# Official Journal C 352E/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.CE2012.352.eng |
| --- | --- |
| Official Journal
  of the European Union | C 352E |
| | |
| English edition | Information and Notices | Volume 5516 November 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.CE2012.352.eng

Official Journal

of the European Union

C 352E

English edition

Information and Notices

Volume 5516 November 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | III   Preparatory acts |
| | COUNCIL |
| 2012/C 352E/01 | Position (EU) No 10/2012 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1406/2002 establishing a European Maritime Safety AgencyAdopted by the Council on 4 October 2012 | 1 |
| 2012/C 352E/02 | Position (EU) No 11/2012 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countriesAdopted by the Council on 4 October 2012 | 23 |

Notice No

Contents

page

III   Preparatory acts

COUNCIL

2012/C 352E/01

Position (EU) No 10/2012 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1406/2002 establishing a European Maritime Safety AgencyAdopted by the Council on 4 October 2012

1

2012/C 352E/02

Position (EU) No 11/2012 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countriesAdopted by the Council on 4 October 2012

23

| EN | |
| --- | --- |

EN

---

III Preparatory acts

COUNCIL

| 16.11.2012 | EN | Official Journal of the European Union | CE 352/1 |
| --- | --- | --- | --- |

16.11.2012

EN

Official Journal of the European Union

CE 352/1

---

POSITION (EU) No 10/2012 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency

Adopted by the Council on 4 October 2012

(10/2012/EU)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

| (1) | Regulation (EC) No 1406/2002 of the European Parliament and of the Council (3), which was adopted in response to the ‘Erika’ oil tanker incident, established a European Maritime Safety Agency (the ‘Agency’) for the purpose of ensuring a high, uniform and effective level of maritime safety and prevention of pollution by ships. |
| --- | --- |

(1)

Regulation (EC) No 1406/2002 of the European Parliament and of the Council (3), which was adopted in response to the ‘Erika’ oil tanker incident, established a European Maritime Safety Agency (the ‘Agency’) for the purpose of ensuring a high, uniform and effective level of maritime safety and prevention of pollution by ships.

| (2) | After the ‘Prestige’ oil tanker incident in 2002, Regulation (EC) No 1406/2002 was modified to give the Agency more tasks with regard to pollution response. |
| --- | --- |

(2)

After the ‘Prestige’ oil tanker incident in 2002, Regulation (EC) No 1406/2002 was modified to give the Agency more tasks with regard to pollution response.

| (3) | It is necessary to clarify which types of marine pollution should fall within the objectives of Regulation (EC) No 1406/2002. Thus, marine pollution caused by oil and gas installations should be understood as pollution by oil or any substance other than oil which, if introduced into the marine environment, is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, as established by the Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 2000. |
| --- | --- |

(3)

It is necessary to clarify which types of marine pollution should fall within the objectives of Regulation (EC) No 1406/2002. Thus, marine pollution caused by oil and gas installations should be understood as pollution by oil or any substance other than oil which, if introduced into the marine environment, is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, as established by the Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 2000.

| (4) | Acting in accordance with Article 22 of Regulation (EC) No 1406/2002, the Administrative Board of the Agency (the ‘Administrative Board’) in 2007 commissioned an independent external evaluation on the implementation of that Regulation. Based on that evaluation, in June 2008, it issued recommendations regarding changes to the functioning of the Agency, to its areas of competence and to its working practices. |
| --- | --- |

(4)

Acting in accordance with Article 22 of Regulation (EC) No 1406/2002, the Administrative Board of the Agency (the ‘Administrative Board’) in 2007 commissioned an independent external evaluation on the implementation of that Regulation. Based on that evaluation, in June 2008, it issued recommendations regarding changes to the functioning of the Agency, to its areas of competence and to its working practices.

| (5) | Based on the findings of the external evaluation, and on the recommendations, and on the multi-annual strategy adopted by the Administrative Board in March 2010, some provisions of Regulation (EC) No 1406/2002 should be clarified and updated. While focusing on its priority tasks in the area of maritime safety, the Agency should receive a number of new core and ancillary tasks reflecting the development of maritime safety policy at Union and international level. Given the budget constraints facing the Union, considerable screening and redeployment efforts are necessary to guarantee cost and budget efficiency and to avoid any overlapping. Staffing needs for the new core and ancillary tasks should, as a matter of principle, be covered through internal redeployment by the Agency. At the same time, the Agency should receive, where appropriate, funding from other parts of the Union budget, in particular from the European Neighbourhood Policy instrument. The delivery of any new core and ancillary tasks by the Agency will be undertaken within the limits of the current Financial Perspective and the Agency’s budget without prejudice to the negotiations and decisions on the future multi-annual financial framework. As this Regulation is not a financing decision, the Budgetary Authority should decide on resources for the Agency in the framework of the annual budgetary procedure. |
| --- | --- |

(5)

Based on the findings of the external evaluation, and on the recommendations, and on the multi-annual strategy adopted by the Administrative Board in March 2010, some provisions of Regulation (EC) No 1406/2002 should be clarified and updated. While focusing on its priority tasks in the area of maritime safety, the Agency should receive a number of new core and ancillary tasks reflecting the development of maritime safety policy at Union and international level. Given the budget constraints facing the Union, considerable screening and redeployment efforts are necessary to guarantee cost and budget efficiency and to avoid any overlapping. Staffing needs for the new core and ancillary tasks should, as a matter of principle, be covered through internal redeployment by the Agency. At the same time, the Agency should receive, where appropriate, funding from other parts of the Union budget, in particular from the European Neighbourhood Policy instrument. The delivery of any new core and ancillary tasks by the Agency will be undertaken within the limits of the current Financial Perspective and the Agency’s budget without prejudice to the negotiations and decisions on the future multi-annual financial framework. As this Regulation is not a financing decision, the Budgetary Authority should decide on resources for the Agency in the framework of the annual budgetary procedure.

| (6) | The Agency’s tasks should be described clearly and precisely, and any duplication of tasks should be avoided. |
| --- | --- |

(6)

The Agency’s tasks should be described clearly and precisely, and any duplication of tasks should be avoided.

| (7) | The Agency has shown that certain tasks can be undertaken more efficiently at European level, which might, in certain cases, offer Member States savings on their national budgets and, where demonstrated, represent genuine European added value. |
| --- | --- |

(7)

The Agency has shown that certain tasks can be undertaken more efficiently at European level, which might, in certain cases, offer Member States savings on their national budgets and, where demonstrated, represent genuine European added value.

| (8) | Some provisions regarding the specific governance of the Agency should be clarified. Taking into account the special responsibility of the Commission for the implementation of Union policies enshrined by the Treaty on the Functioning of the European Union, the Commission should provide policy guidance to the Agency in the performance of its tasks while fully respecting the legal status of the Agency and the independence of its Executive Director as established by Regulation (EC) No 1406/2002. |
| --- | --- |

(8)

Some provisions regarding the specific governance of the Agency should be clarified. Taking into account the special responsibility of the Commission for the implementation of Union policies enshrined by the Treaty on the Functioning of the European Union, the Commission should provide policy guidance to the Agency in the performance of its tasks while fully respecting the legal status of the Agency and the independence of its Executive Director as established by Regulation (EC) No 1406/2002.

| (9) | When appointing members of the Administrative Board, electing the Chair and Vice-Chair of the Administrative Board and appointing Heads of Department, the importance of ensuring balanced gender representation should be fully taken into account. |
| --- | --- |

(9)

When appointing members of the Administrative Board, electing the Chair and Vice-Chair of the Administrative Board and appointing Heads of Department, the importance of ensuring balanced gender representation should be fully taken into account.

| (10) | Any reference to relevant legal acts of the Union should be understood to refer to acts in the field of maritime safety, maritime security, prevention of, and response to, pollution caused by ships as well as response to marine pollution caused by oil and gas installations. |
| --- | --- |

(10)

Any reference to relevant legal acts of the Union should be understood to refer to acts in the field of maritime safety, maritime security, prevention of, and response to, pollution caused by ships as well as response to marine pollution caused by oil and gas installations.

| (11) | For the purposes of this Regulation, ‘maritime security’ is to be understood – in accordance with Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (4) – as the combined preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts. The security objective should be achieved by adopting appropriate measures in the field of maritime transport policy, without prejudice to the rules of the Member States in the field of national security, defence and public security, and in combating financial crimes against the State. |
| --- | --- |

(11)

For the purposes of this Regulation, ‘maritime security’ is to be understood – in accordance with Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (4) – as the combined preventive measures intended to protect shipping and port facilities against threats of intentional unlawful acts. The security objective should be achieved by adopting appropriate measures in the field of maritime transport policy, without prejudice to the rules of the Member States in the field of national security, defence and public security, and in combating financial crimes against the State.

| (12) | The Agency should act in the interests of the Union. This should include the situation when the Agency is tasked to act outside the territory of the Member States in its fields of competence and to provide technical assistance to relevant third countries, in promoting the Union’s maritime safety policy. |
| --- | --- |

(12)

The Agency should act in the interests of the Union. This should include the situation when the Agency is tasked to act outside the territory of the Member States in its fields of competence and to provide technical assistance to relevant third countries, in promoting the Union’s maritime safety policy.

| (13) | The Agency should provide technical assistance to Member States which should facilitate the establishment of the necessary national capacity to implement the Union acquis. |
| --- | --- |

(13)

The Agency should provide technical assistance to Member States which should facilitate the establishment of the necessary national capacity to implement the Union acquis.

| (14) | The Agency should provide operational assistance to the Member States and the Commission. This should include services such as the Union Maritime Information and Exchange System (SafeSeaNet), the European Satellite Oil Monitoring Service (CleanSeaNet), the European Union Long Range Identification and Tracking Data Centre (EU LRIT Data Centre) and the EU Port State Control inspection data base (Thetis). |
| --- | --- |

(14)

The Agency should provide operational assistance to the Member States and the Commission. This should include services such as the Union Maritime Information and Exchange System (SafeSeaNet), the European Satellite Oil Monitoring Service (CleanSeaNet), the European Union Long Range Identification and Tracking Data Centre (EU LRIT Data Centre) and the EU Port State Control inspection data base (Thetis).

| (15) | The Agency’s expertise in electronic data transmission and in maritime information exchange systems should be used to simplify reporting formalities for ships with a view to the elimination of barriers to maritime transport and the establishment of a European Maritime Transport Space without Barriers. In particular, the Agency should support Member States in the implementation of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States (5). |
| --- | --- |

(15)

The Agency’s expertise in electronic data transmission and in maritime information exchange systems should be used to simplify reporting formalities for ships with a view to the elimination of barriers to maritime transport and the establishment of a European Maritime Transport Space without Barriers. In particular, the Agency should support Member States in the implementation of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States (5).

| (16) | The Agency should enhance its assistance to the Commission regarding research activities related to its fields of competences. However, duplication of work as regards the existing Union research framework should be avoided. In particular, the Agency should not be in charge of the management of research projects. |
| --- | --- |

(16)

The Agency should enhance its assistance to the Commission regarding research activities related to its fields of competences. However, duplication of work as regards the existing Union research framework should be avoided. In particular, the Agency should not be in charge of the management of research projects.

| (17) | In the light of the development of new innovative applications and services and the improvement of the existing applications and services, and with a view to implementing a European Maritime Transport Space without Barriers, the Agency should make full use of the potential offered by the European satellite navigation programmes (EGNOS and Galileo) and by the Global Monitoring for Environment and Security programme (GMES). |
| --- | --- |

(17)

In the light of the development of new innovative applications and services and the improvement of the existing applications and services, and with a view to implementing a European Maritime Transport Space without Barriers, the Agency should make full use of the potential offered by the European satellite navigation programmes (EGNOS and Galileo) and by the Global Monitoring for Environment and Security programme (GMES).

| (18) | After the expiry of the Union framework for cooperation in the field of accidental or deliberate marine pollution established by Decision No 2850/2000/EC of the European Parliament and of the Council (6), the Agency should continue some of the activities previously carried out under that framework by drawing in particular on the expertise within the Consultative Technical Group for Marine Pollution Preparedness and Response. The activities of the Agency in this field should not relieve coastal States of their responsibility to have appropriate pollution response mechanisms in place and should respect existing cooperation arrangements between Member States or groups of Member States. |
| --- | --- |

(18)

After the expiry of the Union framework for cooperation in the field of accidental or deliberate marine pollution established by Decision No 2850/2000/EC of the European Parliament and of the Council (6), the Agency should continue some of the activities previously carried out under that framework by drawing in particular on the expertise within the Consultative Technical Group for Marine Pollution Preparedness and Response. The activities of the Agency in this field should not relieve coastal States of their responsibility to have appropriate pollution response mechanisms in place and should respect existing cooperation arrangements between Member States or groups of Member States.

| (19) | Upon request, the Agency provides Member States with detailed information about potential cases of pollution by ships through CleanSeaNet to enable them to fulfil their responsibilities under Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (7). However, the effectiveness of enforcement varies greatly despite such pollution having the potential to end up in other national waters. In its next report under Article 12 of that Directive, the Commission should therefore provide information to the European Parliament and to the Council about the effectiveness and the consistency of the enforcement of that Directive and other relevant information about its application. |
| --- | --- |

(19)

Upon request, the Agency provides Member States with detailed information about potential cases of pollution by ships through CleanSeaNet to enable them to fulfil their responsibilities under Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (7). However, the effectiveness of enforcement varies greatly despite such pollution having the potential to end up in other national waters. In its next report under Article 12 of that Directive, the Commission should therefore provide information to the European Parliament and to the Council about the effectiveness and the consistency of the enforcement of that Directive and other relevant information about its application.

| (20) | Requests from affected States for the mobilisation of anti-pollution actions by the Agency should be relayed through the EU Civil Protection Mechanism established by Council Decision 2007/779/EC, Euratom (8). However, the Commission may consider that in circumstances other than requests for mobilisation of stand-by anti-pollution ships and equipment, alternative means of communication using advanced information technology may be more appropriate and, thus, may inform the requesting Member State. |
| --- | --- |

(20)

Requests from affected States for the mobilisation of anti-pollution actions by the Agency should be relayed through the EU Civil Protection Mechanism established by Council Decision 2007/779/EC, Euratom (8). However, the Commission may consider that in circumstances other than requests for mobilisation of stand-by anti-pollution ships and equipment, alternative means of communication using advanced information technology may be more appropriate and, thus, may inform the requesting Member State.

| (21) | Recent events highlighted the risks of offshore oil and gas exploration and production activities to maritime transport and the marine environment. The Agency’s response capabilities for oil pollution and its expertise in the field of pollution by hazardous and noxious substances should be used to cover response to pollution originating from such activities, at the request of an affected State. |
| --- | --- |

(21)

Recent events highlighted the risks of offshore oil and gas exploration and production activities to maritime transport and the marine environment. The Agency’s response capabilities for oil pollution and its expertise in the field of pollution by hazardous and noxious substances should be used to cover response to pollution originating from such activities, at the request of an affected State.

| (22) | In particular, CleanSeaNet, which is currently used to provide evidence of oil spills from ships, should also be used by the Agency to detect and report oil spills from offshore oil and gas exploration and production activities, without causing any detrimental effects to the service provided for maritime transport. |
| --- | --- |

(22)

In particular, CleanSeaNet, which is currently used to provide evidence of oil spills from ships, should also be used by the Agency to detect and report oil spills from offshore oil and gas exploration and production activities, without causing any detrimental effects to the service provided for maritime transport.

| (23) | The Agency has established and recognised valuable expertise and tools in the fields of maritime safety, maritime security, prevention of, and response to, pollution caused by ships. This expertise and these tools can be relevant for other Union activities related to the Union maritime transport policy. The Agency should therefore assist the Commission and the Member States upon request in the development and implementation of such Union activities provided that the Administrative Board has approved this in the context of the Agency’s annual work programme. Such assistance should be subject to a detailed cost/benefit analysis and should not be detrimental to the Agency’s core tasks. |
| --- | --- |

(23)

The Agency has established and recognised valuable expertise and tools in the fields of maritime safety, maritime security, prevention of, and response to, pollution caused by ships. This expertise and these tools can be relevant for other Union activities related to the Union maritime transport policy. The Agency should therefore assist the Commission and the Member States upon request in the development and implementation of such Union activities provided that the Administrative Board has approved this in the context of the Agency’s annual work programme. Such assistance should be subject to a detailed cost/benefit analysis and should not be detrimental to the Agency’s core tasks.

| (24) | Through the technical assistance that the Agency provides,, it also contributes to the development of more environment-friendly maritime transport. |
| --- | --- |

(24)

Through the technical assistance that the Agency provides,, it also contributes to the development of more environment-friendly maritime transport.

| (25) | As regards classification societies, most classification societies deal with both seagoing and inland waterway vessels. Based on the Agency’s experience with classification societies for seagoing vessels, the Agency could provide relevant information to the Commission with regard to classification societies for inland waterway vessels and thus allow for efficiency gains. |
| --- | --- |

(25)

As regards classification societies, most classification societies deal with both seagoing and inland waterway vessels. Based on the Agency’s experience with classification societies for seagoing vessels, the Agency could provide relevant information to the Commission with regard to classification societies for inland waterway vessels and thus allow for efficiency gains.

| (26) | As regards the interface between transport information systems, the Agency should assist the Commission and the Member States by exploring, together with competent authorities for the River Information Services System, the possibility of sharing information between such systems. |
| --- | --- |

(26)

As regards the interface between transport information systems, the Agency should assist the Commission and the Member States by exploring, together with competent authorities for the River Information Services System, the possibility of sharing information between such systems.

| (27) | Without prejudice to the responsibility of the competent authorities, the Agency should assist the Commission and the Member States in the development and implementation of the future e-Maritime initiative, which aims at improving the efficiency of the European maritime transport sector by facilitating the use of advanced information technologies. |
| --- | --- |

(27)

Without prejudice to the responsibility of the competent authorities, the Agency should assist the Commission and the Member States in the development and implementation of the future e-Maritime initiative, which aims at improving the efficiency of the European maritime transport sector by facilitating the use of advanced information technologies.

| (28) | With a view to achieving the single market and a European Maritime Transport Space without Barriers, administrative burdens on shipping should be reduced, thereby inter alia encouraging short sea shipping. In this context, the ‘Blue Belt’ concept and e-Maritime could potentially be used as a means of reducing reporting formalities required from commercial vessels on entering or leaving ports in the Member States. |
| --- | --- |

(28)

With a view to achieving the single market and a European Maritime Transport Space without Barriers, administrative burdens on shipping should be reduced, thereby inter alia encouraging short sea shipping. In this context, the ‘Blue Belt’ concept and e-Maritime could potentially be used as a means of reducing reporting formalities required from commercial vessels on entering or leaving ports in the Member States.

| (29) | It is recalled that according to the case-law of the Court of Justice of the European Union, and in order to respect the principle of institutional balance, the power to adopt decisions of general application may not be conferred on an agency. |
| --- | --- |

(29)

It is recalled that according to the case-law of the Court of Justice of the European Union, and in order to respect the principle of institutional balance, the power to adopt decisions of general application may not be conferred on an agency.

| (30) | Without prejudice to the objectives and tasks laid down in Regulation (EC) No 1406/2002, the Commission should prepare and submit, within one year of the date of entry into force of this Regulation, in close cooperation with relevant stakeholders, a feasibility study with a view to evaluate and identify the possibilities of enhancing coordination and cooperation of different coastguard functions. That study should take into account the existing legal framework and relevant recommendations from the appropriate Union fora as well as the current development of the Common Information Sharing Environment (CISE) and should fully respect the principles of subsidiarity and proportionality, making clear the costs and benefits to the European Parliament and the Council. |
| --- | --- |

(30)

Without prejudice to the objectives and tasks laid down in Regulation (EC) No 1406/2002, the Commission should prepare and submit, within one year of the date of entry into force of this Regulation, in close cooperation with relevant stakeholders, a feasibility study with a view to evaluate and identify the possibilities of enhancing coordination and cooperation of different coastguard functions. That study should take into account the existing legal framework and relevant recommendations from the appropriate Union fora as well as the current development of the Common Information Sharing Environment (CISE) and should fully respect the principles of subsidiarity and proportionality, making clear the costs and benefits to the European Parliament and the Council.

| (31) | Attracting well trained European seafarers is important for the competitiveness of the Union maritime clusters. Therefore, in light of the current and future demand in the Union for highly qualified seafarers, the Agency should, if appropriate, support Member States and the Commission in promoting maritime training by facilitating the voluntary exchange of best practice and by providing information on Union exchange programmes on maritime training. This could include assisting competent European stakeholders in pursuing excellence for maritime education and training on a voluntary basis, while fully respecting the responsibility of the Member States for the content and organisation of maritime training. |
| --- | --- |

(31)

Attracting well trained European seafarers is important for the competitiveness of the Union maritime clusters. Therefore, in light of the current and future demand in the Union for highly qualified seafarers, the Agency should, if appropriate, support Member States and the Commission in promoting maritime training by facilitating the voluntary exchange of best practice and by providing information on Union exchange programmes on maritime training. This could include assisting competent European stakeholders in pursuing excellence for maritime education and training on a voluntary basis, while fully respecting the responsibility of the Member States for the content and organisation of maritime training.

| (32) | In order to counter the growing risk of piracy, the Agency should continue, where appropriate, to forward to competent national authorities and other relevant bodies, including operations such as EU Naval Force operation Atalanta, detailed information about the position of vessels flying the flag of Member States and transiting through areas, which are classified as very dangerous. Furthermore, the Agency has at its disposal means that could be useful, notably in the context of the development of the CISE. It is therefore appropriate that the Agency should provide, upon request, relevant vessel positioning and earth observation data to competent national authorities and Union bodies, such as Frontex and Europol, to facilitate preventive measures against intentional unlawful acts as understood in relevant Union law without prejudice to the rights and obligations of Member States and in accordance with the applicable national and Union law, in particular regarding those bodies requesting data. The provision of long-range identification and tracking of ships (LRIT) data should be subject to the consent of the flag State concerned, in accordance with procedures to be established by the Administrative Board. |
| --- | --- |

(32)

In order to counter the growing risk of piracy, the Agency should continue, where appropriate, to forward to competent national authorities and other relevant bodies, including operations such as EU Naval Force operation Atalanta, detailed information about the position of vessels flying the flag of Member States and transiting through areas, which are classified as very dangerous. Furthermore, the Agency has at its disposal means that could be useful, notably in the context of the development of the CISE. It is therefore appropriate that the Agency should provide, upon request, relevant vessel positioning and earth observation data to competent national authorities and Union bodies, such as Frontex and Europol, to facilitate preventive measures against intentional unlawful acts as understood in relevant Union law without prejudice to the rights and obligations of Member States and in accordance with the applicable national and Union law, in particular regarding those bodies requesting data. The provision of long-range identification and tracking of ships (LRIT) data should be subject to the consent of the flag State concerned, in accordance with procedures to be established by the Administrative Board.

| (33) | When publishing information in accordance with Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on Port State Control (9), the Commission and the Agency should build upon the expertise and experience gained under the Paris Memorandum of Understanding on Port State Control (‘Paris MoU’) to ensure consistency. |
| --- | --- |

(33)

When publishing information in accordance with Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on Port State Control (9), the Commission and the Agency should build upon the expertise and experience gained under the Paris Memorandum of Understanding on Port State Control (‘Paris MoU’) to ensure consistency.

| (34) | The assistance of the Agency to the Member States and to the Commission with regard to the relevant work of international and regional organisations should be without prejudice to the relationship between those organisations and the Member States resulting from Member States’ membership of those organisations. |
| --- | --- |

(34)

The assistance of the Agency to the Member States and to the Commission with regard to the relevant work of international and regional organisations should be without prejudice to the relationship between those organisations and the Member States resulting from Member States’ membership of those organisations.

| (35) | The Union has acceded to the following instruments, establishing regional organisations, whose activities are also covered by the Agency’s objectives: the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention as revised in 1992) (10); the Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) (11), and its 1995 revision (12) and to a number of protocols thereto; the Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Bonn Agreement) (13); the Convention for the protection of the marine environment of the North-East Atlantic (OSPAR Convention) (14); the Cooperation Agreement for the protection of the coasts and waters of the North-East Atlantic against pollution, signed on 17 October 1990 (Lisbon Agreement) (15), with the Additional Protocol thereto, signed on 20 May 2008, which have not yet entered into force (16). The Union is also negotiating accession to the Convention on the Protection of the Black Sea Against Pollution, signed in April 1992 (Bucharest Convention). The Agency should therefore provide technical assistance to Member States and the Commission to take part in the relevant work of those regional organisations. |
| --- | --- |

(35)

The Union has acceded to the following instruments, establishing regional organisations, whose activities are also covered by the Agency’s objectives: the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention as revised in 1992) (10); the Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) (11), and its 1995 revision (12) and to a number of protocols thereto; the Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Bonn Agreement) (13); the Convention for the protection of the marine environment of the North-East Atlantic (OSPAR Convention) (14); the Cooperation Agreement for the protection of the coasts and waters of the North-East Atlantic against pollution, signed on 17 October 1990 (Lisbon Agreement) (15), with the Additional Protocol thereto, signed on 20 May 2008, which have not yet entered into force (16). The Union is also negotiating accession to the Convention on the Protection of the Black Sea Against Pollution, signed in April 1992 (Bucharest Convention). The Agency should therefore provide technical assistance to Member States and the Commission to take part in the relevant work of those regional organisations.

| (36) | In addition to those regional organisations, a number of other regional, sub-regional and bilateral coordination and cooperation arrangements exist with regard to pollution response. When providing assistance with regard to pollution response to third countries sharing a regional sea basin with the Union, the Agency should act, taking into account those arrangements. |
| --- | --- |

(36)

In addition to those regional organisations, a number of other regional, sub-regional and bilateral coordination and cooperation arrangements exist with regard to pollution response. When providing assistance with regard to pollution response to third countries sharing a regional sea basin with the Union, the Agency should act, taking into account those arrangements.

| (37) | The Union shares the regional sea basins of the Mediterranean Sea, the Black Sea and the Baltic Sea with neighbouring countries. Upon request by the Commission, the Agency should provide assistance with regard to pollution response to those countries. |
| --- | --- |

(37)

The Union shares the regional sea basins of the Mediterranean Sea, the Black Sea and the Baltic Sea with neighbouring countries. Upon request by the Commission, the Agency should provide assistance with regard to pollution response to those countries.

| (38) | In order to maximise efficiency, the Agency should cooperate as closely as possible in the context of the Paris MoU. The Commission and Member States should continue to examine any options for further efficiency gains, which could be proposed for consideration within the framework of the Paris MoU. |
| --- | --- |

(38)

In order to maximise efficiency, the Agency should cooperate as closely as possible in the context of the Paris MoU. The Commission and Member States should continue to examine any options for further efficiency gains, which could be proposed for consideration within the framework of the Paris MoU.

| (39) | In order to ensure that the binding legal acts of the Union in the fields of maritime safety and the prevention of pollution caused by ships are correctly implemented in practice, the Agency should assist the Commission by carrying out visits to Member States. These visits to the national administrations should allow the Agency to gather all necessary information to present a comprehensive report to the Commission for its further assessment. The visits should be conducted in the spirit of the principles referred to in Article 4(3) of the Treaty on European Union and should be conducted in such a way so as to minimise the administrative burden upon the national maritime administrations. Furthermore the visits should be carried out in accordance with a set procedure including a standard methodology as adopted by the Administrative Board. |
| --- | --- |

(39)

In order to ensure that the binding legal acts of the Union in the fields of maritime safety and the prevention of pollution caused by ships are correctly implemented in practice, the Agency should assist the Commission by carrying out visits to Member States. These visits to the national administrations should allow the Agency to gather all necessary information to present a comprehensive report to the Commission for its further assessment. The visits should be conducted in the spirit of the principles referred to in Article 4(3) of the Treaty on European Union and should be conducted in such a way so as to minimise the administrative burden upon the national maritime administrations. Furthermore the visits should be carried out in accordance with a set procedure including a standard methodology as adopted by the Administrative Board.

| (40) | The Agency should assist the Commission by carrying out inspections of recognised organisations in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (17). These inspections may also take place in third countries. The Commission and the Agency should ensure that the Member States concerned are duly informed. The Agency should also carry out the inspection tasks with regard to the training and certification of seafarers in third countries pursuant to Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (18), which the Commission has delegated to the Agency. Details of the technical assistance provided by the Agency to the maritime security inspections carried out by the Commission in accordance with Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for conducting Commission inspections in the field of maritime security (19) should not be covered by Regulation (EC) No 1406/2002. |
| --- | --- |

(40)

The Agency should assist the Commission by carrying out inspections of recognised organisations in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (17). These inspections may also take place in third countries. The Commission and the Agency should ensure that the Member States concerned are duly informed. The Agency should also carry out the inspection tasks with regard to the training and certification of seafarers in third countries pursuant to Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (18), which the Commission has delegated to the Agency. Details of the technical assistance provided by the Agency to the maritime security inspections carried out by the Commission in accordance with Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for conducting Commission inspections in the field of maritime security (19) should not be covered by Regulation (EC) No 1406/2002.

| (41) | In order to ensure coherence with the policy objectives and the institutional set-up of the Union as well as with the applicable administrative and financial procedures, the Commission should issue formal advice in the form of a written opinion on the Agency’s draft multi-annual strategy and draft annual work programmes, which the Administrative Board should take into account before adopting those documents. |
| --- | --- |

(41)

In order to ensure coherence with the policy objectives and the institutional set-up of the Union as well as with the applicable administrative and financial procedures, the Commission should issue formal advice in the form of a written opinion on the Agency’s draft multi-annual strategy and draft annual work programmes, which the Administrative Board should take into account before adopting those documents.

| (42) | In order to ensure a fair and transparent procedure for the appointment of the Executive Director, the selection procedure to be followed should be in accordance with the Commission guidelines for the selection and nomination of Directors for agencies of the Union. These guidelines provide that nationals of any Member State can submit an application.
  For the same reasons, the Administrative Board should be represented by an observer in the pre-selection committee. The observer should be kept informed during the further stages of the selection procedure.
  At the time that the Administrative Board takes its decision on appointment, its members should be able to address questions to the Commission on the selection procedure. Furthermore, the Administrative Board should have the opportunity to interview the shortlisted candidates, in line with standard practice.
  At all stages of the selection procedure and appointment for the post of the Executive Director of the Agency, all parties involved should ensure that the personal data of the candidates are processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (20). |
| --- | --- |

(42)

In order to ensure a fair and transparent procedure for the appointment of the Executive Director, the selection procedure to be followed should be in accordance with the Commission guidelines for the selection and nomination of Directors for agencies of the Union. These guidelines provide that nationals of any Member State can submit an application.

For the same reasons, the Administrative Board should be represented by an observer in the pre-selection committee. The observer should be kept informed during the further stages of the selection procedure.

At the time that the Administrative Board takes its decision on appointment, its members should be able to address questions to the Commission on the selection procedure. Furthermore, the Administrative Board should have the opportunity to interview the shortlisted candidates, in line with standard practice.

At all stages of the selection procedure and appointment for the post of the Executive Director of the Agency, all parties involved should ensure that the personal data of the candidates are processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (20).

| (43) | While the Agency is mainly financed through a contribution from the Union, it also has revenues resulting from fees and charges relating to its services. Those fees and charges relate in particular to the operation of the EU LRIT Data Centre and are applied in accordance with the Council Resolution adopted on 1 and 2 October 2007 and 9 December 2008 related to the establishment of the EU LRIT Data Centre and in particular with the paragraphs related to the financing of LRIT reports. |
| --- | --- |

(43)

While the Agency is mainly financed through a contribution from the Union, it also has revenues resulting from fees and charges relating to its services. Those fees and charges relate in particular to the operation of the EU LRIT Data Centre and are applied in accordance with the Council Resolution adopted on 1 and 2 October 2007 and 9 December 2008 related to the establishment of the EU LRIT Data Centre and in particular with the paragraphs related to the financing of LRIT reports.

| (44) | In the framework of the progress report provided for pursuant to Regulation (EC) No 1406/2002, the Commission should also examine the Agency’s potential contribution to the implementation of a future legislative act on the safety of offshore oil and gas prospecting, exploration and production activities, which is currently being examined by the European Parliament and the Council, with regard to the prevention of pollution from offshore oil and gas installations, taking into account the Agency’s established and recognised expertise and tools. |
| --- | --- |

(44)

In the framework of the progress report provided for pursuant to Regulation (EC) No 1406/2002, the Commission should also examine the Agency’s potential contribution to the implementation of a future legislative act on the safety of offshore oil and gas prospecting, exploration and production activities, which is currently being examined by the European Parliament and the Council, with regard to the prevention of pollution from offshore oil and gas installations, taking into account the Agency’s established and recognised expertise and tools.

| (45) | The Agency’s activities should, where appropriate, also contribute to the establishment of a genuine European Maritime Transport Space without Barriers. |
| --- | --- |

(45)

The Agency’s activities should, where appropriate, also contribute to the establishment of a genuine European Maritime Transport Space without Barriers.

| (46) | Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (21), and in particular Article 185 thereof, should be taken into account. |
| --- | --- |

(46)

Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (21), and in particular Article 185 thereof, should be taken into account.

| (47) | Regulation (EC) No 1406/2002 should therefore be amended accordingly, |
| --- | --- |

(47)

Regulation (EC) No 1406/2002 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Amendments to Regulation (EC) No 1406/2002

Regulation (EC) No 1406/2002 is hereby amended as follows:

| (1) | Articles 1 to 3 are replaced by the following:
  ‘Article 1
  Objectives
  1.   This Regulation establishes a European Maritime Safety Agency (“the Agency”) for the purpose of ensuring a high, uniform and effective level of maritime safety, maritime security, prevention of, and response to, pollution caused by ships as well as response to marine pollution caused by oil and gas installations.
  2.   To that end, the Agency shall cooperate with the Member States and the Commission and provide them with technical, operational and scientific assistance in the fields mentioned in paragraph 1 of this Article within the limits of the core tasks set out in Article 2 and, as and when applicable, the ancillary tasks set out in Article 2a, in particular in order to help the Member States and the Commission to apply the relevant legal acts of the Union properly. As regards the field of response to pollution, the Agency shall provide operational assistance only upon the request of the affected State(s).
  3.   By providing the assistance referred to in paragraph 2, the Agency shall, where appropriate, contribute to the overall efficiency of maritime traffic and maritime transport as set out in this Regulation, so as to facilitate the establishment of a European Maritime Transport Space without Barriers.
  Article 2
  Core tasks of the Agency
  1.   In order to ensure that the objectives set out in Article 1 are met in the appropriate manner, the Agency shall perform the core tasks listed in this Article.
  2.   The Agency shall assist the Commission:






  (a) | in the preparatory work for updating and developing relevant legal acts of the Union, in particular in line with the development of international legislation; |
| --- | --- | --- |

(1)

Articles 1 to 3 are replaced by the following:

‘Article 1

Objectives

1.   This Regulation establishes a European Maritime Safety Agency (“the Agency”) for the purpose of ensuring a high, uniform and effective level of maritime safety, maritime security, prevention of, and response to, pollution caused by ships as well as response to marine pollution caused by oil and gas installations.

2.   To that end, the Agency shall cooperate with the Member States and the Commission and provide them with technical, operational and scientific assistance in the fields mentioned in paragraph 1 of this Article within the limits of the core tasks set out in Article 2 and, as and when applicable, the ancillary tasks set out in Article 2a, in particular in order to help the Member States and the Commission to apply the relevant legal acts of the Union properly. As regards the field of response to pollution, the Agency shall provide operational assistance only upon the request of the affected State(s).

3.   By providing the assistance referred to in paragraph 2, the Agency shall, where appropriate, contribute to the overall efficiency of maritime traffic and maritime transport as set out in this Regulation, so as to facilitate the establishment of a European Maritime Transport Space without Barriers.

Article 2

Core tasks of the Agency

1.   In order to ensure that the objectives set out in Article 1 are met in the appropriate manner, the Agency shall perform the core tasks listed in this Article.

2.   The Agency shall assist the Commission:

(a)

in the preparatory work for updating and developing relevant legal acts of the Union, in particular in line with the development of international legislation;

| (b) | in the effective implementation of relevant binding legal acts of the Union, in particular by carrying-out visits and inspections as referred to in Article 3 of this Regulation and by providing technical assistance to the Commission in the performance of the inspection tasks assigned to it pursuant to Article 9(4) of Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (22). In this regard, it may address suggestions to the Commission for any possible improvements of those binding legal acts; |
| --- | --- |

(b)

in the effective implementation of relevant binding legal acts of the Union, in particular by carrying-out visits and inspections as referred to in Article 3 of this Regulation and by providing technical assistance to the Commission in the performance of the inspection tasks assigned to it pursuant to Article 9(4) of Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (22). In this regard, it may address suggestions to the Commission for any possible improvements of those binding legal acts;

| (c) | in the analysis of ongoing and completed research projects relevant to the objectives of the Agency; this may include the identification of possible follow-up measures resulting from specific research projects; |
| --- | --- |

(c)

in the analysis of ongoing and completed research projects relevant to the objectives of the Agency; this may include the identification of possible follow-up measures resulting from specific research projects;

| (d) | in the performance of any other task assigned to the Commission in legislative acts of the Union regarding the objectives of the Agency. |
| --- | --- |

(d)

in the performance of any other task assigned to the Commission in legislative acts of the Union regarding the objectives of the Agency.

3.   The Agency shall work with the Member States to:

| (a) | organise, where appropriate, relevant training activities in fields which are the responsibility of the Member States; |
| --- | --- |

(a)

organise, where appropriate, relevant training activities in fields which are the responsibility of the Member States;

| (b) | develop technical solutions, including the provision of relevant operational services, and provide technical assistance, to the building up of the necessary national capacity for the implementation of relevant legal acts of the Union; |
| --- | --- |

(b)

develop technical solutions, including the provision of relevant operational services, and provide technical assistance, to the building up of the necessary national capacity for the implementation of relevant legal acts of the Union;

| (c) | provide, at the request of a Member State, appropriate information resulting from the inspections referred to in Article 3 in order to support the monitoring of the recognised organisations that carry out certification tasks on behalf of the Member States in accordance with Article 9 of Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (23) without prejudice to the rights and obligations of the flag State; |
| --- | --- |

(c)

provide, at the request of a Member State, appropriate information resulting from the inspections referred to in Article 3 in order to support the monitoring of the recognised organisations that carry out certification tasks on behalf of the Member States in accordance with Article 9 of Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (23) without prejudice to the rights and obligations of the flag State;

| (d) | support with additional means in a cost-efficient way pollution response actions in case of pollution caused by ships as well as marine pollution caused by oil and gas installations, when a request has been presented by the affected Member State under the authority of which the cleaning operations are conducted, without prejudice to the responsibility of coastal States to have appropriate pollution response mechanisms in place while respecting existing cooperation between Member States in this field. As appropriate, requests for mobilisation of anti-pollution actions shall be relayed through the EU Civil Protection Mechanism established by Council Decision 2007/779/EC, Euratom (24). |
| --- | --- |

(d)

support with additional means in a cost-efficient way pollution response actions in case of pollution caused by ships as well as marine pollution caused by oil and gas installations, when a request has been presented by the affected Member State under the authority of which the cleaning operations are conducted, without prejudice to the responsibility of coastal States to have appropriate pollution response mechanisms in place while respecting existing cooperation between Member States in this field. As appropriate, requests for mobilisation of anti-pollution actions shall be relayed through the EU Civil Protection Mechanism established by Council Decision 2007/779/EC, Euratom (24).

4.   The Agency shall facilitate cooperation between the Member States and the Commission:

| (a) | in the field of traffic monitoring covered by Directive 2002/59/EC, the Agency shall in particular promote cooperation between riparian States in the shipping areas concerned, as well as develop and operate the European Union Long-Range Identification and Tracking of Ships European Data Centre and the Union Maritime Information and Exchange System (SafeSeaNet) as referred to in Articles 6b and 22a of that Directive as well as the International Long-Range Identification and Tracking information data exchange system in accordance with the commitment made in the International Maritime Organisation (“IMO”); |
| --- | --- |

(a)

in the field of traffic monitoring covered by Directive 2002/59/EC, the Agency shall in particular promote cooperation between riparian States in the shipping areas concerned, as well as develop and operate the European Union Long-Range Identification and Tracking of Ships European Data Centre and the Union Maritime Information and Exchange System (SafeSeaNet) as referred to in Articles 6b and 22a of that Directive as well as the International Long-Range Identification and Tracking information data exchange system in accordance with the commitment made in the International Maritime Organisation (“IMO”);

| (b) | by providing, upon request and without prejudice to national and Union law, relevant vessel positioning and earth observation data to the competent national authorities and relevant Union bodies within their mandate in order to facilitate measures against threats of piracy and of intentional unlawful acts as provided for in applicable Union law or under internationally agreed legal instruments in the area of maritime transport, subject to applicable data protection rules and in accordance with administrative procedures to be established by the Administrative Board or the High Level Steering Group established in accordance with Directive 2002/59/EC, as appropriate. The provision of long-range identification and tracking of ships data shall be subject to the consent of the flag State concerned; |
| --- | --- |

(b)

by providing, upon request and without prejudice to national and Union law, relevant vessel positioning and earth observation data to the competent national authorities and relevant Union bodies within their mandate in order to facilitate measures against threats of piracy and of intentional unlawful acts as provided for in applicable Union law or under internationally agreed legal instruments in the area of maritime transport, subject to applicable data protection rules and in accordance with administrative procedures to be established by the Administrative Board or the High Level Steering Group established in accordance with Directive 2002/59/EC, as appropriate. The provision of long-range identification and tracking of ships data shall be subject to the consent of the flag State concerned;

| (c) | in the field of the investigation of marine casualties and incidents in accordance with 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 (25); the Agency shall, if requested by the relevant Member States and assuming that no conflict of interest arises, provide operational support to these Member States concerning investigations related to serious or very serious casualties and it shall carry out analysis of safety investigation reports with a view to identify added value at Union level in terms of any relevant lessons to be drawn. On the basis of data provided by the Member States, in accordance with Article 17 of that Directive, the Agency shall compile a yearly overview of marine casualties and incidents; |
| --- | --- |

(c)

in the field of the investigation of marine casualties and incidents in accordance with 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 (25); the Agency shall, if requested by the relevant Member States and assuming that no conflict of interest arises, provide operational support to these Member States concerning investigations related to serious or very serious casualties and it shall carry out analysis of safety investigation reports with a view to identify added value at Union level in terms of any relevant lessons to be drawn. On the basis of data provided by the Member States, in accordance with Article 17 of that Directive, the Agency shall compile a yearly overview of marine casualties and incidents;

| (d) | in providing objective, reliable and comparable statistics, information and data, to enable the Commission and the Member States to take the necessary steps to improve their actions and to evaluate the effectiveness and cost-efficiency of existing measures. Such tasks shall include the collection, recording and evaluation of technical data, the systematic exploitation of existing databases, including their cross-fertilisation, and, where appropriate, the development of additional databases. On the basis of the data collected, the Agency shall assist the Commission in the publication of information relating to ships pursuant to Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (26); |
| --- | --- |

(d)

in providing objective, reliable and comparable statistics, information and data, to enable the Commission and the Member States to take the necessary steps to improve their actions and to evaluate the effectiveness and cost-efficiency of existing measures. Such tasks shall include the collection, recording and evaluation of technical data, the systematic exploitation of existing databases, including their cross-fertilisation, and, where appropriate, the development of additional databases. On the basis of the data collected, the Agency shall assist the Commission in the publication of information relating to ships pursuant to Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (26);

| (e) | in gathering and analysing data on seafarers provided and used in accordance with Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (27); |
| --- | --- |

(e)

in gathering and analysing data on seafarers provided and used in accordance with Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (27);

| (f) | in improving the identification and pursuit of ships making unlawful discharges in accordance with Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (28); |
| --- | --- |

(f)

in improving the identification and pursuit of ships making unlawful discharges in accordance with Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (28);

| (g) | regarding marine oil pollution caused by oil and gas installations, by using the European Satellite Oil Monitoring Service (CleanSeaNet) to monitor the extent and environmental impact of such pollution; |
| --- | --- |

(g)

regarding marine oil pollution caused by oil and gas installations, by using the European Satellite Oil Monitoring Service (CleanSeaNet) to monitor the extent and environmental impact of such pollution;

| (h) | in providing technical assistance necessary for the Member States and the Commission to contribute to the relevant work of the technical bodies of the IMO, the International Labour Organisation as far as shipping is concerned, and the Paris Memorandum of Understanding on Port State Control (“Paris MoU”) and relevant regional organisations to which the Union has acceded, with regard to matters of Union competence; |
| --- | --- |

(h)

in providing technical assistance necessary for the Member States and the Commission to contribute to the relevant work of the technical bodies of the IMO, the International Labour Organisation as far as shipping is concerned, and the Paris Memorandum of Understanding on Port State Control (“Paris MoU”) and relevant regional organisations to which the Union has acceded, with regard to matters of Union competence;

| (i) | with regard to the implementation of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States (29), in particular by facilitating the electronic transmission of data through SafeSeaNet and by supporting the development of the single window. |
| --- | --- |

(i)

with regard to the implementation of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States (29), in particular by facilitating the electronic transmission of data through SafeSeaNet and by supporting the development of the single window.

5.   The Agency may, upon the request of the Commission, provide technical assistance, including the organisation of relevant training activities, as regards relevant legal acts of the Union, to States applying for accession to the Union, and, where applicable, to European Neighbourhood partner countries and to countries taking part in the Paris MoU.

The Agency may also provide assistance in case of pollution caused by ships as well as marine pollution caused by oil and gas installations affecting those third countries sharing a regional sea basin with the Union, in line with the EU Civil Protection Mechanism established by Decision 2007/779/EC, Euratom, and by analogy with the conditions applicable to Member States as referred to in paragraph (3)(d) of this Article. These tasks shall be coordinated with the existing regional cooperation arrangements related to marine pollution.

Article 2a

Ancillary tasks of the Agency

1.   Without prejudice to the core tasks referred to in Article 2, the Agency shall assist the Commission and the Member States, as appropriate, in the development and implementation of the Union activities set out in paragraphs 2 and 3 of this Article related to the Agency’s objectives, in so far as the Agency has established and recognised expertise and tools. The ancillary tasks set out in this Article shall:

| (a) | create substantiated added value; |
| --- | --- |

(a)

create substantiated added value;

| (b) | avoid duplication of efforts; |
| --- | --- |

(b)

avoid duplication of efforts;

| (c) | be in the interest of the Union maritime transport policy; |
| --- | --- |

(c)

be in the interest of the Union maritime transport policy;

| (d) | not be detrimental to the Agency’s core tasks and |
| --- | --- |

(d)

not be detrimental to the Agency’s core tasks and

| (e) | not infringe upon Member States’ rights and obligations, in particular as flag States, port States and coastal States. |
| --- | --- |

(e)

not infringe upon Member States’ rights and obligations, in particular as flag States, port States and coastal States.

2.   The Agency shall assist the Commission:

| (a) | in the context of the implementation of Directive 2008/56/EC of the European Parliament and of the Council (Marine Strategy Framework Directive) (30), by contributing to the objective of achieving good environmental status of marine waters with its shipping related elements and in exploiting the results of existing tools such as SafeSeaNet and CleanSeaNet; |
| --- | --- |

(a)

in the context of the implementation of Directive 2008/56/EC of the European Parliament and of the Council (Marine Strategy Framework Directive) (30), by contributing to the objective of achieving good environmental status of marine waters with its shipping related elements and in exploiting the results of existing tools such as SafeSeaNet and CleanSeaNet;

| (b) | providing technical assistance in relation to greenhouse gas emissions from ships, in particular in following up ongoing international developments; |
| --- | --- |

(b)

providing technical assistance in relation to greenhouse gas emissions from ships, in particular in following up ongoing international developments;

| (c) | as concerns the Global Monitoring for Environment and Security programme (GMES), in promoting the use of GMES data and services for maritime purposes, within the GMES governance framework; |
| --- | --- |

(c)

as concerns the Global Monitoring for Environment and Security programme (GMES), in promoting the use of GMES data and services for maritime purposes, within the GMES governance framework;

| (d) | in the development of a Common Information Sharing Environment for the EU maritime domain; |
| --- | --- |

(d)

in the development of a Common Information Sharing Environment for the EU maritime domain;

| (e) | with respect to mobile offshore oil and gas installations, in examining IMO requirements and in gathering basic information on potential threats to maritime transport and the marine environment; |
| --- | --- |

(e)

with respect to mobile offshore oil and gas installations, in examining IMO requirements and in gathering basic information on potential threats to maritime transport and the marine environment;

| (f) | by providing relevant information with regard to classification societies for inland waterway vessels in accordance with Directive 2006/87/EC of the European Parliament and of the Council of 12 December 2006 laying down technical requirements for inland waterway vessels (31). This information shall also be part of the reports referred to in Article 3(4) and (5) of this Regulation. |
| --- | --- |

(f)

by providing relevant information with regard to classification societies for inland waterway vessels in accordance with Directive 2006/87/EC of the European Parliament and of the Council of 12 December 2006 laying down technical requirements for inland waterway vessels (31). This information shall also be part of the reports referred to in Article 3(4) and (5) of this Regulation.

3.   The Agency shall assist the Commission and the Member States:

| (a) | in the examination of the feasibility and the implementation of policies and projects supporting the establishment of the European Maritime Transport Space without Barriers, such as the Blue Belt concept and e-Maritime, as well as Motorways of the Sea. This shall be done in particular by exploring additional functionalities to SafeSeaNet, without prejudice to the role of the High Level Steering Group established in accordance with Directive 2002/59/EC; |
| --- | --- |

(a)

in the examination of the feasibility and the implementation of policies and projects supporting the establishment of the European Maritime Transport Space without Barriers, such as the Blue Belt concept and e-Maritime, as well as Motorways of the Sea. This shall be done in particular by exploring additional functionalities to SafeSeaNet, without prejudice to the role of the High Level Steering Group established in accordance with Directive 2002/59/EC;

| (b) | by exploring with competent authorities for the River Information Services System the possibility of sharing information between this system and maritime transport information systems on the basis of the report provided for in Article 15 of Directive 2010/65/EU; |
| --- | --- |

(b)

by exploring with competent authorities for the River Information Services System the possibility of sharing information between this system and maritime transport information systems on the basis of the report provided for in Article 15 of Directive 2010/65/EU;

| (c) | by facilitating voluntary exchange of best practices in maritime training and education in the Union and by providing information on Union exchange programmes relevant to maritime training while fully respecting Article 166 of the Treaty on the Functioning of the European Union (TFEU). |
| --- | --- |

(c)

by facilitating voluntary exchange of best practices in maritime training and education in the Union and by providing information on Union exchange programmes relevant to maritime training while fully respecting Article 166 of the Treaty on the Functioning of the European Union (TFEU).

Article 3

Visits to Member States and inspections

1.   In order to perform the tasks entrusted to it and to assist the Commission in fulfilling its duties under the TFEU, and in particular the assessment of the effective implementation of relevant Union law, the Agency shall carry out visits to Member States in accordance with the methodology established by the Administrative Board.

2.   The Agency shall inform the Member State concerned in good time of the planned visit, the names of the authorised officials, and the date on which the visit starts and its expected duration. The Agency officials delegated to carry out such visits shall do so on presentation of a decision in writing from the Executive Director of the Agency specifying the purpose and the aims of their mission.

3.   The Agency shall carry out inspections on behalf of the Commission as required by binding legal acts of the Union regarding organisations recognised by the Union in accordance with Regulation (EC) No 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (32), and regarding the training and certification of seafarers in third countries in accordance with Directive 2008/106/EC.

4.   At the end of each visit or inspection, the Agency shall draw up a report and send it to the Commission and to the Member State concerned.

5.   Where appropriate, and in any case when a cycle of visits or inspections is concluded, the Agency shall analyse reports from that cycle with a view to identifying horizontal findings and general conclusions on the effectiveness and cost-efficiency of the measures in place. The Agency shall present this analysis to the Commission for further discussion with Member States in order to draw any relevant lessons and facilitate the dissemination of good working practices.

| (2) | In Article 4, paragraphs 3 and 4 are replaced by the following:
  ‘3.   The Administrative Board shall adopt the practical arrangements for the application of paragraphs 1 and 2, including, where appropriate, arrangements regarding consultation with Member States before the publication of information.
  4.   The information collected and processed in accordance with this Regulation by the Commission and the Agency shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (33) and the Agency shall take the necessary measures to ensure the safe handling and processing of confidential information. |
| --- | --- |

(2)

In Article 4, paragraphs 3 and 4 are replaced by the following:

‘3.   The Administrative Board shall adopt the practical arrangements for the application of paragraphs 1 and 2, including, where appropriate, arrangements regarding consultation with Member States before the publication of information.

4.   The information collected and processed in accordance with this Regulation by the Commission and the Agency shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (33) and the Agency shall take the necessary measures to ensure the safe handling and processing of confidential information.

| (3) | In Article 5, paragraph 3 is replaced by the following:
  ‘3.   At the request of the Commission, the Administrative Board may decide, with the agreement of and in cooperation with the Member States concerned and with due regard to budgetary implications, including any contribution the Member States concerned may provide, to establish the regional centres necessary in order to carry out, in the most efficient and effective way, some of the Agency’s tasks. When taking such a decision, the Administrative Board shall define the precise scope of activities of the regional centre while avoiding unnecessary financial costs and enhancing cooperation with existing regional and national networks.’. |
| --- | --- |

(3)

In Article 5, paragraph 3 is replaced by the following:

‘3.   At the request of the Commission, the Administrative Board may decide, with the agreement of and in cooperation with the Member States concerned and with due regard to budgetary implications, including any contribution the Member States concerned may provide, to establish the regional centres necessary in order to carry out, in the most efficient and effective way, some of the Agency’s tasks. When taking such a decision, the Administrative Board shall define the precise scope of activities of the regional centre while avoiding unnecessary financial costs and enhancing cooperation with existing regional and national networks.’.

| (4) | In Article 10, paragraph 2 is amended as follows:






  (a) | point (b) is replaced by the following:






  ‘(b) | adopt the annual report on the Agency’s activities and forward it each year by 15 June to the European Parliament, the Council, the Commission, the Court of Auditors and the Member States.
  The Agency shall forward annually to the budgetary authority all information regarding the outcome of the evaluation procedures;’; |
| --- | --- | --- | --- |

(4)

In Article 10, paragraph 2 is amended as follows:

(a)

point (b) is replaced by the following:

‘(b)

adopt the annual report on the Agency’s activities and forward it each year by 15 June to the European Parliament, the Council, the Commission, the Court of Auditors and the Member States.

The Agency shall forward annually to the budgetary authority all information regarding the outcome of the evaluation procedures;’;

| (b) | point (c) is replaced by the following:






  ‘(c) | examine and approve, in the framework of the preparation of the work programme, requests for assistance to the Commission, as referred to in Article 2(2)(d), requests from Member States for technical assistance, as referred to in Article 2(3), and requests for technical assistance, as referred to in Article 2(5) as well as requests for assistance as referred to in Article 2a; |
| --- | --- | --- |

(b)

point (c) is replaced by the following:

‘(c)

examine and approve, in the framework of the preparation of the work programme, requests for assistance to the Commission, as referred to in Article 2(2)(d), requests from Member States for technical assistance, as referred to in Article 2(3), and requests for technical assistance, as referred to in Article 2(5) as well as requests for assistance as referred to in Article 2a;

| (ca) | examine and adopt a multi-annual strategy for the Agency for a period of five years taking the written opinion of the Commission into account; |
| --- | --- |

(ca)

examine and adopt a multi-annual strategy for the Agency for a period of five years taking the written opinion of the Commission into account;

| (cb) | examine and adopt the multi-annual staff policy plan of the Agency; |
| --- | --- |

(cb)

examine and adopt the multi-annual staff policy plan of the Agency;

| (cc) | consider draft administrative arrangements, as referred to in Article 15(2)(ba);’; |
| --- | --- |

(cc)

consider draft administrative arrangements, as referred to in Article 15(2)(ba);’;

| (c) | point (g) is replaced by the following:






  ‘(g) | establish the methodology for the visits to be carried out pursuant to Article 3. In the event that the Commission expresses, within 15 days from the date of adoption of the methodology, its disagreement, the Administrative Board shall re-examine and adopt it, possibly amended, in second reading either with a two-thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States;’; |
| --- | --- | --- |

(c)

point (g) is replaced by the following:

‘(g)

establish the methodology for the visits to be carried out pursuant to Article 3. In the event that the Commission expresses, within 15 days from the date of adoption of the methodology, its disagreement, the Administrative Board shall re-examine and adopt it, possibly amended, in second reading either with a two-thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States;’;

| (d) | point (h) is replaced by the following:






  ‘(h) | perform its duties in relation to the Agency’s budget pursuant to Articles 18, 19 and 21 and monitor and ensure adequate follow-up to the findings and recommendations stemming from various audit reports and evaluations, whether internal or external;’; |
| --- | --- | --- |

(d)

point (h) is replaced by the following:

‘(h)

perform its duties in relation to the Agency’s budget pursuant to Articles 18, 19 and 21 and monitor and ensure adequate follow-up to the findings and recommendations stemming from various audit reports and evaluations, whether internal or external;’;

| (e) | point (i) is replaced by the following:






  ‘(i) | exercise disciplinary authority over the Executive Director and the Heads of Department referred to in Article 16;’; |
| --- | --- | --- |

(e)

point (i) is replaced by the following:

‘(i)

exercise disciplinary authority over the Executive Director and the Heads of Department referred to in Article 16;’;

| (f) | point (l) is replaced by the following:






  ‘(l) | review the financial execution of the detailed plan referred to in point (k) of this paragraph and the budgetary commitments provided for in Regulation (EC) No 2038/2006 of the European Parliament and of the Council of 18 December 2006 on multi-annual funding for the action of the European Maritime Safety Agency in the field of response to pollution caused by ships (34); |
| --- | --- | --- |

(f)

point (l) is replaced by the following:

‘(l)

review the financial execution of the detailed plan referred to in point (k) of this paragraph and the budgetary commitments provided for in Regulation (EC) No 2038/2006 of the European Parliament and of the Council of 18 December 2006 on multi-annual funding for the action of the European Maritime Safety Agency in the field of response to pollution caused by ships (34);

| (g) | the following point is added:






  ‘(m) | appoint an observer from amongst its members to follow the selection procedure by the Commission for the appointment of the Executive Director.’ |
| --- | --- | --- |

(g)

the following point is added:

‘(m)

appoint an observer from amongst its members to follow the selection procedure by the Commission for the appointment of the Executive Director.’

| (5) | Article 11 is amended as follows:






  (a) | in paragraph 1, the second subparagraph is replaced by the following:
  ‘Administrative Board members shall be appointed on the basis of their degree of relevant experience and expertise in the fields referred to in Article 1. The Member States and the Commission shall each strive for a balanced representation between men and women on the Administrative Board.’; |
| --- | --- | --- |

(5)

Article 11 is amended as follows:

(a)

in paragraph 1, the second subparagraph is replaced by the following:

‘Administrative Board members shall be appointed on the basis of their degree of relevant experience and expertise in the fields referred to in Article 1. The Member States and the Commission shall each strive for a balanced representation between men and women on the Administrative Board.’;

| (b) | paragraph 3 is replaced by the following:
  ‘3.   The duration of the term of office shall be four years. The term of office may be renewed.’. |
| --- | --- |

(b)

paragraph 3 is replaced by the following:

‘3.   The duration of the term of office shall be four years. The term of office may be renewed.’.

| (6) | In Article 13, paragraph 4 is replaced by the following:
  ‘4.   When there is a matter of confidentiality or conflict of interest, the Administrative Board may decide to examine specific items of its agenda without the presence of the members concerned. Detailed rules for the application of this provision shall be laid down in the rules of procedure.’. |
| --- | --- |

(6)

In Article 13, paragraph 4 is replaced by the following:

‘4.   When there is a matter of confidentiality or conflict of interest, the Administrative Board may decide to examine specific items of its agenda without the presence of the members concerned. Detailed rules for the application of this provision shall be laid down in the rules of procedure.’.

| (7) | Article 15 is amended as follows:






  (a) | in paragraph 2, points (a) and (b) are replaced by the following:






  ‘(a) | he/she shall prepare the multi-annual strategy of the Agency and submit it to the Administrative Board after consultation of the Commission at least eight weeks before the relevant Administrative Board meeting, taking into account views and suggestions made by members of the Administrative Board; |
| --- | --- | --- | --- |

(7)

Article 15 is amended as follows:

(a)

in paragraph 2, points (a) and (b) are replaced by the following:

‘(a)

he/she shall prepare the multi-annual strategy of the Agency and submit it to the Administrative Board after consultation of the Commission at least eight weeks before the relevant Administrative Board meeting, taking into account views and suggestions made by members of the Administrative Board;

| (aa) | he/she shall prepare the multi-annual staff policy plan of the Agency and submit it to the Administrative Board after consultation of the Commission at least four weeks before the relevant Administrative Board meeting; |
| --- | --- |

(aa)

he/she shall prepare the multi-annual staff policy plan of the Agency and submit it to the Administrative Board after consultation of the Commission at least four weeks before the relevant Administrative Board meeting;

| (ab) | he/she shall prepare the annual work programme, with an indication of the expected human and financial resources allocated to each activity, and the detailed plan for the Agency’s pollution preparedness and response activities, and submit them to the Administrative Board after consultation of the Commission at least eight weeks before the relevant Board meeting, taking into account views and suggestions made by members of the Administrative Board. He/she shall take the necessary steps for their implementation. He/she shall respond to any requests for assistance from a Member State in accordance with Article 10(2)(c); |
| --- | --- |

(ab)

he/she shall prepare the annual work programme, with an indication of the expected human and financial resources allocated to each activity, and the detailed plan for the Agency’s pollution preparedness and response activities, and submit them to the Administrative Board after consultation of the Commission at least eight weeks before the relevant Board meeting, taking into account views and suggestions made by members of the Administrative Board. He/she shall take the necessary steps for their implementation. He/she shall respond to any requests for assistance from a Member State in accordance with Article 10(2)(c);

| (b) | he/she shall decide to carry out the visits and inspections provided for in Article 3, after consultation of the Commission and following the methodology for visits established by the Administrative Board in accordance with Article 10(2)(g); |
| --- | --- |

(b)

he/she shall decide to carry out the visits and inspections provided for in Article 3, after consultation of the Commission and following the methodology for visits established by the Administrative Board in accordance with Article 10(2)(g);

| (ba) | he/she may enter into administrative arrangements with other bodies working in the Agency’s fields of activities provided that the draft arrangement has been submitted for consultation to the Administrative Board and provided that the Administrative Board does not object within four weeks.’; |
| --- | --- |

(ba)

he/she may enter into administrative arrangements with other bodies working in the Agency’s fields of activities provided that the draft arrangement has been submitted for consultation to the Administrative Board and provided that the Administrative Board does not object within four weeks.’;

| (b) | in paragraph 2, point (d) is replaced by the following:






  ‘(d) | he/she shall organise an effective monitoring system in order to be able to compare the Agency’s achievements with its objectives and tasks as laid down in this Regulation. To this end, he/she shall establish, in agreement with the Commission and the Administrative Board, tailored performance indicators allowing for an effective assessment of the results achieved. He/she shall ensure that the Agency’s organisational structure will be regularly adapted to the evolving needs within the available financial and human resources. On this basis the Executive Director shall prepare a draft general report each year and submit it for consideration by the Administrative Board. The report shall include a dedicated section concerning the financial execution of the detailed plan for the Agency’s pollution preparedness and response activities and give an update of the status of all actions funded under that plan. He/she shall establish regular evaluation procedures that meet recognised professional standards;’; |
| --- | --- | --- |

(b)

in paragraph 2, point (d) is replaced by the following:

‘(d)

he/she shall organise an effective monitoring system in order to be able to compare the Agency’s achievements with its objectives and tasks as laid down in this Regulation. To this end, he/she shall establish, in agreement with the Commission and the Administrative Board, tailored performance indicators allowing for an effective assessment of the results achieved. He/she shall ensure that the Agency’s organisational structure will be regularly adapted to the evolving needs within the available financial and human resources. On this basis the Executive Director shall prepare a draft general report each year and submit it for consideration by the Administrative Board. The report shall include a dedicated section concerning the financial execution of the detailed plan for the Agency’s pollution preparedness and response activities and give an update of the status of all actions funded under that plan. He/she shall establish regular evaluation procedures that meet recognised professional standards;’;

| (c) | in paragraph 2, point (g) is deleted; |
| --- | --- |

(c)

in paragraph 2, point (g) is deleted;

| (d) | paragraph 3 is replaced by the following:
  ‘(3)   The Executive Director shall, as appropriate, report to the European Parliament and the Council on the carrying out of his/her tasks.
  In particular, he/she shall present the state of play with regard to the preparation of the multi-annual strategy and the annual work programme.’. |
| --- | --- |

(d)

paragraph 3 is replaced by the following:

‘(3)   The Executive Director shall, as appropriate, report to the European Parliament and the Council on the carrying out of his/her tasks.

In particular, he/she shall present the state of play with regard to the preparation of the multi-annual strategy and the annual work programme.’.

| (8) | Article 16 is replaced by the following:
  ‘Article 16
  Appointment and dismissal of the Executive Director and the Heads of Department
  1.   The Executive Director shall be appointed and dismissed by the Administrative Board. The appointment shall be made for a period of five years on grounds of merit and documented administrative and managerial competence, as well as documented experience in the fields referred to in Article 1 after hearing the opinion of the observer as referred to in Article 10. The Executive Director shall be appointed from a list of at least three candidates proposed by the Commission after an open competition, following publication of the post in the Official Journal of the European Union, and elsewhere, of a call for expression of interest. The candidate selected by the Administrative Board may be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members. The Administrative Board shall deliberate on dismissal at the request of the Commission or of one third of its members. The Administrative Board shall take its decisions on appointment or dismissal by a four-fifths majority of all members with the right to vote.
  2.   The Administrative Board, acting on a proposal from the Commission, taking into account the evaluation report may extend once the term of office of the Executive Director for not more than four years. The Administrative Board shall take its decision by a four-fifths majority of all members with the right to vote. The Administrative Board shall inform the European Parliament about its intention to extend the Executive Director’s term of office. Within a month before the extension of his/her term of office, the Executive Director may be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members. If the term of office is not extended, the Executive Director shall remain in office until the appointment of his/her successor.
  3.   The Executive Director may be assisted by one or more Heads of Department. If the Executive Director is absent or indisposed, one of the Heads of Department shall take his/her place.
  4.   The Heads of Department shall be appointed on grounds of merit and documented administrative and managerial skills, as well as professional competence and experience in the fields referred to in Article 1. The Heads of Department shall be appointed or dismissed by the Executive Director after having received a positive opinion of the Administrative Board.’. |
| --- | --- |

(8)

Article 16 is replaced by the following:

‘Article 16

Appointment and dismissal of the Executive Director and the Heads of Department

1.   The Executive Director shall be appointed and dismissed by the Administrative Board. The appointment shall be made for a period of five years on grounds of merit and documented administrative and managerial competence, as well as documented experience in the fields referred to in Article 1 after hearing the opinion of the observer as referred to in Article 10. The Executive Director shall be appointed from a list of at least three candidates proposed by the Commission after an open competition, following publication of the post in the Official Journal of the European Union, and elsewhere, of a call for expression of interest. The candidate selected by the Administrative Board may be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members. The Administrative Board shall deliberate on dismissal at the request of the Commission or of one third of its members. The Administrative Board shall take its decisions on appointment or dismissal by a four-fifths majority of all members with the right to vote.

2.   The Administrative Board, acting on a proposal from the Commission, taking into account the evaluation report may extend once the term of office of the Executive Director for not more than four years. The Administrative Board shall take its decision by a four-fifths majority of all members with the right to vote. The Administrative Board shall inform the European Parliament about its intention to extend the Executive Director’s term of office. Within a month before the extension of his/her term of office, the Executive Director may be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members. If the term of office is not extended, the Executive Director shall remain in office until the appointment of his/her successor.

3.   The Executive Director may be assisted by one or more Heads of Department. If the Executive Director is absent or indisposed, one of the Heads of Department shall take his/her place.

4.   The Heads of Department shall be appointed on grounds of merit and documented administrative and managerial skills, as well as professional competence and experience in the fields referred to in Article 1. The Heads of Department shall be appointed or dismissed by the Executive Director after having received a positive opinion of the Administrative Board.’.

| (9) | Article 18 is amended as follows:






  (a) | in paragraph 1, point (c) is replaced by the following:






  ‘(c) | fees and charges for publications, training and/or any other services provided by the Agency.’; |
| --- | --- | --- | --- |

(9)

Article 18 is amended as follows:

(a)

in paragraph 1, point (c) is replaced by the following:

‘(c)

fees and charges for publications, training and/or any other services provided by the Agency.’;

| (b) | paragraph 3 is replaced by the following:
  ‘3.   The Executive Director shall draw up a draft statement of estimates of the Agency’s revenue and expenditure for the following year, on the basis of activity-based budgeting, and shall forward it to the Administrative Board, together with a draft establishment plan.’; |
| --- | --- |

(b)

paragraph 3 is replaced by the following:

‘3.   The Executive Director shall draw up a draft statement of estimates of the Agency’s revenue and expenditure for the following year, on the basis of activity-based budgeting, and shall forward it to the Administrative Board, together with a draft establishment plan.’;

| (c) | paragraphs 7 and 8 are replaced by the following:
  ‘7.   The statement of estimates shall be forwarded by the Commission to the European Parliament and the Council (the “budgetary authority”) together with the draft general budget of the European Union.
  8.   On the basis of the statement of estimates, the Commission shall enter in the draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 314 TFEU, together with a description of and justification for any difference between the Agency’s statement of estimates and the subsidy to be charged to the general budget.’; |
| --- | --- |

(c)

paragraphs 7 and 8 are replaced by the following:

‘7.   The statement of estimates shall be forwarded by the Commission to the European Parliament and the Council (the “budgetary authority”) together with the draft general budget of the European Union.

8.   On the basis of the statement of estimates, the Commission shall enter in the draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 314 TFEU, together with a description of and justification for any difference between the Agency’s statement of estimates and the subsidy to be charged to the general budget.’;

| (d) | paragraph 10 is replaced by the following:
  ‘10.   The budget shall be adopted by the Administrative Board. It shall become final following final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly, together with the annual work programme.’. |
| --- | --- |

(d)

paragraph 10 is replaced by the following:

‘10.   The budget shall be adopted by the Administrative Board. It shall become final following final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly, together with the annual work programme.’.

| (10) | Article 22 is replaced by the following:
  ‘Article 22
  Evaluation
  1.   At regular intervals and at least every five years, the Administrative Board shall commission an independent external evaluation on the implementation of this Regulation. The Commission shall make available to the Agency any information the latter considers relevant to that evaluation.
  2.   The evaluation shall assess the impact of this Regulation as well as the utility, relevance, achieved added value and effectiveness of the Agency and its working practices. The evaluation shall take into account the views of stakeholders, at both European and national level. It shall, in particular, address the possible need to modify the Agency’s tasks. The Administrative Board shall issue specific terms of reference in agreement with the Commission, following consultations with the parties involved.
  3.   The Administrative Board shall receive the evaluation and issue recommendations regarding changes to this Regulation, the Agency and its working practices to the Commission. Both the evaluation findings and recommendations shall be forwarded by the Commission to the European Parliament and the Council and shall be made public. An action plan with a timetable shall be included, if appropriate.’; |
| --- | --- |

(10)

Article 22 is replaced by the following:

‘Article 22

Evaluation

1.   At regular intervals and at least every five years, the Administrative Board shall commission an independent external evaluation on the implementation of this Regulation. The Commission shall make available to the Agency any information the latter considers relevant to that evaluation.

2.   The evaluation shall assess the impact of this Regulation as well as the utility, relevance, achieved added value and effectiveness of the Agency and its working practices. The evaluation shall take into account the views of stakeholders, at both European and national level. It shall, in particular, address the possible need to modify the Agency’s tasks. The Administrative Board shall issue specific terms of reference in agreement with the Commission, following consultations with the parties involved.

3.   The Administrative Board shall receive the evaluation and issue recommendations regarding changes to this Regulation, the Agency and its working practices to the Commission. Both the evaluation findings and recommendations shall be forwarded by the Commission to the European Parliament and the Council and shall be made public. An action plan with a timetable shall be included, if appropriate.’;

| (11) | The following Article is inserted:
  ‘Article 22a
  Progress report
  By ... (35), and taking into account the evaluation report referred to in Article 22, the Commission shall submit a report to the European Parliament and the Council setting out how the Agency has undertaken the additional responsibilities assigned by this Regulation with a view to identifying further efficiency gains and, if necessary, the case for modifying its objectives and tasks. |
| --- | --- |

(11)

The following Article is inserted:

‘Article 22a

Progress report

By ... (35), and taking into account the evaluation report referred to in Article 22, the Commission shall submit a report to the European Parliament and the Council setting out how the Agency has undertaken the additional responsibilities assigned by this Regulation with a view to identifying further efficiency gains and, if necessary, the case for modifying its objectives and tasks.

| (12) | Article 23 is deleted. |
| --- | --- |

(12)

Article 23 is deleted.

Article 2

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 107, 6.4.2011, p. 68.

1

(2)  Position of the European Parliament of 15 December 2011 (not yet published on the Official Journal) and Position of the Council at first reading of 4 October 2012. Position of the European Parliament of ....

2

(3)  OJ L 208, 5.8.2002, p. 1.

3

(4)  OJ L 129, 29.4.2004, p. 6.

4

(5)  OJ L 283, 29.10.2010, p. 1.

5

(6)  OJ L 332, 28.12.2000, p. 1.

6

(7)  OJ L 255, 30.9.2005, p. 11.

7

(8)  OJ L 314, 1.12.2007, p. 9.

8

(9)  OJ L 131, 28.5.2009, p. 57.

9

(10)  Council Decision 94/157/EC (OJ L 73, 16.3.1994, p. 19).

10

(11)  Council Decision 77/585/EEC (OJ L 240, 19.9.1977, p. 1).

11

(12)  Council Decision 1999/802/EC (OJ L 322, 14.12.1999, p. 32).

12

(13)  Council Decision 84/358/EEC (OJ L 188, 16.7.1984, p. 7).

13

(14)  Council Decision 98/249/EC (OJ L 104, 3.4.1998, p. 1).

14

(15)  Council Decision 93/550/EEC (OJ L 267, 28.10.1993, p. 20).

15

(16)  Council Decision 2010/655/EU (OJ L 285, 30.10.2010, p. 1).

16

(17)  OJ L 131, 28.5.2009, p. 11.

17

(18)  OJ L 323, 3.12.2008, p. 33.

18

(19)  OJ L 98, 10.4.2008, p. 5.

19

(20)  OJ L 8, 12.1.2001, p. 1.

20

(21)  OJ L 248, 16.9.2002, p. 1.

21

(22)

22

| (1*) | OJ L 129, 29.4.2004, p. 6. |
| --- | --- |

(1*)

OJ L 129, 29.4.2004, p. 6.

(23)

23

| (2*) | OJ L 131, 28.5.2009, p. 47. |
| --- | --- |

(2*)

OJ L 131, 28.5.2009, p. 47.

(24)

24

| (3*) | OJ L 314, 1.12.2007, p. 9. |
| --- | --- |

(3*)

OJ L 314, 1.12.2007, p. 9.

(25)

25

| (4*) | OJ L 131, 28.5.2009, p. 114. |
| --- | --- |

(4*)

OJ L 131, 28.5.2009, p. 114.

(26)

26

| (5*) | OJ L 131, 28.5.2009, p. 57. |
| --- | --- |

(5*)

OJ L 131, 28.5.2009, p. 57.

(27)

27

| (6*) | OJ L 323, 3.12.2008, p. 33. |
| --- | --- |

(6*)

OJ L 323, 3.12.2008, p. 33.

(28)

28

| (7*) | OJ L 255, 30.9.2005, p. 11. |
| --- | --- |

(7*)

OJ L 255, 30.9.2005, p. 11.

(29)

29

| (8*) | OJ L 283, 29.10.2010, p. 1. |
| --- | --- |

(8*)

OJ L 283, 29.10.2010, p. 1.

(30)

30

| (9*) | OJ L 164, 25.6.2008, p. 19. |
| --- | --- |

(9*)

OJ L 164, 25.6.2008, p. 19.

(31)

31

| (10*) | OJ L 389, 30.12.2006, p. 1. |
| --- | --- |

(10*)

OJ L 389, 30.12.2006, p. 1.

(32)

32

| (11*) | OJ L 131, 28.5.2009, p. 11.’. |
| --- | --- |

(11*)

OJ L 131, 28.5.2009, p. 11.’.

(33)  OJ L 8, 12.1.2001, p. 1.’.

33

(34)  OJ L 394, 30.12.2006, p. 1.’;

34

(35)  Five years after the entry into force of this Regulation.’.

35

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

On 28 October 2010, the Commission presented the proposal for a Regulation (EU) [.../....] of the European Parliament and of the Council amending Regulation (EC) No 1406/2002 establishing a European Maritime Safety Agency (1).

The proposal was the subject of a progress report to the Council (Transport, Telecommunications and Energy) on 31 March 2011. Two questions were put to ministers in order to obtain some guidance for the examination of the proposal by the Council’s preparatory bodies (2).

On 16 June 2011, the Council (Transport, Telecommunications and Energy) adopted a general approach on the proposal (3).

On 15 December 2011, the European Parliament voted on its position at first reading (4).

Following the vote in the European Parliament, negotiations took place between the European Parliament, the Council and the Commission with a view to reaching an agreement on the proposal. Agreement was reached on 12 April 2012 and was subsequently endorsed by the Committee of Permanent Representatives on 17 April 2012 and by the European Parliament Committee on Transport and Tourism (TRAN) on 24 April 2012.

Taking the above agreement into account and following legal and linguistic revision, the Council adopted its position at first reading on 4 October 2012, in accordance with the ordinary legislative procedure laid down in Article 294 of the Treaty on the Functioning of the European Union (TFEU).

In carrying out its work, the Council took due account of the opinion of the European Economic and Social Committee (5). The Committee of the Regions declined to give an opinion.

II.   ANALYSIS OF THE POSITION AT FIRST READING

1.   General

The proposed Regulation aims to expand the European Maritime Safety Agency’s (EMSA) tasks to reflect new needs and developments at Union and international level, in particular needs arising from the adoption of the “third maritime safety package”. Another objective is to adapt the governance structure of the Agency, particularly in the light of an external evaluation commissioned in 2007.

Although the Council agrees with the Commission as regards the objective of the proposal, namely to adapt EMSA’s tasks and governance structure to new circumstances, the Council’s position involves major adjustments to the original proposal. In particular, the Council considers that the Commission proposal did not take sufficient account of the need to keep EMSA focused on its core business - maritime safety. In the Council’s view, it is particularly important at a time of limited financial and human resources not to disperse those resources over too many new tasks; EMSA’s activities should, instead, concentrate on those areas in which the Agency has established and recognised expertise and tools. Therefore, the Council has chosen an approach clearly setting out the objectives of the Agency. Furthermore, the Agency’s tasks are separated into core tasks and ancillary tasks. Ancillary tasks would only be carried out by the Agency after a thorough examination of cost-effectiveness.

As a result of this approach, the Council’s position at first reading significantly modifies the original Commission proposal, rewording it and deleting several provisions.

2.   The Council’s position on the Parliament’s amendments on certain key issues

(i)   The Agency’s objectives

The Parliament proposed that the Agency should provide the Member States and the Commission with the technical and scientific assistance needed and with a high level of expertise, in order to help them to apply Union legislation properly with a view to ensuring a high, uniform and efficient level of maritime safety and security, using their existing capabilities for assistance, preventing and tackling marine pollution, including from offshore oil and gas installations, and developing a European Maritime Transport Space without Barriers (amendment 29). The objectives represent the primary responsibilities of the Agency and must be met as a priority (amendment 30).

The Council welcomes the clear description of the Agency’s objectives proposed by the Parliament, and the prioritisation of tasks. In essence, both amendments go in the same direction as the Council’s general approach. Furthermore, the Council can see the usefulness of making facilitating the establishment of the European Maritime Transport Space without Barriers an overall objective for the Agency’s activities, where appropriate.

However, the Council is not willing to accept the extension of the Agency’s tasks to cover prevention of pollution from offshore oil and gas installations (see point 2(ii)(c) below), and therefore that part of the Parliament’s amendment is not included in the Council position. Moreover, clearer prioritisation of tasks is important for the Council, and therefore its position makes a distinction between core tasks and ancillary tasks.

(ii)   The Agency’s tasks

The Parliament proposed a number of new tasks for the Agency, the most important of which relate to training of seafarers, combating “illegal traffic” and acts of piracy and pollution from offshore oil and gas installations.

(a)   Training of seafarers

The initial Commission proposal did not provide for any specific EMSA tasks with regard to the training of seafarers. In its general approach, the Council did not amend the Commission proposal in this respect.

The Parliament, however, proposed several amendments with a view to involving the Agency in the training of seafarers:

| — | The Agency should assist the Commission in the development and implementation of a policy to enhance the quality of the training of European seafarers, and in promoting maritime careers (amendment 35). |
| --- | --- |

—

The Agency should assist the Commission in the development and implementation of a policy to enhance the quality of the training of European seafarers, and in promoting maritime careers (amendment 35).

| — | The Agency should work with the Member States to gather and analyse data on the qualifications and employment of seafarers so as to share best practice in the training of seafarers across Europe (amendment 41), to coordinate the training schools’ programmes to ensure consistency (amendment 42) and to facilitate the establishment of Erasmus-type exchanges between maritime training institutions (amendment 43). |
| --- | --- |

—

The Agency should work with the Member States to gather and analyse data on the qualifications and employment of seafarers so as to share best practice in the training of seafarers across Europe (amendment 41), to coordinate the training schools’ programmes to ensure consistency (amendment 42) and to facilitate the establishment of Erasmus-type exchanges between maritime training institutions (amendment 43).

| — | An appropriate recital covering the above tasks should be inserted (amendment 20). |
| --- | --- |

—

An appropriate recital covering the above tasks should be inserted (amendment 20).

The Council can agree with the Parliament that EMSA could play a role in matters relating to the training of seafarers, but that should not be part of its core tasks, except as far as statistics are concerned, and it should fully respect the responsibility of the Member States for the content and organisation of vocational training (Article 166 TFEU). This is reflected in the Council position in the following way:

| — | As a core task, the Agency must facilitate cooperation between the Member States and the Commission in gathering and analysing data on seafarers provided and used in accordance with Directive 2008/106/EC on the minimum level of training of seafarers (6) (Article 2(4)(e)). |
| --- | --- |

—

As a core task, the Agency must facilitate cooperation between the Member States and the Commission in gathering and analysing data on seafarers provided and used in accordance with Directive 2008/106/EC on the minimum level of training of seafarers (6) (Article 2(4)(e)).

| — | As an ancillary task, the Agency must, where appropriate, assist the Commission and the Member States by facilitating voluntary exchange of best practices in maritime training and education in the Union and by providing information on Union exchange programmes relevant to maritime training, while fully respecting Article 166 TFEU (Article 2a(3)(c)). This provision is further explained in recital 31. |
| --- | --- |

—

As an ancillary task, the Agency must, where appropriate, assist the Commission and the Member States by facilitating voluntary exchange of best practices in maritime training and education in the Union and by providing information on Union exchange programmes relevant to maritime training, while fully respecting Article 166 TFEU (Article 2a(3)(c)). This provision is further explained in recital 31.

(b)   Piracy

As in the case of training for seafarers, the Commission did not provide for any role for EMSA with regard to combating piracy or other unlawful acts directed at maritime transport. In its general approach, the Council did not amend the Commission proposal in this respect.

The Parliament, on the other hand, considered that combating piracy and “illegal traffic” should be a core task for the Agency. To that end, the Parliament introduced three amendments:

| — | the Agency’s data monitoring and collection should also gather basic information for example on piracy (amendment 21); |
| --- | --- |

—

the Agency’s data monitoring and collection should also gather basic information for example on piracy (amendment 21);

| — | the Agency should forward to the EU Naval Force operation Atalanta detailed information about the position of EU-flag vessels transiting through certain dangerous areas (amendment 22); |
| --- | --- |

—

the Agency should forward to the EU Naval Force operation Atalanta detailed information about the position of EU-flag vessels transiting through certain dangerous areas (amendment 22);

| — | the Agency should support the actions taken by the Commission and Member States to combat illegal traffic and acts of piracy (amendment 45). |
| --- | --- |

—

the Agency should support the actions taken by the Commission and Member States to combat illegal traffic and acts of piracy (amendment 45).

The Council is well aware of the increasing threat of acts of piracy and other unlawful acts against maritime transport, and the Agency does have certain data at its disposal that could be useful in this respect. The Council position reflects this by including among the Agency’s core tasks the provision of relevant vessel positioning and earth observation data to competent national authorities and relevant Union bodies in order to facilitate measures against threats of piracy and of intentional unlawful acts. It should be noted that data should only be provided upon request, without prejudice to national and Union law, subject to applicable data protection rules and in accordance with administrative procedures to be established either by the Agency’s Administrative Board or, in certain cases, by the High Level Steering Group set up in accordance with Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system (7) (Article 2(4)(b)). The provision of long range identification and tracking of ships data will also be subject to the consent of the flag State concerned (last sentence of Article 2(4)(b)). The Council considers it particularly important to use the term “intentional unlawful acts”, which is well established and defined in Union and international law. Furthermore, the Council position makes particular reference to the protection of data, and consequently introduces some amendments to Article 4 on the safe handling and processing of confidential information, to which neither the Commission nor the Parliament made any reference.

Finally, recital 32 contains further elements for the interpretation of the above provisions.

(c)   Pollution from offshore oil and gas installations

The Commission’s initial proposal gave EMSA a limited role in the analysis of the safety of mobile offshore gas and oil installations. In its general approach, the Council made this an ancillary task consisting in assisting the Commission in the examination of IMO requirements and in gathering basic information on potential threats to maritime transport and the marine environment. The Council specified that EMSA should not carry out any inspection activities or any activities specifically relating to the exploration or exploitation of mineral resources.

The Parliament, on the other hand, adopted numerous amendments concerning such prevention of pollution. It proposed in particular:

| — | deleting the words “caused by ships” from references in the proposal to prevention of pollution (amendments 29, 30, 71 and 73); |
| --- | --- |

—

deleting the words “caused by ships” from references in the proposal to prevention of pollution (amendments 29, 30, 71 and 73);

| — | deleting the word “mobile” from the references to analysing the safety of offshore oil and gas installations (amendments 14 and 33); |
| --- | --- |

—

deleting the word “mobile” from the references to analysing the safety of offshore oil and gas installations (amendments 14 and 33);

| — | referring to the value of the Agency’s expertise in the development of guidance on the licensing of oil and gas exploration and production (amendment 24); |
| --- | --- |

—

referring to the value of the Agency’s expertise in the development of guidance on the licensing of oil and gas exploration and production (amendment 24);

| — | making preventing and tackling marine pollution, including from offshore oil and gas installations, an objective of EMSA (amendment 29); |
| --- | --- |

—

making preventing and tackling marine pollution, including from offshore oil and gas installations, an objective of EMSA (amendment 29);

| — | having EMSA provide assistance relating to the licensing of oil and gas exploration and production (amendment 37); |
| --- | --- |

—

having EMSA provide assistance relating to the licensing of oil and gas exploration and production (amendment 37);

| — | having EMSA assist the Member States during accident investigations involving coastal and offshore maritime installations, including accidents affecting oil and gas installations (amendment 47); |
| --- | --- |

—

having EMSA assist the Member States during accident investigations involving coastal and offshore maritime installations, including accidents affecting oil and gas installations (amendment 47);

| — | having EMSA facilitate cooperation in assessing Member States’ arrangements concerning emergency response plans and emergency preparedness with respect to offshore oil and gas installations (amendment 49); |
| --- | --- |

—

having EMSA facilitate cooperation in assessing Member States’ arrangements concerning emergency response plans and emergency preparedness with respect to offshore oil and gas installations (amendment 49);

| — | having EMSA facilitate cooperation in ensuring independent third party oversight of the maritime aspects related to safety, prevention, protection of the environment, and contingency planning (amendment 50). |
| --- | --- |

—

having EMSA facilitate cooperation in ensuring independent third party oversight of the maritime aspects related to safety, prevention, protection of the environment, and contingency planning (amendment 50).

In line with what the Commission proposed, the Council believes it is feasible and appropriate to give EMSA a role in the response to marine pollution from offshore installations. The Agency has the response capabilities to conduct clean-up operations following an oil spill, regardless of whether the pollution is caused by a ship or by an offshore installation. Furthermore, it also has the required expertise in the field of pollution by other hazardous and noxious substances to assist States affected by such pollution. However, the Council considers it premature to give the Agency an increased role in the prevention of pollution from offshore oil and gas installations. As stated above, EMSA should focus its activities on areas where it has established and recognised expertise and tools. Consequently, the Council position does not include the Parliament amendments on this issue.

Nevertheless, some of the Parliament’s concerns are addressed in the Council position. In particular, the Council introduces a new, broader understanding of marine pollution, covering not only oil but also other hazardous and noxious substances (recital 3). The Agency’s core tasks will include using its CleanSeaNet service to monitor the extent and environmental impact of marine oil pollution caused by oil and gas installations (Article 2(4)(g) and recital 22), which is also in line with Parliament amendments 15 and 48. As an ancillary task, the Agency could, where appropriate, assist the Commission in the examination of IMO requirements and in the gathering of basic information on potential threats to maritime transport and the marine environment (Article 2a(2)(e)).

Finally, in the framework of a progress report, the Commission is invited to examine the Agency’s potential contribution to the implementation of a future legislative act on the safety of offshore oil and gas prospection, exploration and production activities, with regard to the prevention of pollution from offshore oil and gas installations, taking into account the Agency’s established and recognised expertise and tools (recital 44).

(d)   Other new tasks assigned to the Agency

The Council has taken Parliament amendment 38 into account, with slight changes, giving the Agency the task of providing, at the request of a Member State, appropriate information resulting from EMSA’s inspections of recognised organisations in order to support the monitoring of the recognised organisations that carry out certification tasks on behalf of the Member States in accordance with Article 9 of Directive 2009/15/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (8), without prejudice to the rights and obligations of the flag State (Article 2(3)(c)). The Council considers that such information-sharing by the Agency could be of added value for the requesting Member State.

The Parliament tabled a number of amendments concerning the establishment of a European Maritime Transport Space without Barriers and closely related matters, such as e-Maritime and the Blue Belt project (amendments 12, 16, 17, 19, 27, 29 and 33).

The Parliament proposed that the Agency should assist the Commission in the development and implementation of the Blue Belt project (amendments 16, 17 and 33). The Council had already included a similar provision in its general approach, but as an ancillary task. The Blue Belt concept is thus included among the ancillary tasks in Article 2a(3)(a), as one of the policies and projects supporting the establishment of the European Maritime Transport Space without Barriers.

Furthermore, in addition to being listed among the objectives of the Agency (Article 1(3)), the European Maritime Transport Space without Barriers is also mentioned in the Council position in Article 2a(3)(a) and recitals 15, 17, 28 and 45. As a means of achieving this space without barriers, the Council considers Directive 2010/65/EU on reporting formalities for ships arriving in and/or departing from ports of the Member States (9) to be of particular importance and therefore the Agency will, as one of its core tasks, facilitate cooperation between the Member States and the Commission by facilitating the electronic transmission of data through SafeSeaNet and by supporting the development of the single window (Article 2(4)(i)). It will also support Member States in the implementation of that Directive (recital 15).

Contrary to the Commission proposal and the Council’s general approach, the Parliament proposed that the Agency should not be involved in tasks relating to inland waterways. However, the Council considers that it could be useful to give the Agency limited, well-defined ancillary tasks in providing relevant information with regard to classification societies for inland waterway vessels (Article 2a(2)(f) and recital 25) and in exploring the possibility of sharing information between the River Information Services System and maritime transport information systems (Article 2a(3)(b) and recital 26). Therefore, the Council position does not include this part of Parliament amendment 33.

(iii)   Governance structure of the Agency

One of the main objectives of the Commission proposal amending the EMSA Regulation is to adapt the governance structure of the Agency.

The Council is broadly in favour of the objective of the Commission proposal, namely to adapt the governance structure in line with the findings and recommendations of the external evaluation of June 2008. However, the Council cannot agree with all aspects of the Commission proposal on this issue. Furthermore, the Parliament made numerous amendments.

The main points of divergence between the institutions concern the decision-making procedure for visits to Member States and inspections in third countries, provisions on gender balance, certain provisions concerning the members of the Administrative Board (relating to conflict of interest and the duration of the term of office) and the procedure for appointing the Executive Director and the duration of his/her term of office.

(a)   Visits and inspections

The Commission proposed that the inspections policy should be established through an implementing act and not by decision of the Administrative Board, as is currently the case. On this matter, the Parliament tabled amendments to the effect that the inspections policy should be decided by delegated act (amendments 25, 26, 55, 81, 82 and 83).

In the Council’s view, neither of these options is suitable. The current system works well and the Administrative Board is the body best suited to decide on the methodology for the visits. Nevertheless, the Council has introduced an additional safeguard in the event that the Commission disagrees with the methodology decided by the Administrative Board. In that case, the Board must re-examine and adopt it, possibly amended, in second reading either with a two-thirds majority, including the Commission representatives, or by unanimity of the representatives of the Member States (Article 3 in conjunction with Article 10(2)(g) and recital 39).

As for the other amendments proposed by the Parliament in this context, the Council does not consider it appropriate to involve the Agency in reviewing environmental impact assessments and carrying out inspections in the Member States at the request of the Commission (amendment 54). With regard to amendment 56, the Council does agree that the cost-efficiency of the measures in place is an important aspect of the general conclusions of a cycle of visits or inspections, but does not deem it necessary to include rules on making the reports on visits available to the public, since rules on information for the public are to be found elsewhere in the Regulation (see Article 4(2) in the current Regulation).

(b)   Gender balance

The Commission proposal did not include any specific provisions on gender balance. In its general approach, the Council was careful to use gender-neutral language when referring to the Executive Director (in line with the current Regulation). The Parliament, however, introduced some amendments with the aim of ensuring balanced gender representation on the Administrative Board and when electing the Chairperson, the Deputy Chairperson and third country representatives (amendments 8, 88 and 90).

The Council does of course agree with the principle of gender balance. Nevertheless, in practice it could prove difficult to ensure perfect gender balance on the Administrative Board, in particular for smaller maritime administrations. As for third country representatives, the Union cannot dictate the terms of appointment of such representatives.

The Council has, however, included a provision in Article 11(1) to the effect that the Member States and the Commission must each strive for a balanced representation between men and women on the Administrative Board. In addition, recital 9 contains a recommendation that the importance of ensuring balanced gender representation should be fully taken into account when appointing members of the Administrative Board, electing the Chairperson and Deputy Chairperson of the Administrative Board and appointing the Agency’s Heads of Department.

(c)   Provisions concerning the members of the Administrative Board

The Commission did not propose any particular rules on possible conflicts of interest in relation to the members of the Administrative Board, nor any changes to the current term of office (five years, renewable once). In its general approach, the Council did not propose any changes to the Commission proposal in this respect.

The Parliament proposed to insert a specific provision on conflicts of interest, whereby board members would be obliged to sign a written declaration indicating any direct or indirect interest which might be considered prejudicial to their independence. They would also have to abstain from voting on such matters (amendment 62). The Parliament also proposed to shorten the term of office to four years, renewable once (amendment 63).

The current Regulation already contains a provision on conflict of interest for those board members who are nominated in their capacity as professionals from the sectors concerned (Article 13(4)). The Council therefore finds it more appropriate and simpler to amend this existing provision, making it applicable to all board members.

As regards the term of office of board members, the Council’s position at first reading shortens it to four years but makes it renewable more than once, to take account of any difficulties certain maritime administrations may have in finding suitable candidates (Article 11(3)).

(d)   Procedure for the appointment of the Executive Director

Currently, the Executive Director is appointed by the Administrative Board and the Commission has the right to propose candidates.

The Commission suggested that it have the exclusive right to propose candidates. The Executive Director would be appointed for five years, renewable for not more than three years. Furthermore, before appointment the candidate selected might be invited to make a statement before the competent committee of the Parliament and answer questions put by its members.

In its general approach, the Council accepted the proposed duration of the term of office (five + three years). However, the Council considers that it should be renewable only once. Furthermore, the Council did not agree with the Commission on the involvement of the Parliament committee before appointment of the candidate selected. Finally, the Council could accept an exclusive right for the Commission to propose candidates, but has introduced a number of safeguards to ensure an open, fair and transparent selection procedure. This included obliging the Commission to propose at least three candidates (Article 16(1)) and appointing an observer from amongst the members of the board to follow the Commission’s selection procedure (Article 10(2)(m)). Recital 42 contains further elements for the interpretation of these provisions, including a reference to the protection of personal data.

The Parliament amended the Commission proposal by increasing the possible renewal period to five years (amendment 72). Furthermore, it proposed that the Parliament committee should be more involved in the selection procedure through an opinion on the candidate selected, which should be considered before appointment (amendment 71) and reappointment (amendment 72).

The Council’s position at first reading sets the possible renewal period at a maximum of four years. It also gives the Parliament the right to invite the candidate selected to an exchange of views. Nevertheless, the Council does not consider it appropriate to involve the Parliament or the Council in the selection procedure, which should be the prerogative of the Commission and the Agency’s board members.

3.   Other amendments adopted by the European Parliament

The Council position in relation to other amendments by the Parliament not mentioned above is set out below.

| — | Reference to the Erika and Prestige oil tanker incidents (amendments 1 and 2): the Council position includes a slightly redrafted version of these amendments in recitals 1 and 2. |
| --- | --- |

—

Reference to the Erika and Prestige oil tanker incidents (amendments 1 and 2): the Council position includes a slightly redrafted version of these amendments in recitals 1 and 2.

| — | Mentioning changes to the Agency’s areas of competence among the recommendations of the external evaluation (amendment 3): the Council position includes this amendment in recital 4. |
| --- | --- |

—

Mentioning changes to the Agency’s areas of competence among the recommendations of the external evaluation (amendment 3): the Council position includes this amendment in recital 4.

| — | Reference to focusing on priority tasks, budget constraints of the Union and avoiding overlapping when justifying the Agency’s new tasks (amendment 4): the Council position includes this amendment in recital 5, with slight changes. |
| --- | --- |

—

Reference to focusing on priority tasks, budget constraints of the Union and avoiding overlapping when justifying the Agency’s new tasks (amendment 4): the Council position includes this amendment in recital 5, with slight changes.

| — | Redeployment of the Agency’s staff should be coordinated with agencies in the Member States (amendment 5), while the Agency’s new tasks require an increase in its resources (amendment 7): the Council position does not include these two amendments. |
| --- | --- |

—

Redeployment of the Agency’s staff should be coordinated with agencies in the Member States (amendment 5), while the Agency’s new tasks require an increase in its resources (amendment 7): the Council position does not include these two amendments.

| — | Certain tasks can be more efficiently undertaken at European level (amendment 6): the Council position includes this amendment in recital 7, with slight changes. |
| --- | --- |

—

Certain tasks can be more efficiently undertaken at European level (amendment 6): the Council position includes this amendment in recital 7, with slight changes.

| — | The Agency should promote the Union’s maritime safety policy by means of scientific and technical cooperation with third countries (amendment 9): the Council position includes this amendment in recital 12, with slight changes. |
| --- | --- |

—

The Agency should promote the Union’s maritime safety policy by means of scientific and technical cooperation with third countries (amendment 9): the Council position includes this amendment in recital 12, with slight changes.

| — | The Agency should bring additional, cost-effective measures to support the response to marine pollution, including any pollution from offshore oil and gas installations (amendment 10): the spirit of this amendment is reproduced in recital 21. |
| --- | --- |

—

The Agency should bring additional, cost-effective measures to support the response to marine pollution, including any pollution from offshore oil and gas installations (amendment 10): the spirit of this amendment is reproduced in recital 21.

| — | The Agency’s tasks should be described clearly and precisely and duplication should be avoided (amendment 11): the Council position includes the essence of this amendment in recital 6. |
| --- | --- |

—

The Agency’s tasks should be described clearly and precisely and duplication should be avoided (amendment 11): the Council position includes the essence of this amendment in recital 6.

| — | Reference to effectiveness of enforcement and penalties under Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (10) (amendment 13): the Council position includes an invitation to the Commission in recital 19 to provide information on the effectiveness and consistency of the enforcement of that Directive. |
| --- | --- |

—

Reference to effectiveness of enforcement and penalties under Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (10) (amendment 13): the Council position includes an invitation to the Commission in recital 19 to provide information on the effectiveness and consistency of the enforcement of that Directive.

| — | Synergies should be created between authorities, including coastguard services, in order to contribute to the establishment of a “Single European Sea” (amendment 18): the Council position includes an invitation to the Commission in recital 30 to prepare a feasibility study on enhancing coordination and cooperation of coastguard functions, subject to strict conditions. |
| --- | --- |

—

Synergies should be created between authorities, including coastguard services, in order to contribute to the establishment of a “Single European Sea” (amendment 18): the Council position includes an invitation to the Commission in recital 30 to prepare a feasibility study on enhancing coordination and cooperation of coastguard functions, subject to strict conditions.

| — | The Agency and the Paris Memorandum of Understanding on Port State Control (Paris MoU) should cooperate closely (amendment 23): the Council position contains several references to the Paris MoU, including one on close cooperation to maximize efficiency (recitals 33 and 38, Article 2(4)(h) and Article 2(5)). |
| --- | --- |

—

The Agency and the Paris Memorandum of Understanding on Port State Control (Paris MoU) should cooperate closely (amendment 23): the Council position contains several references to the Paris MoU, including one on close cooperation to maximize efficiency (recitals 33 and 38, Article 2(4)(h) and Article 2(5)).

| — | Reference to the Financial Regulation (amendment 28): the Council position includes this amendment in recital 46, with slight changes. |
| --- | --- |

—

Reference to the Financial Regulation (amendment 28): the Council position includes this amendment in recital 46, with slight changes.

| — | Provision of technical assistance to the Commission concerning port security (amendment 31): the Council position does not include this amendment. |
| --- | --- |

—

Provision of technical assistance to the Commission concerning port security (amendment 31): the Council position does not include this amendment.

| — | Assistance to the Commission in the updating and development of provisions necessary to take part in the work of certain international and regional organisations (amendment 32): the Council position does not include this amendment. In the Council’s view, the Agency’s role in facilitating cooperation between the Member States and the Commission in this field should be limited to technical assistance (Article 2(4)(h) and recitals 34 and 35). |
| --- | --- |

—

Assistance to the Commission in the updating and development of provisions necessary to take part in the work of certain international and regional organisations (amendment 32): the Council position does not include this amendment. In the Council’s view, the Agency’s role in facilitating cooperation between the Member States and the Commission in this field should be limited to technical assistance (Article 2(4)(h) and recitals 34 and 35).

| — | Exchange of information with the Commission on any other policy which may be appropriate given the Agency’s areas of competence and its expertise (amendment 34): the Council position does not include this amendment. However, in practice it is covered by Article 2(2)(d) but in more precise terms. |
| --- | --- |

—

Exchange of information with the Commission on any other policy which may be appropriate given the Agency’s areas of competence and its expertise (amendment 34): the Council position does not include this amendment. However, in practice it is covered by Article 2(2)(d) but in more precise terms.

| — | Analysis of research projects (amendment 36): the Council position includes the essence of this amendment (Article 2(2)(c)). |
| --- | --- |

—

Analysis of research projects (amendment 36): the Council position includes the essence of this amendment (Article 2(2)(c)).

| — | Assistance to the Commission in completing certain tasks mentioned in Regulation (EC) No 391/2009 on common rules and standards for ship inspection and survey organisations (11) (amendment 39): the Council position does not include this amendment. |
| --- | --- |

—

Assistance to the Commission in completing certain tasks mentioned in Regulation (EC) No 391/2009 on common rules and standards for ship inspection and survey organisations (11) (amendment 39): the Council position does not include this amendment.

| — | Support pollution response actions by providing the appropriate technical resources (amendment 40): the Council position includes the essence of this amendment, but with more precise wording (Article 2(3)(d)). |
| --- | --- |

—

Support pollution response actions by providing the appropriate technical resources (amendment 40): the Council position includes the essence of this amendment, but with more precise wording (Article 2(3)(d)).

| — | Provision of technical expertise in the field of shipbuilding or any other relevant activity related to maritime traffic, so as to develop the use of environment-friendly technologies and ensure a high level of security (amendment 44): the Council position does not include this amendment as such, but recital 24 contains a reference to more environment-friendly maritime transport in general. |
| --- | --- |

—

Provision of technical expertise in the field of shipbuilding or any other relevant activity related to maritime traffic, so as to develop the use of environment-friendly technologies and ensure a high level of security (amendment 44): the Council position does not include this amendment as such, but recital 24 contains a reference to more environment-friendly maritime transport in general.

| — | Development and implementation of a macro-regional Union policy (amendment 46): the Council position does not include this amendment. |
| --- | --- |

—

Development and implementation of a macro-regional Union policy (amendment 46): the Council position does not include this amendment.

| — | Enabling the Commission and the Member States to evaluate the cost-efficiency of existing measures by providing statistics, information and data (amendment 51): the Council position includes this amendment in Article 2(4)(d). |
| --- | --- |

—

Enabling the Commission and the Member States to evaluate the cost-efficiency of existing measures by providing statistics, information and data (amendment 51): the Council position includes this amendment in Article 2(4)(d).

| — | Yearly overview of marine incidents (amendment 91): the essence of this amendment is included in the Council position (Article 2(4)(c) on investigation of marine casualties and incidents). |
| --- | --- |

—

Yearly overview of marine incidents (amendment 91): the essence of this amendment is included in the Council position (Article 2(4)(c) on investigation of marine casualties and incidents).

| — | Technical assistance to European Neighbourhood partner countries, as and when applicable (amendment 53): the Council position does not include this amendment, but the wording of Article 2(5) is very similar to what was proposed by the Parliament. |
| --- | --- |

—

Technical assistance to European Neighbourhood partner countries, as and when applicable (amendment 53): the Council position does not include this amendment, but the wording of Article 2(5) is very similar to what was proposed by the Parliament.

| — | Further conditions for the establishment of regional centres (amendment 57): the Council position includes this amendment, with slight changes (Article 5(3)). |
| --- | --- |

—

Further conditions for the establishment of regional centres (amendment 57): the Council position includes this amendment, with slight changes (Article 5(3)).

| — | Several amendments adapting the budgetary procedures to changes in the relevant legal acts (amendments 58, 60 and 68, first part; amendments 70, 74, 75 and 76): the Council position includes all of these amendments. |
| --- | --- |

—

Several amendments adapting the budgetary procedures to changes in the relevant legal acts (amendments 58, 60 and 68, first part; amendments 70, 74, 75 and 76): the Council position includes all of these amendments.

| — | Taking the opinion of the Parliament into account when the Agency’s board adopts the multi-annual strategy (amendment 59), consultation of the competent Committee of the Parliament when the Executive Director prepares the multi-annual strategy (amendment 66) and the multi-annual staff policy plan (amendment 67), and exchange of views with the competent committee of the Parliament on the annual work programme (amendment 68, second part): the Council position does not include these amendments, but makes specific reference to taking a written opinion from the Commission into account (Article 10(2)(ca)) or consulting the Commission on those documents (Article 15(2)(a) and (aa)). Furthermore, the Executive Director must report to the Parliament and the Council, in particular on the state of play with regard to the preparation of the multi-annual strategy and the annual work programme (Article 15(3)). |
| --- | --- |

—

Taking the opinion of the Parliament into account when the Agency’s board adopts the multi-annual strategy (amendment 59), consultation of the competent Committee of the Parliament when the Executive Director prepares the multi-annual strategy (amendment 66) and the multi-annual staff policy plan (amendment 67), and exchange of views with the competent committee of the Parliament on the annual work programme (amendment 68, second part): the Council position does not include these amendments, but makes specific reference to taking a written opinion from the Commission into account (Article 10(2)(ca)) or consulting the Commission on those documents (Article 15(2)(a) and (aa)). Furthermore, the Executive Director must report to the Parliament and the Council, in particular on the state of play with regard to the preparation of the multi-annual strategy and the annual work programme (Article 15(3)).

| — | Specification of the experience and expertise required for board members (amendment 61): the Council position does not include this amendment, but simplifies the text by making a general reference to experience and expertise in the fields referred to in Article 1, i.e. the Agency’s objectives. |
| --- | --- |

—

Specification of the experience and expertise required for board members (amendment 61): the Council position does not include this amendment, but simplifies the text by making a general reference to experience and expertise in the fields referred to in Article 1, i.e. the Agency’s objectives.

| — | Provisions on the Commission’s share of votes on the Administrative Board (amendments 64 and 65): the Council position does not include these amendments. |
| --- | --- |

—

Provisions on the Commission’s share of votes on the Administrative Board (amendments 64 and 65): the Council position does not include these amendments.

| — | Elements to be included in the external evaluation of the Agency (amendments 77 and 78): the Council position includes these amendments, with slight changes (Article 22). |
| --- | --- |

—

Elements to be included in the external evaluation of the Agency (amendments 77 and 78): the Council position includes these amendments, with slight changes (Article 22).

| — | Feasibility study on a national coastguard coordination system (amendment 79): the Council position does not include this amendment in the enacting terms, but recital 30 contains a reference to such a feasibility study. |
| --- | --- |

—

Feasibility study on a national coastguard coordination system (amendment 79): the Council position does not include this amendment in the enacting terms, but recital 30 contains a reference to such a feasibility study.

| — | Progress report on gains in effectiveness realised through greater integration of EMSA and the Paris MoU and on the effectiveness of Member States’ enforcement of Directive 2005/35/EC (amendment 80): the Council position does not include this amendment in the enacting terms. However, as stated above, it does contain several references to the Paris MoU (recitals 33 and 38, Article 2(4)(h) and Article 2(5)) and there is a reference in recital 19 to a report by the Commission on the enforcement of Directive 2005/35/EC. |
| --- | --- |

—

Progress report on gains in effectiveness realised through greater integration of EMSA and the Paris MoU and on the effectiveness of Member States’ enforcement of Directive 2005/35/EC (amendment 80): the Council position does not include this amendment in the enacting terms. However, as stated above, it does contain several references to the Paris MoU (recitals 33 and 38, Article 2(4)(h) and Article 2(5)) and there is a reference in recital 19 to a report by the Commission on the enforcement of Directive 2005/35/EC.

III.   CONCLUSION

In establishing its position at first reading, the Council has taken full account of the Commission proposal and the European Parliament’s position at first reading. With respect to the amendments proposed by the European Parliament, the Council observes that a considerable number of amendments have already been included in its position at first reading – fully, partially or in spirit.

---

(1)  15717/10.

(2)  7644/11.

(3)  11769/11.

(4)  T7-0581/2011.

(5)  OJ C 107, 6.4.2011, p. 68.

(6)  OJ L 323, 3.12.2008, p. 33.

(7)  OJ L 208, 5.8.2002, p. 10.

(8)  OJ L 131, 28.5.2009, p. 47.

(9)  OJ L 283, 29.10.2010, p. 1.

(10)  OJ L 255, 30.9.2005, p. 11.

(11)  OJ L 131, 28.5.2009, p. 11.

---

| 16.11.2012 | EN | Official Journal of the European Union | CE 352/23 |
| --- | --- | --- | --- |

16.11.2012

EN

Official Journal of the European Union

CE 352/23

---

POSITION (EU) No 11/2012 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries

Adopted by the Council on 4 October 2012

(11/2012/EU)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

| (1) | Following the entry into force of the Treaty of Lisbon, foreign direct investment is included in the list of matters falling under the common commercial policy. In accordance with Article 3(1)(e) of the Treaty on the Functioning of the European Union (‘TFEU’), the European Union has exclusive competence with respect to the common commercial policy. Accordingly, only the Union may legislate and adopt legally binding acts within that area. The Member States are able to do so themselves only if so empowered by the Union, in accordance with Article 2(1) TFEU. |
| --- | --- |

(1)

Following the entry into force of the Treaty of Lisbon, foreign direct investment is included in the list of matters falling under the common commercial policy. In accordance with Article 3(1)(e) of the Treaty on the Functioning of the European Union (‘TFEU’), the European Union has exclusive competence with respect to the common commercial policy. Accordingly, only the Union may legislate and adopt legally binding acts within that area. The Member States are able to do so themselves only if so empowered by the Union, in accordance with Article 2(1) TFEU.

| (2) | In addition, Chapter 4 of Title IV of Part Three TFEU lays down common rules on the movement of capital between Member States and third countries, including in respect of capital movements involving investments. Those rules can be affected by international agreements relating to foreign investment concluded by Member States. |
| --- | --- |

(2)

In addition, Chapter 4 of Title IV of Part Three TFEU lays down common rules on the movement of capital between Member States and third countries, including in respect of capital movements involving investments. Those rules can be affected by international agreements relating to foreign investment concluded by Member States.

| (3) | This Regulation is without prejudice to the allocation of competences between the Union and its Member States in accordance with the TFEU. |
| --- | --- |

(3)

This Regulation is without prejudice to the allocation of competences between the Union and its Member States in accordance with the TFEU.

| (4) | At the time of the entry into force of the Treaty of Lisbon, Member States maintained a significant number of bilateral investment agreements with third countries. The TFEU does not contain any explicit transitional provisions for such agreements which have now come under the Union's exclusive competence. Furthermore, some of those agreements may include provisions affecting the common rules on capital movements laid down in Chapter 4 of Title IV of Part Three TFEU. |
| --- | --- |

(4)

At the time of the entry into force of the Treaty of Lisbon, Member States maintained a significant number of bilateral investment agreements with third countries. The TFEU does not contain any explicit transitional provisions for such agreements which have now come under the Union's exclusive competence. Furthermore, some of those agreements may include provisions affecting the common rules on capital movements laid down in Chapter 4 of Title IV of Part Three TFEU.

| (5) | Although bilateral investment agreements remain binding on the Member States under public international law and will be progressively replaced by agreements of the Union relating to the same subject matter, the conditions for their continuing existence and their relationship with the Union's investment policy, require appropriate management. That relationship will develop further as the Union exercises its competence. |
| --- | --- |

(5)

Although bilateral investment agreements remain binding on the Member States under public international law and will be progressively replaced by agreements of the Union relating to the same subject matter, the conditions for their continuing existence and their relationship with the Union's investment policy, require appropriate management. That relationship will develop further as the Union exercises its competence.

| (6) | In the interest of Union investors and their investments in third countries, and of Member States hosting foreign investors and investments, bilateral investment agreements that specify and guarantee the conditions of investment should be maintained in force and progressively replaced by investment agreements of the Union, providing for high standards of investment protection. |
| --- | --- |

(6)

In the interest of Union investors and their investments in third countries, and of Member States hosting foreign investors and investments, bilateral investment agreements that specify and guarantee the conditions of investment should be maintained in force and progressively replaced by investment agreements of the Union, providing for high standards of investment protection.

| (7) | This Regulation should address the status under Union law of bilateral investment agreements of the Member States signed before 1 December 2009. Those agreements can be maintained in force, or enter into force, in accordance with this Regulation. |
| --- | --- |

(7)

This Regulation should address the status under Union law of bilateral investment agreements of the Member States signed before 1 December 2009. Those agreements can be maintained in force, or enter into force, in accordance with this Regulation.

| (8) | This Regulation should also lay down the conditions under which Member States are empowered to conclude and/or maintain in force bilateral investment agreements signed between 1 December 2009 and ... (2). |
| --- | --- |

(8)

This Regulation should also lay down the conditions under which Member States are empowered to conclude and/or maintain in force bilateral investment agreements signed between 1 December 2009 and ... (2).

| (9) | Moreover, this Regulation should lay down the conditions under which Member States are empowered to amend or conclude bilateral investment agreements with third countries after ... (2). |
| --- | --- |

(9)

Moreover, this Regulation should lay down the conditions under which Member States are empowered to amend or conclude bilateral investment agreements with third countries after ... (2).

| (10) | Where bilateral investment agreements with third countries are maintained in force by Member States under this Regulation, or authorisations have been granted to open negotiations or conclude such agreements, that should not prevent the negotiation or conclusion of investment agreements by the Union. |
| --- | --- |

(10)

Where bilateral investment agreements with third countries are maintained in force by Member States under this Regulation, or authorisations have been granted to open negotiations or conclude such agreements, that should not prevent the negotiation or conclusion of investment agreements by the Union.

| (11) | Member States are required to take the necessary measures to eliminate incompatibilities, where they exist, with Union law, contained in bilateral investment agreements concluded between them and third countries. The implementation of this Regulation is without prejudice to the application of Article 258 TFEU with respect to failures of Member States to fulfil obligations under Union law. |
| --- | --- |

(11)

Member States are required to take the necessary measures to eliminate incompatibilities, where they exist, with Union law, contained in bilateral investment agreements concluded between them and third countries. The implementation of this Regulation is without prejudice to the application of Article 258 TFEU with respect to failures of Member States to fulfil obligations under Union law.

| (12) | The authorisation to amend or conclude bilateral investment agreements provided for by this Regulation should notably allow Member States to address any incompatibilities between their bilateral investment agreements and Union law, other than incompatibilities arising from the allocation of competences between the Union and its Member States, which are addressed in this Regulation. |
| --- | --- |

(12)

The authorisation to amend or conclude bilateral investment agreements provided for by this Regulation should notably allow Member States to address any incompatibilities between their bilateral investment agreements and Union law, other than incompatibilities arising from the allocation of competences between the Union and its Member States, which are addressed in this Regulation.

| (13) | The Commission should present to the European Parliament and the Council a report on the application of this Regulation. That report should, inter alia, review the need for the continued application of Chapter III. Where the report recommends discontinuing the application of the provisions of Chapter III or where it proposes modifying those provisions, it may be accompanied if appropriate, by a legislative proposal. |
| --- | --- |

(13)

The Commission should present to the European Parliament and the Council a report on the application of this Regulation. That report should, inter alia, review the need for the continued application of Chapter III. Where the report recommends discontinuing the application of the provisions of Chapter III or where it proposes modifying those provisions, it may be accompanied if appropriate, by a legislative proposal.

| (14) | The European Parliament, the Council and the Commission should ensure that any information identified as confidential is treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (3). |
| --- | --- |

(14)

The European Parliament, the Council and the Commission should ensure that any information identified as confidential is treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (3).

| (15) | Investment agreements between Member States should not be covered by this Regulation. |
| --- | --- |

(15)

Investment agreements between Member States should not be covered by this Regulation.

| (16) | It is necessary to provide for certain arrangements to ensure that bilateral investment agreements, maintained in force pursuant to this Regulation, remain operational, including as regards dispute settlement, while at the same time respecting the Union's exclusive competence. |
| --- | --- |

(16)

It is necessary to provide for certain arrangements to ensure that bilateral investment agreements, maintained in force pursuant to this Regulation, remain operational, including as regards dispute settlement, while at the same time respecting the Union's exclusive competence.

| (17) | In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (4). |
| --- | --- |

(17)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (4).

| (18) | Specifically, those powers should be conferred on the Commission given that the procedures set out in Articles 9, 11 and 12 empower Member States to act in areas of the Union's exclusive competence and decisions thereon must be taken at Union level. |
| --- | --- |

(18)

Specifically, those powers should be conferred on the Commission given that the procedures set out in Articles 9, 11 and 12 empower Member States to act in areas of the Union's exclusive competence and decisions thereon must be taken at Union level.

| (19) | The advisory procedure should be used for the adoption of authorisations pursuant to Articles 9, 11 and 12, given that those authorisations are to be granted on the basis of clearly defined criteria established in this Regulation, |
| --- | --- |

(19)

The advisory procedure should be used for the adoption of authorisations pursuant to Articles 9, 11 and 12, given that those authorisations are to be granted on the basis of clearly defined criteria established in this Regulation,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SCOPE

Article 1

Subject matter and scope

1.   Without prejudice to the division of competences established by the TFEU, this Regulation addresses the status of the bilateral investment agreements of the Member States under Union law, and establishes the terms, conditions and procedures under which the Member States are authorised to amend or conclude bilateral investment agreements.

2.   For the purpose of this Regulation the term ‘bilateral investment agreement’ means any agreement with a third country that contains provisions on investment protection. This Regulation covers only those provisions of bilateral investment agreements dealing with investment protection.

CHAPTER II

MAINTENANCE IN FORCE OF EXISTING BILATERAL INVESTMENT AGREEMENTS

Article 2

Notification to the Commission

By ... (5) or within 30 days of the date of their accession to the Union, the Member States shall notify the Commission of all bilateral investment agreements with third countries signed before 1 December 2009 or before the date of their accession, whichever is later, that they either wish to maintain in force or permit to enter into force under this Chapter. The notification shall include a copy of those bilateral investment agreements. Member States shall also notify the Commission of any subsequent changes to the status of those agreements.

Article 3

Maintenance in force

Without prejudice to other obligations of the Member States under Union law, bilateral investment agreements notified pursuant to Article 2 of this Regulation may be maintained in force, or enter into force, in accordance with the TFEU and this Regulation, until a bilateral investment agreement between the Union and the same third country enters into force.

Article 4

Publication

1.   Every 12 months the Commission shall publish in the Official Journal of the European Union a list of the bilateral investment agreements notified pursuant to Article 2, Article 11(6) or Article 12(6).

2.   The first publication of the list of bilateral investment agreements referred to in paragraph 1 of this Article shall take place no later than three months after the deadline for notifications made pursuant to Article 2.

Article 5

Assessment

The Commission may assess the bilateral investment agreements notified pursuant to Article 2, by evaluating whether one or more of their provisions constitute a serious obstacle to the negotiation or conclusion by the Union of bilateral investment agreements with third countries, with a view to the progressive replacement of the bilateral investment agreements notified pursuant to Article 2.

Article 6

Duty of cooperation

1.   The Member States shall take any appropriate measures to ensure that the provisions of the bilateral investment agreements notified pursuant to Article 2 do not constitute a serious obstacle to the negotiation or conclusion by the Union of bilateral investment agreements with third countries, with a view to the progressive replacement of the bilateral investment agreements notified pursuant to Article 2.

2.   If the Commission establishes that one or more of the provisions of a bilateral investment agreement notified pursuant to Article 2 constitute a serious obstacle to the negotiation or conclusion by the Union of bilateral investment agreements with third countries, with a view to the progressive replacement of the bilateral investment agreements notified pursuant to Article 2, the Commission and the Member State concerned shall enter into consultations expeditiously and cooperate with a view to identifying the appropriate actions to resolve the matter. Those consultations shall take no longer than 90 days.

3.   Without prejudice to paragraph 1, the Commission may, within 60 days of the end of consultations, indicate the appropriate measures to be taken by the Member State concerned in order to remove the obstacles referred to in paragraph 2.

CHAPTER III

AUTHORISATION TO AMEND OR CONCLUDE BILATERAL INVESTMENT AGREEMENTS

Article 7

Authorisation to amend or conclude a bilateral investment agreement

Subject to the conditions laid down in Articles 8 to 11, a Member State shall be authorised to enter into negotiations with a third country to amend an existing or to conclude a new bilateral investment agreement.

Article 8

Notification to the Commission

1.   Where a Member State intends to enter into negotiations with a third country in order to amend or conclude a bilateral investment agreement, it shall notify the Commission of its intentions in writing.

2.   The notification referred to in paragraph 1 shall include relevant documentation and an indication of the provisions to be addressed in the negotiations or to be renegotiated, the objectives of the negotiations and any other relevant information.

3.   The notification referred to in paragraph 1 shall be transmitted at least five months before formal negotiations are to commence.

4.   Where the information transmitted by the Member State is not sufficient for the purposes of authorising the opening of formal negotiations in accordance with Article 9, the Commission may request additional information.

5.   The Commission shall make the notification referred to in paragraph 1 of this Article and, on request, the accompanying documentation, available to the other Member States subject to the requirements of confidentiality laid down in Article 14.

Article 9

Authorisation to open formal negotiations

1.   The Commission shall authorise the Member States to open formal negotiations with a third country to amend or conclude a bilateral investment agreement unless it concludes that the opening of such negotiations would:

| (a) | be in conflict with Union law other than the incompatibilities arising from the allocation of competences between the Union and its Member States; |
| --- | --- |

(a)

be in conflict with Union law other than the incompatibilities arising from the allocation of competences between the Union and its Member States;

| (b) | be superfluous, because the Commission has submitted or has decided to submit a recommendation to open negotiations with the third country concerned pursuant to Article 218(3) TFEU; |
| --- | --- |

(b)

be superfluous, because the Commission has submitted or has decided to submit a recommendation to open negotiations with the third country concerned pursuant to Article 218(3) TFEU;

| (c) | be inconsistent with the Union's principles and objectives for external action as elaborated in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union; or |
| --- | --- |

(c)

be inconsistent with the Union's principles and objectives for external action as elaborated in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union; or

| (d) | constitute a serious obstacle to the negotiation or conclusion of bilateral investment agreements with third countries by the Union. |
| --- | --- |

(d)

constitute a serious obstacle to the negotiation or conclusion of bilateral investment agreements with third countries by the Union.

2.   As part of the authorisation referred to in paragraph 1, the Commission may require the Member State to include or remove from such negotiations and prospective bilateral investment agreement any clauses where necessary to ensure consistency with the Union's investment policy or compatibility with Union law.

3.   The authorisation referred to in paragraph 1 of this Article shall be granted in accordance with the advisory procedure referred to in Article 16(2). The Commission shall take its decision within 90 days of receipt of the notification referred to in Article 8. Where additional information is needed to take a decision, the 90-day period shall run from the date of receipt of the additional information.

4.   The Commission shall inform the European Parliament and the Council about the decisions taken pursuant to paragraph 3.

5.   In the event that the Commision does not grant an authorisation pursuant to paragraph 1, it shall inform the Member State concerned thereof and state the reasons therefor.

Article 10

Participation of the Commission in negotiations

The Commission shall be kept informed of the progress and results of the negotiations to amend or to conclude a bilateral investment agreement throughout the different stages and may request to participate in the negotiations concerning investment between the Member State and the third country.

Article 11

Authorisation to sign and conclude a bilateral investment agreement

1.   Before signing a bilateral investment agreement, the Member State concerned shall notify the Commission of the outcome of negotiations and shall transmit the text of such an agreement to the Commission.

2.   This Article shall also apply to bilateral investment agreements which were negotiated before ... (6), but are not subject to the obligation to notify under Article 2 or under Article 12.

3.   Upon notification the Commission shall make an assessment as to whether the negotiated bilateral investment agreement conflicts with the requirements of Article 9(1) and (2).

4.   Where the Commission finds that the negotiations have resulted in a bilateral investment agreement which fulfils the requirements of Article 9(1) and (2), it shall authorise the Member State to sign and conclude such an agreement. Articles 3, 5 and 6 apply to such agreements, as if they had been notified under Article 2.

5.   Decisions pursuant to paragraph 4 of this Article shall be taken in accordance with the advisory procedure referred to in Article 16(2). The Commission shall take its decision within 90 days of receipt of the notifications referred to in paragraphs 1 and 2 of this Article. Where additional information is needed to take the decision, the 90-day period shall run from the date of receipt of the additional information.

6.   Where the Commission grants an authorisation pursuant to paragraph 4, the Member State concerned shall notify the Commission of the conclusion and entry into force of the bilateral investment agreement, and of any subsequent changes to the status of that agreement.

7.   The Commission shall inform the European Parliament and the Council about the decisions taken pursuant to paragraph 4.

8.   In the event that the Commission does not grant the authorisation pursuant to paragraph 4, it shall inform the Member State concerned thereof and state the reasons therefor.

CHAPTER IV

FINAL PROVISIONS

Article 12

Agreements signed by the Member States between 1 December 2009 and ... (6)

1.   Where between 1 December 2009 and ... (6), a Member State has signed a bilateral investment agreement, that Member State shall notify the Commission of such an agreement which it wishes to maintain in force or permit to enter into force by ... (7). The notification shall include a copy of such an agreement.

2.   Upon notification the Commission shall make an assessment as to whether the bilateral investment agreement notified pursuant to paragraph 1 of this Article conflicts with the requirements of Article 9(1) and (2).

3.   Where the Commission finds that a bilateral investment agreement notified pursuant to paragraph 1 of this Article fulfils the requirements of Article 9(1) and (2), it shall authorise the maintenance or entry into force of such an agreement under Union law.

4.   The Commission shall take the decision referred to in paragraph 3 of this Article within 180 days of receipt of the notification referred to in paragraph 1 of this Article. Where additional information is needed to take the decision, the 180-day period shall run from the date of receipt of the additional information. Decisions pursuant to paragraph 3 of this Article shall be taken in accordance with the advisory procedure referred to in Article 16(2).

5.   Unless a bilateral investment agreement has been authorised under paragraph 3, the Member State shall not take any further steps towards the conclusion of such an agreement, and shall withdraw or reverse those steps which have been taken.

6.   Where the Commission grants an authorisation pursuant to paragraph 3 of this Article, the Member State concerned shall notify the Commission of the entry into force of the bilateral investment agreement and of any subsequent changes to the status of such an agreement. Articles 3, 5 and 6 shall apply to such an agreement as if it had been notified under Article 2.

7.   The Commission shall inform the European Parliament and the Council about the decisions taken pursuant to paragraph 3.

8.   In the event that the Commission does not grant an authorisation pursuant to paragraph 3, it shall inform the Member State concerned thereof and state the reasons therefor.

Article 13

Conduct of Member States with regard to a bilateral investment agreement with a third country

Where a bilateral investment agreement falls within the scope of this Regulation, the Member State concerned shall:

| (a) | inform the Commission without undue delay of all meetings which will take place under the provisions of the agreement. The Commission shall be provided with the agenda and all relevant information permitting an understanding of the topics to be discussed at those meetings. The Commission may request further information from the Member State concerned. Where an issue to be discussed might affect the implementation of the Union's policies relating to investment, including in particular the common commercial policy, the Commission may require the Member State concerned to take a particular position; |
| --- | --- |

(a)

inform the Commission without undue delay of all meetings which will take place under the provisions of the agreement. The Commission shall be provided with the agenda and all relevant information permitting an understanding of the topics to be discussed at those meetings. The Commission may request further information from the Member State concerned. Where an issue to be discussed might affect the implementation of the Union's policies relating to investment, including in particular the common commercial policy, the Commission may require the Member State concerned to take a particular position;

| (b) | inform the Commission without undue delay of any representations made to it that a particular measure is inconsistent with the agreement. The Member State shall also immediately inform the Commission of any request for dispute settlement lodged under the auspices of the bilateral investment agreement as soon as the Member State becomes aware of such a request. The Member State and the Commission shall fully cooperate and take all necessary measures to ensure an effective defence which may include, where appropriate, the participation in the procedure by the Commission; |
| --- | --- |

(b)

inform the Commission without undue delay of any representations made to it that a particular measure is inconsistent with the agreement. The Member State shall also immediately inform the Commission of any request for dispute settlement lodged under the auspices of the bilateral investment agreement as soon as the Member State becomes aware of such a request. The Member State and the Commission shall fully cooperate and take all necessary measures to ensure an effective defence which may include, where appropriate, the participation in the procedure by the Commission;

| (c) | seek the agreement of the Commission before activating any relevant mechanisms for dispute settlement against a third country included in the bilateral investment agreement and shall, where requested by the Commission, activate such mechanisms. Those mechanisms shall include consultations with the other party to a bilateral investment agreement and dispute settlement where provided for in the agreement. The Member State and the Commission shall fully cooperate in the conduct of procedures within the relevant mechanisms, which may include, where appropriate, the participation in the relevant procedures by the Commission. |
| --- | --- |

(c)

seek the agreement of the Commission before activating any relevant mechanisms for dispute settlement against a third country included in the bilateral investment agreement and shall, where requested by the Commission, activate such mechanisms. Those mechanisms shall include consultations with the other party to a bilateral investment agreement and dispute settlement where provided for in the agreement. The Member State and the Commission shall fully cooperate in the conduct of procedures within the relevant mechanisms, which may include, where appropriate, the participation in the relevant procedures by the Commission.

Article 14

Confidentiality

In notifying the Commission of negotiations and their outcome in accordance with Articles 8 and 11, Member States may indicate whether any of the information provided is to be considered confidential and whether it may be shared with the other Member States.

Article 15

Review

1.   The Commission shall present to the European Parliament and the Council a report on the application of this Regulation by ... (8).

2.   The report shall include an overview of authorisations requested and granted under Chapter III as well as a review of the need for the continued application of that Chapter.

3.   Where the report recommends discontinuing the application of Chapter III or modifying its provisions, that report shall be accompanied by an appropriate legislative proposal.

Article 16

Committee procedure

1.   The Commission shall be assisted by the Committee for Investment Agreements. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

Article 17

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ...,

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  Position of the European Parliament of 10 May 2011 (not yet published in the Official Journal) and Position of the Council at first reading of 4 October 2012. Position of the European Parliament of ... (not yet published in the Official Journal).

1

(2)  Date of entry into force of this Regulation.

2

(3)  OJ L 145, 31.5.2001, p. 43.

3

(4)  OJ L 55, 28.2.2011, p. 13.

4

(5)  Thirty days from the date of entry into force of this Regulation.

5

(6)  Date of entry into force of this Regulation.

6

(7)  Thirty days after the date of entry into force of this Regulation.

7

(8)  Seven years from the date of entry into force of this Regulation.

8

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

On 8 July 2010 the Commission submitted to the Council its proposal for a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries (1).

The European Parliament adopted its position at first reading and the accompanying legislative resolution during the plenary session on 10 May 2011 (2).

In accordance with paragraphs 16-18 of the Joint Declaration on Practical Arrangements for the Codecision Procedure (3), the Presidency, operating under the mandate from Coreper (4), has been involved in informal contacts with the European Parliament, with a view to reaching an agreement between the institutions at the stage of the Council's first reading. Subsequently, such agreement has been reached at the informal trilogue meeting on 29 May 2012.

The Chairman of the European Parliament's INTA Committee indicated in his letter of 31 May 2012 to the Chairman of Coreper-II that, should the Council transmit formally to the Parliament its position in the form as it stands in the annex to his letter, he would recommend to the plenary to accept the Council's position without amendments, subject to the legal-linguistic verification, at Parliament's second reading.

On 26 June 2012 the Council approved the above-mentioned political agreement (5).

II.   OBJECTIVE OF THE PROPOSAL

The Treaty on the Functioning of the European Union (TFEU) which entered into force on 1 December 2009 established the EU's exclusive competence on foreign direct investment, as part of the common commercial policy (Article 207(1) TFEU). Against this backdrop, the Commission adopted a proposal for the above-mentioned Regulation addressing only the transitional aspects of the management of the EU's new competence on foreign direct investment. The objectives, criteria and content of this new competence were addressed in a separate Communication from the Commission to the European Parliament and the Council adopted simultaneously with the legislative proposal (6).

The objective of the Commission proposal was to authorise the continuation in force of international agreements relating to investment concluded between Member States and third countries as well as to establish conditions and a procedural framework for the negotiation and conclusion by Member States of such agreements.

III.   ANALYSIS OF THE COUNCIL'S POSITION AT FIRST READING

General

The Council fully supports the development of a common policy framework on investment that establishes a level playing field for all EU investors in third countries and for investors from third countries in the EU.

Given that bilateral investment agreements concluded by Member States with third parties are, so far, the main source of protection and legal security for the European investor abroad, the new legal framework should not negatively affect investor protection and guarantees enjoyed under the existing agreements. For the Council, the concept of replacement of existing Member States' agreements with EU agreements is of central importance in avoiding any legal vacuum, thus assuring continuous protection and legal certainty for investors.

The Council's position at first reading, which is the result of a political agreement between the European Parliament, the Commission and the Council, introduces the following key modifications to the Commission proposal:

Subject matter and scope (Chapter I - Article 1)

The Parliament did not propose any amendments in respect of this Article; however, some modifications were introduced. Paragraph 1 contains some precisions compared to the text of the Commission proposal as well as specifies that the Regulation does not have any bearing on the division of competences established by the Treaty. New paragraph 2 contains the definition of the term ‘bilateral investment agreement’.

Maintenance in force of existing bilateral investment agreement (Chapter II - Articles 2-6)

In Article 2, covering notifications to the Commission, Parliament's amendments were accepted. The text contains also some further technical modifications.

The concept of replacement which is anchored in Article 3 (Maintenance in force) is of critical importance for assuring continuous protection of investors thus assuring legal certainty for them. The Parliament did not propose any amendments in respect of this Article.

Article 5 covering Commission's assessments has been thoroughly modified. While the Council could not accept a substantial part of the Parliament's amendment, it did accept the Parliament's idea of including the notion of ‘serious obstacle’ in the modified text (contained also in several other Articles). In the Council's view, the mere existence of bilateral investment agreements should not be considered as a ‘serious obstacle’.

Article 6 on duty of cooperation, represents - next to Articles 3 and 5 - the crux of this Regulation. The Commission text was substantially modified in order to emphasise the importance of close cooperation between Member States and the Commission in resolving any serious obstacles to the negotiation or conclusion of bilateral investment agreements between the EU and third countries as identified by the Commission. In line with the provisions of this Article, the Commission may indicate the appropriate measures to be taken by the Member State concerned to remove the obstacles referred to above. The Parliament's amendments could not be accepted.

Authorisation to amend or conclude bilateral investment agreements (Chapter III - Articles 7-11)

Parliament's amendments to Articles 7 (Authorisation to amend or conclude a bilateral investment agreement), 8 (Notification to the Commission), 9 (Authorisation to open formal negotiations) and 11 (Authorisation to sign and conclude a bilateral investment agreement) were accepted in part. Regarding Article 10 (Participation of the Commission in negotiations), the Parliament's amendment could not be accepted as the text of the Commission proposal was retained.

Final provisions (Chapter IV - Articles 12-17)

The Council agreed during the informal contacts with the Parliament to follow its suggestion to insert into the Regulation new Article 12 concerning agreements signed by Member States between the entry into force of the TFEU, i.e. 1 December 2009, and the entry into force of this Regulation, even though the Parliament did not propose any amendment in this respect in its position at first reading. In this way, the Council clearly showed its full acknowledgement of the new EU's competence in the area of foreign direct investment. This Article covers the procedures to be followed (notification by Member States, assessment and authorisation by the Commission) for the above-mentioned category of bilateral investment agreements.

Regarding Article 15 (Review), a compromise was agreed on the timing of the report on the application of the Regulation, i.e. seven years after the entry into force of the Regulation - instead of ten years proposed by the Parliament and the Council and five years as initially proposed by the Commission.

On Article 16 (Committee procedure), the Council accepted the Parliament's amendment calling for the use of advisory procedure.

IV.   CONCLUSION

The Council's position at first reading reflects the agreement reached in the informal contacts between the Council and the Parliament, facilitated by the Commission. While fulfilling the key requirement of assuring continuous protection and legal certainty for investors, the text also provides for an effective exercise of the EU's new exclusive competence on foreign direct investment. Hence, the Council expects that its position at first reading will be acceptable to the Parliament.

---

(1)  Doc. 11953/10 WTO 252 FDI 12.

(2)  Doc. 9726/11 CODEC 749 WTO 195 FDI 12 PE 206.

(3)  OJ C 145, 30.6.2007, p. 5.

(4)  Doc. 10908/11 WTO 228 FDI 15 CODEC 950.

(5)  Doc. 10892/12 WTO 216 FDI 17 CODEC 1557.

(6)  Doc. 11952/10 WTO 251 FDI 11. On this basis, the Council of 25 October 2010 adopted conclusions on a comprehensive European international investment policy (doc. 14373/10).

---

STATEMENT BY THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION

The fact that this Regulation, including recitals 17, 18 and 19, provides for the use of the procedures referred to in Regulation (EU) No 182/2011 does not constitute a precedent as to future regulations allowing the Union to empower the Member States under Article 2(1) TFEU to legislate and adopt legally binding acts in areas of Union exclusive competence. Furthermore, in this Regulation, the use of the advisory as opposed to the examination procedure shall not be considered as setting a precedent for future regulations establishing the framework for the common commercial policy.

---