/EC.
Member States
Article 10 is amended to align the responsibility of Member States with the proposed means of data transmission and to reflect EU law on protection of personal data by specifying the conditions for processing the data by Member States, access rights and data retention periods.
Ancillary provisions
Article 11 is amended to remove the requirements on company registration systems that become redundant with the proposal. The corresponding paragraph 1 of Article 12 is also removed.
Committee procedure and amendment procedure
Articles 12 and 13 have been brought in line with Treaty on the Functioning of the European Union. Article 12a has been added for the same reason (exercise of delegation power).
Evaluation provisions
Article 14a has been added to specify the evaluation provisions.
Amendment to Annex of Directive 2010/65/EU
The proposal includes an ancillary amendment to the Annex of Directive 2010/65/EU, part A, determined by the changes brought to Directive 98/41/EC.