# EUR-Lex - 52015PC0146 - EN

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# 52015PC0146

**Proposal for a COUNCIL DECISION on the position to be adopted on behalf of the European Union at the International Maritime Organization during the 68th session of the Marine Environment Protection Committee and the 95th session of the Maritime Safety Committee on the adoption of amendments to MARPOL, SOLAS and the 2009 Guidelines for exhaust gas cleaning systems /* COM/2015/0146 final - 2015/0071 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           INTRODUCTION

The present Commission proposal concerns the
establishment of the Union position at the 68th session of the IMO's
Marine Environment Protection Committee and the 95th session of the
IMO's Maritime Safety Committee in relation to 3 amendments of IMO instruments
set out individually in the following sub-headings.

1.1         Amendments to MARPOL
Annexes I, II, IV and V

MEPC 67 approved the Preamble, Introduction
and Part II of the draft International Code for ships operating in polar waters
(Polar Code) with a view to adoption at MEPC 68. Associated draft amendments to
MARPOL Annexes I, II, IV and V of the MARPOL Convention were also approved by
MEPC 67 with a view to adoption at MEPC 68. The Polar Code has been developed
to supplement existing IMO instruments in order to increase the safety of
ship's operation and mitigate the impact on the people and environment in the
remote, vulnerable and potentially harsh polar waters.

These changes to MARPOL are set out in Annex
11 in the MEPC 67 report (MEPC 67/20). Paragraph 9.45 of that report indicates
that the changes will be adopted at MEPC 68.

1.2         Amendments to the 2009
Guidelines for exhaust gas cleaning systems

The IMO Sub-committee on Pollution Prevention
and Response (PPR 2) approved draft amendments to the 2009 Guidelines for
exhaust gas cleaning systems, set out in resolution MEPC.184(59), with a view
to adoption at MEPC 68. The 2009 guidelines for exhaust gas cleaning systems
should provide clarity on the testing of scrubbers connected to ship machinery
items that cannot be tested at higher loads, or tested at all while "at
rest in harbour". The draft amendments, based on EU proposals, concern the
use of a calculation-based methodology, such as computational fluid dynamics and/or
the use of established empiric formulae, to be a feasible alternative to the
measurements and are set out in sections 6, 6.9, 10.1.2.1(ii) and 10.1.2.2 of
the 2009 Guidelines.

These changes to the 2009 Guidelines for
exhaust gas cleaning systems are set out in Annex 1 in the PPR 2 report (PPR
2/21). Paragraph 2.23 of that report indicates that the changes will be adopted
at MEPC 68.

1.3         Amendments to SOLAS
regulation II-2/20.3

MSC 94 approved draft amendments to SOLAS
regulation II-2/20.3 which will allow operation of the ventilation fans at a
decreased number of air changes when an air quality control system is in place
in accordance with MSC/Circ.729 on Design guidelines and operational
recommendations for ventilation systems in ro-ro cargo spaces. The draft
amendments apply to cargo and passenger ships in vehicle, special category and
ro-ro spaces.

These changes are set out in Annex 11 to the
MSC 94 report (MSC 94/21/add.1). Paragraph 8.7 of the MSC 94 report (MSC 94/21)
indicates that the changes will be adopted at MSC 95.

2.           ADOPTION OF THE IMO
AMENDMENTS

2.1         Adoption of amendments

The amendments set out in points 1.1 - 1.3
above were approved at the 67th session of the Marine Environment
Protection Committee meeting between 13 - 17 October 2014, the 94th
session of the Maritime Safety Committee meeting between 17 - 21 November 2014,
the 2nd session of the Sub-Committee on Pollution Prevention and
Response meeting between 19 - 23 January 2015 and are to be submitted for
adoption to the 68th session of the Marine Environment Protection
Committee between 11 – 16 May 2015 and the 95th session of the
Maritime Safety Committee between 3 - 12 June 2015.

2.2         Acceptance and entry into
force

Once adopted by the two Committees, the
amendments set out in points 1.1 and 1.3, above will be submitted to the
respective contracting parties in order for these to express their consent to
be bound by the said amendments. The resolution which will set out the
amendments to the 2009 Guidelines for exhaust gas cleaning systems referred to
in point 1.2 above will indicate the date of entry into force.

3.           RELEVANT EU LEGISLATION AND EU COMPETENCE

3.1         Amendments to MARPOL
Annexes I and II

Article 3 of Directive 2005/35/EC on
ship-source pollution and on the introduction of penalties, including criminal
penalties, for pollution offences sets out that this Directive applies in high
seas. Some areas of the polar waters covered by the Polar Code are considered
as high seas. In accordance with Article 2, the Directive applies to discharges
of polluting substances, which shall mean substances covered by Annexes I (oil)
and II (noxious liquid substances in bulk) to MARPOL 73/78. The purpose of
Directive 2005/35/EC is to incorporate international standards for ship source
pollution into EU law, and to ensure that polluters are adequately penalised. In accordance with Article 4 of the Directive, Member States shall
ensure that ship-source discharges of polluting substances, including minor
cases of such discharges, into any of the areas referred to in Article
3(1) are regarded as infringements if committed with intent, recklessly or
with serious negligence.

The relevant sections are set out in Part II-A
of the Polar Code on Pollution Prevention Measures, in which Chapters 1 and 2
deal with prevention of pollution by oil and control of pollution by noxious
liquid substances in bulk.

Therefore, the amendments due to be adopted at
MEPC 68, which would introduce changes to MARPOL concerning the Polar Code
would affect EU law, through the application of Directive 2005/35/EC.

3.2         Amendments to the 2009
Guidelines for exhaust gas cleaning systems

The 2009 Guidelines for exhaust gas cleaning
systems, set out in Resolution MEPC.184(59), are referred to in Annex II of
Directive 2012/33/EU as
regards the sulphur content of marine fuels as a principal
mechanism for ensuring compliance with the Directive (the Sulphur Directive), in relation to conditions for the use of Exhaust Gas Cleaning
Systems under that Directive, in particular the use of emission abatement
methods set out in Article 4c.

The amendments due to be adopted at MEPC 68,
which would introduce changes to the 2009 Guidelines, would affect EU law
though the application of Directive 2012/33/EU.

3.3       Amendments to SOLAS regulations II-2/20.3.1.2.1

SOLAS regulation II-2/20.3.1.2.1, in which the
issue of performance of ventilation systems is regulated, refers to the
protection of vehicle, special category and ro-ro spaces and applies to
passenger ships.

The amendments to be adopted at MSC 95, which
would introduce changes to SOLAS regulation II-2/20.3, would affect EU
law though the application of Directive 2009/45/EC on safety rules and
standards for passenger ships. Article 6(2)(a)(i) establishes that new
passenger ships of Class A shall comply entirely with the requirements of the
1974 SOLAS Convention, as amended. Furthermore the Commission notes that
 Directive 2009/45/EC contains detailed rules on the ventilation of
passenger ships for Class B, C and D ships which are identical to those found
in SOLAS, as laid down in Annex I, Chapter II, Part B, paragraph 9.

3.4         Summary

In view of the relevant EU legislation, the
Commission considers that the adoption of the above-cited amendments expected
to be adopted at MEPC 68 and MSC 95 comes under EU exclusive competence, which
the Union has acquired pursuant to Article 3(2) TFEU, in so far as the adoption
of the international instruments at stake affect common rules.

Consistent with a well consolidated body of
case law, even if the Union is not a member of IMO, the Member States are not
authorised to assume obligations likely to affect EU rules promulgated for the
attainment of the objectives of the Treaties, unless they are authorised to do
so by means of a Council decision, on a proposal by the Commission

4.           Conclusion

The Commission therefore proposes a Council
Decision on the position to be adopted on behalf of the European Union for the
amendments cited in paragraphs 1.1 – 1.3 above to be adopted at the 68th
session of the Marine Environment Protection Committee and the 95th
session of the Maritime Safety Committee respectively.

2015/0071 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted on behalf of
the European Union at the International Maritime Organization during the 68th
session of the Marine Environment Protection Committee and the 95th session of
the Maritime Safety Committee on the adoption of amendments to MARPOL, SOLAS
and the 2009 Guidelines for exhaust gas cleaning systems

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the
European Commission,

Whereas:

(1)       Action by the European
Union in the sector of maritime transport should aim to improve maritime safety
and to protect the marine environment.

(2)       The IMO Marine Environment
Protection Committee (MEPC) meeting at its 67th session approved
amendments to MARPOL. Those amendments are expected to be adopted in the 68th
session of the MEPC to be held in May 2015.

(3)       The IMO Sub-committee on
Pollution Prevention and Response (PPR) meeting at its 2nd session
approved draft amendments to the 2009 Guidelines for exhaust gas cleaning
systems. Those amendments are expected to be adopted in the 68th
session of the MEPC to be held in May 2015.

(4)       The IMO Maritime Safety
Committee (MSC) meeting at its 94th session approved amendments to
SOLAS and the STCW Convention and Code. Those amendments are expected to be
adopted in the 95th session of the MSC to be held in June 2015.

(5)       The amendments to Annexes
I and II of the MARPOL Convention will introduce measures associated with the
adoption of the draft International Code for ships operating in polar waters
(Polar Code), to make the Polar Code mandatory. The
Polar Code extends the current MARPOL ban on oil/noxious liquid discharges in
the Antarctic to Polar Waters. Article 4, together with Article 3(1), of
Directive 2005/35/EC of the European Parliament and of the Council[1],
establishes that Member States
shall ensure that ship-source discharges of polluting substances, including
minor cases of such discharges, are regarded as infringements if committed with
intent, recklessly or with serious negligence and therefore covers these
issues.

(6)       The amendments to the 2009 Guidelines for exhaust gas cleaning systems will introduce the use of a calculation-based methodology for the
testing of scrubbers connected to ship machinery items that cannot be tested at
higher loads, or tested at all while "at rest in harbour". Article 4c
and Annex II of Council Directive 1999/32/EC[2], as amended, covers these issues and Annex II is derived
from the 2009 Guidelines which will be amended.

(7)       The
amendments to SOLAS II-2/20.3.1.2.1 will allow operation of the ventilation
fans at a decreased number of air changes when an air quality control system is
in place for passenger ships in vehicle, special category and ro-ro spaces. Article 6(2)(a)(i) of Directive 2009/45/EC of
the European Parliament and of the Council[3] establishes that new passenger
ships of Class A shall comply entirely with the requirements of the 1974 SOLAS
Convention, as amended, including Regulation II-2/20.3. Hence the changes to be adopted will have a direct legal effect on the
Directive 2009/45/EC.

(8)       The Union is neither a
member of the IMO nor a contracting party to the conventions and codes
concerned. It is therefore necessary for the Council to authorise the Member
States to express the position of the Union and express their consent to be
bound by these amendments.

HAS ADOPTED THIS DECISION:

Article 1

The position of the Union at the 68th
session of the IMO Marine Environment Protection Committee shall be to agree to
the adoption of the following amendments to:

– 
MARPOL Annexes I and II as laid down in Annex 11 in IMO Document MEPC 67/20;

– 
the 2009 Guidelines for exhaust gas cleaning systems as laid down in Annex 1 in IMO Document PPR 2/21.

Article 2

The position of the Union at the 95th
session of the IMO Maritime Safety Committee shall be to agree to the adoption
of the following amendment to

– 
SOLAS regulation II-2/20.3.1.2.1 as laid down in
Annex 11 in IMO Document MSC 94/21/add.1.

Article 3

The position of the Union as set out in
Articles 1 and 2 shall be expressed by the Member States, which are members of
IMO, acting jointly in the interest of the Union.

Article 4

Formal and minor changes to the positions
referred to in Articles 1 and 2 may be agreed without requiring the position to
be amended.

Article 5

Member States are hereby authorised to give
their consent to be bound, in the interest of the Union, by the amendments
referred to in Articles 1 and Article 2.

Article 6

This Decision is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

[1]               Directive
2005/35/EC of the European Parliament and of the Council of 7 September 2005 on
ship-source pollution and on the introduction of penalties, including criminal
penalties, for pollution offences (OJ L 255, 30.9.2005, p. 11)

[2]               Council Directive 1999/32/EC of 26 April 1999
relating to a reduction in the sulphur content of certain liquid fuels and
amending Directive 93/12/EEC (OJ L 121, 11.5.1999, p. 13)

[3]               Directive 2009/45/EC of the European Parliament and
of the Council of 6 May 2009 on safety rules and

standards for passenger ships (OJ L
163, 25.6.2009, p. 1)