Explanatory Memorandum to COM(2023)271 - Amendment of Directive 2009/16/EC on port State control - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)271 - Amendment of Directive 2009/16/EC on port State control. |
|---|---|
| source | COM(2023)271  |
| date | 01-06-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
This proposal concerns an amendment of Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control1.
Directive 2009/16/EC (hereinafter the Directive) regulates port State control inspections at EU level. Port State control (PSC) is a system of inspection of foreign ships in ports of states other than the flag state by PSC officers to verify that the competency of the master, officers and crew on board, the condition of a ship, and its equipment comply with the requirements of international conventions - and in the European Union, with applicable EU law. As such, PSC is important in ensuring maritime safety and in protecting the marine environment.
Due to its history and international nature, maritime transport has developed a specific regulatory structure. At global level, the international legal framework was adopted under the auspices of the International Maritime Organization 2 (IMO) and the rules governing working and living conditions on-board ships are promulgated by another UN agency, the International Labour Organization (ILO).
The primary responsibility for monitoring the compliance of ships with IMO and ILO standards lies with the State where the ship is registered and whose nationality the ship holds – the flag State. However, flag State rules only apply to vessels that fly that flag. There continue to be flag States willing to allow substandard vessels to operate under their flags or unable to adequately enforce the international rules. Therefore, many of the IMO's most important technical conventions contain provisions for ships to be inspected when the vessels visit foreign ports to ensure that they meet the international requirements.
To improve effectiveness, port States carrying out PSC inspections began to coordinate their work systematically at regional level. The Paris Memorandum of Understanding on port State control3 (hereinafter the ‘Paris MOU’) drawn up in 1982 is the first of nine intergovernmental structures across the world. All 24 European Economic Area (EEA) Member States with seaports, as well as Canada, the Russian Federation4 and the United Kingdom, are signatories to the Paris MoU. The EU is not a member.
The PSC Directive incorporates the procedures and tools of the Paris MoU as agreed in 2009. The Paris MoU and the PSC Directive are based on the concepts of shared burden and targeted, harmonised inspections. The Commission, assisted by the European Maritime Safety Agency (EMSA), provides all EEA and Paris MOU Member States with the technical support needed to decide which vessels to inspect, and to report and share the results of PSC inspections via the THETIS database (hosted by EMSA) and training on how to carry out inspections. EEA Member States are also provided with information on the vessels scheduled to call at their ports via the Union maritime information exchange system SafeSeaNet5 to allow them to plan their inspections.
The main objectives of the PSC Directive are to:
(i) continuously improve maritime safety and security;
(ii) continuously improve of pollution prevention and of environmental impact;
(iii) continuously improve on-board living and working conditions;
(iv) the avoidance of distortions of competition.
To this end, the key elements of the EU PSC regime are:
(i) to take a harmonised approach to inspections and detentions;
(ii) for each Member State to commit to an annual inspection commitment
(iii) to target ships for inspection based on a ship risk profile (SRP) for each individual ship and
(iv) record keeping and information sharing (inspection database).
Since it entered into force, the Directive has been amended to enforce the Maritime Labour Convention, 2006 (MLC, 2006)6. Furthermore, in the EU, particular specific rules apply to ferries in regular service,7 insurance requirements,8 the control of ship generated waste and cargo residues9, the safe and environmentally sound recycling of ships10 and the monitoring, reporting and verification (MRV) of greenhouse gas (GHG) emissions11 where PSC inspections check enforcement of these rules. For other EU legal acts, such as control of the sulphur content of marine fuels, PSC is also used to check in the vast majority of the EU Member States by PSC12. Port State control in the EU is largely based on the rules and procedures of the Paris MOU but these EU provisions do not apply to the non-EEA signatories to the Paris MOU.
The Directive was the subject of an ex-post evaluation and maritime fitness check (alongside other pieces of EU maritime safety legislation) in 2018. Since the Directive entered into application it has also been continuously monitored by the Commission which identified the following problematic issues:
1) current EU requirements are not aligned with new international mandatory rules and new procedures agreed at regional level (International Maritime Organization – IMO, and Paris MOU);
2) current EU requirements do not apply to fishing vessels – certain international conventions applying to fishing vessels of over 24 metres in length, which could be enforced by PSC, are not inspected or are not inspected in a coordinated manner;
3) there is an uneven distribution of PSC inspections across EU ports;
4) the current design of the ship risk profile and targeting mechanism used to select ships for inspection, are not up to date;
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6) there are inadequate and inflexible procedures and inadequate PSC resources (skills, training).
The problems identified apply across the EU and have the same underlying causes. In the absence of EU action, Member States risk working in an uncoordinated and non-harmonised way. There is clear EU value in improving the Directive to address the problems identified.
In the light of this, the Commission has prepared a proposal to amend Directive 2009/16/EC. The specific objectives of the proposal are to:
- Update and align EU legislation with international rules and procedures, set by the IMO/ILO or the Paris MOU;
- Protect fishing vessels, their crew and the environment. Larger fishing vessels of more than 24 metres in length are not included in the scope of port State control. A voluntary system of control for this type of vessel – should increase the level of compliance with international standards of safety and environmental protection applicable to these vessels;
- Ensure a higher uptake of digital solutions. In particular, it encourages the uptake and use of electronic statutory certificates by linking their use with the ship risk profile used to target and select ships for inspection.
- Ensure an efficient and harmonised approach to carrying out PSC inspections. This includes better targeting of vessels for inspection by restructuring out-dated aspects of the ship risk profile and adding new components to it.
For the sake of clarity and consistency, this proposal also updates a number of definitions and references to related EU legislation and IMO regulations.
• Consistency with existing policy provisions in the policy area
The proposal is fully consistent with Directive 2009/18/EC13 on maritime accident investigation and Directive 2009/21/EC14 on flag State requirements. All three of these EU maritime safety directives are based on the rules and standards set by the IMO at international level, and together they form the basis for the EU system of ensuring the safety of maritime operations in EU waters.
• Consistency with other EU policies
The proposal comes under the Commission's REFIT programme and delivers on its better regulation agenda by ensuring that existing legislation is simple and clear, does not create unnecessary burden and keeps pace with evolving political, societal and technological developments. This proposal and related proposals to revise the other maritime safety directives are also part of and have significant interaction with the EU’s body of law governing maritime safety which includes the EU vessel traffic monitoring and information system (SafeSeaNet)15, the EMSA founding Regulation16, the fishing vessel safety Directive17, the EU legislation relating to recognised organisations18, the Marine Strategy Framework Directive19 and other EU environmental legislation20.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis of the amending directive is Article 100(2) TFEU, providing for measures to improve transport safety and specific provisions for sea transport.
• Subsidiarity (for non-exclusive competence)
As the international instruments in the field of PSC in the maritime transport sector are an exclusive EU competence under Article 3(2) TFEU, the subsidiarity principle does not apply, either to those instruments or to the EU rules implementing those agreements.
• Proportionality
The Commission prepared the proposal to reflect the latest developments at international level and the results of the 2018 ex-post evaluation and REFIT procedures. The Commission also carried out an impact assessment to identify, assess and evaluate alternative measures to achieve the same objectives.
The objective of the proposed amendment is to improve maritime safety by having an up-to-date, coherent and harmonised system of PSC inspections across the EU to target underperforming shipping and thereby to improve the safety and environmental performance of vessels operating in EU waters. It considers it appropriate to extend the scope of PSC to larger fishing vessels is considered proportionate as it will be voluntary for those Member States who wish carry out this type of inspection. This measure should improve the safety, environmental and working and living conditions in the fishing sector. The move towards digitalisation and the use of e-certificates will create costs but these will be limited and will be offset by the expected benefits in terms of greater safety and efficiency impact they are expected to yield. Given the international nature of the sector there is no alternative measure to achieve these results in a more effective and efficient way.
• Choice of the instrument
As the proposal only requires making several amendments to Directive 2009/16/EC, an amending Directive is the most appropriate legal instrument.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The 2018 REFIT ex-post evaluation and maritime transport fitness check concluded that, although the Directive constrains the flexibility of the Paris MOU to some extent, it adds value, by combining a port State control framework with a legal enforcement mechanism, to ensure correct and consistent implementation in Member States. This has resulted in pressure to perform and continuously improve, and thus to a better resource allocation at Member State level for port State control. The evaluation concluded that the Directive has contributed to the intended objectives to improve maritime safety, security, pollution prevention and to ensuring better working and living conditions on-board.
EMSA has supported the port State control regime in important ways. Over two-thirds of EU/EEA Member States carrying out inspections exclusively use THETIS to select which vessels to inspect. The role of EMSA in managing and updating THETIS, and the training provided by EMSA of inspectors to harmonise inspections throughout the Paris MOU region, was also found to be very important.
In addition, the Commission and EMSA have continuously monitored implementation of the Directive. Since PSC inspection reports must be uploaded to THETIS as soon as an inspection is completed, EMSA has almost a real-time and detailed overview of all inspections carried out. EMSA also provides a help desk and technical assistance to Member States who require assistance, and they carry out visits to the EEA Member States to verify compliance.
However, the maritime transport fitness check and the horizontal analysis by EMSA identified several areas that could be improved in the PSC regime.
• Stakeholder consultations
The main consultation activities included:
- Four exploratory interviews with EU level representatives of key stakeholders, particularly to feed into and refine the overall problem definition and possible policy options.
- A targeted stakeholder survey organised by the consultant in charge of the external support study to the impact assessment, running from 7 September 2021 to 6 October 2021. The survey was sent to key stakeholders with specific information requests, in particular to underpin the assessment of impacts of possible policy measures.
- The consultant in charge of the external support study to the impact assessment, held 22 targeted interviews running from 13 July 2021 to 16 September 2021, with key stakeholders to fill specific information requests, particularly to support the assessment of impacts of possible policy measures.
- Additional consultation activities organised by DG MOVE and the consultant in charge of the external support study to the impact assessment in order to consult the Member States and key stakeholders to elicit their views on the different policy measures and validate the emerging and final results of the support study to the Impact Assessment in terms of the quantification of the impacts. These activities took place during meetings of the EU Sectoral Social Dialogue Committee on maritime transport (16 April 2021, 23 September 2021 and 16 December 2021), the EU Sectoral Social Dialogue Committee on Sea Fisheries (29 January 2021, 8 March 2021 and 16 November 2021), the EU Sector Social Dialogue Committee on ports (19 November 2021), an informal meeting of the EU/EEA Maritime Transport Directors (30 November 2021), virtual and in person meetings of the Port State Control Committee of the Paris MOU (May 2021 and May 2022) meetings of the of the EU Committee on Safe Seas and the Prevention of Pollution from Ships (17 May 2021, 11 November 2021 and 31 May 2022).
The information collected from stakeholders was key to enabling the Commission to refine the design of the policy options as well as to assess their economic, social and environmental impacts. It enabled the Commission to compare the options and ascertain which is likely to strike the optimal cost/benefit ratio for society and to help achieve a more effective and efficient port State control mechanism that better targets substandard shipping. Findings from those processes complemented the desk research carried out as part of the work on the external support study.
• Collection and use of expertise
This review builds primarily on the data collected during the 2018 ex-post evaluation and maritime transport fitness check process referred to previously.
The preparation of this proposal also required input from experts from the Commission and EMSA on the specific formulation of technical definitions and clear legal drafting.
• Impact assessment
The impact assessment examined three policy options to revise the Directive, based on the following guiding principles:
the need to update and align the Directive with international instruments;
the potential to tackle the specific problem of the fishing vessel fleet by providing for a specific PSC regime for such vessels;
greater digitalisation of PSC methods to allow for better prepared and more focussed PSC inspections – the directive must facilitate and provide incentives for the use of electronic statutory certificates;
an efficient and harmonised approach to PSC inspections, drawing from past experience in implementing the Directive and better targeting of vessels for inspection.
Option A proposes a number of changes to the Directive to better deliver on the goal of improving maritime safety and preventing pollution. This option is mainly focussed on keeping the Directive aligned with international legal instruments. Most of the other changes proposed are non-regulatory measures in the form of recommendations, guidelines and workshops organised by Commission and/or EMSA.
Option B strikes a balance between giving flexibility for PSC administrations is balanced with harmonisation. A voluntary PSC system for those Member States that wish to carry out inspections of fishing vessels of above 24 metres is proposed in parallel to (but outside) the current Directive. It also includes the provision of guidelines, EMSA training and an EMSA inspection database to target ships and report on inspections. It encourages the use of electronic certificates by linking them with the ship risk profile.
Option C entails the highest increase in administrative burden for PSC administrations but it will also ensure the highest level of harmonisation of inspections. It would fully incorporate PSC for fishing vessels of above 24 metres into the Directive with an impact on the owners/operators of these vessels as well as on Member State PSC administrations. It would make the use of electronic certificates mandatory in the Directive and provide for the phasing-out of paper certificates by 2035.
The impact assessment was submitted to the Regulatory Scrutiny Board for approval in July 2022. The Board issued a positive opinion with reservations. The staff working document accompanying this legislative proposal addresses the comments made by the Board.
- Application of the ‘one in, one out’ approach
No additional costs (administrative or adjustment costs) have been identified for businesses or citizens.
• Regulatory fitness and simplification (REFIT)
The initiative is relevant to the Commission’s REFIT programme as it seeks to align and simplify maritime safety legislation, improve the safety profile (in particular of the larger fishing vessel fleet segment) and of assisting Member State authorities in meeting their inspection and reporting obligations.
In addition, the preferred policy option includes aspects of simplification, as it will clarify the situations and circumstances under which PSC inspections can be missed either for normal operational reasons or in force majeure situations. It is expected to increase the harmonization and standardisation across the EU via the provision by EMSA of assistance to national PSC authorities with training on how to carry out inspections of foreign fishing vessels, and the provision of a dedicated inspection database to target and select vessels for inspection and to record and share the results of the inspections
• Fundamental rights
The proposal has no consequences for the protection of fundamental rights.
4. BUDGETARY IMPLICATIONS
The proposal gives raise to net present costs for the Union Budget of EUR 6.479 million over the period 2025-2050. The budget impact of the proposal is described in more detail in the Legislative Financial Statement annexed to this proposal for information. The budget impact of the proposal is already included in the Commission’s Proposal for a Regulation of the European Parliament and of the Council on the European Maritime Safety Agency and repealing Regulation (EC) No 1406/2002.
The budget impact beyond the current MFF is an indicative overview, without prejudice to the future MFF Agreement.
5. OTHER ELEMENTS
• Monitoring, evaluation and reporting arrangements
Adequate monitoring and reporting arrangements have been identified. EMSA will play an important role in this process, as the Agency is in charge of the development and operation of electronic data systems for maritime transport, in particular the THETIS targeting and inspection reporting database.
The implementation can be monitored by means of the Commission and/or EMSA monitoring of the THETIS database to verify that ships are being correctly targeted for inspection and that inspections are being correctly carried out and that the inspection reports are uploaded to the database. EMSA also carries out cycles of visits to Member States to verify operations on the ground as part of EMSA’s support role to the Commission21. Member States will have to have a quality management system (QMS) to certify its organisation, policies, processes, resources and documentation are appropriate to achieve its objectives. This will have to be certified and subsequently subject to periodic audit. Member States will be required to share with Commission/EMSA the results of the audits carried out by the accredited body such that the national port State control authorities can retain their QMS certification.
Given that the full cycle of envisaged EMSA implementation visits is scheduled to last 5 years22, it is proposed that the evaluation cycle of the Directive is set at seven-year intervals.
• Explanatory documents (for directives)
Explanatory documents are not required as the proposal aims to simplify and clarify the existing regime.
• Detailed explanation of the specific provisions of the proposal
Recital 11 encourages all EU Member States which are eligible (Spain, Greece, France, Croatia, Italy and Slovenia) to become members of the Mediterranean Memorandum of Understanding on port State control to improve the quality and quantity of port State control inspections carried out in the Mediterranean basin.
Article 1 of the draft amending Directive forms its main part and contains amendments to numerous provisions of Directive 2009/16/EC.
Purpose, definition and scope
In point 1, Article 2 is amended and the scope of the Directive is hereby partially extended to bring a number of international conventions within the scope of port State control inspections. These are the International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM Convention) and the International Convention on the Removal of Wrecks (Nairobi) both of which are in force and have been adopted as relevant instruments by the Paris MOU.
In point 2, the scope is amended so that fishing vessels of above 24 metres in length can be inspected under PSC by those Member States who wish to carry out these inspections.
Inspection commitment
Point 3 makes changes to the inspection commitment (the so-called “fair share”) and the way that this is calculated and complied with by Member States. Currently, the inspection commitment is based on a three-year rolling average of all inspections carried out in the Paris MOU region. This means that, when Member States inspect significantly more vessels than their inspection commitment provides for, this will, over time, cumulatively increase the inspection commitment for all Member States. This increase has been calculated by EMSA at 1-2% per year. This measure is designed to address this additional and unnecessary burden on the Member States.
Point 4 and 5 aligns the Directive with changes in the Paris MOU as regards the inspection commitment and to allow more flexibility for missed inspections (either for operational or force majeure reasons).
Point 6 also amends the Directive to allow more flexibility for missed inspections and to comply with the inspection commitment.
Force majeure situations
Point 7 addresses the issue of lack of flexibility of the PSC regime in cases of crisis or unexpected events, such as the COVID-19 pandemic. In order to make the regime more resilient, a new Article 8a is introduced. The measure allows more flexibility to Member States, as it allows them to miss inspections in cases of force majeure, provided that the missed inspection is recorded and the reason for missing the inspection is documented.
Pre-arrival notification
Points 8 and 10 align the Directive to the Paris MOU changes abolishing the 72-hour reporting obligation for vessels eligible for an expanded inspection set out in Article 9 and Annex III– Article 9 and Annex III are deleted. Points 16 and 23 reflect the deletion of Article 9 and Annex III.
Environmental parameters
Point 9 sets out the environmental parameters which will be taken into account to establish the ship risk profile used to target ships for inspection
Expanded inspections
Point 10 provides that, because of their complexity, expanded inspections have to be carried out by more than one port State control officer.
Refusal of access
Points 12 and 13 amends the Directive to align it to the changes adopted by the Paris MOU relating to the refusal of access (banning) procedure and the possibility to ban vessels which are on the grey or white lists of the Paris MOU (flag-blind banning) as well as provision related to jumped detention or when the detained vessel does not proceed to an agreed repair yard.
EMSA training
Point 14 sets out the possibilities for EMSA to provide training to the EU Member States to better fulfil their responsibilities under the Directive, given the widened scope of PSC and improvements in the scope and type of training.
On this basis, EMSA (together with the Member States and the Paris MOU) will develop a new professional development and training programme for inspectors, to be a made up of a (i) syllabus of competence and a (ii) professional development scheme. Once these aspects are in place, the Agency should identify and provide new training needs to amend the curricula, syllabi and content of the professional development and training program for inspectors, especially as regards new technologies and in relation to the additional obligations arising from new IMO conventions.
Database, information sharing and electronic certificates
Point 15 amends the Directive to clarify and fix the time frame within which the ship arrival and departure notifications have to be communicated to SafeSeaNet. Article 24(2) of the Directive requires Member States to ensure that this data is "transferred within a reasonable time to the inspection database”. The Directive will be amended to include what a reasonable time means so that the reporting of actual times of arrival and departure is reported within three hours. It also provides that all PSC inspection reports are validated by a person (either another port State control inspector or a supervisor) other than the inspector who carried out the inspection before the inspection report is transferred to the database.
Point 16 amends the Directive to add a new Article providing for and encouraging the use of electronic certificates. These would rely on a common template, use a common validation tool and repository at EU level, which would link the use of electronic certificates with the ship risk profile. This measure will encourage the issuance of electronic certificates by flag States or by Recognised Organisations (ROs) acting on their behalf (while permitting their continued use in PSC) by rewarding these e-certificates with points (adding a parameter to the ship risk profile) towards being considered as a low-risk ships and so being less targeted by PSC inspections.
Quality management system
Point 18 amends the Directive to require Member States to develop and apply a quality management system (QMS) for the PSC activities of their maritime administration. This should allow the administrations to keep pace with the increasing complexity and requirements of PSC inspections, to allow for better quality control and indicate problems such as resource allocation issues. It will apply to all port States that do not already have an externally certified QMS for their PSC operations.
Delegated acts
Point 19 provides that the Commission is empowered to adopt delegated acts to update the list of Conventions set out in Article 2(1) if such Conventions have been adopted as a relevant instrument by the Paris MoU and to amend Annex VI in order to add and/or update the list of procedures and guidelines relating to port State control adopted by the Paris MoU.
Amending powers
Point 20 provides that any updates to the IMO relevant instruments listed in Article 2(1) are subject to the standard non-regression clause. This means that if there are changes at the international level, the standards in the EU instrument are at least maintained at the current level.
Implementing rules
Point 21 sets out that when adopting implementing acts the Commission shall have specific regard to the role and expertise of the Paris MOU and that such acts take into account the expertise and experience gained with the inspection system in the Union.
Implementation review
Point 22 provides that the Commission will produce a review of the implementation of the amended Directive 10 years after adoption. This takes account of the time necessary for transposition and the fact that an EMSA review cycle of visits to Member States typically takes no less than 5 years.
Ship Risk Profile (SRP) – Certificates and documents
Points 23 and 24 amend Annexes I and II relating to the ship risk profile (SRP). The SRP is amended to take account of changes already agreed in principle by the Paris MOU. These include (i) the weighting points applied to certain vessel types and (ii) the IMO Audit Scheme, which is no longer a voluntary system, but is replaced by a weighting factor to take account of whether the Flag State has ratified the international conventions.
The SRP is also amended for cargo and passenger vessels of over 5000 gross tonnage (which are regarded as the most polluting), for which the SRP will take account of the vessel’s IMO Carbon Intensity Indicator. For all ships eligible for port State control, it adjusts the weighting factor to attach more importance to environmental related deficiencies (MARPOL, Ballast Water Management Convention and International Convention on the Control of Harmful Anti-fouling Systems on Ships) recorded against that ship in previous PSC inspections carried out in the Paris MOU region. The recoded deficiencies and detentions are linked only to the international conventions (the so-called relevant instruments) so that the revised SRP will apply across the Paris MOU region and not just in the EU Member States. A parameter will also be added to encourage the flag states of vessels eligible for PSC to use electronic certificates.
Certificates
Point 26 updates the lists of statutory certificates and other documents in Annex IV to be checked during inspections in line with the IMO requirements as previously agreed in the Paris MOU.
Inspections procedures and guidelines
To allow for an up to date and harmonised system of port State control across the Union, point 26 updates Annex VI relating to the Paris MOU inspection guidelines and instructions to be followed during inspections, in their up-to-date version.
Refusal of access
Point 28 updates Annex VIII concerning the refusal of access (banning) procedures referred to in Article 16 to align these with the changes already agreed in the Paris MOU.