# EUR-Lex - 52013PC0038 - EN

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# 52013PC0038

**Proposal for a COUNCIL DECISION authorising Member States to sign, ratify or accede to the Cape Town Agreement of 2012 on the Implementation of the provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977 /* COM/2013/038 final - 2013/0020 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1.        Introduction

The Torremolinos International Convention
for the Safety of Fishing Vessels 1977 was amended by its 1993 Protocol, which
updated the provisions and revised the obligatory application of the main
chapters to vessels of 45 metres in length and over, leaving it up to a
regional decision for an application to vessels of 24 metres in length and
over. Neither the original convention nor the 1993 protocol have entered into
force, as the necessary minimum requirements in terms of ratification were
never reached.

A Diplomatic Conference was convened in Cape Town, South Africa by the International Maritime Organization (IMO) between 9-11
October 2012 to consider and adopt an Agreement on the implementation of the
Torremolinos Protocol in a major effort on the part of the IMO to facilitate
the entry into force of the 1993 Protocol.

The Diplomatic Conference has resulted in
the adoption of an Agreement amending the Torremolinos Protocol of 1993, entitled
the "Cape Town Agreement of 2012 on the Implementation of the Provisions
of the 1993 Protocol relating to the Torremolinos International Convention for
the Safety of Fishing Vessels, 1977” (hereinafter referred to as “the
Agreement”).

1.2.        EU competence and
ramifications

In accordance with the rules on external
competence as laid down in Article 3 (2) Treaty on the Functioning of the
European Union (TFEU), the amendments to the 1993 Torremolinos Protocol come
under exclusive Union competence, as the Protocol has been transposed into EU
legislation by Council Directive 97/70/EC of 11 December 1997 setting up a
harmonised safety regime for fishing vessels of 24 metres in length and over[1].

The European Union cannot become a party to
the draft Agreement, as the current draft, as approved by the International
Maritime Organisation (IMO) Maritime Safety Committee, does not include a REIO
(Regional Economic Integration Organisation) clause. However as the Agreement
concerns a matter of exclusive EU competence, Member States are not in a
position to decide autonomously on the signature and ratification of the
Agreement. They can only do it, in the interest of the Union, after
authorization by the Council and consent of the European Parliament upon a
proposal by the Commission.

1.3.        Details of the Agreement

The Agreement foresees the entry into force
of the Torremolinos Protocol 12 months after the date on which not less than 22
States the aggregate number of whose fishing vessels of 24 m in length and over
operating on the high seas is not less than 3,600 have expressed their
consent to be bound by it. This is a considerable reduction in the fishing
vessel threshold relative to the 1993 Protocol, which now has a realistic
prospect of being met.

The Agreement will be open for signature at
IMO Headquarters from 11 February 2013 to 10 February 2014 and thereafter
remain open for accession. It is expected that, as has been supported by the EU
Member States during the negotiations leading to the agreement, the use of the
databases held by the Food and Agriculture Organisation (FAO) will provide an
objective basis for the estimation of the fleets flying the flag of the
ratifying parties, and hence facilitate the early entry into force of the
Agreement.

Scope: the
Agreement's provisions apply to new vessels, unless specifically provided for
otherwise. Certain flexibilities have been added through the Agreement to
facilitate wide acceptance. Administrations may, in accordance with a plan,
progressively implement the provisions of chapter IX (radiocommunications) over
a period of no more than 10 years; and the provisions of chapters VII
(life-saving appliances and arrangements), VIII (emergency procedures, musters
and drills) and X (shipborne navigational equipment and arrangements) over a
period of no more than five years.

Exemptions:
the Agreement allows an Administration to exempt any vessel entitled to fly its
flag from any of the regulatory requirements, if it considers such application
to be unreasonable and impracticable in view of the type of vessel, the weather
conditions and the absence of general navigational hazards, under the following
conditions:

(a) the vessel complies with safety
requirements which, in the opinion of that Administration, are adequate for the
service for which it is intended and are such as to ensure the overall safety
of the vessel and persons on board;

(b) the vessel is operating solely in:

(i) a common fishing zone established in
adjoining marine areas under the jurisdiction of neighbouring States which have
established that zone, in respect of vessels entitled to fly their flags, only
to the extent and under the conditions that those States agree, in accordance
with international law, to establish in this regard; or

(ii) the exclusive economic zone of the State
of the flag it is entitled to fly, or, if that State has not established such a
zone, in an area beyond and adjacent to the territorial sea of that State
determined by that State in accordance with international law and extending not
more than 200 nautical miles from the baselines from which the breadth of its
territorial sea is measured; or

(iii) the exclusive economic zone, a marine
area under the jurisdiction of another State, or a common fishing zone, in
accordance with an agreement between the States concerned in accordance with
international law, only to the extent and under the conditions that those
States agree to establish in this regard; and

(c) the Administration notifies the IMO
Secretary-General of the terms and conditions on which the exemption is granted
under this paragraph.

Surveys and Certificates: the International Fishing Vessel Safety Certificate is amended to
state it is issued under the provisions of the Cape Town Agreement of 2012 on
the Implementation of the Provisions of the Torremolinos Protocol of 1993
relating to the Torremolinos International Convention for the Safety of Fishing
Vessels, 1977.

The Survey regime is amended to
reflect the timeframe used for cargo and passenger vessels, namely, an annual
survey, a compulsory intermediate survey between years two and three and a
renewal survey after no more than five years. Grace periods following the
survey deadline are also harmonised. Additionally within the Agreement there is
a provision for an Administration to exempt a ship from the annual survey, if its
application is deemed to be unreasonable or impracticable.

Overall the new survey regime is tighter:
the annual and periodic surveys are more comprehensive; issues formerly to be
checked within the discretionary intermediate surveys are included in the
mandatory periodic survey; additional surveys on repairs are no longer
discretionary. The new maximum interval of 5, not 4 years for a renewal survey reflects
the fact that a 5-year gap was already an option under the current regime. The
grace periods following expiry of a certificate now also reflect the harmonised
periods for certificates issued to other vessels under SOLAS, with the main
grace period being reduced from 5 to 3 months.

Neither the original Torremolinos
Convention, the 1993 Protocol nor the 2012 Agreement exclude the formulation of
reservations or declarations by the Parties.

1.4.        Implications for Directive
97/70/EC

Article 3(5) of the Torremolinos Protocol
remains unchanged and permits the development of regional arrangements thus ensuring
the continued implementation of a uniform and coherent safety regime for all
fishing vessels operating in EU waters. In addition, the Agreement represents a
minimum set of safety rules, thus allowing the EU to continue to apply the
original rules under the Torremolinos Protocol.

Two issues may require action to safeguard
certain current EU norms: firstly, the exclusion of the wider general exemptions
and the annual survey exemption introduced by the Agreement; and secondly, updating
the referencing within the Directive and its Annexes. Articles 8 and 9 of
Directive 97/70/EC in conjunction with Article 5 of Regulation (EC) 2099/2002[2] provide that both issues can be
resolved by amending the Directive in accordance with a regulatory committee
procedure with scrutiny.

Directive 97/70/EC applies the provisions
of the Torremolinos Protocol not only to EU Member State flagged fishing
vessels, but also to fishing vessels flying the flag of third states operating
in the internal waters or territorial seas of a Member State or landing their
catch in a port of a Member State in accordance with the general rules of
international law. The application of the Torremolinos Protocol provisions to
all these groups of fishing vessels should continue. For that reason the
Commission considers that EU Member States, when signing and agreeing to be
bound by the Agreement, should issue a declaration to the effect that the
Torremolinos Protocol provisions will continue to apply to these two groups of
third country vessels in accordance with Union law as currently in force.

As the requirements of the current
Directive will essentially be maintained, the cost implications for EU fishing
vessels are negligible. While surveys will be more comprehensive, they will be
carried out over a longer period of time.

1.5.        Conclusion

The adoption and entry into force of global
safety rules for fishing vessels is a matter of utmost importance in a sector
plagued by a particularly high number of accidents resulting in over 24000
fatalities every year[3].

Thanks to the flexibilities introduced by
the Agreement, the latter is expected to be instrumental in finally achieving
the objective of the entry into force of the 1993 Torremolinos Protocol. In
addition, amendments to the Protocol to update its provisions can only be made
once it enters into force. As Directive 97/70/EC makes reference to and
implements the provisions of the 1993 Torremolinos Protocol, provisions that
for the most part have not changed substantially in 20 years, the entry into
force of the Agreement will then allow updating amendments for a number of requirements
in the Protocol to be introduced within IMO, which can then be implemented
through Directive 97/70/EC.

The Commission considers that the Agreement
will thus greatly facilitate the achievement of the objectives of the Treaties
as enshrined in Directive 97/70/EC. As explained in paragraph 1.4.3 above, it is
however necessary to ensure that the scope of the said Directive remains unaffected,
by requiring the Member States to issue appropriate declarations when signing
and agreeing to be bound by the Agreement.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENT

Accession to this Agreement will not result
in a change to the technical requirements for fishing vessels under the current
Directive.

3.           LEGAL ELEMENTS OF THE PROPOSAL

Article 1

This article authorises Member States to be
bound by the current Agreement on a subject of the exclusive competence of the Union due to the impossibility for the EU to become a party of such Agreement. The
Agreement sets out different options for IMO member states to express their
consent to be bound and the Article reflects the different methods by which EU
Member States may wish to do so.

Article 2

This article requires EU Member States to
agree to be bound by the Agreement within a two year period from entry into
force of this Decision. Early adherence to the Agreement by all EU Member
States will allow the threshold concerning both the number of IMO member states
and aggregate fleet required (22 member states and 3600 fishing vessels) to be
more quickly attained. Given that the Agreement will promote an improvement in
fishing vessel safety worldwide, reducing disparities in safety levels and
resulting potential competitive disadvantages for EU vessels, and facilitating
further updates in technical requirements within the Agreement, its early entry
into force is highly desirable.

Article 3

This article sets a clear date for the
entry into force of the Council Decision.

Article 4

The purpose of the Decision is to authorise
the Member States to be bound by the Agreement and so the Decision is addressed
to them.

4.           BUDGETARY IMPLICATION

None

2013/0020 (NLE)

Proposal for a

COUNCIL DECISION

authorising Member States to sign, ratify
or accede to the Cape Town Agreement of 2012 on the Implementation of the
provisions of the 1993 Protocol relating to the Torremolinos International
Convention for the Safety of Fishing Vessels, 1977

(Text with EEA relevance)

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, in
conjunction with Article 218(5), 218(6)(a)(v) and the first subparagraph of
Article 218(8) thereof,

Having regard to the proposal from the
European Commission,

Having regard to the consent of the
European Parliament[4],

Whereas:

(1)       Action by the European
Union in the sector of maritime transport should aim to improve maritime safety;

(2)       The Torremolinos Protocol
relating to the Torremolinos International Convention for the Safety of Fishing
Vessels 1977, hereinafter referred to as the 'Torremolinos Protocol' was
adopted on 2 April 1993;

(3)       Council Directive 97/70/EC[5] setting up a harmonised safety
regime for fishing vessels of 24 metres in length and over has laid down safety
standards that are based upon the Torremolinos Protocol, taking as far as
necessary full account of regional and local circumstances;

(4)       The Torremolinos Protocol has
not entered into force, given that the necessary minimum requirements in terms
of ratification have never been achieved;

(5)       In order to establish by
common accord the highest practicable standards for the safety of fishing
vessels that can be implemented by all the states concerned, and under the
auspices of the International Maritime Organization (IMO), a draft Agreement,
to be read in conjunction with the Torremolinos Protocol, was finalised at a
Diplomatic Conference in Cape Town, South Africa held from 9 – 11 October 2012;

(6)       This Agreement, adopted on
11 October 2012, is entitled "the Cape Town Agreement of 2012 on the
Implementation of the provisions of the Torremolinos Protocol of 1993 relating
to the Torremolinos International Convention for the Safety of Fishing vessels
1977" (hereinafter called "the Agreement"). The Agreement will
be open for signature at IMO Headquarters from 11 February 2013 to 10 February
2014 and thereafter remain open for accession;

(7)       The provisions of the
Agreement fall under the exclusive competence of the Union concerning the
safety regime of fishing vessels of 24 metres in length and over;

(8)       The European Union cannot
become a party to the Agreement, as it does not include a REIO (Regional
Economic Integration Organisation) clause;

(9)       It is in the interests of
maritime safety and fair competition that the Agreement be now ratified or
acceded to by the European Union Member States, to ensure the entry into force
of the provisions of the Torremolinos Protocol. Furthermore, the entry into
force of the Agreement will allow the subsequent updating of a number of
provisions in the Protocol through submissions to IMO, which have, since the
adoption of Directive 97/70/EC, become obsolete;

(10)     In accordance with Article
2(1) TFEU, the Council should therefore authorise Member States to sign and
ratify the Agreement or to accede to it in the interests of the Union. However, in order to safeguard the current safety levels provided through Council
Directive 97/70/EC, the Member States should, when signing the Agreement and
depositing their instruments of ratification or accession, issue a declaration
to the effect that the exemptions provided by the Agreement within its Regulations
1(6) and 3(3) in relation to annual surveys and a common fishing zone or
exclusive economic zone respectively shall be excluded from application, and
that third country fishing vessels of 24 meters in length and over operating in
their territorial or internal waters or landing catch at their ports will be
subject to the safety standards laid down in the said directive.

HAS ADOPTED THIS DECISION:

Article 1

Member States are hereby authorised to sign,
sign and ratify, or accede to, as appropriate, the Cape Town Agreement of 2012
on the Implementation of the provisions of the Torremolinos Protocol of 1993
relating to the Torremolinos International Convention for the Safety of Fishing
Vessels, 1977.

Article 2

Member States shall take the necessary
steps to deposit their instruments of ratification of the Agreement or
accession to it with the Secretary General of the International Maritime
Organization without delay, and in any case no later than two years from the
date of entry into force of this Decision.

When Member States sign, ratify or accede
to the Agreement, they shall also deposit the Declaration set out in the Annex
to this Decision.

Article 3

This Decision will enter into force on the
day following that of its publication in the Official Journal of the
European Union.

Article 4

This Decision is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

ANNEX

DECLARATION
TO BE DEPOSITED BY THE MEMBER STATES UPON SIGNATURE, RATIFICATION OR ACCESSION
TO THE CAPE TOWN AGREEMENT OF 2012 ON THE IMPLEMENTATION OF THE PROVISIONS OF
THE TORREMOLINOS PROTOCOL OF 1993 RELATING TO THE TORREMOLINOS INTERNATIONAL
CONVENTION FOR THE SAFETY OF FISHING VESSELS, 1997

As part of a regional arrangement,
authorised under Article 3(5) of the Torremolinos Protocol of 1993, [insert
name of the Member State contracting party] is bound by relevant European Union
(EU) legislation (Council Directive 97/70/EC of 11 December 1997) setting up a
harmonised safety regime for fishing vessels of 24 metres in length and over
and consequently will apply the Torremolinos Protocol provisions to those third
country flagged fishing vessels of 24 metres in length and over that operate in
its internal or territorial waters or which land catch in one of its ports, in
the terms laid down by the aforementioned EU legislation.

Under this regional arrangement, the exemptions
provided by the Cape Town Agreement within its Regulation 1(6) in relation to
annual surveys and within its Regulation 3(3) concerning a common fishing zone
or exclusive economic zone shall be excluded from application.

[1]               OJ L 34, 9.2.1998, p. 1

[2]               OJ L 324, 29.11.2002, p.1

[3]               ILO (2001) Report on safety and health in the fishing
industry

[4]               OJ C , , p. .

[5]               OJ L 34, 9.2.1998, p.1