Proposal for a Directive of the European Parliament and of the Council amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations
C 212 E/114 EN Official Journal of the European Communities 25. 7. 2000 Proposal for a Directive of the European Parliament and of the Council amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (2000/C 212 E/07) (Text with EEA relevance) COM(2000) 142 final - 2000/0066(COD) (Submitted by the Commission on 22 March 2000) 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 Committee, the Economic and Social Having regard to the opinion of the Committee of the Regions, Acting in accordance with the procedure laid down in Article 251 of the Treaty, Whereas: (1) Safety and pollution prevention at sea may be enhanced by a proper and compulsory implementation by Flag States of the existing relevant conventions in force at international level. (2) Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (1), as amended by Commission system of Directive Community-wide recognition of technical organisations that, in compliance with the international conventions, may be authorised to a various extent to inspect ships and issue the relevant safety certificates on behalf of the Member States. 97/58/EC (2), established a (3) The practical implementation of that Directive showed that some adjustments to the Community-wide recog- nition of technical organisations might have highly contributed towards the strengthening of such a system while simplifying the monitoring and reporting obli- gations imposed on Member States. (4) Since the adoption of Directive 94/57/EC some devel- legislation at that opments have occurred in the relevant requesting Community further adjustments to Directive 94/57/EC be made. and international level (1) OJ L 319, 12. 12. 1994, p. 20. (2) OJ L 274, 07. 10. 1997, p. 8. (5) In particular, for the purposes of Directive 94/57/EC, it is appropriate to apply the amendments to the international conventions together with the protocols and related codes of mandatory status, referred to in Article 2(d) of Directive 94/57/EC, which entered into force after the adoption of the Directive as well as the relevant Inter- national Maritime Organisation (IMO) Resolutions. (6) With a view to promoting an effective implementation of the obligations of the flag States laid down in the inter- adopted national Resolution A. 847 (20) on Guidelines to assist Flag States in the implementation of IMO instruments at its twentieth session. IMO Assembly conventions, the (7) IMO adopted the International Safety Management (ISM) Code through Assembly Resolution A. 741 (18) of 4 November 1993 which was made mandatory through the new Chapter IX of the International Convention for the Safety of Life at Sea (SOLAS) Convention. (8) With a view to ensuring a uniform implementation of the ISM Code, guidelines on the implementation of the ISM Code by administrations were adopted on 23 November 1995 by IMO through Resolution A. 788 (19). (9) With a view to harmonising the statutory surveys and inspections to be carried out by the flag administrations pursuant to the international conventions, IMO adopted Resolution A. 746 (18) of 4 November 1993 on Survey Guidelines under the Harmonised System of Survey and Certification. (10) A good record of safety and pollution prevention performance - measured in respect of all ships classed irrespective of the flag they fly - by an organisation, the initial recognition shall become essential and to maintain such a recognition. to grant (11) In order to grant the initial recognition to the technical organisations wishing to be authorised to work on behalf of the Member States, compliance with the provisions of Directive 94/57/EC can be assessed more effectively in a harmonised and centralised manner by the European Commission. 25. 7. 2000 EN Official Journal of the European Communities C 212 E/115 (12) Similarly, the continuous ex post monitoring of the recognised organisations to assess their compliance with the provisions of Directive 94/57/EC can be carried out more effectively in a harmonised and centralised manner. Therefore it is appropriate that the Commission, together with the Member State proposing the recognition, be entrusted with this the whole Community. task on behalf of (13) In addition to the authority of Member States to suspend the recognition of an organisation working on its behalf, a similar authority should apply at Community level, the the Commission being Committee procedure, to suspend the recognition of an organisation for a limited period of time in the case where the safety and pollution prevention performance of the organisation is worsening and it fails to take the appro- priate corrective measures as requested. allowed, on the basis of information among themselves concerning the conditions of ships changing class. (20) The qualitative criteria to be met by the technical organi- sations in order to be recognised at Community level and to maintain such a recognition shall include provisions to ensure that only exclusive surveyors can carry out the statutory tasks for which the organisation is authorised. its The organisation must have a tight control on all personnel and offices, including the regional ones and it must establish its own safety and pollution prevention performance targets and indicators. The organisation must put in place a system to measure the quality of its amended services. Directive accordingly, 94/57/EC should be HAVE ADOPTED THIS DIRECTIVE: (14) The decision on the withdrawal of the recognition of an organisation that fails to fulfil the provisions set out in the Directive, or whose safety and pollution prevention performance becomes unsatisfactory, has to be taken at Community level, and therefore by the Commission, on the basis of the Committee procedure. Article 1 Council Directive 94/57/EC is hereby amended as follows: 1. Article 2 shall be amended as follows: (15) Since Directive 94/57/EC ensures freedom to provide services in the Union, the Community should negotiate with those third Countries where some of the recognised organisations are located an equal the for recognised organisations located in the Community. treatment (16) The limitation of the financial liability of the organisations working on behalf of the Member States represented a the proper major implementation of to Directive 94/57/EC. Its harmonisation at Community level will contribute to solve this problem. obstacle (17) Provisions of Directive 94/57/EC concerning the Committee procedure should be amended and adapted to take account of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (1). (18) Since transparency and exchange of information between to prevent interested parties accidents shall sea, provide all relevant information concerning the conditions of the ships in their class to the Port State Control auth- orities. is a fundamental the recognised organisations tool at (19) In an attempt to prevent ships from changing class in the relevant to avoid carrying out necessary repairs, shall order recognised organisations exchange all (1) OJ L 184, 17. 7. 1999, p. 23. (a) in point (b), the words áincluding ships registered in Euros once that register is approved by the Councilí shall be deleted; (b) in point (d), the words áin force at the date of adoption of this Directiveí shall be replaced by áin force on 1st July 2000í. 2. Article 3, paragraph 1 shall be amended as follows: The following sentence shall be added at the end of the paragraph: Member States shall act in accordance with the provisions of the Annex and the Appendix to IMO Resolution A. 847 (20) on Guidelines to assist Flag States in the implementation of IMO instrumentsí. 3. Article 4 shall be replaced by the following: the Commission and evidence of, 1. Member States may submit to the Commission a request for a recognition for organisations which fulfil the criteria set out in the Annex and the provisions of Article 14, paragraphs 2, 4 and 5. Member States shall complete submit information to compliance with such concerning, requirements. The Commission shall an inspection of the organisations for which the request of recognition was received in order to verify that the organi- sations meet the abovementioned requirements. A decision on the recognition shall take into account the safety and pollution prevention performance records of the organi- sation, referred to in Article 9. The recognition shall be granted by the Commission in accordance with the procedure referred to in Article 7. carry out C 212 E/116 EN Official Journal of the European Communities 25. 7. 2000 to the Commission a 2. Member States may submit request for a limited recognition of three years for organi- sations which meet all the criteria of the Annex other than those set out under paragraph 2 and 3 of the section Generalö of the Annex. The same procedure referred to in paragraph 1 will apply with the exception that the the Annex for which compliance has to be criteria of assessed during the inspection carried out by the Commission are all the criteria other than those set out under paragraphs 2 and 3 of the section Generalö. The effects of this recognition shall be limited to the Member States which have submitted a request for such recognition. treatment for those recognised organisations which are located in the Communityí. 5. Article 6 shall be amended as follows: (a) Paragraph 2 shall be replaced by the following: 3. All the organisations which are granted recognition shall be closely monitored by the committee set up under Article 7, also in view of deciding about extension of the limited recognition of organisations referred to in paragraph 2. A decision on the extension of such recog- nition shall not take into account the criteria set out under paragraphs 2 and 3 of the section Generalö of the Annex while it shall take into account the safety and pollution the organisation, prevention performance referred to in Article 9. The decision on the extension of the specify under which conditions such extension is granted, particularly in respect of the limitation of the effects of the recognition provided for in paragraph 2. recognition shall records of limited 4. The Commission shall draw up and update a list of compliance with the organisations paragraphs 1, 2 and 3. The list shall be published in the Official Journal of the European Communities. recognised in 5. The organisations which, at the date of the entry into force of this Directive, are already recognised on the basis of Council Directive 94/57/EC continue to be recognised. Their compliance with the new provisions laid down in this Directive shall be assessed during the first inspections referred to in Article 11. í 4. Article 5 shall be amended as follows: (a) In paragraph 1, the reference to Article 3(2)(i)í shall be replaced by Article 3(2)í and the words álocated in the Communityí shall be deleted. (b) Paragraph 2 shall be deleted. (c) Paragraph 3 shall become paragraph 2, the words áreciprocal recognitioní shall be replaced by áreciprocal treatmentí and the following sentence shall be added at the end of the paragraph: In addition, the European Community may request that the third State where a recognised organisation is located grant a reciprocal 2. The working relationship shall be regulated by a formalised written and non-discriminatory agreement or the specific duties and functions assumed by the organi- sations and including at least: legal arrangements setting out equivalent - the provisions set out in Appendix II of IMO Resolution A. 739 (18) on guidelines for the author- isation of organisations acting on behalf of the the Annex, specified administration, Appendixes and Attachment to IMO MSC/Circular 710 and MEPC/Circular 307 on model agreement for the authorisation of recognised organisations acting on behalf of the administration, as in - the following provisions concerning the limitation of the financial liability: (i) if liability arising out of any incident is finally and definitely imposed by a court of law on the Administration for loss or damage to property or personal injury or death, which is proved in that court of law to have been caused by a wilful the act or omission or gross negligence of its bodies, employees, recognised organisation, agents or others who act on behalf of the recognised organisation, the Administration shall be entitled to indemnification from the recognised organisation to the extent said loss, damage, injury or death is, as decided by that court, caused by the recognised organisation; (ii) if liability arising out of any incident is finally and definitely imposed by a court of law on injury or the Administration for personal death, which is proved in that court of law to have been caused by any negligent or reckless act or omission of the recognised organisation, its employees, agents or others who act on behalf of the recognised organi- sation, the Administration shall be entitled to indemnification from the recognised organi- sation, to the extent said personal injury or death is, as decided by that court, caused by the recognised organisation, up to but not exceeding an amount of EUR 5 million; 25. 7. 2000 EN Official Journal of the European Communities C 212 E/117 (iii) if liability arising out of any incident is finally and definitely imposed by a court of law on the Administration for loss or damage to property, which is proved in that court of law to have been caused by any negligent or reckless act or omission of the recognised organisation, its employees, agents or others who act on behalf of the recognised organi- sation, the Administration shall be entitled to indemnification from the recognised organi- sation, to the extent said loss or damage is, as decided by that court, caused by the recognised not exceeding an amount of 2,5 EUR million; organisation, but up to (iv) neither party shall be liable to the other for any special, losses or indirect or consequential damages resulting from or arising out of services performed under agreement, including without limitation loss of profit, loss of production, loss of loss of contract, use, business any other losses special, suffered or incurred by any party howsoever caused; interruption or consequential indirect the or or performance (v) without prejudice to what is stated above, for any claim arising out of the recognised organi- sation’s non-performance under this Agreement, the recognised organi- sation, its officers, employees, agents or others who act on behalf of the recognised organi- sation, shall be entitled to the same defences limited to any immunity (including but not liability) as would be from or limitation of Administration’s available own personnel they had themselves performed the work; to if the or - provisions for a periodical audit by the adminis- tration body appointed by the administration into the duties the organisations are undertaking on its behalf, as referred to in Article 11, paragraph 1, impartial external by an - the possibility for random and detailed inspections of ships, - provisions for reporting essential information about their classed fleet, changes suspensions and with- drawals of class, the flag the vessels fly, as referred to in Article 14, paragraph 3í. irrespective of (b) Paragraph 4 is replaced by the following: 4. Each Member State shall provide the Commission and the other Member States with precise information on the working relationship established in accordance with this Article. í 6. Article 7 shall be replaced by the following: The Commission shall be assisted by a committee composed of representatives of the Member States and chaired by the representative of the Commission. Where reference is made to this Article, the regulatory procedure laid down in Article 5 of Decision 1999/468/EC shall apply, in compliance with Article 7(3) and Article 8 thereof. The period provided for 1999/468/EC shall be three months. in Article 5(6) of Decision This committee shall be called by the Commission at least once a year and whenever required in the case of suspension of authorisation of an organisation by a Member State or in the case of suspension of recognition by the Commission under the provisions of Article 10. The Committee shall draw up its rules of procedure. í 7. Article 8, paragraph 1, first indent, shall be replaced by the following: á- apply, for the purposes of this Directive, subsequent conventions, the amendments protocols, related thereto and resolutions mentioned in Articles 2(d) and 6(2), which have entered into force,í international to codes 8. Article 9 shall be replaced by the following: The recognition of organisations 1. referred to in Article 4 which no longer fulfil the criteria set out in the Annex or which fail to meet the safety and pollution prevention performance records mentioned in paragraph 2 shall be withdrawn. The withdrawal of the recognition shall be decided by the Commission in accordance with the procedure referred to in Article 7, after the organi- sation concerned has been given the opportunity to submit its observations. 2. In preparing drafts for a decision relating to the matters referred to in paragraph 1, the Commission shall take into account the outcome of the inspections of the recognised organisations referred to in Article 11 as well as the safety and pollution prevention performance records of the organisations, measured for all the ships they have in class irrespective of the flag the ships fly. the safety Indication of and pollution prevention performance records of the organisations shall be derived from the statistics produced by the Paris Memorandum of Understanding on Port State Control and/or by similar schemes. Other indications may be derived from an analysis of the casualties involving ships classed by the recognised organisations. C 212 E/118 EN Official Journal of the European Communities 25. 7. 2000 Reports produced by Member States on the basis of Article 12 shall also be taken into consideration to assess the safety and pollution prevention performance records of the organisations. The Committee set up under Article 7 shall determine the criteria to be followed in order to decide, on the basis of the information referred to in this paragraph, when the performance of an organisation acting on behalf of a flag State can be considered an unacceptable threat to safety and environment. Draft decisions relating to the matters referred to in paragraph 1 shall be submitted to the committee by the Commission upon its own initiative or at the request of a Member State. í 9. Article 10 shall be amended as follows: (a) The first two sentences shall become paragraph 1 and shall be replaced by the following: Notwithstanding the criteria specified in the 1. Annex, where a Member State considers that a recognised organisation can no longer be authorised to carry out on its behalf specified in Article 3 it may suspend such authorisation on the basis of the following procedure:í. the tasks (b) The following paragraphs shall be added: it and request to take 2. Whenever the Commission considers that the safety and pollution prevention performance records of a recognised organisation worsen without however justifying the withdrawal of its recognition on the basis of the criteria referred to in Article 9, paragraph 2, it may decide to inform the recognised organisation accordingly appropriate measures to improve its safety and pollution prevention performance records. Should the recognised organi- sation fail to provide the Commission with an appro- priate answer or should the Commission consider that the measures taken by the recognised organisation failed to improve its safety and pollution prevention performance records, the Commission may decide to suspend the recognition of the organisation for a period of one year in accordance with the procedure referred to in Article 7 after the organisation concerned has been given the opportunity to submit its obser- vations. During that period, the recognised organi- sation will not be allowed to issue or renew any certificate to ships flying the flag of the Member States while the certificates issued or renewed in the past by the organisation will remain valid. 3. The procedure referred to in paragraph 2 shall apply also in the case where the Commission has evidence that a recognised organisation failed to fulfil the provisions of Article 14, paragraphs 3, 4, or 5. One year after the adoption of the decision of the 4. Commission to suspend the recognition of an organi- sation, the Commission shall assess whether the short- comings referred to in paragraph 2 and 3 which lead to the suspension have been removed. In the case where the recognition such shortcomings are still present, shall be withdrawn in accordance with the procedure referred to in Article 7. í 10. Article 11 shall be amended as follows: (a) In paragraph 1, the following text shall be deleted: áand that such organisations fulfil the criteria specified in the Annex. It may do so by having the recognised organi- sations directly monitored by its competent adminis- tration or, in the case of organisations located in another Member State, by relying upon the corre- sponding monitoring of such organisations by the administration of another Member State. í (b) In paragraph 2, the words Each Member State shall carry out shall be replaced by Each Member State shall carry out this task at least on a biennial basisí. task on a biennial basisí this (c) Paragraphs 3 and 4 shall be deleted. (d) A new paragraph 3 shall be inserted as follows: All the shall recognised organisations be 3. inspected by the Commission, together with the Member State which submitted the relevant request for recognition, on a regular basis and at least every three years to verify that they fulfil the criteria of the Annex. In selecting the organisations for inspection, the Commission shall pay particular attention to the safety and pollution prevention performance records of the organisation, to the casualty records and to the reports produced by Member States as per Article 12. The inspection may include a visit to regional branches of the organisation as well as random and detailed inspection of ships. The Commission shall provide the Member States with a report of the results of the inspection. í 11. Article 12 shall be replaced by the following: In exercising their inspection rights and obligations as port states Member States shall report to the Commission and to other Member States the discovery of issue of valid certificates by organisations acting on behalf of a flag the relevant State to a ship which does not requirements of the international conventions, or any failure of a ship carrying a valid class certificate and relating to items covered by that certificate. Only cases to safety and ships of environment negligent behaviour of the organisations shall be reported for the purposes of this Article. í representing a serious threat particularly proving fulfil or a 12. Article 13 shall be deleted. 13. Articles 14, 15, 16 and 17 shall become Articles 13, 14, 15 and 16 respectively. 25. 7. 2000 EN Official Journal of the European Communities C 212 E/119 14. Article 14, paragraphs 3 and 4, shall be replaced by the following: (b) The words áwould beí shall be replaced by the word áareí in the second sentence of paragraph 3 of Section A. GENERALí. The shall provide recognised organisations all 3. relevant information to the administration and to the Commission about their classed fleet, changes, suspensions and withdrawals of class, irrespective of the flag the vessels fly. Information on changes, suspensions, and withdrawals including information on all overdue surveys, of class, overdue recommendations, conditions of class, operating conditions or operating restrictions issued against their classed vessels - irrespective of the flag the vessels fly - shall also be communicated to the Sirenac information system for Port State Control inspections. The recognised organisations 4. issue certificates to a ship, irrespective of its flag, declassed or changing class for safety reasons before informing the competent administration of the flag State to determine whether a full inspection is necessary. í shall not The following paragraph 5 shall be added: issued against In cases of transfer of class from one recognised 5. organisation to another, the losing organisation shall inform the gaining organisation of all overdue surveys, overdue recommendations, conditions of class, operating the conditions or operating restrictions vessel. On transfer, the losing organisation shall provide the gaining organisation with the complete history file of the vessel. The certificates of the ship can be issued by the gaining organisation only after all overdue surveys have been satisfactorily completed and all overdue recommen- dations or conditions of class previously issued against the vessel have been completed as specified by the losing organisation. Prior to the issuance of the certificates, the gaining organisation must advise the losing organisation of the date of issuing of the certificates and confirm the date, location and action taken to satisfy each overdue survey, overdue recommendation and overdue condition of class. The recognised organisations shall cooperate with each this other paragraph. í to properly implement the provisions of (c) he word áshouldí shall be replaced by the word ámustí in paragraph 4 of Section A. GENERALí. (d) The word áshouldí shall be replaced by the word ámustí in paragraph 5 of Section A. GENERALí The following words shall be added at the end of the paragraph: áor maintained in an electronic data base accessible to interested partiesí. (e) The word áshouldí shall be replaced by the word ámustí both in the first and in the second sentence of paragraph 6 of Section A. GENERALí. (f) The word áshouldí shall be replaced by the word ámustí in paragraph 7 of Section A. GENERALí. (g) The following words shall be added at the end of áand to the paragraph 4 of Section B. SPECIFICí: Commissioní. (h) The following words shall be added at the end of The organi- to safety and pollution paragraph 5 of Section B. SPECIFICí: sation’s policy must refer prevention performance targets and indicatorsí. (i) The following words shall be added at the end of paragraph 6(b) of Section B. SPECIFICí: áand an internal system to measure the quality of service in relation to these rules and regulations is put in placeí. (j) The following words shall be added at the end of paragraph 6(c) of Section B. SPECIFICí: áand an internal system to measure the quality of service in relation to the compliance with the international conventions is put in placeí. 15. Article 15, paragraph 3, shall be replaced by the following: (k) Paragraph 6(g) of Section B. SPECIFICí shall be replaced by the following: 3. The Member States shall immediately communicate to the Commission and to the other Member States the text of all the provisions of domestic law which they adopt in the field governed by this Directive. í 16. The Annex to the Directive shall be amended as follows: á(g) the requirements of the statutory work for which the organisation is authorised are only carried out by its exclusive surveyors or by exclusive surveyors of other recognised organisations; in all cases, the an extensive exclusive knowledge of ship on which they carry out the statutory work and of the relevant applicable requirements;í. surveyors must have the particular type of (a) The word áshouldí shall be replaced by the word ámustí (l) The word áandí at the end of paragraph 6(i) of Section in paragraph 2 of Section A. GENERALí. B. SPECIFICí shall be deleted. C 212 E/120 EN Official Journal of the European Communities 25. 7. 2000 (m) Paragraph 6(j) of Section B. SPECIFICí shall be replaced by the following: á(j) a comprehensive system of planned and docu- the quality related mented internal audits of activities is maintained in all locationsí. (n) The following two paragraphs shall be added to paragraph 6 of Section B. SPECIFICí: á(k) the statutory surveys and inspections required by the Harmonised System of Survey and Certifi- cation for which the organisation is authorised are carried out in accordance with the provision in the Annex and Appendix to IMO set out Resolution A. 746(18) Survey Guidelines under the Harmonised System of Survey and Certification; on (l) clear and direct lines of responsibility and control are established between the central and the regional offices of the society. í (ISM) Code by adminis- Safety Management trationsö - the application and maintenance of the safety management system, both shore-based and on board ships, intended to be covered in the certification. í (p) The word áshouldí shall be replaced by the word ámustí in paragraph 9 of Section B. SPECIFICí. Article 2 Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this the date of Directive no later adoption of this Directive. They shall forthwith inform the Commission thereof. than twelve months after When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. (o) Paragraph 7 (b) of Section B. SPECIFICí shall be replaced by the following: Article 3 á(b) to carry out all inspections and surveys required by the international conventions for the issue of including the means of assessing - certificates, through the use of qualified professional staff and in accordance with the provisions set out in the Annex to IMO Resolution A. 788(19) on guidelines on implementation of the International This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. Article 4 This Directive is addressed to the Member States