# EUR-Lex - 52015PC0159 - EN

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# 52015PC0159

**Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, in the Port State Control Committee of the Paris Memorandum of Understanding on Port State Control /* COM/2015/0159 final - 2015/0081 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The EU regime on port State control (PSC)
is set out in Directive 2009/16/EC[1]
(as amended), which re-cast and reinforced the previous EU legislation in this
field in place since 1995. The EU regime has been based on the pre-existing
structure of the Paris Memorandum of Understanding (PMoU) on Port State Control
which has existed since 1982. Directive 2009/16/EC (as amended) incorporates
the procedures and tools of the PMoU. All maritime EU Member States as well as
Canada, Russia, Iceland and Norway are members of the PMoU.  The European Union
is not a member of the PMoU.

Since 1 January 2011 a new inspection
regime (NIR) for Port State Control is in place, both in the EU and the PMoU
frameworks.  In order for the NIR to function a certain number of decisions
have to be taken each year in the context of the PMoU. These decisions are
taken by consensus at the annual "Port State Control Committee"
(PSCC) which meets in May of each year. By virtue of Directive 2009/16/EC
decisions taken by the appropriate competent body of the PMoU become binding on
EU Member States.

Pursuant to Article 218(9) of the Treaty on
the Functioning of the European Union, the position to be adopted on behalf of
the Union in international organisations such as the PMoU when they are called
upon to adopt acts having legal effects, must be adopted by Council Decision,
on a proposal from the Commission.

It is proposed that the EU position for
PSCC is established according to a two tier approach. A Council Decision sets
out the guiding principles and orientations of the Union's position on a
multiannual basis, whereas it is thereafter adjusted for each annual PSCC
meeting by Commission non-papers to be discussed in the Council Shipping Working
Party. This proposal aims at setting out the Union's position for PSCC for the
period 2015-2018. It also aims at incorporating the principles and orientations
of European Union policy to improve maritime safety, pollution prevention and
on-board living and working conditions. The Union's position also takes into
account the provisions of the Lisbon Treaty.

The Commission proposes this approach due
to the characteristics of the decisional process in PMoU. The internal rules of
the PMoU fix the latest date for submission of any documents by its members and
the task forces charged with the development of guidelines and instructions at
six weeks before the meeting of the PSCC. It is only at that point that all
submissions are available and the Commission can begin its analysis with a view
to preparing a proposal for a coordinated Union position under Article 218(9)
of the TFEU which has then to be adopted by the Council. As the time available
for this analysis, the preparation of the Commission proposal and its adoption
by Council is short, the process for the year to year specification of the
Union position is set out in Annex II. The following Decision shall cover the
period 2015-2018.

2.            LEGAL ELEMENTS OF THE
PROPOSAL

The following Decision is based on the Treaty
on the Functioning of the European Union, and in particular Article 100(2), in
conjunction with Article 218(9) which provides that the Council, on a proposal
from the Commission shall adopt a decision establishing the positions to be
adopted on the Union's behalf in a body set up by an agreement, when that body
is called upon to adopt acts having legal effects. This shall apply to the
position to be adopted by the Member States, on behalf of the Union, in the
PSCC of the PMoU.

Directive 2009/16/EC of the European
Parliament and of the Council of 23 April 2009 on port State control (as
amended) is the legal basis setting up the principles
to be adhered to by the Member States within the PSCC of the PMoU.

2015/0081 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf
of the European Union, in the Port State Control Committee of the Paris
Memorandum of Understanding on Port State Control

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 100(2), in
conjunction with Article 218(9) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       Maritime
safety, pollution prevention and on-board living and working conditions may be effectively
enhanced through a drastic reduction of substandard ships from European Union
waters, by strictly applying Conventions, international codes and resolutions.

(2)       While
the primary responsibility for monitoring the compliance of ships with the international
standards for safety, pollution prevention and on-board living and working
conditions lies with the flag State, responsibility for maintenance of the
condition of the ship and its equipment after survey to comply with the
requirements of Conventions applicable to the ship lies with the ship company.
There has however, been a serious failure on the part of a number of flag
States to implement and enforce international standards.

(3)       Therefore,
as a second line of defence against substandard shipping, the monitoring of
compliance with the international standards for safety, pollution prevention
and on-board living and working conditions should also be ensured by port
States, while recognising that port State control inspection is not a survey and
the relevant inspection forms are not seaworthiness certificates. A harmonised
approach to the effective enforcement of these international standards by EU
coastal Member States in respect of ships sailing in the waters under their
jurisdiction and using their ports should avoid distortions of competition.

(4)       Directive
2009/16/EC[2] (as amended), sets out the EU regime on port State control
reformulating and reinforcing the previous EU legislation in this field in
place since 1995. The EU regime is based on the pre-existing structure of the
Paris Memorandum of Understanding on Port State Control, an international
organisation which has existed since 1982.

(5)       As
regards EU Member States, Directive 2009/16/EC effectively brings the
procedures, tools and work of the PMoU on Port State control within the scope
of EU law. By virtue of Directive 2009/16/EC decisions taken by the appropriate
competent body of the Paris Memorandum of Understanding on Port State Control
become binding on EU Member States.

(6)       The
Port State Control Committee of the Paris Memorandum of Understanding on Port
State Control meets each year and during its deliberations decides on a number
of agenda items necessary for the operation of Directive 2009/16/EC.

(7)       Pursuant
to Article 218(9) of the Treaty on the Functioning of the European Union, the
position to be adopted on behalf of the Union in international organsiations
when they are called upon to adopt acts having legal effects, must be adopted
by Council decision, on a proposal from the Commission.

(8)       The
internal rules of the PMoU fix the latest date for submission of any documents
by its members and the task forces charged with the development of guidelines
and instructions at six weeks before the meeting of PSCC. It is only at that point
that all submissions are available and the Commission can begin its analysis
with a view to preparing a proposal for a coordinated Union position under
Article 218(9) of the TFEU. As the time available for this analysis and for the
adoption of a proposal is short, it is necessary to establish the guiding
principles and orientations of the Union's position on a multiannual basis,
together with the framework for the year-to-year specification of the Union
position.

(9)       This
decision should cover the period 2015-2018.

HAS ADOPTED THIS DECISION:

Article 1

The
position to be taken by the European Union in the annual Port State Control
Committee of the Paris Memorandum of Understanding on Port State Control when
that body is called upon to adopt decisions having legal effects is set out in
Annex I to this Decision.

Article 2

The
year-to-year specification of the Union position to be taken in the annual Port
State Control Committee of the Paris Memorandum of Understanding on Port State
Control shall be conducted in accordance with Annex II to this Decision.

Article 3

The
Union position set out in Annex I to the present Decision shall be assessed
and, where appropriate, revised by the Council upon a proposal from the
Commission, at the latest for the annual Port State Control Committee of the
Paris Memorandum of Understanding on Port State Control in 2018.

Article 4

This
Decision shall enter into force on .........................

Done at Brussels,

For
the Council

The
President

[1]               Directive 2009/16/EC of the European Parliament and
of the Council of 23 April 2009 on port State control (Recast) (OJ L 131,
28.5.2009, p. 57)

[2]               OJ L 131, 28.5.2009, p. 57

ANNEX

The Union position in the Paris Memorandum
of Understanding on Port State Control

to the

Proposal for a Council Decision

on the position to be adopted, on
behalf of the European Union, in the Port State Control Committee of the Paris
Memorandum of Understanding on Port State Control

Guiding Principles

In the framework of the Paris Memorandum of
Understanding on Port State Control (PMoU), the Union shall:

(a) 
act in accordance with the objectives pursued by
the Union, notably to improve maritime safety, pollution prevention and
on-board living and working conditions  through a drastic reduction of
substandard ships by strictly applying international Conventions and codes;

(b) 
promote the implementation of a harmonised
approach by Members of the PMoU to the effective enforcement of these
international standards in respect of ships sailing in the waters under their
jurisdiction and using their ports;

(c) 
work together within the PMoU to achieve a
comprehensive inspection scheme and the sharing of the  inspection burden in an
equitable manner in particular by the adoption of the annual inspection
commitment drawn up in accordance with the agreed methodology set out in Annex
11 of the PMoU;

(d) 
work within the PMoU to promote the recruitment,
retention and training by PMoU members of the requisite number of staff,
including qualified inspectors, taking into account the volume and
characteristics of shipping traffic at each port;

(e) 
ensure that measures adopted within the PMoU are
consistent with international law, and in particular with international
Conventions and codes relating to maritime safety, pollution prevention and
on-board living and working conditions;

(f) 
promote the development of common approaches
with other bodies carrying out Port State Control;

(g) 
ensure the coherence with other Union policies
notably in external relations, security, environment and others.

Orientations

The Union shall endeavour to support the
adoption of the following actions by the PMoU:

1. 
In order to ensure the smooth year-to-year
functioning of the EU port State control regime in accordance with Directive
2009/16/EC:

(a) 
The following elements of the ship risk profile
used to target vessels for inspection:

(1) 
the white, grey and black flag list in
accordance with the formula developed by the PMoU and set out in the Annex to
Commission Regulation (EU) No 801/2010 of 13 September 2010 implementing
Article 10(3) of Directive 2009/16/EC of the European Parliament and of the
Council as regards the flag State criteria[1]
;

(2) 
the performance list for recognised organisations
in accordance with the methodology adopted by PSCC at the PSCC 37 in May 2004
(Agenda Item point 4.5.2);

(3) 
the average deficiency and detention ratio for
the company performance formula on the basis of the Annex to Commission
Regulation (EU) No 802/2010 of 13 September 2010 implementing Article 10(3) and
Article 27 of Directive 2009/16/EC of the European Parliament and of the
Council as regards company performance[2], 
as amended .

(b) 
Ensure that any changes or updates to the the
procedures and guidelines of the PMoU are consistent with the objectives
pursued by the Union, notably to improve maritime safety, pollution prevention
and on-board living and working conditions.

2. 
In the medium term, the development of an
alternative method of drawing up the white, grey and black list of flag States
in order to increase its fairness, in particular with respect to flag States
with small fleets.

[1]               OJ L 241, 14.9.2010, p.1

[2]               OJ L 241, 14.9.2010, p.4

ANNEX

Year to year specification of the Union
position to be taken at the Port State Control Committee of the Paris
Memorandum of Understanding on Port State Control

to the

Proposal for a Council Decision

on the position to be adopted, on
behalf of the European Union, in the Port State Control Committee of the Paris
Memorandum of Understanding on Port State Control

Before each annual Port State Control
Committee (PSCC) meeting of the Paris Memorandum of Understanding on Port State
Control, the necessary steps shall be taken so that the position to be
expressed on the Union's behalf takes account of all relevant information
transmitted to the European Commission as well as any document to be discussed
which falls within EU competence in accordance with the guiding principles and
orientations set out in Annex I.

To this effect and based on that
information, a preparatory document setting out the particulars of the
envisaged Union position shall be transmitted by the Commission services, in
sufficient time before the PSCC meeting, to the Council or to its preparatory
bodies for consideration and approval.

The Union position envisaged in the
preparatory document shall be deemed to be agreed, unless a number of Member
States equivalent to a blocking minority objects during a meeting of the
Council's preparatory body or within twenty days from receipt of the
preparatory document, whichever occurs earlier. In case of such objection, the
matter shall be referred to the Council.