# CE2008184EN.01002301.xml

| 22.7.2008 | EN | Official Journal of the European Union | CE 184/23 |
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22.7.2008

EN

Official Journal of the European Union

CE 184/23

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COMMON POSITION (EC) No 17/2008

COMMON POSITION

adopted by the Council on 6 June 2008

with a view to adopting Directive 2008/.../EC of the European Parliament and of the Council of ... establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC

(Text with EEA relevance)

(2008/C 184 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

1

Having regard to the opinion of the Committee of the Regions (2),

2

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

3

Whereas:

| (1) | A high general level of safety should be maintained in maritime transport in Europe and every effort should be made to reduce the number of marine casualties and incidents. |
| --- | --- |

(1)

A high general level of safety should be maintained in maritime transport in Europe and every effort should be made to reduce the number of marine casualties and incidents.

| (2) | The expeditious holding of technical investigations into marine casualties improves maritime safety, as it helps to prevent the recurrence of such casualties resulting in loss of life, loss of ships and pollution of the marine environment. |
| --- | --- |

(2)

The expeditious holding of technical investigations into marine casualties improves maritime safety, as it helps to prevent the recurrence of such casualties resulting in loss of life, loss of ships and pollution of the marine environment.

| (3) | The European Parliament, in its resolution of 21 April 2004 on improving safety at sea (4), has urged the Commission to present a proposal for a directive on investigating shipping accidents. |
| --- | --- |

(3)

The European Parliament, in its resolution of 21 April 2004 on improving safety at sea (4), has urged the Commission to present a proposal for a directive on investigating shipping accidents.

4

| (4) | Article 2 of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter referred to as ‘UNCLOS’) establishes the right of coastal States to investigate the cause of any marine casualty occurring within their territorial seas which might pose a risk to life or to the environment, involve the coastal State's search and rescue authorities, or otherwise affect the coastal State. |
| --- | --- |

(4)

Article 2 of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter referred to as ‘UNCLOS’) establishes the right of coastal States to investigate the cause of any marine casualty occurring within their territorial seas which might pose a risk to life or to the environment, involve the coastal State's search and rescue authorities, or otherwise affect the coastal State.

| (5) | Article 94 of UNCLOS establishes that flag States are to cause an inquiry to be held, by or before a suitably qualified person or persons, into certain casualties or incidents of navigation on the high seas. |
| --- | --- |

(5)

Article 94 of UNCLOS establishes that flag States are to cause an inquiry to be held, by or before a suitably qualified person or persons, into certain casualties or incidents of navigation on the high seas.

| (6) | Regulation I/21 of International Convention for the Safety of Life at Sea of 1 November 1974 (hereinafter referred to as ‘SOLAS 74’), the International Convention of Load Lines of 5 April 1966 and the International Convention for the Prevention of Pollution from Ships of 2 November 1973 lay down the responsibilities of flag States to conduct casualty investigations and to supply the International Maritime Organisation (IMO) with relevant findings. |
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(6)

Regulation I/21 of International Convention for the Safety of Life at Sea of 1 November 1974 (hereinafter referred to as ‘SOLAS 74’), the International Convention of Load Lines of 5 April 1966 and the International Convention for the Prevention of Pollution from Ships of 2 November 1973 lay down the responsibilities of flag States to conduct casualty investigations and to supply the International Maritime Organisation (IMO) with relevant findings.

| (7) | The Code for the Implementation of Mandatory IMO Instruments annexed to Resolution A.973(24) of the IMO Assembly of 1 December 2005 recalls the obligation of flag States to ensure that marine safety investigations are conducted by suitably qualified investigators, competent in matters relating to marine casualties and incidents. That Code further requires flag States to be prepared to provide qualified investigators for that purpose, irrespective of the location of the casualty or incident. |
| --- | --- |

(7)

The Code for the Implementation of Mandatory IMO Instruments annexed to Resolution A.973(24) of the IMO Assembly of 1 December 2005 recalls the obligation of flag States to ensure that marine safety investigations are conducted by suitably qualified investigators, competent in matters relating to marine casualties and incidents. That Code further requires flag States to be prepared to provide qualified investigators for that purpose, irrespective of the location of the casualty or incident.

| (8) | Account should be taken of the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(20) of the IMO Assembly of 27 November 1997 (hereinafter referred to as the ‘IMO Code for the Investigation of Marine Casualties and Incidents’), which provides for implementation of a common approach to the safety investigation of marine casualties and incidents and for cooperation between States in identifying the contributing factors leading to marine casualties and incidents. Account should also be taken of Resolution A.861(20) of the IMO Assembly of 27 November 1997 and Resolution MSC.163(78) of the Maritime Safety Committee of IMO of 17 May 2004, which provide a definition of voyage data recorders. |
| --- | --- |

(8)

Account should be taken of the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(20) of the IMO Assembly of 27 November 1997 (hereinafter referred to as the ‘IMO Code for the Investigation of Marine Casualties and Incidents’), which provides for implementation of a common approach to the safety investigation of marine casualties and incidents and for cooperation between States in identifying the contributing factors leading to marine casualties and incidents. Account should also be taken of Resolution A.861(20) of the IMO Assembly of 27 November 1997 and Resolution MSC.163(78) of the Maritime Safety Committee of IMO of 17 May 2004, which provide a definition of voyage data recorders.

| (9) | While conducting safety investigations of marine casualties and incidents, Member States should take into account the Guidelines on fair treatment of seafarers in the event of a maritime accident annexed to Resolution A.987(24) of the IMO Assembly and the Governing Body of the International Labour Organisation of 1 December 2005, or any other recommendations or instruments relating to the human factor adopted by relevant international organisations, as far as they are applicable to technical safety investigations. |
| --- | --- |

(9)

While conducting safety investigations of marine casualties and incidents, Member States should take into account the Guidelines on fair treatment of seafarers in the event of a maritime accident annexed to Resolution A.987(24) of the IMO Assembly and the Governing Body of the International Labour Organisation of 1 December 2005, or any other recommendations or instruments relating to the human factor adopted by relevant international organisations, as far as they are applicable to technical safety investigations.

| (10) | Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services (5) requires Member States to define, in the framework of their respective legal systems, a legal status that will enable them and any other substantially interested Member State to participate, to cooperate in, or, where provided for under the IMO Code for the Investigation of Marine Casualties and Incidents, to conduct any marine casualty or incident investigation involving a ro-ro ferry or high-speed passenger craft. |
| --- | --- |

(10)

Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services (5) requires Member States to define, in the framework of their respective legal systems, a legal status that will enable them and any other substantially interested Member State to participate, to cooperate in, or, where provided for under the IMO Code for the Investigation of Marine Casualties and Incidents, to conduct any marine casualty or incident investigation involving a ro-ro ferry or high-speed passenger craft.

5

| (11) | Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system (6) requires Member States to comply with the IMO Code for the Investigation of Marine Casualties and Incidents and ensure that the findings of the accident investigations are published as soon as possible after its conclusion. |
| --- | --- |

(11)

Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system (6) requires Member States to comply with the IMO Code for the Investigation of Marine Casualties and Incidents and ensure that the findings of the accident investigations are published as soon as possible after its conclusion.

6

| (12) | Conducting a safety investigation of casualties and incidents involving seagoing vessels, or other vessels in port or other restricted maritime areas, in an unbiased manner is of paramount importance for effectively establishing the circumstances and causes of such casualty or incident. Such an investigation should therefore be carried out by qualified investigators under the control of an independent body or entity in order to avoid any conflict of interest. |
| --- | --- |

(12)

Conducting a safety investigation of casualties and incidents involving seagoing vessels, or other vessels in port or other restricted maritime areas, in an unbiased manner is of paramount importance for effectively establishing the circumstances and causes of such casualty or incident. Such an investigation should therefore be carried out by qualified investigators under the control of an independent body or entity in order to avoid any conflict of interest.

| (13) | Member States should, in compliance with their legislation as regards the powers of the authorities responsible for the judicial inquiry and in collaboration with those authorities, where appropriate, ensure that those responsible for the technical inquiry are allowed to carry out their tasks under the best possible conditions. |
| --- | --- |

(13)

Member States should, in compliance with their legislation as regards the powers of the authorities responsible for the judicial inquiry and in collaboration with those authorities, where appropriate, ensure that those responsible for the technical inquiry are allowed to carry out their tasks under the best possible conditions.

| (14) | Member States should ensure that their legal systems enable them and any other substantially interested Member States to participate or cooperate in, or conduct, accident investigations on the basis of the provisions of the IMO Code for the Investigation of Marine Casualties and Incidents. |
| --- | --- |

(14)

Member States should ensure that their legal systems enable them and any other substantially interested Member States to participate or cooperate in, or conduct, accident investigations on the basis of the provisions of the IMO Code for the Investigation of Marine Casualties and Incidents.

| (15) | A Member State may delegate to another Member State the task of leading a marine casualty or incident safety investigation (hereinafter referred to as ‘safety investigation’) or specific tasks of such investigation, if mutually agreed. |
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(15)

A Member State may delegate to another Member State the task of leading a marine casualty or incident safety investigation (hereinafter referred to as ‘safety investigation’) or specific tasks of such investigation, if mutually agreed.

| (16) | Member States should make every effort not to charge for costs for assistance requested in the framework of safety investigations involving two or more Member States. Where assistance is requested from a Member State that is not involved in the safety investigation, Member States should agree on the reimbursement of costs incurred. |
| --- | --- |

(16)

Member States should make every effort not to charge for costs for assistance requested in the framework of safety investigations involving two or more Member States. Where assistance is requested from a Member State that is not involved in the safety investigation, Member States should agree on the reimbursement of costs incurred.

| (17) | Under Regulation V/20 of SOLAS 74, passenger ships and ships other than passenger ships of 3 000 gross tonnage and upwards constructed on or after 1 July 2002 must carry voyage data recorders to assist in accident investigations. Given its importance in the formulation of a policy to prevent shipping accidents, such equipment should be systematically required on board ships making national or international voyages which call at Community ports. |
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(17)

Under Regulation V/20 of SOLAS 74, passenger ships and ships other than passenger ships of 3 000 gross tonnage and upwards constructed on or after 1 July 2002 must carry voyage data recorders to assist in accident investigations. Given its importance in the formulation of a policy to prevent shipping accidents, such equipment should be systematically required on board ships making national or international voyages which call at Community ports.

| (18) | The data provided by a voyage data recording system, as well as by other electronic devices, can be used both retrospectively after a marine casualty or incident to investigate its causes and preventively to gain experience of the circumstances capable of leading to such events. Member States should ensure that such data, when available, are properly used for both purposes. |
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(18)

The data provided by a voyage data recording system, as well as by other electronic devices, can be used both retrospectively after a marine casualty or incident to investigate its causes and preventively to gain experience of the circumstances capable of leading to such events. Member States should ensure that such data, when available, are properly used for both purposes.

| (19) | Regulation (EC) No 1406/2002 of the European Parliament and of the Council (7) requires the European Maritime Safety Agency (hereinafter referred to as ‘the Agency’) to work with the Member States to develop technical solutions and provide technical assistance related to the implementation of Community legislation. In the field of accident investigation, the Agency has the specific task of facilitating cooperation between the Member States and the Commission in the development, with due regard to the different legal systems in the Member States, of a common methodology for investigating maritime accidents according to agreed international principles. |
| --- | --- |

(19)

Regulation (EC) No 1406/2002 of the European Parliament and of the Council (7) requires the European Maritime Safety Agency (hereinafter referred to as ‘the Agency’) to work with the Member States to develop technical solutions and provide technical assistance related to the implementation of Community legislation. In the field of accident investigation, the Agency has the specific task of facilitating cooperation between the Member States and the Commission in the development, with due regard to the different legal systems in the Member States, of a common methodology for investigating maritime accidents according to agreed international principles.

7

| (20) | In accordance with Regulation (EC) No 1406/2002, the Agency facilitates cooperation in the provision of support given by the Member States in activities concerning investigations, and in analysing existing accident investigation reports. |
| --- | --- |

(20)

In accordance with Regulation (EC) No 1406/2002, the Agency facilitates cooperation in the provision of support given by the Member States in activities concerning investigations, and in analysing existing accident investigation reports.

| (21) | The safety recommendations resulting from a safety investigation should be duly taken into account by the Member States. |
| --- | --- |

(21)

The safety recommendations resulting from a safety investigation should be duly taken into account by the Member States.

| (22) | Since the aim of the technical safety investigation is the prevention of marine casualties and incidents, the conclusions and the safety recommendations should in no circumstances determine liability or apportion blame. |
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(22)

Since the aim of the technical safety investigation is the prevention of marine casualties and incidents, the conclusions and the safety recommendations should in no circumstances determine liability or apportion blame.

| (23) | Since the objective of this Directive, namely to improve marine safety in the Community and thereby reduce the risk of future marine casualties, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or the effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. |
| --- | --- |

(23)

Since the objective of this Directive, namely to improve marine safety in the Community and thereby reduce the risk of future marine casualties, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or the effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

| (24) | The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (8). |
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(24)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (8).

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| (25) | In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to the international conventions, protocols, codes and resolutions related thereto and to adopt or modify the common methodology for investigating marine casualties and incidents. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. |
| --- | --- |

(25)

In particular, the Commission should be empowered to amend this Directive in order to apply subsequent amendments to the international conventions, protocols, codes and resolutions related thereto and to adopt or modify the common methodology for investigating marine casualties and incidents. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

inter alia

| (26) | In accordance with point 34 of the Interinstitutional Agreement on better law-making (9), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public, |
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(26)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (9), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public,

9

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

1.   The purpose of this Directive is to improve maritime safety and the prevention of pollution by ships, and so reduce the risk of future marine casualties, by:

| (a) | facilitating the expeditious holding of safety investigations and proper analysis of marine casualties and incidents in order to determine their causes; and |
| --- | --- |

(a)

facilitating the expeditious holding of safety investigations and proper analysis of marine casualties and incidents in order to determine their causes; and

| (b) | ensuring the timely and accurate reporting of safety investigations and proposals for remedial action. |
| --- | --- |

(b)

ensuring the timely and accurate reporting of safety investigations and proposals for remedial action.

2.   Investigations under this Directive shall not be concerned with determining liability or apportioning blame. However, Member States shall ensure that the investigative body or entity (hereinafter referred to as the ‘investigative body’) is not refraining from fully reporting the causes of the casualty or incident because fault or liability may be inferred from the findings.

Article 2

Scope

1.   This Directive shall apply to marine casualties and incidents that:

| (a) | involve ships flying the flag of one of the Member States; |
| --- | --- |

(a)

involve ships flying the flag of one of the Member States;

| (b) | occur within Member States' territorial sea and internal waters as defined in UNCLOS; or |
| --- | --- |

(b)

occur within Member States' territorial sea and internal waters as defined in UNCLOS; or

| (c) | involve other substantial interests of the Member States. |
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(c)

involve other substantial interests of the Member States.

2.   This Directive shall not apply to marine casualties and incidents involving only:

| (a) | ships of war and troop ships and other ships owned or operated by a Member State and used only on government non-commercial service; |
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(a)

ships of war and troop ships and other ships owned or operated by a Member State and used only on government non-commercial service;

| (b) | ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft not engaged in trade, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes; |
| --- | --- |

(b)

ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft not engaged in trade, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes;

| (c) | inland waterway vessels operating in inland waterways; |
| --- | --- |

(c)

inland waterway vessels operating in inland waterways;

| (d) | fishing vessels with a length of less than 15 metres; |
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(d)

fishing vessels with a length of less than 15 metres;

| (e) | fixed offshore drilling units. |
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(e)

fixed offshore drilling units.

Article 3

Definitions

For the purposes of this Directive:

| 1) | ‘IMO Code for the Investigation of Marine Casualties and Incidents’ means the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(20) of the IMO Assembly of 27 November 1997, in its up-to-date version. |
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1)

‘IMO Code for the Investigation of Marine Casualties and Incidents’ means the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(20) of the IMO Assembly of 27 November 1997, in its up-to-date version.

| 2) | The following terms shall be understood in accordance with the definitions contained in the IMO Code for the Investigation of Marine Casualties and Incidents:






  (a) | ‘marine casualty’; |
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2)

The following terms shall be understood in accordance with the definitions contained in the IMO Code for the Investigation of Marine Casualties and Incidents:

(a)

‘marine casualty’;

| (b) | ‘very serious casualty’; |
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(b)

‘very serious casualty’;

| (c) | ‘marine incident’; |
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(c)

‘marine incident’;

| (d) | ‘marine casualty or incident safety investigation’; |
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(d)

‘marine casualty or incident safety investigation’;

| (e) | ‘lead investigating State’; |
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(e)

‘lead investigating State’;

| (f) | ‘substantially interested State’. |
| --- | --- |

(f)

‘substantially interested State’.

| 3) | The terms ‘ro-ro ferry’ and ‘high-speed passenger craft’ shall be understood in accordance with the definitions contained in Article 2 of Directive 1999/35/EC. |
| --- | --- |

3)

The terms ‘ro-ro ferry’ and ‘high-speed passenger craft’ shall be understood in accordance with the definitions contained in Article 2 of Directive 1999/35/EC.

| 4) | ‘Voyage data recorder’ (hereinafter referred to as ‘VDR’) shall be understood in accordance with the definition contained in Resolution A.861(20) of the IMO Assembly and Resolution MSC.163(78) of the IMO Maritime Safety Committee. |
| --- | --- |

4)

‘Voyage data recorder’ (hereinafter referred to as ‘VDR’) shall be understood in accordance with the definition contained in Resolution A.861(20) of the IMO Assembly and Resolution MSC.163(78) of the IMO Maritime Safety Committee.

| 5) | ‘Safety recommendation’ means any proposal made by either of the following:






  (a) | the investigative body of the State conducting, or leading, the safety investigation on the basis of information derived from that investigation; or, where appropriate, |
| --- | --- | --- |

5)

‘Safety recommendation’ means any proposal made by either of the following:

(a)

the investigative body of the State conducting, or leading, the safety investigation on the basis of information derived from that investigation; or, where appropriate,

| (b) | the Commission, acting on the basis of an abstract data analysis. |
| --- | --- |

(b)

the Commission, acting on the basis of an abstract data analysis.

Article 4

Status of safety investigations

1.   Member States shall define, in accordance with their legal systems, the legal status of the safety investigation in such a way that such investigations can be carried out as effectively and rapidly as possible.

Member States shall ensure, in accordance with their legislation and, where appropriate, through collaboration with the authorities responsible for the judicial inquiry, that safety investigations are:

| (a) | independent of criminal or other parallel investigations held to determine liability or apportion blame; and |
| --- | --- |

(a)

independent of criminal or other parallel investigations held to determine liability or apportion blame; and

| (b) | not unduly precluded, suspended or delayed by reason of such investigations. |
| --- | --- |

(b)

not unduly precluded, suspended or delayed by reason of such investigations.

2.   The rules to be established by the Member States shall include, in accordance with the permanent cooperation framework referred to in Article 10, provisions for allowing:

| (a) | cooperation and mutual assistance in safety investigations led by other Member States, or the delegation to another Member State of the task of leading such an investigation in accordance with Article 7; and |
| --- | --- |

(a)

cooperation and mutual assistance in safety investigations led by other Member States, or the delegation to another Member State of the task of leading such an investigation in accordance with Article 7; and

| (b) | coordination of the activities of their respective investigative bodies to the extent necessary to attain the objective of this Directive. |
| --- | --- |

(b)

coordination of the activities of their respective investigative bodies to the extent necessary to attain the objective of this Directive.

Article 5

Obligation to investigate

1.   Each Member State shall ensure that a safety investigation is carried out by the investigative body referred to in Article 8 after very serious marine casualties:

| (a) | involving a ship flying its flag, irrespective of the location of the casualty; |
| --- | --- |

(a)

involving a ship flying its flag, irrespective of the location of the casualty;

| (b) | occurring within its territorial sea and internal waters as defined in UNCLOS, irrespective of the flag of the ship or ships involved in the casualty; or |
| --- | --- |

(b)

occurring within its territorial sea and internal waters as defined in UNCLOS, irrespective of the flag of the ship or ships involved in the casualty; or

| (c) | involving a substantial interest of the Member State, irrespective of the location of the casualty and of the flag of the ship or ships involved. |
| --- | --- |

(c)

involving a substantial interest of the Member State, irrespective of the location of the casualty and of the flag of the ship or ships involved.

2.   In addition, the investigative body shall decide whether or not a safety investigation of any other marine casualty or incident shall be undertaken.

In its decision, the investigative body shall take into account the seriousness of the casualty or incident, the type of vessel and/or cargo involved, and the potential for the findings of the safety investigation to lead to the prevention of future casualties and incidents.

3.   The scope and practical arrangements for the conduct of safety investigations shall be determined by the investigative body of the lead investigating Member State in cooperation with the equivalent bodies of the other substantially interested States, in such manner as appears to it most conducive to achieving the objective of this Directive, and with a view to preventing future casualties and incidents.

4.   Safety investigations shall follow the principles of the common methodology for investigating marine casualties and incidents developed pursuant to Article 2(e) of Regulation (EC) No 1406/2002. The Commission shall adopt or modify this methodology for the purposes of this Directive.

That measure, designed to amend non-essential elements of this Directive, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

inter alia

The Commission and Member States shall develop guidelines on processes and best practice in safety investigations to be used in implementing the common methodology. These guidelines shall be updated periodically to take account of experience gained in the conduct of safety investigations.

5.   A safety investigation shall be started as promptly as is practicable after the marine casualty or incident occurs.

Article 6

Obligation to notify

A Member State shall require, in the framework of its legal system, that its investigative body be notified without delay, by the responsible authorities and/or by the parties involved, of the occurrence of all casualties and incidents falling within the scope of this Directive.

Article 7

Leading of, and participation in, safety investigations

1.   Member States shall avoid conducting parallel safety investigations into the same marine casualty or incident. They shall abstain from any measure which could unduly preclude, suspend or delay the conduct of a safety investigation falling within the scope of this Directive.

In cases of safety investigations involving two or more Member States, the Member States concerned shall cooperate with a view to rapidly agreeing which of them is to be the lead investigating Member State. They shall make every effort to agree on the procedures to investigate. In the framework of this agreement, other substantially interested States shall have equal rights and access to witnesses and evidence as the Member State conducting the safety investigation. They shall also have the right to see their point of view taken into consideration by the lead investigating Member State.

2.   Notwithstanding paragraph 1, each Member State shall remain responsible for the safety investigation and coordination with other substantially interested Member States until such time as it is mutually agreed which of them is to be the lead investigating State.

3.   Without prejudice to its obligations under this Directive and international law, a Member State may, on a case-by-case basis, delegate by mutual agreement to another Member State the task of leading a safety investigation or specific tasks for the conduct of such an investigation.

4.   When a ro-ro ferry or high-speed passenger craft is involved in a marine casualty or incident, the safety investigation procedure shall be launched by the Member State in whose territorial sea or internal waters as defined in UNCLOS the accident or incident occurs or, if occurring in other waters, by the last Member State visited by that ferry or craft. That State shall remain responsible for the safety investigation and coordination with other substantially interested Member States until it is mutually agreed which of them is to be the lead investigating State.

Article 8

Investigative bodies

1.   Member States shall ensure that safety investigations are conducted under the responsibility of an impartial permanent investigative body, and by suitably qualified investigators, competent in matters relating to marine casualties and incidents.

In order to carry out a safety investigation in an unbiased manner, the investigative body shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it.

Landlocked Member States which have neither ships nor vessels flying their flag will identify an independent focal point to cooperate in the investigation pursuant to Article 5(1)(c).

2.   The investigative body shall ensure that individual investigators have a working knowledge of, and practical experience in, those subject areas pertaining to their normal investigative duties. Additionally, the investigative body shall ensure ready access to appropriate expertise, as necessary.

3.   The activities entrusted to the investigative body may be extended to the gathering and analysis of data relating to marine safety, in particular for prevention purposes, in so far as these activities do not affect its independence or entail responsibility in regulatory, administrative or standardisation matters.

4.   Member States, acting in the framework of their respective legal systems, shall ensure that the investigators of its investigative body, or of any other investigative body to which it has delegated the task of safety investigation, where appropriate in collaboration with the authorities responsible for the judicial inquiry, be authorised to:

| (a) | have free access to any relevant area or casualty site as well as to any ship, wreck or structure including cargo, equipment or debris; |
| --- | --- |

(a)

have free access to any relevant area or casualty site as well as to any ship, wreck or structure including cargo, equipment or debris;

| (b) | ensure immediate listing of evidence and controlled search for and removal of wreckage, debris or other components or substances for examination or analysis; |
| --- | --- |

(b)

ensure immediate listing of evidence and controlled search for and removal of wreckage, debris or other components or substances for examination or analysis;

| (c) | require examination or analysis of the items referred to in point (b), and have free access to the results of such examinations or analysis; |
| --- | --- |

(c)

require examination or analysis of the items referred to in point (b), and have free access to the results of such examinations or analysis;

| (d) | have free access to, copy and have use of any relevant information and recorded data, including VDR data, pertaining to a ship, voyage, cargo, crew or any other person, object, condition or circumstance; |
| --- | --- |

(d)

have free access to, copy and have use of any relevant information and recorded data, including VDR data, pertaining to a ship, voyage, cargo, crew or any other person, object, condition or circumstance;

| (e) | have free access to the results of examinations of the bodies of victims or of tests made on samples taken from the bodies of victims; |
| --- | --- |

(e)

have free access to the results of examinations of the bodies of victims or of tests made on samples taken from the bodies of victims;

| (f) | require and have free access to the results of examinations of, or tests made on samples taken from, people involved in the operation of a ship or any other relevant person; |
| --- | --- |

(f)

require and have free access to the results of examinations of, or tests made on samples taken from, people involved in the operation of a ship or any other relevant person;

| (g) | interview witnesses in the absence of any person whose interests could be considered as hampering the safety investigation; |
| --- | --- |

(g)

interview witnesses in the absence of any person whose interests could be considered as hampering the safety investigation;

| (h) | obtain survey records and relevant information held by the flag State, the owners, classification societies or any other relevant party, whenever those parties or their representatives are established in the Member State; |
| --- | --- |

(h)

obtain survey records and relevant information held by the flag State, the owners, classification societies or any other relevant party, whenever those parties or their representatives are established in the Member State;

| (i) | call for the assistance of the relevant authorities in the respective States, including flag-State and port-State surveyors, coastguard officers, vessel traffic service operators, search and rescue teams, pilots or other port or maritime personnel. |
| --- | --- |

(i)

call for the assistance of the relevant authorities in the respective States, including flag-State and port-State surveyors, coastguard officers, vessel traffic service operators, search and rescue teams, pilots or other port or maritime personnel.

5.   The investigative body shall be enabled to respond immediately on being notified at any time of a casualty, and to obtain sufficient resources to carry out its functions independently. Its investigators shall be afforded status giving them the necessary guarantees of independence.

6.   The investigating body may combine its tasks under this Directive with the work of investigating occurrences other than marine casualties on condition that such investigations do not endanger its independence.

Article 9

Confidentiality

Member States, acting in the framework of their legal systems, shall ensure that the following records are not made available for purposes other than the safety investigation, unless the competent authority in that State determines that the interest in their disclosure outweighs the adverse domestic and international impact that such action may have on that safety investigation or on any future investigations:

| (a) | all witness evidence and other statements, accounts and notes taken or received by the investigative body in the course of the safety investigation; |
| --- | --- |

(a)

all witness evidence and other statements, accounts and notes taken or received by the investigative body in the course of the safety investigation;

| (b) | records revealing the identity of persons who have given evidence in the context of the safety investigation; |
| --- | --- |

(b)

records revealing the identity of persons who have given evidence in the context of the safety investigation;

| (c) | medical or private information regarding persons involved in the casualty or incident. |
| --- | --- |

(c)

medical or private information regarding persons involved in the casualty or incident.

Article 10

Permanent cooperation framework

1.   Member States shall, in close cooperation with the Commission, establish a permanent cooperation framework enabling their respective investigative bodies to cooperate among themselves to the extent necessary to attain the objective of this Directive.

2.   The rules of procedure of the permanent cooperation framework and the organisation arrangements required therefor shall be decided in accordance with the regulatory procedure referred to in Article 18(2).

3.   Within the permanent cooperation framework, the investigative bodies in the Member States shall agree, in particular, upon the best modalities of cooperation in order to:

| (a) | enable investigative bodies to share installations, facilities and equipment for the technical investigation of wreckage and ship's equipment and other objects relevant to the safety investigation, including the extraction and evaluation of information from VDRs and other electronic devices; |
| --- | --- |

(a)

enable investigative bodies to share installations, facilities and equipment for the technical investigation of wreckage and ship's equipment and other objects relevant to the safety investigation, including the extraction and evaluation of information from VDRs and other electronic devices;

| (b) | provide each other with the technical cooperation or expertise needed to undertake specific tasks; |
| --- | --- |

(b)

provide each other with the technical cooperation or expertise needed to undertake specific tasks;

| (c) | acquire and share information relevant for analysing casualty data and making appropriate safety recommendations at Community level; |
| --- | --- |

(c)

acquire and share information relevant for analysing casualty data and making appropriate safety recommendations at Community level;

| (d) | draw up common principles for the follow-up of safety recommendations and for the adaptation of investigative methods to the development of technical and scientific progress; |
| --- | --- |

(d)

draw up common principles for the follow-up of safety recommendations and for the adaptation of investigative methods to the development of technical and scientific progress;

| (e) | establish confidentiality rules for the sharing, in the respect of national rules, of witness evidence and the processing of data and other records referred to in Article 9, including in relations with third countries; |
| --- | --- |

(e)

establish confidentiality rules for the sharing, in the respect of national rules, of witness evidence and the processing of data and other records referred to in Article 9, including in relations with third countries;

| (f) | organise, where appropriate, relevant training activities for individual investigators; |
| --- | --- |

(f)

organise, where appropriate, relevant training activities for individual investigators;

| (g) | promote cooperation with the investigative bodies of third countries and with the international maritime accidents investigation organisations in the fields covered by this Directive; |
| --- | --- |

(g)

promote cooperation with the investigative bodies of third countries and with the international maritime accidents investigation organisations in the fields covered by this Directive;

| (h) | provide investigative bodies conducting safety investigations with any pertinent information. |
| --- | --- |

(h)

provide investigative bodies conducting safety investigations with any pertinent information.

Article 11

Costs

1.   Where safety investigations involve two or more Member States, the respective activities shall be free of charge.

2.   Where assistance is requested of a Member State that is not involved in the safety investigation, Member States shall agree on the reimbursement of costs incurred.

Article 12

Cooperation with substantially interested third countries

1.   Member States shall cooperate, to the maximum extent possible, with other substantially interested third countries in safety investigations.

2.   Substantially interested third countries shall, by mutual agreement, be allowed to join a safety investigation led by a Member State under this Directive at any stage of the investigation.

3.   The cooperation of a Member State in a safety investigation conducted by a substantially interested third country shall be without prejudice to the conduct and reporting requirements of safety investigations under this Directive. Where a substantially interested third country is leading a safety investigation involving one or more Member States, Member States may decide not to carry out a parallel safety investigation, provided that the safety investigation led by the third country is conducted in accordance with the IMO Code for the Investigation of Marine Casualties and Incidents.

Article 13

Preservation of evidence

Member States shall adopt measures to ensure that the parties concerned by casualties and incidents under the scope of this Directive make every effort to:

| (a) | save all information from charts, log books, electronic and magnetic recording and video tapes, including information from VDRs and other electronic devices relating to the period preceding, during and after an accident; |
| --- | --- |

(a)

save all information from charts, log books, electronic and magnetic recording and video tapes, including information from VDRs and other electronic devices relating to the period preceding, during and after an accident;

| (b) | prevent the overwriting or other alteration of such information; |
| --- | --- |

(b)

prevent the overwriting or other alteration of such information;

| (c) | prevent interference with any other equipment which might reasonably be considered pertinent to the safety investigation of the accident; |
| --- | --- |

(c)

prevent interference with any other equipment which might reasonably be considered pertinent to the safety investigation of the accident;

| (d) | collect and preserve all evidence expeditiously for the purposes of the safety investigations. |
| --- | --- |

(d)

collect and preserve all evidence expeditiously for the purposes of the safety investigations.

Article 14

Accident reports

1.   Safety investigations carried out under this Directive shall result in a published report presented in a format defined by the competent investigative body and in accordance with the relevant sections of Annex I.

Investigative bodies may decide that a safety investigation, which does not concern a very serious marine casualty and the findings of which do not have the potential to lead to the prevention of future casualties and incidents, shall result in a simplified report to be published.

2.   Investigative bodies shall make every effort to make the report referred to in paragraph 1 available to the public within 12 months from the day of the casualty. If it is not possible to produce the final report within that time, an interim report shall be published within 12 months from the date of the casualty.

3.   The investigative body of the lead investigating Member State shall send a copy of the final, simplified or interim report to the Commission. It shall take into account the possible observations of the Commission on final reports for improving the editorial quality in the way most conducive to achieving the objective of this Directive.

Article 15

Safety recommendations

1.   Member States shall ensure that safety recommendations made by the investigative bodies are duly taken into account by the addressees and, where appropriate, be given an adequate follow-up in accordance with Community and international law.

2.   Where appropriate, an investigative body or the Commission shall make safety recommendations on the basis of an abstract data analysis.

3.   A safety recommendation shall in no circumstances determine liability or apportion blame for a casualty.

Article 16

Early alert system

Without prejudice to its right to give an early alert, the investigative body of a Member State shall, at any stage of a safety investigation, if it takes the view that urgent action is needed at Community level to prevent the risk of new casualties, inform the Commission without delay of the need to give an early alert.

If necessary, the Commission shall issue a note of warning for the attention of the responsible authorities in all the other Member States, the shipping industry, and to any other relevant party.

Article 17

European database for marine casualties

1.   Data on marine casualties and incidents shall be stored and analysed by means of a European electronic database to be set up by the Commission, which shall be known as the European Marine Casualty Information Platform (EMCIP).

2.   Member States shall notify the Commission of the entitled authorities that will have access to the database.

3.   The investigative bodies of the Member States shall notify the Commission on marine casualties and incidents in accordance with the format in Annex II. They shall also provide the Commission with data resulting from safety investigations in accordance with the EMCIP database scheme.

4.   The Commission and the Member States shall develop the database scheme and a method for the notification of data within the appropriate timescale.

Article 18

Committee

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) established by Regulation (EC) No 2099/2002 of the European Parliament and the Council (10).

10

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

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

3.   Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

Article 19

Amending powers

The Commission may update definitions in this Directive, and the references made to Community acts and to IMO instruments in order to bring them into line with Community or IMO measures which have entered into force, subject to observance of the limits of this Directive.

Those measures, designed to amend non-essential elements of this Directive, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3).

inter alia

Acting in accordance with the same procedure, the Commission may also amend the Annexes.

Amendments to the IMO Code for the Investigation of Marine Casualties and Incidents may be excluded from the scope of this Directive pursuant to Article 5 of Regulation (EC) No 2099/2002.

Article 20

Additional measures

Nothing contained in this Directive shall prevent a Member State from taking additional measures on maritime safety which are not covered by this Directive, provided that such measures do not infringe this Directive or in any way adversely affect the attainment of its objective.

Article 21

Penalties

Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

Article 22

Amendments to existing acts

1.   Article 12 of Directive 1999/35/EC shall be deleted.

2.   Article 11 of Directive 2002/59/EC shall be deleted.

Article 23

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... (11).

11

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 24

Entry into force

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

Official Journal of the European Union

Article 25

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 318, 23.12.2006, p. 195.

1

(2)  OJ C 229, 22.9.2006, p. 38.

2

(3)  Opinion of the European Parliament of 25 April 2007 (not yet published in the Official Journal), Council Common Position of 6 June 2008 and Position of the European Parliament of ... (not yet published in the Official Journal).

3

(4)  OJ C 104 E, 30.4.2004, p. 730.

4

(5)  OJ L 138, 1.6.1999, p. 1. Directive as amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).

5

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

6

(7)  OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation (EC) No 1891/2006 (OJ L 394, 30.12.2006, p. 1).

7

(8)  OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

8

(9)  OJ C 321, 31.12.2003, p. 1.

9

(10)  OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).

10

(11)  24 months after the date of entry into force of this Directive.

11

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ANNEX I

SAFETY INVESTIGATION REPORT CONTENT

Foreword

This identifies the sole objective of the safety investigation, that a safety recommendation shall in no case create a presumption of liability or blame, and that the report has not been written, in terms of content and style, with the intention of it being used in legal proceedings.

(The report should make no reference to witness evidence nor link anyone who is referred to in the report to a person who has given evidence during the course of the safety investigation.)

1.   Summary

This part outlines the basic facts of the marine casualty or incident: what happened, when, where and how it happened; it also states whether any deaths, injuries, damage to the ship, cargo, third parties or environment occurred as a result.

2.   Factual information

This part includes a number of discrete sections, providing sufficient information that the investigating body interprets to be factual, substantiate the analysis and ease understanding.

These sections include, in particular, the following information:

| 2.1. | Ship particulars
  Flag/register,
  Identification,
  Main characteristics,
  Ownership and management,
  Construction details,
  Minimum safe manning,
  Authorised cargo. |
| --- | --- |

2.1.

Ship particulars

Flag/register,

Identification,

Main characteristics,

Ownership and management,

Construction details,

Minimum safe manning,

Authorised cargo.

| 2.2. | Voyage particulars
  Ports of call,
  Type of voyage,
  Cargo information,
  Manning. |
| --- | --- |

2.2.

Voyage particulars

Ports of call,

Type of voyage,

Cargo information,

Manning.

| 2.3. | Marine casualty or incident information
  Type of marine casualty or incident,
  Date and time,
  Position and location of the marine casualty or incident,
  External and internal environment,
  Ship operation and voyage segment,
  Place on board,
  Human factors data,
  Consequences (for people, ship, cargo, environment, other). |
| --- | --- |

2.3.

Marine casualty or incident information

Type of marine casualty or incident,

Date and time,

Position and location of the marine casualty or incident,

External and internal environment,

Ship operation and voyage segment,

Place on board,

Human factors data,

Consequences (for people, ship, cargo, environment, other).

| 2.4. | Shore authority involvement and emergency response
  Who was involved,
  Means used,
  Speed of response,
  Actions taken,
  Results achieved. |
| --- | --- |

2.4.

Shore authority involvement and emergency response

Who was involved,

Means used,

Speed of response,

Actions taken,

Results achieved.

3.   Narrative

This part reconstructs the marine casualty or incident through a sequence of events, in a chronological order leading up to, during and following the marine casualty or incident and the involvement of each actor (i.e. person, material, environment, equipment or external agent). The period covered by the narrative depends on the timing of those particular accidental events that directly contributed to the marine casualty or incident. This part also includes any relevant details of the safety investigation conducted, including the results of examinations or tests.

4.   Analysis

This part includes a number of discrete sections, providing an analysis of each accidental event, with comments relating to the results of any relevant examinations or tests conducted during the course of the safety investigation and to any safety action that might already have been taken to prevent marine casualties.

These sections should cover issues such as:

| — | accidental event context and environment, |
| --- | --- |

—

accidental event context and environment,

| — | human erroneous actions and omissions, events involving hazardous material, environmental effects, equipment failures, and external influences, |
| --- | --- |

—

human erroneous actions and omissions, events involving hazardous material, environmental effects, equipment failures, and external influences,

| — | contributing factors involving person-related functions, shipboard operations, shore management or regulatory influence. |
| --- | --- |

—

contributing factors involving person-related functions, shipboard operations, shore management or regulatory influence.

The analysis and comment enable the report to reach logical conclusions, establishing all of the contributing factors, including those with risks for which existing defences aimed at preventing an accidental event, and/or those aimed at eliminating or reducing its consequences, are assessed to be either inadequate or missing.

5.   Conclusions

This part consolidates the established contributing factors and missing or inadequate defences (material, functional, symbolic or procedural) for which safety actions should be developed to prevent marine casualties.

6.   Safety recommendations

When appropriate, this part of the report contains safety recommendations derived from the analysis and conclusions and related to particular subject areas, such as legislation, design, procedures, inspection, management, health and safety at work, training, repair work, maintenance, shore assistance and emergency response.

The safety recommendations are addressed to those that are best placed to implement them, such as ship owners, managers, recognised organisations, maritime authorities, vessel traffic services, emergency bodies, international maritime organisations and European institutions, with the aim of preventing marine casualties.

This part also includes any interim safety recommendations that may have been made or any safety actions taken during the course of the safety investigation.

7.   Appendices

When appropriate, the following non-exhaustive list of information is attached to the report in paper and/or electronic form:

| — | photographs, moving images, audio recordings, charts, drawings, |
| --- | --- |

—

photographs, moving images, audio recordings, charts, drawings,

| — | applicable standards, |
| --- | --- |

—

applicable standards,

| — | technical terms and abbreviations used, |
| --- | --- |

—

technical terms and abbreviations used,

| — | special safety studies, |
| --- | --- |

—

special safety studies,

| — | miscellaneous information. |
| --- | --- |

—

miscellaneous information.

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ANNEX II

MARINE CASUALTY OR INCIDENT NOTIFICATION DATA

(Part of the European Marine Casualty Information Platform)

| Note: | Underlined numbers mean that data should be provided for each ship if more than one ship is involved in the marine casualty or incident.






  01. | Member Sate responsible/contact person |
| --- | --- | --- |
| 02. | Member Sate investigator |
| 03. | Member State role |
| 04. | Coastal state affected |
| 05. | Number of substantially interested States |
| 06. | Substantially interested States |
| 07. | Notification entity |
| 08. | Time of the notification |
| 09. | Date of the notification |
| 10. | Name of the ship |
| 11. | IMO number/distinctive letters |
| 12. | Ship flag |
| 13. | Type of marine casualty or incident |
| 14. | Type of ship |
| 15. | Date of the marine casualty or incident |
| 16. | Time of the marine casualty or incident |
| 17. | Position — Latitude |
| 18. | Position — Longitude |
| 19. | Location of the marine casualty or incident |
| 20. | Port of departure |
| 21. | Port of destination |
| 22. | Traffic separation scheme |
| 23. | Voyage segment |
| 24. | Ship operation |
| 25. | Place on board |
| 26. | Lives lost:






  — | Crew |

Note:

Underlined numbers mean that data should be provided for each ship if more than one ship is involved in the marine casualty or incident.

01.

Member Sate responsible/contact person

02.

Member Sate investigator

03.

Member State role

04.

Coastal state affected

05.

Number of substantially interested States

06.

Substantially interested States

07.

Notification entity

08.

Time of the notification

09.

Date of the notification

10.

Name of the ship

11.

IMO number/distinctive letters

12.

Ship flag

13.

Type of marine casualty or incident

14.

Type of ship

15.

Date of the marine casualty or incident

16.

Time of the marine casualty or incident

17.

Position — Latitude

18.

Position — Longitude

19.

Location of the marine casualty or incident

20.

Port of departure

21.

Port of destination

22.

Traffic separation scheme

23.

Voyage segment

24.

Ship operation

25.

Place on board

26.

Lives lost:

—

Crew

| — | Passengers |
| --- | --- |

—

Passengers

| — | Other |
| --- | --- |

—

Other

27.

Serious injuries:

| — | Crew |
| --- | --- |

—

Crew

| — | Passengers |
| --- | --- |

—

Passengers

| — | Other |
| --- | --- |

—

Other

28.

Pollution

29.

Ship damage

30.

Cargo damage

31.

Other damage

32.

Brief description of the marine casualty or incident

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

In the framework of the codecision procedure (Article 251 TEC), the Council reached, on 7 June 2007, a political agreement on the draft Directive establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC (1). Following legal/linguistic revision, the Council adopted its Common Position on 6 June 2008.

In taking its position, the Council took account of the opinion of the European Parliament in its first reading on 25 April 2007 (2), as well as of the opinions of the Economic and Social Committee (3) and of the Committee of Regions (4). Furthermore, it considered the impact study carried out by the Commission during the examination of the proposed Directive.

The proposal aims at improving safety by establishing clear Community-wide rules on the independent technical investigations to be carried out following maritime casualties and incidents. The aim of such technical investigations is not to determine civil or criminal liability, but to establish the circumstances and to research the causes of maritime casualties or incidents in order to draw all possible lessons from them. The proposal is drawn up in compliance with the rules of international maritime law and in accordance with the definitions and recommendations in the IMO Code for the Investigation of Marine Casualties and Incidents.

II.   ANALYSIS OF THE COMMON POSITION

The Council agrees with the objective and most of the main elements of the Commission proposal that provide an adequate mechanism for ensuring appropriate return of experience from accidents and incidents in order to prevent other casualties. The approach adopted by the Council required, however, some modifications of the text, in particular with a view to ensuring the independence and discretion powers of the investigative body.

The following issues were considered of major importance during the examination of the proposed Directive in the Council bodies and are reflected in the Council's Common Position:

The Council is of the view that, in coherence with the nature of the legal act, Member States, and in particular their respective investigative bodies, should retain certain flexibility and discretion related to carrying out safety investigations. Contrary to the original proposal that provided for mandatory safety investigations for very serious and serious marine casualties and incidents, the text agreed by the Council limits the obligation for safety investigations to very serious marine casualties or incidents and requires the investigative body in all other cases of marine casualties or incidents to decide whether or not to undertake a safety investigation, taking account in particular of the seriousness of the casualty or incident and the possible lessons to be learned. In addition, in the Council's view, there is no need to refer explicitly to distress alerts as a specific category of incidents that require safety investigations.

Furthermore, and following the example of the railways sector (5), the Council deems it appropriate to emphasize that the investigative body shall be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it in order to carry out safety investigations in an unbiased manner. It is to be understood that each Member State, in accordance with its own administrative organisation, sets up the investigative body as a public structure with the greatest possible autonomy in terms of internal functioning. This structure can be linked to a bigger entity like a ministry or administration, but will have to be regulated by provisions guaranteeing its independence, particularly from other administrative authorities likely to be interested in any maritime accident. For reasons of proportionality, Member States, which have neither ships nor vessels flying their flag, will identify an independent focal point to cooperate in safety investigations involving a substantial interest of that Member State.

In line with the requirements laid down in Community Law for safety investigations in the air transport and railways sectors, the Council agrees with the European Parliament that safety investigations have to be differentiated from criminal investigations or other proceedings aimed at determining liability and apportioning blame. The text of the Common Position establishes that investigations under this Directive have no other aim than to determine the causes of casualties. At the same time, and in accordance with the IMO Code for the Investigation of Marine Casualties and Incidents, it stipulates that the investigative body should not refrain from full reporting to this effect because fault or liability may be inferred from the findings. In case national law does not provide for a clear separation of safety investigations from criminal or other administrative investigations, Member States have to ensure, by defining the legal status of safety investigations, that these can be carried out as effectively and rapidly as possible and are not unduly precluded or suspended by other investigations.

Concerning the scope of the Directive, the Council includes in its Common Position small fishing vessels with a length of more than 15 m, and not only vessels above 24 m length as in the original proposal. This is done for reasons of consistency with the Council's Common Position on the draft Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system. According to this draft Directive, these vessels are obliged to be equipped with AIS (Automatic Identification System) to improve the possibilities of monitoring these ships and to make them safer in close navigation situations. They should, therefore, also be covered by the Directive concerning the investigation of accidents.

Related to the methodology for investigating marine casualties and incidents, the Council deems it appropriate to provide for more flexibility, while establishing the bases for a continuous exchange of experience. Compared to the original proposal, Member States have more leeway in implementing the principles of the common methodology that is developed with the assistance of the European Maritime Safety Agency and adopted in accordance with the regulatory procedure with scrutiny. At the same time, based on the experience gained in the conduct of safety investigations, the Commission and the Member States will develop guidelines on processes and best practices to be used in implementing the common methodology.

III.   AMENDMENTS

In agreeing on its Common Position, the Council took account of the points of view expressed by the European Parliament in its first reading of the proposal. The following elements of the EP's opinion are reflected in the Common Position, some of them partly or in principle: amendments 3, 9, 10, 11, 22 and 23.

A number of other amendments were, however, not acceptable for the Council. With regard to amendments 2 and 19, the Council believes that the joint methodology should not deal with the findings of safety investigations but rather focus on procedural aspects. Amendments 5 and 8 are in the Council's view not compatible with its approach to the principle of differentiation between criminal and technical investigations. Amendments 7 and 20 could not be accepted because the Council believes that it is not appropriate to specify the competences of the European Maritime Safety Agency (EMSA) in this Directive. Amendments 12 and 13 would restrict the working methods of the investigative body or are too prescriptive. Amendments 14 and 26 could not be accepted because the Council attaches major importance to the principle of impartiality of the investigative body and is of the view that it is up to each Member State to set up this body in accordance with its own administrative structure. Amendment 16 is not compatible with the need to respect national law.

A set of other amendments (4, 6, 15, 17, 18 and 24) was rejected either because they were not entirely clear or they do not correspond to the Council's approach for a concise text.

IV.   CONCLUSION

The Council believes that the text of its Common Position is appropriate and balanced. It shares the aim of the European Parliament to establish a framework ensuring rapid safety investigations into maritime casualties and incidents. The Common Position includes some of the EP amendments adopted in first reading.

The Council reaffirms its engagement to start negotiations with the European Parliament on this text with a view to reaching an agreement as soon as possible.

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(1)  The Commission transmitted its proposal on 13 February 2006.

(2)  Doc. 8724/07 CODEC 389 MAR 28 ENV 206 (not yet published in the Official Journal).

(3)  CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195-201).

(4)  CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).

(5)  Article 21 of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ L 164, 30.4.2004).

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