EC establishing the fundamental principles governing the investigation of accidents in the maritime transport sector - Main contents

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dossier	COM(2023)270 - Amendment of Directive 2009/18/EC establishing the fundamental principles governing the investigation of accidents in the ...
document	COM(2023)270
date	November 27, 2024

a name="bookmark6">(1) Directive 2009/18/EC of the European Parliament and of the Council (³) establishes the fundamental principles governing the investigation of accidents in the maritime transport sector and provides for a system of marine safety investigations (‘safety investigations’). Maritime accidents falling within the scope of that Directive are investigated by independent investigative bodies established in the Member States to improve maritime safety, as well as to protect the marine environment, in order to learn from the past with a view to preventing future casualties and incidents.

(2) Since the entry into force of Directive 2009/18/EC, there have been changes in the international regulatory environment and technological developments. Those changes and developments, as well as the experience gained in the implementation of that Directive, should be taken into account.

(3) In that regard, the Union, in line with its international commitments related to protecting the marine environment, should continue exerting leadership in a sector that is regulated at both European and international levels.

(4) Directive 2009/18/EC refers to a number of legal texts adopted by the International Maritime Organization (IMO) which have been abrogated, amended or revised since its entry into force. That Directive refers, for example, to the IMO Code for the Investigation of Marine Casualties and Incidents adopted by IMO resolution A.849(20) of 27 November 1997 which has been revoked by the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident adopted by IMO resolution MSC.255(84) of 16 May 2008 (‘IMO Casualty Investigation Code’) and by the Guidelines to Assist Investigators in the Implementation of the Casualty Investigation Code adopted by IMO resolution A.1075(28) of 4 December 2013 (‘IMO Guidelines to Assist Investigators in the Implementation of the Casualty Investigation Code’).

(5) The IMO Casualty Investigation Code introduces new definitions, such as the definition of ‘marine safety investigation authority’, while other concepts, such as that of ‘serious casualty’, are deleted. Those changes should be incorporated into Directive 2009/18/EC.

f) OJ C, C/2023/875, 8.12.2023, ELI: data.europa.eu/eli/C/2023/875/oj.

(²) Position of the European Parliament of 10 April 2024 (not yet published in the Official Journal) and decision of the Council of 18 November 2024.

(³) Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (OJ L 131, 28.5.2009, p. 114).

(6) Directive 2009/18/EC also refers to IMO circular MSC-MEPC.Circ.3 of 18 December 2008 - Reports on marine casualties and incidents, Revised harmonized reporting procedures, which was superseded by IMO circular MSC-MEPC. 3/circ.4/rev.1 of 18 November 2014.

(7) The IMO Guidelines to Assist Investigators in the Implementation of the Casualty Investigation Code provide practical advice for the systematic investigation of marine casualties and incidents and allow the development of effective analysis and preventive action. Those Guidelines supersede the common methodology laid down in Commission Regulation (EU) No 1286/2011 (⁴). As a result, they should be included in Directive 2009/18/EC, and Regulation (EU) No 1286/2011 should be repealed.

(8) Fishing vessels of less than 15 metres in length are at present excluded from the scope of Directive 2009/18/EC. As a result, the conduct of safety investigations involving such fishing vessels is neither systematic nor harmonised. Such vessels are more prone to capsizing and it is relatively common for members of their crew to fall overboard. Therefore, in order to protect such fishing vessels, their crew and the environment, it is necessary to provide for a preliminary assessment of very serious marine casualties involving such fishing vessels to determine whether the authorities are to open a safety investigation, taking into account, inter alia, the evidence available as well as the potential for the findings of the safety investigation to lead to the prevention of future marine casualties and incidents. That measure is expected to have a significant positive impact in terms of the number of lives saved at sea and injuries avoided, protecting in particular the lives and health of European fishers.

(9) Directive 2009/18/EC does not prevent Member States from laying down national rules to investigate marine casualties or incidents that involve any ship type carrying 12 passengers or less or engaging in other commercial purposes.

(10) Some definitions provided for in Directive 2009/18/EC are not clear. A definition of ‘length of a fishing vessel’ should be introduced, in particular for situations where there is a distinction in the approach and the obligations of the marine safety investigation authorities (‘safety investigation authorities’) on the basis of the length of the fishing vessel.

(11) The IMO Casualty Investigation Code refers to an event or a sequence of events which has occurred ‘directly in connection with the operations of a ship’. That concept is the subject of significant divergence in interpretation and should be clarified. That divergence impacts on the actions of the safety investigation authorities in particular as regards accidents in ports, the possibilities for joint safety investigations, and the gathering of accident and investigation data.

(12) The IMO Casualty Investigation Code states that when a very serious marine casualty occurs, a safety investigation is to be conducted. However, there is no guidance regarding the time period within which a death has to have taken place following the accident in order for that accident to be considered to be a very serious marine casualty requiring safety investigation. Therefore Directive 2009/18/EC should provide such guidance.

(13) The safety investigation authorities should make best efforts to make accident reports and their recommendations accessible to those concerned, including victims and their families, before making them public.

(14) Given the importance of examining human factors in safety investigation, due consideration should be given in safety investigations to the working and living conditions on board and any impact that they may have had on the marine casualty or incident being investigated.

(15) The staff available to, and the operational resources of, the Member States’ safety investigation authorities vary distinctly, resulting in ineffective and inconsistent reporting on and investigation of marine casualties. Therefore, the Commission, with the assistance of the European Maritime Safety Agency (the ‘Agency’), should provide highly specialised analytical support for individual safety investigations (soft skills), as well as analytical tools and equipment (hardware). Furthermore, cooperation and mutual assistance between Member States in safety investigations should continue to be encouraged and supported, in particular in view of new maritime safety challenges related to environmental, social, public health and labour issues.

(⁴) Commission Regulation (EU) No 1286/2011 of 9 December 2011 adopting a common methodology for investigating marine

casualties and incidents developed pursuant to Article 5(4) of Directive 2009/18/EC of the European Parliament and of the Council (OJ L 328, 10.12.2011, p. 36).

(16) The Agency should therefore organise regular training on specific techniques and on new developments and technologies that could be relevant for safety investigation in the future. Such training should focus, inter alia, on renewable and low carbon fuels, which are particularly relevant in the light of the Fit for 55 package, on automation, and on the rules concerning general data protection laid down in Regulation (EU) 2016/679 of the European Parliament and of the Council (⁵). This will improve safety aboard vessels and the health and safety of the seafarers and fishers working on them.

(17) The independence of safety investigations should be ensured in all circumstances, and all those involved in those investigations, including any entities, institutions or agencies, whether public or private, should be free from any conflict of interest.

(18) Member States should work together to ensure that safety investigations are conducted in a consistent manner and to help the safety investigation authorities improve and enhance their safety investigation capabilities.

(19) In order to adapt Directive 2009/18/EC to the evolution of international maritime law related to the safety investigation of accidents in the maritime transport sector, and to facilitate the gathering, sharing and reporting of knowledge, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amending the Annexes to that Directive. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (⁶). In particular, the permanent cooperation framework established by Directive 2009/18/EC should be involved in those consultations. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(20) In view of the full cycle of visits to Member States by the Agency to monitor the implementation of Directive 2009/18/EC, the Commission should evaluate the implementation of Directive 2009/18/Ec no later than five years from the date of transposition of this amending Directive and report to the European Parliament and to the Council thereon. Member States should cooperate with the Commission to gather all the information necessary for that evaluation.

(21) Since the objectives of this Directive, namely to lay down rules on the safety investigation of accidents in the maritime transport sector in order to improve maritime safety and protect the marine environment, cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(22) Directive 2009/18/EC should therefore be amended accordingly.