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EUROPEAN PARLIAMENT2004

2009

Session document

C6-0484/20082005/0236(COD)

EN18/12/2008

Common position

COMMON POSITION adopted by the Council on 9 December 2008 with a view to the adoption of a Directive of the European Parliament and of the Council on compliance with flag State requirements

Doc. 14288/2/200815859/2008 StatementsCOM(2008)0848

EN EN

14288/2/08 REV 2 NG/fcDG C III A EN

COUNCIL OFTHE EUROPEAN UNION

Brussels, 9 December2008(OR. en)

Interinstitutional File:2005/0236 (COD)

14288/2/08REV 2

MAR 175ENV 687CODEC 1331

LEGISLATIVE ACTS AND OTHER INSTRUMENTSSubject: COMMON POSITION adopted by the Council on 9 December 2008

with a view to the adoption of a Directive of the European Parliament and of the Council on compliance with flag State requirements

14288/2/08 REV 2 NG/fc 1DG C III A EN

DIRECTIVE 2008/.../EC OF THE EUROPEAN PARLIAMENT

AND OF THE COUNCIL

of

on compliance with flag State requirements

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2)

thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the procedure laid down in Article 251 of the Treaty3,

1 OJ C 318, 23.12.2006, p. 195.2 OJ C 229, 22.9.2006, p. 38.3 Opinion of the European Parliament of 29 March 2007 (OJ C 27 E, 31.1.2008, p. 140),

Council Common Position of ... (not yet published in the Official Journal) and Position of the European Parliament of ... (not yet published in the Official Journal).


Whereas:

(1) The safety of Community shipping and of citizens using it and the protection of the

environment should be ensured at all times.

(2) In respect of international shipping a comprehensive framework enhancing maritime safety

and the protection of the environment with regard to pollution from ships has been set up

through the adoption of a number of conventions for which the International Maritime

Organisation (hereinafter "IMO") is the depository.

(3) Under the provisions of the United Nations Convention on the Law of the Sea, 1982

(UNCLOS) and of the conventions for which IMO is the depository (hereinafter

"IMO Conventions"), the States which are party to those instruments are responsible for

promulgating laws and regulations and for taking all other steps which may be necessary to

give those instruments full and complete effect so as to ensure that, from the point of view

of safety of life at sea and protection of the marine environment, a ship is fit for the service

for which it is intended and is manned with competent maritime personnel.

(4) Due account has to be taken of the Maritime Labour Convention, adopted by the

International Labour Organisation (ILO) in 2006, which also addresses flag State-related

obligations.


(5) On 9 October 2008, the Member States adopted a statement in which they unanimously

recognised the importance of the application of the international conventions related to flag

States obligations in order to improve maritime safety and to contribute to preventing

pollution by ships.

(6) Implementation of the procedures recommended by the IMO in

MSC/Circ.1140/MEPC/Circ.424 of 20 December 2004 on the transfer of ships between

States should strengthen the provisions of the IMO Conventions and Community maritime

safety legislation relating to a change of flag and should increase transparency in the

relationship between flag States, in the interests of maritime safety.

(7) The availability of information on ships flying the flag of a Member State, as well as on

ships which have left a register of a Member State, should improve the transparency of the

performance of a high-quality fleet and contribute to better monitoring of flag State

obligations and to ensuring a level playing field between administrations.

(8) In order to help Member States in further improving their performance as flag States, they

should have their administration audited on a regular basis.


(9) A quality certification of administrative procedures in accordance with the standards of the

International Organisation for Standardisation (ISO) or equivalent standards should further

ensure a level playing field between administrations.

(10) The measures necessary for the implementation of this Directive should be adopted in

accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the

procedures for the exercise of implementing powers conferred on the Commission1.

(11) Since the objectives of this Directive, namely the introduction and implementation of

appropriate measures in the field of maritime transport policy, cannot be sufficiently

achieved by the Member States and can therefore, by reason of its scale and effects, be

better achieved at Community level, the Community may adopt measures, in accordance

with the principle of subsidiarity as set out in Article 5 of the Treaty. 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,

HAVE ADOPTED THIS DIRECTIVE:

1 OJ L 184, 17.7.1999, p. 23.


Article 1

Subject-matter

1. The purpose of this Directive is:

(a) to ensure that Member States effectively and consistently discharge their obligations

as flag States; and

(b) to enhance safety and prevent pollution from ships flying the flag of a Member State.

2. This Directive is without prejudice to Community maritime legislation, as listed in

Article 2(2) of Regulation (EC) No 2099/2002 of the European Parliament and of the

Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of

Pollution from Ships (COSS)1, and to Council Directive 1999/63/EC of 21 June 1999

concerning the Agreement on the organisation of working time of seafarers concluded by

the European Community Shipowners' Association (ECSA) and the Federation of

Transport Workers' Unions in the European Union (FST)2.

1 OJ L 324, 29.11.2002, p. 1.2 OJ L 167, 2.7.1999, p. 33.


Article 2

Scope

This Directive shall apply to the administration of the State whose flag the ship is flying.

Article 3

Definitions

For the purposes of this Directive, the following definitions shall apply:

(a) "ship" means a ship or craft flying the flag of a Member State falling within the scope of

the relevant IMO Conventions, and for which a certificate is required;

(b) "administration" means the competent authorities of the Member State whose flag the ship

is flying;

(c) "recognised organisation" means an organisation recognised in accordance with

Regulation (EC) No .../... of the European Parliament and of the Council of ... on common

rules and standards for ship inspection and survey organisations1*;

1 OJ L* OJ: Please insert the number of the Regulation, date of its adoption and the publication

reference.


(d) "certificates" means statutory certificates issued in respect of the relevant

IMO Conventions;

(e) "IMO audit" means an audit conducted in accordance with the provisions of

Resolution A.974(24) adopted by the IMO Assembly on 1 December 2005.

Article 4

Conditions for allowing a ship to operate upon granting

the right to fly the flag of a Member State

1. Prior to allowing a ship to operate, which has been granted the right to fly its flag, the

Member State concerned shall take the measures it deems appropriate to ensure that the

ship in question complies with the applicable international rules and regulations. In

particular, it shall verify the safety records of the ship by all reasonable means. It shall, if

necessary, consult with the losing flag State in order to establish whether any outstanding

deficiencies or safety issues identified by the latter remain unresolved.

2. Whenever another flag State requests information concerning a ship which was previously

flying the flag of a Member State, that Member State shall promptly provide details of

outstanding deficiencies and any other relevant safety-related information to the requesting

flag State.


Article 5

Detention of a ship flying the flag of a Member State

When the administration is informed that a ship flying the flag of the Member State concerned has

been detained by a port State, it shall, according to the procedures it has established to this effect,

oversee the ship being brought into compliance with the relevant IMO Conventions.

Article 6

Accompanying measures

Member States shall ensure that at least the following information concerning ships flying their flag

is kept and remains readily accessible for the purposes of this Directive:

(a) particulars of the ship (name, IMO number, etc.);

(b) dates of surveys, including additional and supplementary surveys, if any, and audits;

(c) identification of the recognised organisations involved in the certification and classification

of the ship;

(d) identification of the competent authority which has inspected the ship under port State

control provisions and the dates of the inspections;


(e) outcome of the port State control inspections (deficiencies: yes or no; detentions:

yes or no);

(f) information on marine casualties;

(g) identification of ships which have ceased to fly the flag of the Member State concerned

during the previous 12 months.

Article 7

Flag State auditing process

Member States shall take the necessary measures for an IMO audit of their administration

at least once every seven years, subject to a positive reply of the IMO to a timely request of the

Member State concerned, and shall publish the outcome of the audit in accordance with relevant

national legislation on confidentiality.

This Article shall expire at the latest on ...*, or at an earlier date, as established by the

Commission in accordance with the regulatory procedure referred to in Article 10(2), if a

mandatory IMO Member State Audit Scheme has entered into force.

* OJ: Eight years after the date of entry into force of this Directive.


Article 8

Quality management system and internal evaluation

1. By ...*, each Member State shall develop, implement and maintain a quality management

system for the operational parts of the flag State-related activities of its administration.

Such quality management system shall be certified in accordance with the applicable

international quality standards.

2. Member States which appear on the black list or which appear, for two consecutive years,

on the grey list as published in the most recent annual report of the Paris Memorandum of

Understanding on Port State Control (hereinafter "Paris MOU") shall provide the

Commission with a report on their flag State performance no later than four months after

the publication of the Paris MOU report.

The report shall identify and analyse the main reasons for the lack of compliance that led to

the detentions and deficiencies resulting in black or grey status.

Article 9

Reports

Every five years, and for the first time by ...*, the Commission shall present a report to

the European Parliament and to the Council on the application of this Directive.

This report shall contain an assessment of the performance of the Member States as flag States.

* OJ: Three years after the date of entry into force of this Directive.


Article 10

Committee procedure

1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of

Pollution from Ships (COSS) established by Article 3 of Regulation (EC) No 2099/2002.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall

apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at two months.

Article 11

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions

necessary to comply with this Directive by ...* at the latest. They shall forthwith inform the

Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive

or shall be accompanied by such a reference on the occasion of their official publication.

The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of

national law which they adopt in the field covered by this Directive.

* OJ: 24 months after the date of entry into force of this Directive.


Article 12

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the

Official Journal of the European Union.

Article 13

Addressees

This Directive is addressed to the Member States.

Done at,

For the European Parliament For the Council

The President The President

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Brussels, 9 December 2008

Interinstitutional File:2005/0236 (COD)

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MAR 175ENV 687CODEC 1331

STATEMENT OF THE COUNCIL'S REASONSSubject : COMMON POSITION adopted by the Council on 9 December 2008 with a view

to the adoption of a Directive of the European Parliament and of the Council on compliance with flag State requirements

STATEMENT OF THE COUNCIL'S REASONS


I. Introduction

The Commission presented the proposal for a Directive of the European Parliament and of the

Council on compliance with flag State requirements on 24 February 2006 1 as one of the

proposals of the third maritime safety package.

On 29 March 2007, the European Parliament voted its opinion at 1st reading 2.

On 9 October 2008, the Council reached a political agreement on the draft Directive.

Following legal/linguistic revision, the Council adopted its common position on 9 December

2008 in accordance with Article 251 of the Treaty.

In carrying out its work, the Council took account of the opinions of the Economic and Social

Committee3 and of the Committee of Regions4.

1 Doc. 6843/06.2 Doc. 7805/07 CODEC 277 MAR 20 ENV 171 (not yet published in the Official Journal).3 CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006 - p.195 - 201).4 CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p.38).


II. Analysis of the Common Position

General

The proposal for a Directive on compliance with flag State requirements forms part of the

third maritime safety package presented by the Commission end of 2005. The main objective

of this proposal is to ensure that Member States effectively comply with their obligations as

flag States before and after granting flag rights with a view to enhancing maritime safety and

to preventing pollution from ships.

Although the Council agrees with the Commission as regards the objective of the proposal,

the Council's approach involved major adaptations of the original proposal. A number of the

proposed provisions were not acceptable for the Council as they duplicate existing

Community legislation and provisions included in other proposals of the third maritime safety

package. The proposed provisions rendering the ratification of IMO conventions mandatory

were not acceptable for Member States, particularly for constitutional reasons. Therefore, the

Council's common position focuses in particular on the requirement for Member States to

submit their maritime administration to the IMO auditing process. In addition, Member States

shall ensure the quality certification of their administrative procedures in accordance with

ISO standards or equivalent international standards. Furthermore the common position

establishes obligations to be complied with by Member States prior to allowing a ship to

operate under their flags and in case of a detention of a ship flying the flag of a Member State

by a port state.

Resulting from this approach, the common position modifies, to a large extent, the original

Commission proposal by redrafting it and deleting several parts of the text. This implies that

all amendments introduced in the European Parliament's first-reading opinion related to these

deleted parts were not accepted by the Council.


In parallel to the common position, a declaration of the representatives of the Governments of

the Member States of the European Union 5 confirms their commitment to do the utmost with

a view to ensuring a rapid and effective application of the international conventions on

maritime safety, the IMO rules related to flag State obligations and the IMO audit.

Key policy issues

i) Flag State auditing process

The Council follows the proposal by the Commission to introduce an independent audit of

Member States' maritime administration. It considers, however, that it should be avoided to

create in the Community framework a parallel auditing system to the one established at

international level through the Voluntary IMO Member State Audit Scheme. With a view to

harmonising the auditing procedures and ensuring a level playing field, the common position

therefore provides for an obligation to request regularly an IMO auditing of the

administration and to publish the outcome of the audit. The interval for the renewal of the

auditing is set at seven years, taking into account the available resources at IMO level. The

common position, furthermore, ensures that once the IMO Audit Scheme becomes

mandatory, the relevant provision of the Directive expires, either automatically eight years

after the entry into force of the Directive or earlier, if needed , upon decision of the

Commission in accordance with comitology rules (regulatory procedure).

5 Doc. 15859/08 ADD 1.


ii) Quality management system

The Council supports the Commission's proposal to ensure that maritime administrations of

Member States meet quality criteria related to the management of their tasks. In its common

position, the Council, however, takes into consideration the specific situation of the different

services concerned and leaves it up to the Member States to determine the international

standards that are applicable for the certification of the different parts of their administration.

In addition, following the objective of enhancing the flag State performance of Member

States, the Council provides for a mandatory reporting on the performance to the Commission

by Member States that are on the black list or, for two consecutive years, on the grey list of

flag States established by the Paris MOU. By means of such a report the main reasons for the

lack of compliance by the Member State concerned with its flag State requirements shall be

identified.

iii) Other flag State requirements

In addition to the above mentioned two main issues, the Council further simplified the

Commission's proposal regarding measures to be taken before granting the right to fly the

flag of a Member State and in the case of the detention of a ship flying the flag of a Member

State by a port State. In this respect, the Council deems it appropriate, in the framework of a

Directive, that Member States decide which measures have to be undertaken to ensure that

the ship concerned complies or is brought into compliance with the applicable international

rules and regulations.


III. Conclusion

The Council believes that its common position is a tool to ensure high quality regarding the

way in which Member States accomplish their tasks that they incur as flag States.

The Council notes the contacts which have already taken place with the European Parliament

on this proposal in the framework of the negotiations on other proposals of the third maritime

safety package. It looks forward to a quick agreement on the text allowing the adoption of the

Directive.

____________________

15859/08 ADD 1 ard/BS/ck 1JUR EN


Brussels, 19 November 2008 (20.11)(OR. fr)

Dossier interinstitutionnel:2005/0236 (COD)

15859/08ADD 1

CODEC 1565MAR 212ENV 837

ADDENDUM TO "I/A" ITEM NOTEfrom: General Secretariat of the Council to: COREPER/COUNCILSubject: Maritime Safety:

Proposal for a Directive of the European Parliament and of the Council on compliance with flag State requirements [first reading] (LA + S)– Adoption of(a) the common position(b) the statement of the Council's reasons– Statement

STATEMENT BY THE MEMBER STATES

ON MARITIME SAFETY

THE MEMBER STATES TAKE THE FIRM COMMITMENT:

1. To further improve the quality and the performance of their maritime administrations, with the

objective that all Member States flags be listed on the White List of the Paris Memorandum of

Understanding on Port State Control by 2012 at the latest;


2. To act within the International Maritime Organisation (IMO) with the aim of achieving, as

early as possible, an agreement on a widely acceptable international framework regulating the

liability and compensation for damage in connection with the carriage of hazardous and

noxious substances by sea;

3. To express, no later than 1 January 2012, their consent to be bound by the following

international conventions:

– the conventions listed in Part 1, point 6, of the Code for the implementation of

mandatory IMO instruments, together with the protocols and amendments thereto, as

well as all instruments made mandatory under these Conventions, in their version at the

date of adoption of this statement;

– the International Convention on Civil Liability for Oil Pollution Damage, 1992;

– the International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage, 1992;

– the Protocol of 1996 to the Convention on Limitation of Civil Liability for Maritime

Claims, 1976 and, if applicable, to denounce the underlying Convention;

– the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001;

– the Protocol of 2003 to the International Convention on the Establishment of an

International Fund for Compensation for Oil Pollution Damage, 1992;


4. To express, no later than 1 January 2013, their consent to be bound by the Nairobi

International Convention on the Removal of Wrecks, 2007, or, in the case of landlocked

Member States, take the necessary measures to ensure that ships flying their flag are holding a

certificate issued by a party to the Convention;

5. To express their willingness to apply Parts 1 and 2 of the Code for the implementation of

mandatory IMO instruments, of 2007, adopted by the IMO through Assembly

Resolution A.996(25), and to have their Administration audited by the IMO;

6. To act in accordance with the relevant provisions of the Annex and the Appendix to IMO

Resolution A.996(25) concerning the implementation of IMO instruments by flag States in

order to ensure that their competent administrations are able to enforce appropriately the

provisions of the international conventions;

7. To take all appropriate measures within the Community context and in cooperation with other

IMO members within the IMO in order to render Parts 1 and 2 of the Code for the

implementation of mandatory IMO instruments as well as the IMO Member State Audit

Scheme mandatory at a global level, with the aim of minimising the disparities that exist in

the extent to which States comply with their international flag State obligations and thus:

helping to enhance the safety, security and protection of the marine environment;

safeguarding the international level playing field in shipping which is of crucial

importance to the viability of EU shipping;

8. This statement does not affect the competence of Member States to act and to undertake

international obligations in this area in accordance with their constitutional requirements.

EN EN

EN

EN EN

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 9.12.2008 COM(2008)848 final

2005/0236 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT

pursuant to the second subparagraph of Article 251(2) of the EC Treaty

concerning the

common position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on compliance with flag State obligations


EN 2 EN

2005/0236 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT

pursuant to the second subparagraph of Article 251(2) of the EC Treaty

concerning the

common position adopted by the Council with a view to the adoption of a Directive of the European Parliament and of the Council on compliance with flag State obligations


1. BACKGROUND

Date on which the proposal was sent to the European Parliament and to the Council: (document COM(2005)586 final – 2005/0236COD):

17.2.2006

Date of the opinion of the European Economic and Social Committee:

13.9.2006

Date of the opinion of the Committee of the Regions: 15.6.2006

Date of the opinion of the European Parliament at first reading: 29.3.2007

Date of adoption of the common position: 9.12.2008

2. PURPOSE OF THE COMMISSION'S PROPOSAL

In view of the major disparities which exist, including within the European Union, as regards flag States’ compliance with their international obligations on maritime safety and the prevention of pollution caused by ships, the proposal seeks to ensure that the Member States meet their obligations effectively and in a coordinated manner.

3. COMMENTS ON THE COMMON POSITION The Commission notes that, after expressing its opposition in principle to the proposal at its April 2008 meeting, the Council considered it necessary to remove from the operative part certain important provisions such as those concerning the ratification of international conventions and the mandatory application in the Community of the Flag State Code of the International Maritime Organisation (IMO).

Although the text on which the Council has expressed agreement is therefore less ambitious than that proposed by the Commission, the latter notes that, in the common position, the following obligations in particular continue to be incumbent on Member States:

- before authorising a ship to fly their respective flag, check that it complies with international rules;

EN 3 EN

- make sure that ships which fly their respective flag and have been detained in the context of a port State inspection are brought into conformity with the relevant IMO conventions;

- whilst waiting for the IMO audit scheme to become mandatory, subject their maritime authorities to such an audit and publish the results;

- put in place a quality management system for their maritime authorities which is certified in accordance with international standards;

- in the case of Member States whose flag is blacklisted or which, for two consecutive years, appears on the grey list of the Paris Memorandum of Understanding on port State control, report the reasons for the poor performance to the Commission.

These binding provisions will help to improve the quality of the worst performing European flags.

4. CONCLUSIONS The Commission takes note of the firm undertaking given by the Member States, as set out in the statement signed by their representatives meeting in the Council, a) to ratify the main international conventions on maritime safety; b) to apply the IMO Flag State Code and the related audit scheme for maritime authorities; and c) to encourage the IMO to make these two instruments mandatory worldwide. Consequently, and in the light of the above, the Commission supports the common position adopted unanimously by the Council which adds value as it should effectively improve the quality of European flags and provide conditions of competition in the Community which ensure that the choice of flag cannot be based on the lowest level of requirements.