# Official Journal C 264E/25 O

| | ISSN 1725-2423 |
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| Official Journal
  of the European Union | C 264E |
| | |
| English edition | Information and Notices | Volume 4825 October 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 264E

English edition

Information and Notices

Volume 4825 October 2005

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| Notice No | Contents | page |
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| | I   Information |
| | Council |
| 2005/C 264E/1 | Common Position (EC) No 30/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC | 1 |
| 2005/C 264E/2 | Common Position (EC) No 31/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies | 18 |
| 2005/C 264E/3 | Common Position (EC) No 32/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95 | 28 |

Notice No

Contents

page

I   Information

Council

2005/C 264E/1

Common Position (EC) No 30/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC

1

2005/C 264E/2

Common Position (EC) No 31/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies

18

2005/C 264E/3

Common Position (EC) No 32/2005 of 18 July 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95

28

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EN

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I Information

Council

| 25.10.2005 | EN | Official Journal of the European Union | CE 264/1 |
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25.10.2005

EN

Official Journal of the European Union

CE 264/1

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COMMON POSITION (EC) No 30/2005

adopted by the Council on 18 July 2005

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC

(2005/C 264 E/01)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof and Article 95(1) thereof in relation to Articles 4, 5 and 18 of this Directive,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and Social Committee (2),

Having regard to the opinion of the Committee of Regions (3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (4),

Whereas:

| (1) | It is desirable to harmonise national measures concerning batteries and accumulators and waste batteries and accumulators. The primary objective of this Directive is to minimise the negative impact of batteries and accumulators and waste batteries and accumulators on the environment, thus contributing to the protection, preservation and improvement of the quality of the environment. The legal base is therefore Article 175(1) of the Treaty. However, it is also appropriate to take measures at Community level on the basis of Article 95(1) of the Treaty to harmonise requirements concerning the heavy metal content and labelling of batteries and accumulators and so to ensure the smooth functioning of the internal market and avoid distortion of competition within the Community. |
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(1)

It is desirable to harmonise national measures concerning batteries and accumulators and waste batteries and accumulators. The primary objective of this Directive is to minimise the negative impact of batteries and accumulators and waste batteries and accumulators on the environment, thus contributing to the protection, preservation and improvement of the quality of the environment. The legal base is therefore Article 175(1) of the Treaty. However, it is also appropriate to take measures at Community level on the basis of Article 95(1) of the Treaty to harmonise requirements concerning the heavy metal content and labelling of batteries and accumulators and so to ensure the smooth functioning of the internal market and avoid distortion of competition within the Community.

| (2) | The Commission Communication of 30 July 1996 on the Review of the Community Strategy for Waste Management established guidelines for future Community waste policy. That Communication stresses the need to reduce the quantities of hazardous substances in waste and points out the potential benefits of Community-wide rules limiting the presence of such substances in products and in production processes. It further states that, where the generation of waste cannot be avoided, that waste should be reused or recovered for its material or energy. |
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(2)

The Commission Communication of 30 July 1996 on the Review of the Community Strategy for Waste Management established guidelines for future Community waste policy. That Communication stresses the need to reduce the quantities of hazardous substances in waste and points out the potential benefits of Community-wide rules limiting the presence of such substances in products and in production processes. It further states that, where the generation of waste cannot be avoided, that waste should be reused or recovered for its material or energy.

| (3) | Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (5) has brought about an approximation of Member States' laws in this field. However, the objectives of that Directive have not been fully attained. Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (6) and Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) (7) also underlined the need for Directive 91/157/EEC to be revised. Directive 91/157/EEC should therefore be revised and replaced in the interests of clarity. |
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(3)

Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (5) has brought about an approximation of Member States' laws in this field. However, the objectives of that Directive have not been fully attained. Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (6) and Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) (7) also underlined the need for Directive 91/157/EEC to be revised. Directive 91/157/EEC should therefore be revised and replaced in the interests of clarity.

| (4) | In order to achieve its environmental aims, this Directive prohibits the placing on the market of certain batteries and accumulators containing mercury or cadmium. It also promotes a high level of collection and recycling of waste batteries and accumulators and improved environmental performance of all operators involved in the life cycle of batteries and accumulators, e.g. producers, distributors and end-users and, in particular, those operators directly involved in the treatment and recycling of waste batteries and accumulators. The specific rules needed to do this are supplementary to existing Community legislation on waste, in particular Council Directive 75/442/EEC of 15 July 1975 on waste (8), Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (9) and Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (10). |
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(4)

In order to achieve its environmental aims, this Directive prohibits the placing on the market of certain batteries and accumulators containing mercury or cadmium. It also promotes a high level of collection and recycling of waste batteries and accumulators and improved environmental performance of all operators involved in the life cycle of batteries and accumulators, e.g. producers, distributors and end-users and, in particular, those operators directly involved in the treatment and recycling of waste batteries and accumulators. The specific rules needed to do this are supplementary to existing Community legislation on waste, in particular Council Directive 75/442/EEC of 15 July 1975 on waste (8), Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (9) and Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (10).

| (5) | In order to prevent waste batteries and accumulators from being discarded in such a way as to pollute the environment, and to avoid end-user confusion about the different waste management requirements for different batteries and accumulators, this Directive should apply to all batteries and accumulators placed on the market within the Community. Such a wide scope should also ensure economies of scale in collection and recycling, as well as optimal resource saving. |
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(5)

In order to prevent waste batteries and accumulators from being discarded in such a way as to pollute the environment, and to avoid end-user confusion about the different waste management requirements for different batteries and accumulators, this Directive should apply to all batteries and accumulators placed on the market within the Community. Such a wide scope should also ensure economies of scale in collection and recycling, as well as optimal resource saving.

| (6) | Reliable batteries and accumulators are fundamental for the safety of many products, appliances and services, and are an essential energy source in our society. |
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(6)

Reliable batteries and accumulators are fundamental for the safety of many products, appliances and services, and are an essential energy source in our society.

| (7) | It is appropriate to distinguish between portable batteries and accumulators on the one hand and industrial and automotive batteries and accumulators on the other. The disposal of industrial and automotive batteries and accumulators in landfill sites or by incineration should be prohibited. |
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(7)

It is appropriate to distinguish between portable batteries and accumulators on the one hand and industrial and automotive batteries and accumulators on the other. The disposal of industrial and automotive batteries and accumulators in landfill sites or by incineration should be prohibited.

| (8) | Examples of industrial batteries and accumulators include batteries and accumulators used for emergency or back-up power supply in hospitals, airports or offices, batteries and accumulators used in trains or aircraft and batteries and accumulators used on offshore oil rigs or in lighthouses. Examples also include batteries and accumulators designed exclusively for hand-held payment terminals in shops and restaurants, bar code readers in shops, professional video equipment for TV channels and professional studios, miners' lamps and diving lamps attached to mining and diving helmets for professionals, back-up batteries and accumulators for electric doors to prevent them from blocking or crushing people, batteries and accumulators used for instrumentation or in various types of measurement and instrumentation equipment and batteries and accumulators used in connection with solar panel, photo-voltaic, and other renewable energy applications. Industrial batteries and accumulators also include batteries and accumulators used in electrical vehicles, such as electric cars, wheelchairs, bicycles, airport vehicles and automatic transport vehicles. In addition to this non exhaustive list of examples, any battery or accumulator that is not sealed and not automotive should be considered industrial. |
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(8)

Examples of industrial batteries and accumulators include batteries and accumulators used for emergency or back-up power supply in hospitals, airports or offices, batteries and accumulators used in trains or aircraft and batteries and accumulators used on offshore oil rigs or in lighthouses. Examples also include batteries and accumulators designed exclusively for hand-held payment terminals in shops and restaurants, bar code readers in shops, professional video equipment for TV channels and professional studios, miners' lamps and diving lamps attached to mining and diving helmets for professionals, back-up batteries and accumulators for electric doors to prevent them from blocking or crushing people, batteries and accumulators used for instrumentation or in various types of measurement and instrumentation equipment and batteries and accumulators used in connection with solar panel, photo-voltaic, and other renewable energy applications. Industrial batteries and accumulators also include batteries and accumulators used in electrical vehicles, such as electric cars, wheelchairs, bicycles, airport vehicles and automatic transport vehicles. In addition to this non exhaustive list of examples, any battery or accumulator that is not sealed and not automotive should be considered industrial.

| (9) | Examples of portable batteries and accumulators, which are all-sealed batteries and accumulators that an average person could carry by hand without difficulty and that are neither automotive batteries or accumulators nor industrial batteries or accumulators, include single cell batteries (such as AA and AAA batteries) and batteries and accumulators used by consumers or professionals in mobile telephones, portable computers, cordless power tools, toys and household appliances such as electric toothbrushes, razors and hand-held vacuum cleaners (including similar equipment used in schools, shops, restaurants, airports, offices or hospitals) and any battery that consumers may use for normal household applications. |
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(9)

Examples of portable batteries and accumulators, which are all-sealed batteries and accumulators that an average person could carry by hand without difficulty and that are neither automotive batteries or accumulators nor industrial batteries or accumulators, include single cell batteries (such as AA and AAA batteries) and batteries and accumulators used by consumers or professionals in mobile telephones, portable computers, cordless power tools, toys and household appliances such as electric toothbrushes, razors and hand-held vacuum cleaners (including similar equipment used in schools, shops, restaurants, airports, offices or hospitals) and any battery that consumers may use for normal household applications.

| (10) | The Commission should evaluate the need for adaptation of this Directive, taking account of available technical and scientific evidence. In particular, the Commission should carry out a review of the exemption from the cadmium ban provided for portable batteries and accumulators intended for use in cordless power tools. Examples of cordless power tools are tools that consumers and professionals use for turning, milling, sanding, grinding, sawing, cutting, shearing, drilling, making holes, punching, hammering, riveting, screwing, polishing or similar processing of wood, metal and other materials, as well as for mowing, cutting and other gardening activities. |
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(10)

The Commission should evaluate the need for adaptation of this Directive, taking account of available technical and scientific evidence. In particular, the Commission should carry out a review of the exemption from the cadmium ban provided for portable batteries and accumulators intended for use in cordless power tools. Examples of cordless power tools are tools that consumers and professionals use for turning, milling, sanding, grinding, sawing, cutting, shearing, drilling, making holes, punching, hammering, riveting, screwing, polishing or similar processing of wood, metal and other materials, as well as for mowing, cutting and other gardening activities.

| (11) | The Commission should also monitor, and Member States should encourage, technological developments that improve the environmental performance of batteries and accumulators throughout their entire life cycle, including through participation in a Community eco-management and audit scheme (EMAS). |
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(11)

The Commission should also monitor, and Member States should encourage, technological developments that improve the environmental performance of batteries and accumulators throughout their entire life cycle, including through participation in a Community eco-management and audit scheme (EMAS).

| (12) | In order to protect the environment, waste batteries and accumulators should be collected. For portable batteries and accumulators, collection schemes achieving a high collection rate should be established. This means setting up collection schemes so that end-users can discard all waste portable batteries and accumulators conveniently and free of charge. Different collection schemes and financing arrangements are appropriate for the different battery and accumulator types. |
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(12)

In order to protect the environment, waste batteries and accumulators should be collected. For portable batteries and accumulators, collection schemes achieving a high collection rate should be established. This means setting up collection schemes so that end-users can discard all waste portable batteries and accumulators conveniently and free of charge. Different collection schemes and financing arrangements are appropriate for the different battery and accumulator types.

| (13) | It is desirable for Member States to achieve a high collection and recycling rate for waste batteries and accumulators so as to achieve a high level of environmental protection and material recovery throughout the Community. This Directive should therefore set minimum collection and recycling targets for Member States. It is appropriate to calculate the collection rate on the basis of average annual sales in preceding years, so as to have comparable targets for all Member States that are proportionate to the national level of battery consumption. |
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(13)

It is desirable for Member States to achieve a high collection and recycling rate for waste batteries and accumulators so as to achieve a high level of environmental protection and material recovery throughout the Community. This Directive should therefore set minimum collection and recycling targets for Member States. It is appropriate to calculate the collection rate on the basis of average annual sales in preceding years, so as to have comparable targets for all Member States that are proportionate to the national level of battery consumption.

| (14) | Specific recycling requirements should be established for cadmium and lead batteries and accumulators in order to attain a high level of material recovery throughout the Community and to prevent disparities between Member States. |
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(14)

Specific recycling requirements should be established for cadmium and lead batteries and accumulators in order to attain a high level of material recovery throughout the Community and to prevent disparities between Member States.

| (15) | All interested parties should be able to participate in collection, treatment and recycling schemes. Those schemes should be designed to avoid discrimination against imported products, barriers to trade or distortions of competition. |
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(15)

All interested parties should be able to participate in collection, treatment and recycling schemes. Those schemes should be designed to avoid discrimination against imported products, barriers to trade or distortions of competition.

| (16) | Collection and recycling schemes should be optimised, in particular in order to minimise costs and the negative environmental impact of transport. Treatment and recycling schemes should use best available techniques, as defined in Article 2(11) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (11). |
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(16)

Collection and recycling schemes should be optimised, in particular in order to minimise costs and the negative environmental impact of transport. Treatment and recycling schemes should use best available techniques, as defined in Article 2(11) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (11).

| (17) | Basic principles for financing the management of waste batteries and accumulators should be set at Community level. Financing schemes should help to achieve high collection and recycling rates and to give effect to the principle of producer responsibility. Producers should therefore finance the costs of collecting, treating and recycling all collected batteries and accumulators minus the profit made by selling the materials recovered. However, under certain circumstances, the application of de minimis rules to small producers could be justified. |
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(17)

Basic principles for financing the management of waste batteries and accumulators should be set at Community level. Financing schemes should help to achieve high collection and recycling rates and to give effect to the principle of producer responsibility. Producers should therefore finance the costs of collecting, treating and recycling all collected batteries and accumulators minus the profit made by selling the materials recovered. However, under certain circumstances, the application of de minimis rules to small producers could be justified.

| (18) | The provision of information to end-users on the desirability of separate collection, the collection schemes available and end-users' role in the management of waste batteries and accumulators is necessary for successful collection. Detailed arrangements should be made for a labelling system, which should provide end-users with transparent, reliable and clear information on batteries and accumulators and any heavy metals they contain. |
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(18)

The provision of information to end-users on the desirability of separate collection, the collection schemes available and end-users' role in the management of waste batteries and accumulators is necessary for successful collection. Detailed arrangements should be made for a labelling system, which should provide end-users with transparent, reliable and clear information on batteries and accumulators and any heavy metals they contain.

| (19) | If, in order to achieve the objectives of this Directive, and, in particular, to achieve high separate collection and recycling rates, Member States use economic instruments, such as differential tax rates, they should inform the Commission accordingly. |
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(19)

If, in order to achieve the objectives of this Directive, and, in particular, to achieve high separate collection and recycling rates, Member States use economic instruments, such as differential tax rates, they should inform the Commission accordingly.

| (20) | Reliable and comparable data on the quantities of batteries and accumulators placed on the market collected and recycled are necessary for monitoring whether the objectives of this Directive have been achieved. |
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(20)

Reliable and comparable data on the quantities of batteries and accumulators placed on the market collected and recycled are necessary for monitoring whether the objectives of this Directive have been achieved.

| (21) | Member States should lay down rules on the penalties applicable to infringements of the provisions of this Directive and ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive. |
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(21)

Member States should lay down rules on the penalties applicable to infringements of the provisions of this Directive and ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive.

| (22) | The Council, in accordance with paragraph 34 of the Interinstitutional Agreement on better law-making (12), should encourage Member States to draw up, for themselves and in the interests of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public. |
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(22)

The Council, in accordance with paragraph 34 of the Interinstitutional Agreement on better law-making (12), should encourage Member States to draw up, for themselves and in the interests of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public.

| (23) | 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 (13). |
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(23)

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 (13).

| (24) | Since the objectives of this Directive, namely, protecting the environment and ensuring the proper functioning of the internal market, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or 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 those objectives. |
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(24)

Since the objectives of this Directive, namely, protecting the environment and ensuring the proper functioning of the internal market, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or 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 those objectives.

| (25) | This Directive applies without prejudice to Community legislation on safety, quality and health requirements and specific Community waste management legislation, in particular Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles (14) and Directive 2002/96/EC. |
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(25)

This Directive applies without prejudice to Community legislation on safety, quality and health requirements and specific Community waste management legislation, in particular Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles (14) and Directive 2002/96/EC.

| (26) | As regards producer responsibility, producers of batteries and accumulators and producers of other products incorporating a battery or accumulator are responsible for the waste management of batteries and accumulators that they place on the market. A flexible approach is appropriate to enable financing schemes to reflect differing national circumstances and to take account of existing schemes, particularly those set up to comply with Directives 2000/53/EC and 2002/96/EC, while avoiding double charging. |
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(26)

As regards producer responsibility, producers of batteries and accumulators and producers of other products incorporating a battery or accumulator are responsible for the waste management of batteries and accumulators that they place on the market. A flexible approach is appropriate to enable financing schemes to reflect differing national circumstances and to take account of existing schemes, particularly those set up to comply with Directives 2000/53/EC and 2002/96/EC, while avoiding double charging.

| (27) | Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (15) does not apply to batteries and accumulators used in electrical and electronic equipment. |
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(27)

Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (15) does not apply to batteries and accumulators used in electrical and electronic equipment.

| (28) | Automotive and industrial batteries and accumulators used in vehicles should meet the requirements of Directive 2000/53/EC, in particular Article 4 thereof. Therefore the use of cadmium in industrial batteries and accumulators for electrical vehicles should be prohibited, unless they can benefit from an exemption on the basis of Annex II to that Directive, |
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(28)

Automotive and industrial batteries and accumulators used in vehicles should meet the requirements of Directive 2000/53/EC, in particular Article 4 thereof. Therefore the use of cadmium in industrial batteries and accumulators for electrical vehicles should be prohibited, unless they can benefit from an exemption on the basis of Annex II to that Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

This Directive establishes:

| 1. | rules regarding the placing on the market of batteries and accumulators; and |
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1.

rules regarding the placing on the market of batteries and accumulators; and

| 2. | specific rules for the collection, treatment, recycling and disposal of waste batteries and accumulators to supplement relevant Community legislation on waste. |
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2.

specific rules for the collection, treatment, recycling and disposal of waste batteries and accumulators to supplement relevant Community legislation on waste.

Article 2

Scope

1.   This Directive shall apply to all types of batteries and accumulators, regardless of their shape, volume, weight, material composition or use. It shall apply without prejudice to Directives 2000/53/EC and 2002/96/EC.

2.   This Directive shall not apply to batteries and accumulators used in:

| (a) | equipment connected with the protection of Member States' essential security interests, arms, munitions and war material, with the exclusion of products that are not intended for specifically military purposes; |
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(a)

equipment connected with the protection of Member States' essential security interests, arms, munitions and war material, with the exclusion of products that are not intended for specifically military purposes;

| (b) | equipment designed to be sent into space. |
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(b)

equipment designed to be sent into space.

Article 3

Definitions

For the purposes of this Directive, the following definitions shall apply:

| 1. | ‘battery’ or ‘accumulator’ means any source of electrical energy generated by direct conversion of chemical energy and consisting of one or more primary battery cells (non-rechargeable) or consisting of one or more secondary battery cells (rechargeable); |
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1.

‘battery’ or ‘accumulator’ means any source of electrical energy generated by direct conversion of chemical energy and consisting of one or more primary battery cells (non-rechargeable) or consisting of one or more secondary battery cells (rechargeable);

| 2. | ‘battery pack’ means any set of batteries or accumulators that are connected together and/or encapsulated within an outer casing so as to form a complete unit that the end-user is not intended to split up or open; |
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2.

‘battery pack’ means any set of batteries or accumulators that are connected together and/or encapsulated within an outer casing so as to form a complete unit that the end-user is not intended to split up or open;

| 3. | ‘portable battery or accumulator’ means any battery or accumulator that:






  (a) | is sealed, and |
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3.

‘portable battery or accumulator’ means any battery or accumulator that:

(a)

is sealed, and

| (b) | can be hand-carried, and |
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(b)

can be hand-carried, and

| (c) | is neither an industrial battery or accumulator nor an automotive battery or accumulator; |
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(c)

is neither an industrial battery or accumulator nor an automotive battery or accumulator;

| 4. | ‘button cell’ means any small round portable battery or accumulator whose diameter is greater than its height and which is used for special purposes such as hearing aids, watches, small portable equipment and back-up power; |
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4.

‘button cell’ means any small round portable battery or accumulator whose diameter is greater than its height and which is used for special purposes such as hearing aids, watches, small portable equipment and back-up power;

| 5. | ‘automotive battery or accumulator’ means any battery or accumulator used for automotive starter, lighting or ignition power; |
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5.

‘automotive battery or accumulator’ means any battery or accumulator used for automotive starter, lighting or ignition power;

| 6. | ‘industrial battery or accumulator’ means any battery or accumulator designed for exclusively industrial or professional uses or used in any type of electric vehicle; |
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6.

‘industrial battery or accumulator’ means any battery or accumulator designed for exclusively industrial or professional uses or used in any type of electric vehicle;

| 7. | ‘waste battery or accumulator’ means any battery or accumulator which is waste within the meaning of Article 1(a) of Directive 75/442/EEC; |
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7.

‘waste battery or accumulator’ means any battery or accumulator which is waste within the meaning of Article 1(a) of Directive 75/442/EEC;

| 8. | ‘recycling’ means the reprocessing in a production process of waste materials for their original purpose or for other purposes, but excluding energy recovery; |
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8.

‘recycling’ means the reprocessing in a production process of waste materials for their original purpose or for other purposes, but excluding energy recovery;

| 9. | ‘disposal’ means any of the applicable operations provided for in Annex IIA to Directive 75/442/EEC; |
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9.

‘disposal’ means any of the applicable operations provided for in Annex IIA to Directive 75/442/EEC;

| 10. | ‘treatment’ means any activity carried out on waste batteries and accumulators after they have been handed over to a facility for sorting, preparation for recycling or preparation for disposal; |
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10.

‘treatment’ means any activity carried out on waste batteries and accumulators after they have been handed over to a facility for sorting, preparation for recycling or preparation for disposal;

| 11. | ‘appliance’ means any electrical or electronic equipment, as defined by Directive 2002/96/EC, which is fully or partly powered by batteries or accumulators or is capable of being so; |
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11.

‘appliance’ means any electrical or electronic equipment, as defined by Directive 2002/96/EC, which is fully or partly powered by batteries or accumulators or is capable of being so;

| 12. | ‘producer’ means any person in a Member State that, irrespective of the selling technique used, including by means of distance communication as defined in Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (16), places batteries or accumulators, including those incorporated into appliances or vehicles, on the market for the first time within the territory of that Member State on a professional basis; |
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12.

‘producer’ means any person in a Member State that, irrespective of the selling technique used, including by means of distance communication as defined in Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (16), places batteries or accumulators, including those incorporated into appliances or vehicles, on the market for the first time within the territory of that Member State on a professional basis;

| 13. | ‘distributor’ means any person that provides batteries and accumulators on a professional basis to an end-user; |
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13.

‘distributor’ means any person that provides batteries and accumulators on a professional basis to an end-user;

| 14. | ‘placing on the market’ means supplying or making available, whether in return for payment or free of charge, to a third party within the Community and includes import into the customs territory of the Community; |
| --- | --- |

14.

‘placing on the market’ means supplying or making available, whether in return for payment or free of charge, to a third party within the Community and includes import into the customs territory of the Community;

| 15. | ‘economic operators’ means any producer, distributor, collector, recycler or other treatment operator; |
| --- | --- |

15.

‘economic operators’ means any producer, distributor, collector, recycler or other treatment operator;

| 16. | ‘cordless power tool’ means any hand held appliance powered by a battery or accumulator and intended for maintenance, construction or gardening activities. |
| --- | --- |

16.

‘cordless power tool’ means any hand held appliance powered by a battery or accumulator and intended for maintenance, construction or gardening activities.

Article 4

Prohibitions

1.   Without prejudice to Directive 2000/53/EC, Member States shall prohibit the placing on the market of:

| (a) | all batteries or accumulators, whether or not incorporated into appliances, that contain more than 0,0005 % of mercury by weight; and |
| --- | --- |

(a)

all batteries or accumulators, whether or not incorporated into appliances, that contain more than 0,0005 % of mercury by weight; and

| (b) | portable batteries or accumulators, including those incorporated into appliances, that contain more than 0,002 % of cadmium by weight. |
| --- | --- |

(b)

portable batteries or accumulators, including those incorporated into appliances, that contain more than 0,002 % of cadmium by weight.

2.   The prohibition set out in paragraph 1(a) shall not apply to button cells with a mercury content of no more than 2 % by weight.

3.   The prohibition set out in paragraph 1(b) shall not apply to portable batteries and accumulators intended for use in:

| (a) | emergency and alarm systems, including emergency lighting; |
| --- | --- |

(a)

emergency and alarm systems, including emergency lighting;

| (b) | medical equipment; or |
| --- | --- |

(b)

medical equipment; or

| (c) | cordless power tools. |
| --- | --- |

(c)

cordless power tools.

4.   The Commission shall review the exemption referred to in paragraph 3(c) and submit a report to the European Parliament and to the Council by ... (17), together, if appropriate, with relevant proposals, with a view to the prohibition of cadmium in batteries and accumulators.

Article 5

Placing on the market

1.   Member States shall not, on the grounds dealt with in this Directive, impede, prohibit, or restrict the placing on the market in their territory of batteries and accumulators that meet the requirements of this Directive.

2.   Member States shall take the necessary measures to ensure that batteries or accumulators that do not meet the requirements of this Directive are not placed on the market or are withdrawn from it.

Article 6

Overarching objective

Member States shall endeavour to maximise the separate collection of waste batteries and accumulators, having regard to the environmental impact of transport, and to minimise the disposal of batteries and accumulators as unsorted municipal waste.

Article 7

Collection schemes

1.   Member States shall ensure that appropriate collection schemes are in place for waste portable batteries and accumulators. Such schemes:

| (a) | shall enable end-users to discard waste portable batteries or accumulators at an accessible collection point in their vicinity, having regard to population density; |
| --- | --- |

(a)

shall enable end-users to discard waste portable batteries or accumulators at an accessible collection point in their vicinity, having regard to population density;

| (b) | shall not involve any charge to end-users when discarding waste portable batteries or accumulators, nor any obligation to buy a new battery or accumulator; |
| --- | --- |

(b)

shall not involve any charge to end-users when discarding waste portable batteries or accumulators, nor any obligation to buy a new battery or accumulator;

| (c) | may be run in conjunction with the schemes referred to in Article 5(2) of Directive 2002/96/EC. |
| --- | --- |

(c)

may be run in conjunction with the schemes referred to in Article 5(2) of Directive 2002/96/EC.

Article 10 of Directive 75/442/EEC shall not apply to collection points set up to comply with point (a) of this paragraph.

2.   Provided that the schemes meet the criteria listed in paragraph 1, Member States may:

| (a) | require producers to set up such schemes; |
| --- | --- |

(a)

require producers to set up such schemes;

| (b) | require other economic operators to participate in such schemes; |
| --- | --- |

(b)

require other economic operators to participate in such schemes;

| (c) | maintain existing schemes. |
| --- | --- |

(c)

maintain existing schemes.

3.   Member States shall ensure that producers of industrial batteries and accumulators, or third parties acting on their behalf, shall not refuse to take back waste industrial batteries and accumulators from end-users, regardless of chemical composition and origin. Independent third parties may also collect industrial batteries and accumulators.

4.   Member States shall ensure that producers of automotive batteries and accumulators, or third parties, set up schemes for the collection of waste automotive batteries and accumulators from end-users or from an accessible collection point in their vicinity, where collection is not carried out under the schemes referred to in Article 5(1) of Directive 2000/53/EC. In the case of automotive batteries and accumulators from private, non-commercial vehicles, such schemes shall not involve any charge to end-users when discarding waste batteries or accumulators, nor any obligation to buy a new battery or accumulator.

Article 8

Economic instruments

Member States may use economic instruments to promote the collection of waste batteries and accumulators or to promote the use of batteries and accumulators containing less polluting substances, for instance by adopting differential tax rates or deposit systems. If they do so, they shall notify the measures relating to the implementation of those instruments to the Commission.

Article 9

Collection targets

1.   For the purposes of this Article, the ‘collection rate’ for a given Member State in a given calendar year shall mean the percentage obtained by dividing the weight of waste portable batteries and accumulators collected in accordance with Article 7(1) in that calendar year by the average annual sales of portable batteries and accumulators to the end-user by weight in that Member State during that calendar year and the preceding two calendar years. Member States shall calculate the collection rate for the first time in respect of the sixth full calendar year following the entry into force of this Directive.

Without prejudice to Directive 2002/96/EC, annual collection and sales figures shall include batteries and accumulators incorporated into appliances.

2.   Member States shall achieve the following minimum collection rates:

| (a) | 25 % by ... (18); |
| --- | --- |

(a)

25 % by ... (18);

| (b) | 45 % by ... (19). |
| --- | --- |

(b)

45 % by ... (19).

3.   Member States shall monitor collection rates on a yearly basis according to the scheme set out in Annex I. Without prejudice to Regulation (EC) No 2150/2002 of the European Parliament and of the Council of 25 November 2002 on waste statistics (20), Member States shall transmit reports to the Commission within six months of the end of the calendar year concerned. Reports shall indicate how they obtained the data necessary to calculate the collection rate.

4.   In accordance with the procedure referred to in Article 21(2):

| (a) | transitional arrangements may be laid down to address difficulties faced by a Member State in satisfying the requirements of paragraph 2 as a result of specific national circumstances; |
| --- | --- |

(a)

transitional arrangements may be laid down to address difficulties faced by a Member State in satisfying the requirements of paragraph 2 as a result of specific national circumstances;

| (b) | a common methodology shall be established for the calculation of annual sales of portable batteries and accumulators to end-users by ... (21). |
| --- | --- |

(b)

a common methodology shall be established for the calculation of annual sales of portable batteries and accumulators to end-users by ... (21).

Article 10

Treatment and recycling

1.   Member States shall ensure that, no later than ... (22):

| (a) | producers or third parties set up schemes using best available techniques to provide for the treatment and recycling of waste batteries and accumulators; and |
| --- | --- |

(a)

producers or third parties set up schemes using best available techniques to provide for the treatment and recycling of waste batteries and accumulators; and

| (b) | all identifiable batteries and accumulators collected in accordance with Article 7 undergo treatment and recycling through such schemes. |
| --- | --- |

(b)

all identifiable batteries and accumulators collected in accordance with Article 7 undergo treatment and recycling through such schemes.

However, Member States may, in accordance with the Treaty, dispose of collected portable batteries or accumulators containing cadmium, mercury or lead in landfills or by underground storage as part of a strategy to phase out heavy metals or when no viable end market is available. Member States shall notify draft measures to the Commission in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (23).

2.   Treatment shall meet the minimum requirements set out in Annex III, part A.

3.   Recycling processes shall, no later than ... (24), meet the recycling targets and associated provisions set out in Annex III, part B.

4.   Member States shall report on the levels of recycling achieved in each calendar year concerned and whether the targets referred to in Annex III, part B have been met. They shall submit the information to the Commission within six months of the end of the calendar year concerned.

5.   Annex III may be adapted or supplemented to take account of technical or scientific progress in accordance with the procedure referred to in Article 21(2). In particular:

| (a) | detailed rules regarding the calculation of recycling targets shall be added no later than ... (25); and |
| --- | --- |

(a)

detailed rules regarding the calculation of recycling targets shall be added no later than ... (25); and

| (b) | the minimum recycling targets shall be evaluated regularly and adapted to best available techniques and in the light of the developments referred to in paragraph 1, second subparagraph. |
| --- | --- |

(b)

the minimum recycling targets shall be evaluated regularly and adapted to best available techniques and in the light of the developments referred to in paragraph 1, second subparagraph.

6.   Before proposing any amendment to Annex III the Commission shall consult relevant stakeholders, in particular producers, collectors, recyclers, treatment operators, environmental organisations, consumer organisations and employee associations. It shall inform the committee referred to in Article 21(1) of the outcome of this consultation.

Article 11

Disposal

Member States shall prohibit the disposal in landfills or by incineration of waste industrial and automotive batteries and accumulators. However, residues of any batteries and accumulators that have undergone both treatment and recycling in accordance with Article 10(1) may be disposed of in landfills or by incineration.

Article 12

Exports

1.   Treatment and recycling may be undertaken outside the Member State concerned or outside the Community, provided that the shipment of waste batteries and accumulators is in compliance with Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (26).

2.   Waste batteries and accumulators exported out of the Community in accordance with Regulation (EEC) No 259/93, Council Regulation (EC) No 1420/1999 of 29 April 1999 establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste (27) and Commission Regulation (EC) No 1547/1999 of 12 July 1999 determining the control procedures under Council Regulation (EEC) No 259/93 to apply to shipments of certain types of waste to certain countries, to which OECD Decision C(92) 39 final does not apply (28), shall count towards the fulfilment of the obligations and targets laid down in Annex III to this Directive only if there is sound evidence that the recycling operation took place under conditions broadly equivalent to the requirements of this Directive.

3.   Detailed rules for the implementation of this Article shall be laid down in accordance with the procedure referred to in Article 21(2).

Article 13

Financing

1.   Member States shall ensure that producers, or third parties acting on their behalf, finance any net costs arising from:

| (a) | the collection, treatment and recycling of all waste portable batteries and accumulators collected in accordance with Article 7(1) and (2); and |
| --- | --- |

(a)

the collection, treatment and recycling of all waste portable batteries and accumulators collected in accordance with Article 7(1) and (2); and

| (b) | the collection, treatment and recycling of all waste industrial and automotive batteries and accumulators collected in accordance with Articles 7(3) and (4). |
| --- | --- |

(b)

the collection, treatment and recycling of all waste industrial and automotive batteries and accumulators collected in accordance with Articles 7(3) and (4).

2.   Member States shall ensure that the implementation of paragraph 1 avoids any double charging of producers in the case of batteries or accumulators collected under schemes set up in accordance with Directive 2000/53/EC or Directive 2002/96/EC.

3.   The costs of collection, treatment and recycling shall not be shown separately to end-users at the time of sale of new portable batteries and accumulators.

4.   Producers and users of industrial and automotive batteries and accumulators may conclude agreements stipulating financing arrangements other than the ones referred to in paragraph 1.

Article 14

Registration

Member States shall ensure that each producer is registered.

Article 15

Small producers

De minimis rules for the application of Articles 13(1) and 14 shall, if appropriate, be established in accordance with the procedure referred to in Article 21(2) no later than ... (29).

Article 16

Participation

1.   Member States shall ensure that all economic operators and all competent public authorities may participate in the collection, treatment and recycling schemes referred to in Articles 7 and 10.

2.   These schemes shall also apply to products imported from third countries under non-discriminatory conditions and shall be designed to avoid barriers to trade or distortions of competition.

Article 17

Information for end-users

1.   Member States shall ensure, in particular through information campaigns, that end-users are fully informed of:

| (a) | the potential effects on the environment and human health of the substances used in batteries and accumulators; |
| --- | --- |

(a)

the potential effects on the environment and human health of the substances used in batteries and accumulators;

| (b) | the desirability of not disposing of waste batteries and accumulators as unsorted municipal waste and of participating in their separate collection so as to facilitate treatment and recycling; |
| --- | --- |

(b)

the desirability of not disposing of waste batteries and accumulators as unsorted municipal waste and of participating in their separate collection so as to facilitate treatment and recycling;

| (c) | the collection and recycling schemes available to them; |
| --- | --- |

(c)

the collection and recycling schemes available to them;

| (d) | their role in contributing to the recycling of waste batteries and accumulators; |
| --- | --- |

(d)

their role in contributing to the recycling of waste batteries and accumulators;

| (e) | the meaning of the symbol of the crossed-out wheeled bin shown in Annex II and the chemical symbols Hg, Cd and Pb. |
| --- | --- |

(e)

the meaning of the symbol of the crossed-out wheeled bin shown in Annex II and the chemical symbols Hg, Cd and Pb.

2.   Member States may require economic operators to provide some or all of the information referred to in paragraph 1.

Article 18

Labelling

1.   Member States shall ensure that all batteries, accumulators and battery packs are appropriately marked with the symbol shown in Annex II.

2.   Batteries, accumulators and button cells containing more than 0,0005 % mercury, more than 0,002 % cadmium or more than 0,004 % lead, shall be marked with the chemical symbol for the metal concerned: Hg, Cd or Pb. The symbol indicating the heavy metal content shall be printed beneath the symbol shown in Annex II and shall cover an area of at least one quarter the size of that symbol.

3.   The symbol shown in Annex II shall cover at least 3 % of the area of the largest side of the battery, accumulator or battery pack, up to a maximum size of 5 × 5 cm. In the case of cylindrical cells, the symbol shall cover at least 1,5 % of the surface area of the battery or accumulator and shall have a maximum size of 5 × 5 cm.

4.   Where the size of the battery, accumulator or battery pack is such that the symbol would be smaller than 0,5 × 0,5 cm, the battery, accumulator or battery pack need not be marked but a symbol measuring at least 1 × 1 cm shall be printed on the packaging.

5.   Symbols shall be printed visibly, legibly and indelibly.

6.   Exemptions from the labelling requirements of this Article may be granted in accordance with the procedure referred to in Article 21(2).

Article 19

National implementation reports

1.   Member States shall send the Commission a report on the implementation of this Directive every three years. However, the first report shall cover the period until ... (30).

2.   Reports shall be drawn up on the basis of a questionnaire or outline established in accordance with the procedure referred to in Article 21(2). The questionnaire or outline shall be sent to Member States six months before the beginning of the first period that the report is to cover.

3.   Member States shall also report on any measures that they take to encourage developments affecting the impact of batteries and accumulators on the environment, in particular:

| (a) | developments, including voluntary steps taken by producers, reducing quantities of heavy metals and other hazardous substances contained in batteries and accumulators; |
| --- | --- |

(a)

developments, including voluntary steps taken by producers, reducing quantities of heavy metals and other hazardous substances contained in batteries and accumulators;

| (b) | new recycling and treatment techniques; |
| --- | --- |

(b)

new recycling and treatment techniques;

| (c) | economic operators' participation in environmental management schemes; |
| --- | --- |

(c)

economic operators' participation in environmental management schemes;

| (d) | research in those fields; and |
| --- | --- |

(d)

research in those fields; and

| (e) | measures taken to promote waste prevention. |
| --- | --- |

(e)

measures taken to promote waste prevention.

4.   The report shall be made available to the Commission no later than nine months after the end of the three-year period concerned or, in the case of the first report, no later than ... (31).

5.   The Commission shall publish a report on the implementation of this Directive and on the impact of this Directive on the environment and on the functioning of the internal market no later than nine months after receiving the reports from Member States in accordance with paragraph 4.

Article 20

Review

1.   The Commission shall review the implementation of this Directive and the impact of this Directive on the environment and the functioning of the internal market after receiving reports from Member States in accordance with Article 19(4) for the second time.

2.   The second report that the Commission publishes in accordance with Article 19(5) shall include an evaluation on the following aspects of this Directive:

| (a) | the appropriateness of further risk management measures for batteries and accumulators containing heavy metals; |
| --- | --- |

(a)

the appropriateness of further risk management measures for batteries and accumulators containing heavy metals;

| (b) | the appropriateness of the minimum collection targets for all waste portable batteries and accumulators set out in Article 9(2), and the possibility of introducing further targets for later years, taking account of technical progress and practical experience gained in Member States; |
| --- | --- |

(b)

the appropriateness of the minimum collection targets for all waste portable batteries and accumulators set out in Article 9(2), and the possibility of introducing further targets for later years, taking account of technical progress and practical experience gained in Member States;

| (c) | the appropriateness of the minimum recycling requirements set out in Annex III, Part B, taking account of information that Member States provide, technical progress and practical experience gained in Member States. |
| --- | --- |

(c)

the appropriateness of the minimum recycling requirements set out in Annex III, Part B, taking account of information that Member States provide, technical progress and practical experience gained in Member States.

3.   If necessary, proposals for revision of the related provisions of this Directive shall accompany the report.

Article 21

Committee procedure

1.   The Commission shall be assisted by the Committee set up according to Article 18 of Directive 75/442/EEC.

2.   Where reference is made to this Article, 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 three months.

3.   The Committee shall adopt its Rules of procedure.

Article 22

Penalties

Member States shall lay down rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and shall take all necessary measures to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. Member States shall notify those measures to the Commission by ... (32) at the latest and shall inform it without delay of any subsequent amendment to them.

Article 23

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... (32) at the latest.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2.   Member States shall communicate to the Commission the text of all existing laws, regulations and administrative provisions adopted in the field covered by this Directive.

Article 24

Voluntary agreements

1.   Provided that the objectives set out in this Directive are achieved, Member States may transpose the provisions set out in Articles 7, 12 and 17 by means of agreements between the competent authorities and economic operators concerned. Such agreements shall meet the following requirements:

| (a) | they shall be enforceable; |
| --- | --- |

(a)

they shall be enforceable;

| (b) | they must specify objectives with the corresponding deadlines; |
| --- | --- |

(b)

they must specify objectives with the corresponding deadlines;

| (c) | they must be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission. |
| --- | --- |

(c)

they must be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission.

2.   The results achieved must be monitored regularly, and reported to the competent authorities and the Commission, and made available to the public under the conditions set out in the agreement.

3.   The competent authorities shall ensure that the progress made under such agreements is examined.

4.   In cases of non-compliance with the agreements, Member States shall implement the relevant provisions of this Directive by legislative, regulatory or administrative measures.

Article 25

Repeal

Directive 91/157/EEC is repealed with effect from ... (32).

References to Directive 91/157/EEC shall be construed as references to this Directive.

Article 26

Entry into force

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

Article 27

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 96, 21.4.2004, p. 5.

1

(2)  OJ C 117, 30.4.2004, p. 5.

2

(3)  OJ C 121, 30.4.2004, p. 35.

3

(4)  Opinion of the European Parliament of 20 April 2004 (OJ C 104E, 30.4.2004, p. 354), Council common position of ... (not yet published in the Official Journal) and Position of the European Parliament of ... (not yet published in the Official Journal).

4

(5)  OJ L 78, 26.3.1991, p. 38. Directive as amended by Commission Directive 98/101/EC (OJ L 1, 5.1.1999, p. 1).

5

(6)  OJ L 242, 10.9.2002, p. 1.

6

(7)  OJ L 37, 13.2.2003, p. 24. Directive as amended by Directive 2003/108/EC of the European Parliament and of the Council (OJ L 345, 31.12.2003, p. 106).

7

(8)  OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

8

(9)  OJ L 182, 16.7.1999, p. 1. Directive as amended by Regulation (EC) No 1882/2003.

9

(10)  OJ L 332, 28.12.2000, p. 91.

10

(11)  OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regulation (EC) No 1882/2003.

11

(12)  OJ C 321, 31.12.2003, p. 1. OJ L 184, 17.7.1999, p. 23.

12

(13)  OJ L 184, 17.7.1999, p. 23.

13

(14)  OJ L 269, 21.10.2000, p. 34. Directive as amended by Commission Decision 2002/525/EC (OJ L 170, 29.6.2002, p. 81).

14

(15)  OJ L 37, 13.2.2003, p. 19.

15

(16)  OJ L 144, 4.6.1997, p. 19. Directive as amended by Directive 2002/65/EC (OJ L 271, 9.10.2002, p. 16).

16

(17)  Four years after entry into force of this Directive.

17

(18)  Six years after entry into force of this Directive.

18

(19)  Ten years after entry into force of this Directive.

19

(20)  OJ L 332, 9.12.2002, p. 1. Regulation as last amended by Commission Regulation (EC) No 574/2004 (OJ L 90, 27.3.2004, p. 15).

20

(21)  One year after entry into force of this Directive.

21

(22)  Three years after entry into force of this Directive.

22

(23)  OJ L 204, 21.7.1998, p. 37. Directive as last amended by the 2003 Act of Accession.

23

(24)  Five years after entry into force of this Directive.

24

(25)  42 months after entry into force of this Directive.

25

(26)  OJ L 30, 6.2.1993, p. 1. Regulation as last amended by Commission Regulation (EC) No 2557/2001 (OJ L 349, 31.12.2001, p. 1).

26

(27)  OJ L 166, 1.7.1999, p. 6. Regulation as last amended by Commission Regulation (EC) No 2118/2003 (OJ L 318, 3.12.2003, p. 5).

27

(28)  OJ L 185, 17.7.1999, p. 1. Regulation as last amended by Commission Regulation (EC) No 2118/2003.

28

(29)  42 months after entry into force of this Directive.

29

(30)  Six years after entry into force of this Directive.

30

(31)  81 months after entry into force of this Directive.

31

(32)  24 months after entry into force of this Directive.

32

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ANNEX I

MONITORING OF COMPLIANCE WITH THE ARTICLE 9 COLLECTION TARGETS

| Year | Data collection | Calculation | Reporting requirement |
| --- | --- | --- | --- |
| X (1) +1 | - | | | |
| X + 2 | Sales in year 2 (S2) | - | - | |
| X + 3 | Sales in year 3 (S3) | - | - | |
| X + 4 | Sales in year 4 (S4) | Collection in year 4 (C4) | Collection rate (CR4) = 3*C4/(S2 + S3 + S4)
  (Target set at 25 %.) | |
| X + 5 | Sales in year 5 (S5) | Collection in year 5 (C5) | Collection rate (CR5) = 3*C5/(S3 + S4 + S5) | CR4 |
| X + 6 | Sales in year 6 (S6) | Collection in year 6 (C6) | Collection rate (CR6) = 3*C6/(S4 + S5 + S6) | CR5 |
| X + 7 | Sales in year 7 (S7) | Collection in year 7 (C7) | Collection rate (CR7) = 3*C7/(S5 + S6 + S7) | CR6 |
| X + 8 | Sales in year 8 (S8) | Collection in year 8 (C8) | Collection rate (CR8) = 3*C8/(S6 + S7 + S8)
  (Target set at 45 %.) | CR7 |
| X + 9 | Sales in year 9 (S9) | Collection in year 9 (C9) | Collection rate (CR9) = 3*C9/(S7 + S8 + S9) | CR8 |
| X + 10 | Sales in year 10 (S10) | Collection in year 10 (C10) | Collection rate (CR10) = 3*C10/(S8 + S9 + S10) | CR9 |
| X + 11 | Etc. | Etc. | Etc. | CR10 |
| Etc. | | | | |

Year

Data collection

Calculation

Reporting requirement

X (1) +1

-

X + 2

Sales in year 2 (S2)

-

-

X + 3

Sales in year 3 (S3)

-

-

X + 4

Sales in year 4 (S4)

Collection in year 4 (C4)

Collection rate (CR4) = 3*C4/(S2 + S3 + S4)

(Target set at 25 %.)

X + 5

Sales in year 5 (S5)

Collection in year 5 (C5)

Collection rate (CR5) = 3*C5/(S3 + S4 + S5)

CR4

X + 6

Sales in year 6 (S6)

Collection in year 6 (C6)

Collection rate (CR6) = 3*C6/(S4 + S5 + S6)

CR5

X + 7

Sales in year 7 (S7)

Collection in year 7 (C7)

Collection rate (CR7) = 3*C7/(S5 + S6 + S7)

CR6

X + 8

Sales in year 8 (S8)

Collection in year 8 (C8)

Collection rate (CR8) = 3*C8/(S6 + S7 + S8)

(Target set at 45 %.)

CR7

X + 9

Sales in year 9 (S9)

Collection in year 9 (C9)

Collection rate (CR9) = 3*C9/(S7 + S8 + S9)

CR8

X + 10

Sales in year 10 (S10)

Collection in year 10 (C10)

Collection rate (CR10) = 3*C10/(S8 + S9 + S10)

CR9

X + 11

Etc.

Etc.

Etc.

CR10

Etc.

---

(1)  Year X is the year including the date mentioned in Article 23.

---

ANNEX II

SYMBOLS FOR BATTERIES, ACCUMULATORS AND BATTERY PACKS FOR SEPARATE COLLECTION

The symbol indicating ‘separate collection’ for all batteries and accumulators shall be the crossed-out wheeled bin shown below:

Image

---

ANNEX III

DETAILED TREATMENT AND RECYCLING REQUIREMENTS

PART A:   TREATMENT

| 1. | Treatment shall, as a minimum, include removal of all fluids and acids. |
| --- | --- |

1.

Treatment shall, as a minimum, include removal of all fluids and acids.

| 2. | Treatment and any storage, including temporary storage, at treatment facilities shall take place in sites with impermeable surfaces and suitable weatherproof covering or in suitable containers. |
| --- | --- |

2.

Treatment and any storage, including temporary storage, at treatment facilities shall take place in sites with impermeable surfaces and suitable weatherproof covering or in suitable containers.

PART B:   RECYCLING

| 3. | Recycling processes shall achieve the following minimum recycling targets:






  (a) | recycling of 65 % by average weight of lead-acid batteries and accumulators, including recycling of the lead content to the highest degree that is technically feasible while avoiding excessive costs; |
| --- | --- | --- |

3.

Recycling processes shall achieve the following minimum recycling targets:

(a)

recycling of 65 % by average weight of lead-acid batteries and accumulators, including recycling of the lead content to the highest degree that is technically feasible while avoiding excessive costs;

| (b) | recycling of 75 % by average weight of nickel-cadmium batteries and accumulators, including recycling of the cadmium content to the highest degree that is technically feasible while avoiding excessive costs; and |
| --- | --- |

(b)

recycling of 75 % by average weight of nickel-cadmium batteries and accumulators, including recycling of the cadmium content to the highest degree that is technically feasible while avoiding excessive costs; and

| (c) | recycling of 50 % by average weight of other waste batteries and accumulators. |
| --- | --- |

(c)

recycling of 50 % by average weight of other waste batteries and accumulators.

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

The Commission adopted its proposal (1) for a new directive on batteries and accumulators in November 2003.

The European Parliament adopted its first-reading opinion in April 2004.

The Committee of the Regions adopted its opinion in April 2004 (2). The Economic and Social Committee adopted its opinion in May 2004 (3).

The Council adopted its common position on 18 July 2005.

II.   OBJECTIVE

In accordance with Article 8 of Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (4), the objective of the proposed Directive is:

| — | to restrict the disposal of waste batteries and accumulators, |
| --- | --- |

—

to restrict the disposal of waste batteries and accumulators,

| — | to reduce the volumes of hazardous batteries and accumulators produced, and |
| --- | --- |

—

to reduce the volumes of hazardous batteries and accumulators produced, and

| — | to increase the level of collection and recycling of waste batteries and accumulators. |
| --- | --- |

—

to increase the level of collection and recycling of waste batteries and accumulators.

III.   ANALYSIS OF THE COMMON POSITION

1.   General

The common position incorporates the majority of the European Parliament's first-reading amendments, either verbatim, in part or in spirit. In particular, it includes modifications to the Commission's original proposal that would tighten current restrictions on the use of heavy metals in batteries and accumulators, provide for a review of the need to extend these restrictions, remove the requirement for monitoring of municipal solid waste and base collection targets on past sales figures.

However, it does not reflect a number of amendments because the Council agreed with the Commission that they were unnecessary and/or undesirable. In particular, the Council agrees with the Commission that:

| — | amendment 9 is unacceptable as it would conflict with Directive 2002/96/EC on waste electrical and electronic equipment (the WEEE Directive), |
| --- | --- |

—

amendment 9 is unacceptable as it would conflict with Directive 2002/96/EC on waste electrical and electronic equipment (the WEEE Directive),

| — | amendments 2, 6, 18, 19, 41, 54, 63 and 65 are unnecessary and potentially confusing or difficult to implement, |
| --- | --- |

—

amendments 2, 6, 18, 19, 41, 54, 63 and 65 are unnecessary and potentially confusing or difficult to implement,

| — | amendments 39, 45, 77, 92 and 101 are impracticable, |
| --- | --- |

—

amendments 39, 45, 77, 92 and 101 are impracticable,

| — | amendments 32 and 55 deal with issues (deposit systems and the financing of information campaigns) that it is not appropriate to regulate at Community level, |
| --- | --- |

—

amendments 32 and 55 deal with issues (deposit systems and the financing of information campaigns) that it is not appropriate to regulate at Community level,

| — | amendments 25, 67 and 68 are not acceptable as it is not appropriate to seek to regulate fuel cells through the proposed Directive. |
| --- | --- |

—

amendments 25, 67 and 68 are not acceptable as it is not appropriate to seek to regulate fuel cells through the proposed Directive.

The common position also includes a number of changes other than those envisaged in the European Parliament's first-reading opinion. The following sections describe the changes of substance. In addition, there are drafting changes to clarify the text or to ensure the overall coherence of the Directive.

2.   Subject matter, scope and definitions (Articles 1, 2 and 3)

The common position is partly consistent with European Parliament amendments 7 and 8, in that a similar statement of the objectives of the Directive appears in recital 4.

Article 2 is broadly consistent with amendment 10, in that it clarifies the proposed exemption for military batteries and accumulators and would exclude batteries and accumulators used in equipment designed to be sent into space from the scope of the Directive. The wording of the exemption for military batteries and accumulators is consistent with Article 296(1)(b) of the Treaty.

Article 2 also states that the Directive would apply without prejudice to Directive 2000/53/EC on end-of life vehicles (the ELV Directive) and the WEEE Directive.

The definitions set out in Article 3 are fully consistent with amendments 11, 12, 14, 16 and 21.

Like amendment 85, the definitions in the common position seek to avoid overlap between the definitions of the three types of batteries and accumulators (portable, industrial and automotive). They also aim at ensuring that the definitions collectively cover all batteries and accumulators. However, in the common position the ‘portable’ rather than the 'industrial' category is the default one. The common position also simplifies the definitions by removing the examples of portable and industrial batteries and accumulators. Extended lists of examples appear instead in recitals 8 and 9. The common position also clarifies that portable batteries and accumulators must be sealed.

The definition of ‘producer’ is partly consistent with amendment 20, in that it covers all batteries and accumulators incorporated into appliances. The Council has simplified the definition so as to ensure that, for each battery placed on the market within a Member State, there is an easily identifiable producer in that State. This is necessary in order to make the principle of producer responsibility effective.

The common position is not consistent with amendment 22. It no longer contains a definition of ‘closed loop system’, since the Directive no longer uses this concept. However, other provisions in the common position take on board the concern underlying the amendment by clarifying that independent third parties may also collect batteries and accumulators for recycling.

The common position includes three new definitions compared to the Commission's original proposal, to clarify the meaning of the terms ‘placing on the market’, ‘economic operators’ and ‘cordless power tool’.

3.   Heavy metals (Article 4)

The common position is partly consistent with European Parliament amendments 23 and 82, in that it provides for a cadmium ban, subject to exemptions, and for a review, the aim of which is to consider the extension of the ban. However, the cadmium ban would not apply initially to cordless power tools. There would be no restrictions on the use of lead. Moreover, the specific review provided for in Article 4 would apply only to cordless power tools (although Article 20(2)(a) provides for a further review of the desirability of further restrictions on the use of heavy metals in general terms).

As a consequence, the common position contains no monitoring requirements for Member States in relation to municipal solid waste. This is consistent with amendments 1 and 26.

4.   Collection (Articles 6 to 9 and Annex I)

Article 6 of the common position states an overarching principle (to maximise the separate collection of batteries and accumulators and to minimise their disposal). This replaces the concept of a closed loop system envisaged in the Commission's original proposal. The common position is therefore not consistent with European Parliament amendment 27.

Article 7 seeks to clarify the minimum requirements for collection schemes for batteries and accumulators and the flexibility for Member States to take account of national circumstances and existing arrangements. It would exclude collection points from permitting requirements. It is consistent with the aims of amendments 28, 108 and 30, 51 and 109, but not with amendments 29 and 47 (since a requirement for end-users to use collection facilities would be unenforceable).

Article 9 sets collection targets and provides a general power to lay down transitional arrangements through comitology. (This replaces the rather complex rules on derogations from, and adaptations to, the collection targets provided for in Article 14 of the Commission's original proposal.) It is partly consistent with amendments 34 to 37, and consistent with the aims of amendment 66 and 69 to 76, in that it sets collection targets based on sales figures, there is no specific collection target for nickel-cadmium batteries and the procedure for derogations is more transparent.

Member States would have to ensure the achievement of a collection rate equivalent to 25 % of sales within 4 years of transposition of the Directive. The collection target would rise to 45 % 8 years after transposition. To ensure a level playing field, a common methodology for the calculation of sales figures would have to be established through comitology. The table in Annex I clarifies what Member States need to calculate, when and how.

5.   Treatment, recycling and disposal (Articles 10 to 12 and Annex III)

The common position repackages the provisions on treatment, recycling and disposal, in particular by moving detailed requirements and recycling targets to a new Annex III. This is appropriate since it would be possible to amend the detailed requirements and targets through comitology in the light of scientific and technical developments.

The scope, terminology and comitology provisions of Article 10 are broadly consistent with European Parliament amendments 43, 99 and 100. The common position is also partly consistent with amendments 38 and 120, 40 and 95, in that the recitals clarify the meaning of best available technology, there are common provisions for treatment and recycling and Annex III requires the removal of cadmium and lead during recycling to the highest degree that is technically feasible while avoiding excessive costs.

In addition, the common position clarifies that the ban on the disposal of automotive and industrial batteries and accumulators in landfill applies to whole batteries only and not to residues. Under certain circumstances it would permit the disposal of collected portable batteries containing heavy metals as part of a strategy to phase out heavy metals or when no viable end market is available, which is partly consistent with amendment 33. It lowers the recycling target for batteries and accumulators other then nickel-cadmium and lead-acid batteries from 55 to 50 %.

6.   Financing (Articles 13 to 15)

The common position seeks to clarify the extent of battery producers' financial responsibilities. It states, in particular, that there should be no double charging of producers that also contribute to schemes set up under the ELV and WEEE Directives. By providing seeking to avoid overlap between the different schemes it is consistent with the aim of European Parliament amendment 46. It is also consistent with amendments 44 and 112 since in that it explicitly provides for producers to finance the costs of collection and prohibits visible fees for end-users.

The common position contains only minimum requirements, so as to leave flexibility for national schemes. There are no explicit provisions on historic waste. It is therefore not consistent with amendments 48, 49, 50 and 103. However, Article 13 would apply to all batteries that become waste after transposition of the Directive, whenever they were placed on the market.

To provide additional flexibility, Article 15 would enable de minimis rules for small producers to be established through comitology if the application of the rules on producer responsibility created practical problems in the case of producers handling very small numbers of batteries or accumulators.

7.   Information for end-users (Articles 17 and 18 and Annex II)

The common position incorporates no major changes to the provisions on information for end-users other than those necessary to give effect, in full or in part, to European Parliament amendments 4, 52, 53, 56, 57, 59 to 62, 64 and 78 to 81. It does not incorporate amendments 5 or 58 because the Council does not believe that it is appropriate to require labelling to indicate the capacity of batteries and accumulators.

8.   Report and review (Articles 19 and 20)

The common position separates the requirements on reporting and review. Consequently, while there would be regular reports on the implementation of the Directive, only one general review would be specified in the Directive.

9.   Other

In addition the common position:

| — | contains, in place of the general and unenforceable exhortations to promote improved environmental performance contained in Articles 5 and 17 of the Commission's original proposal, concrete reporting requirements in Article 19(3) and general encouragement in the preamble (which is partially consistent with European Parliament amendment 24), |
| --- | --- |

—

contains, in place of the general and unenforceable exhortations to promote improved environmental performance contained in Articles 5 and 17 of the Commission's original proposal, concrete reporting requirements in Article 19(3) and general encouragement in the preamble (which is partially consistent with European Parliament amendment 24),

| — | slightly defers the transposition date (Article 23), and |
| --- | --- |

—

slightly defers the transposition date (Article 23), and

| — | limits the scope of voluntary agreements to collection schemes, exports and information for end-users (Article 24). |
| --- | --- |

—

limits the scope of voluntary agreements to collection schemes, exports and information for end-users (Article 24).

IV.   CONCLUSION

The Council believes that the common position represents a balanced package of measures that would contribute to the protection of the environment without creating unjustified social or economic costs. It looks forward to constructive discussions with the European Parliament with a view to the early adoption of the Directive.

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(1)  OJ C 96, 21.4.2004, p. 5.

(2)  OJ C 121, 30.4.2004, p. 35.

(3)  OJ C 117, 30.4.2004, p. 5.

(4)  OJ L 242, 10.9.2002, p. 1.

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| 25.10.2005 | EN | Official Journal of the European Union | CE 264/18 |
| --- | --- | --- | --- |

25.10.2005

EN

Official Journal of the European Union

CE 264/18

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COMMON POSITION (EC) No 31/2005

adopted by the Council on 18 July 2005

with a view to adopting Regulation (EC) No .../2005 of the European Parliament and of the Council of ... on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies

(2005/C 264 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

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

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

| (1) | Community legislation in the field of the environment aims to contribute, inter alia, to preserving, protecting and improving the quality of the environment and protecting human health. |
| --- | --- |

(1)

Community legislation in the field of the environment aims to contribute, inter alia, to preserving, protecting and improving the quality of the environment and protecting human health.

| (2) | The Sixth Community Environment Action Programme (3) stresses the importance of providing adequate environmental information and effective opportunities for public participation in environmental decision-making, thereby increasing accountability and transparency of decision-making and contributing to public awareness and support for the decisions taken. It furthermore encourages, as did its predecessors (4), more effective implementation and application of Community legislation on environmental protection, including the enforcement of Community rules and the taking of action against breaches of Community environmental legislation. |
| --- | --- |

(2)

The Sixth Community Environment Action Programme (3) stresses the importance of providing adequate environmental information and effective opportunities for public participation in environmental decision-making, thereby increasing accountability and transparency of decision-making and contributing to public awareness and support for the decisions taken. It furthermore encourages, as did its predecessors (4), more effective implementation and application of Community legislation on environmental protection, including the enforcement of Community rules and the taking of action against breaches of Community environmental legislation.

| (3) | On 25 June 1998 the Community signed the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter the Århus Convention). The Community approved the Århus Convention on 17 February 2005. Provisions of Community law should be consistent with that Convention. |
| --- | --- |

(3)

On 25 June 1998 the Community signed the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter the Århus Convention). The Community approved the Århus Convention on 17 February 2005. Provisions of Community law should be consistent with that Convention.

| (4) | The Community has already adopted a body of legislation, which is evolving and contributes to the achievement of the objectives of the Århus Convention. Provision should be made to apply the requirements of the Convention to Community institutions and bodies. |
| --- | --- |

(4)

The Community has already adopted a body of legislation, which is evolving and contributes to the achievement of the objectives of the Århus Convention. Provision should be made to apply the requirements of the Convention to Community institutions and bodies.

| (5) | It is appropriate to deal with the three pillars of the Århus Convention, namely access to information, public participation in decision-making and access to justice in environmental matters, in one piece of legislation and to lay down common provisions regarding objectives and definitions. This contributes to rationalising legislation and increasing the transparency of the implementation measures taken with regard to Community institutions and bodies. |
| --- | --- |

(5)

It is appropriate to deal with the three pillars of the Århus Convention, namely access to information, public participation in decision-making and access to justice in environmental matters, in one piece of legislation and to lay down common provisions regarding objectives and definitions. This contributes to rationalising legislation and increasing the transparency of the implementation measures taken with regard to Community institutions and bodies.

| (6) | As a general principle, the rights guaranteed by the three pillars of the Århus Convention are without discrimination as to citizenship, nationality or domicile. |
| --- | --- |

(6)

As a general principle, the rights guaranteed by the three pillars of the Århus Convention are without discrimination as to citizenship, nationality or domicile.

| (7) | The Århus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the Community institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Århus Convention, Community institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial or legislative capacity. However, for reasons of consistency with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (5), the provisions on access to environmental information should apply to Community institutions and bodies acting in a legislative capacity. |
| --- | --- |

(7)

The Århus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the Community institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Århus Convention, Community institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial or legislative capacity. However, for reasons of consistency with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (5), the provisions on access to environmental information should apply to Community institutions and bodies acting in a legislative capacity.

| (8) | The definition of environmental information in this Regulation encompasses information in any form on the state of the environment. This definition, which has been aligned to the definition adopted for Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (6), has the same content as the one laid down in the Århus Convention. The definition of ‘document’ in Regulation (EC) No 1049/2001 encompasses environmental information as defined in this Regulation. |
| --- | --- |

(8)

The definition of environmental information in this Regulation encompasses information in any form on the state of the environment. This definition, which has been aligned to the definition adopted for Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (6), has the same content as the one laid down in the Århus Convention. The definition of ‘document’ in Regulation (EC) No 1049/2001 encompasses environmental information as defined in this Regulation.

| (9) | It is appropriate for this Regulation to provide for a definition of ’plans and programmes’ taking into account the provisions of the Århus Convention, in parallel with the approach followed in relation to the Member States' obligations under existing EC law. ‘Plans and programmes relating to the environment’ should be defined in relation to their contribution to the achievement, or to their likely significant effect on the achievement, of the objectives of Community environmental policy. For the 10-year period starting from 22 July 2002, the Sixth Community Environment Action Programme establishes the objectives of Community environmental policy and the actions planned to attain these objectives. At the end of this period, a subsequent environmental action programme should be adopted. |
| --- | --- |

(9)

It is appropriate for this Regulation to provide for a definition of ’plans and programmes’ taking into account the provisions of the Århus Convention, in parallel with the approach followed in relation to the Member States' obligations under existing EC law. ‘Plans and programmes relating to the environment’ should be defined in relation to their contribution to the achievement, or to their likely significant effect on the achievement, of the objectives of Community environmental policy. For the 10-year period starting from 22 July 2002, the Sixth Community Environment Action Programme establishes the objectives of Community environmental policy and the actions planned to attain these objectives. At the end of this period, a subsequent environmental action programme should be adopted.

| (10) | In view of the fact that environmental law is constantly evolving, the definition of environmental law should refer to the objectives of Community policy on the environment as set out in the Treaty. |
| --- | --- |

(10)

In view of the fact that environmental law is constantly evolving, the definition of environmental law should refer to the objectives of Community policy on the environment as set out in the Treaty.

| (11) | Administrative acts of individual scope should be open to possible internal review where they have legally binding and external effects. Similarly, omissions should be covered where there is an obligation to adopt an administrative act under environmental law. Given that acts adopted by a Community institution or body acting in a judicial or legislative capacity can be excluded, the same should apply to other inquiry procedures where the Community institution or body acts as an administrative review body under provisions of the Treaty. |
| --- | --- |

(11)

Administrative acts of individual scope should be open to possible internal review where they have legally binding and external effects. Similarly, omissions should be covered where there is an obligation to adopt an administrative act under environmental law. Given that acts adopted by a Community institution or body acting in a judicial or legislative capacity can be excluded, the same should apply to other inquiry procedures where the Community institution or body acts as an administrative review body under provisions of the Treaty.

| (12) | The Århus Convention calls for public access to environmental information either following a request or by active dissemination by the authorities covered by the Convention. Regulation (EC) No 1049/2001 applies to the European Parliament, the Council and the Commission, as well as to agencies and similar bodies set up by a Community legal act. It provides rules for these institutions that comply to a great extent with the rules laid down in the Århus Convention. It is necessary to extend the application of Regulation (EC) No 1049/2001 to all other Community institutions and bodies. |
| --- | --- |

(12)

The Århus Convention calls for public access to environmental information either following a request or by active dissemination by the authorities covered by the Convention. Regulation (EC) No 1049/2001 applies to the European Parliament, the Council and the Commission, as well as to agencies and similar bodies set up by a Community legal act. It provides rules for these institutions that comply to a great extent with the rules laid down in the Århus Convention. It is necessary to extend the application of Regulation (EC) No 1049/2001 to all other Community institutions and bodies.

| (13) | Where the Århus Convention contains provisions that are not, in whole or in part, to be found also in Regulation (EC) No 1049/2001, it is necessary to address those, in particular with regard to the collection and dissemination of environmental information. |
| --- | --- |

(13)

Where the Århus Convention contains provisions that are not, in whole or in part, to be found also in Regulation (EC) No 1049/2001, it is necessary to address those, in particular with regard to the collection and dissemination of environmental information.

| (14) | For the right of public access to environmental information to be effective, environmental information of good quality is essential. It is therefore appropriate to introduce rules that oblige Community institutions and bodies to ensure such quality. |
| --- | --- |

(14)

For the right of public access to environmental information to be effective, environmental information of good quality is essential. It is therefore appropriate to introduce rules that oblige Community institutions and bodies to ensure such quality.

| (15) | Where Regulation (EC) No 1049/2001 provides for exceptions, these should apply, mutatis mutandis, to requests for access to environmental information under this Regulation. The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment. The term 'commercial interests' covers confidentiality agreements concluded by institutions or bodies acting in a banking capacity. |
| --- | --- |

(15)

Where Regulation (EC) No 1049/2001 provides for exceptions, these should apply, mutatis mutandis, to requests for access to environmental information under this Regulation. The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment. The term 'commercial interests' covers confidentiality agreements concluded by institutions or bodies acting in a banking capacity.

| (16) | Pursuant toDecision No 2119/98/EC of the European Parliament and the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community (7), a network at Community level has already been set up to promote cooperation and coordination between the Member States, with the assistance of the Commission, with a view to improving the prevention and control in the Community of a number of communicable diseases. Decision No 1786/2002/EC of the European Parliament and of the Council of 23 September 2002 (8) adopts a programme of Community action in the field of public health that complements national policies. Improving information and knowledge for the development of public health and enhancing the capability to respond rapidly and in a coordinated fashion to threats to health, both of which are elements of this programme, are objectives that are equally fully in line with the requirements of the Århus Convention. This Regulation should therefore apply without prejudice to Decision No 2119/98/EC and Decision No 1786/2002/EC. |
| --- | --- |

(16)

Pursuant toDecision No 2119/98/EC of the European Parliament and the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community (7), a network at Community level has already been set up to promote cooperation and coordination between the Member States, with the assistance of the Commission, with a view to improving the prevention and control in the Community of a number of communicable diseases. Decision No 1786/2002/EC of the European Parliament and of the Council of 23 September 2002 (8) adopts a programme of Community action in the field of public health that complements national policies. Improving information and knowledge for the development of public health and enhancing the capability to respond rapidly and in a coordinated fashion to threats to health, both of which are elements of this programme, are objectives that are equally fully in line with the requirements of the Århus Convention. This Regulation should therefore apply without prejudice to Decision No 2119/98/EC and Decision No 1786/2002/EC.

| (17) | The Århus Convention requires Parties to make provisions for the public to participate during the preparation of plans and programmes relating to the environment. Such provisions are to include reasonable time-frames for informing the public of the environmental decision-making in question. To be effective, public participation is to take place at an early stage, when all options are open. When laying down provisions on public participation, Community institutions and bodies, should identify the public which may participate. |
| --- | --- |

(17)

The Århus Convention requires Parties to make provisions for the public to participate during the preparation of plans and programmes relating to the environment. Such provisions are to include reasonable time-frames for informing the public of the environmental decision-making in question. To be effective, public participation is to take place at an early stage, when all options are open. When laying down provisions on public participation, Community institutions and bodies, should identify the public which may participate.

| (18) | Article 9(3) of the Århus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Provisions on access to justice should be consistent with the Treaty. It is appropriate in this context that this Regulation address only acts and omissions by public authorities. |
| --- | --- |

(18)

Article 9(3) of the Århus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Provisions on access to justice should be consistent with the Treaty. It is appropriate in this context that this Regulation address only acts and omissions by public authorities.

| (19) | To ensure adequate and effective remedies, including those available before the Court of Justice of the European Communities under the relevant provisions of the Treaty, it is appropriate that the Community institution or body which issued the act to be challenged or which, in the case of an alleged administrative omission, omitted to act, be given the opportunity to reconsider its former decision, or, in the case of an omission, to act. |
| --- | --- |

(19)

To ensure adequate and effective remedies, including those available before the Court of Justice of the European Communities under the relevant provisions of the Treaty, it is appropriate that the Community institution or body which issued the act to be challenged or which, in the case of an alleged administrative omission, omitted to act, be given the opportunity to reconsider its former decision, or, in the case of an omission, to act.

| (20) | Non-governmental organisations active in the field of environmental protection which meet certain criteria, in particular in order to ensure that they are independent organisations whose primary objective is to promote environmental protection, should be entitled to request internal review at Community level of acts adopted or of omissions under environmental law by a Community institution or body, with a view to their reconsideration by the institution or body in question. |
| --- | --- |

(20)

Non-governmental organisations active in the field of environmental protection which meet certain criteria, in particular in order to ensure that they are independent organisations whose primary objective is to promote environmental protection, should be entitled to request internal review at Community level of acts adopted or of omissions under environmental law by a Community institution or body, with a view to their reconsideration by the institution or body in question.

| (21) | Where previous requests for internal review have been unsuccessful, the non-governmental organisation concerned should be able to institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty. |
| --- | --- |

(21)

Where previous requests for internal review have been unsuccessful, the non-governmental organisation concerned should be able to institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.

| (22) | This Regulation respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on the European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Article 37 thereof, |
| --- | --- |

(22)

This Regulation respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on the European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Article 37 thereof,

HAVE ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

Article 1

Objective

1.   The objective of this Regulation is to contribute to the implementation of the obligations arising under the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters, hereinafter referred to as ‘the Århus Convention’, by laying down rules to apply the provisions of the Convention to Community institutions and bodies, in particular by:

| (a) | guaranteeing the right of public access to environmental information received or produced by Community institutions or bodies and held by them, and by setting out the basic terms and conditions of, and practical arrangements for, the exercise of that right; |
| --- | --- |

(a)

guaranteeing the right of public access to environmental information received or produced by Community institutions or bodies and held by them, and by setting out the basic terms and conditions of, and practical arrangements for, the exercise of that right;

| (b) | ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. To that end, the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted; |
| --- | --- |

(b)

ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. To that end, the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted;

| (c) | providing for public participation concerning plans and programmes relating to the environment; |
| --- | --- |

(c)

providing for public participation concerning plans and programmes relating to the environment;

| (d) | granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation. |
| --- | --- |

(d)

granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation.

2.   In applying the provisions of this Regulation, the Community institutions and bodies shall endeavour to assist and provide guidance to the public with regard to access to information, participation in decision-making and access to justice in environmental matters.

Article 2

Definitions

1.   For the purpose of this Regulation:

| (a) | ‘applicant’ means any natural or legal person requesting environmental information; |
| --- | --- |

(a)

‘applicant’ means any natural or legal person requesting environmental information;

| (b) | ‘the public’ means one or more natural or legal persons, and associations, organisations or groups of such persons; |
| --- | --- |

(b)

‘the public’ means one or more natural or legal persons, and associations, organisations or groups of such persons;

| (c) | ‘Community institution or body’ means any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity. However, the provisions under Title II shall apply to Community institutions or bodies acting in a legislative capacity; |
| --- | --- |

(c)

‘Community institution or body’ means any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity. However, the provisions under Title II shall apply to Community institutions or bodies acting in a legislative capacity;

| (d) | ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on:






  (i) | the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; |
| --- | --- | --- |

(d)

‘environmental information’ means any information in written, visual, aural, electronic or any other material form on:

(i)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

| (ii) | factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i); |
| --- | --- |

(ii)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i);

| (iii) | measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements; |
| --- | --- |

(iii)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements;

| (iv) | reports on the implementation of environmental legislation; |
| --- | --- |

(iv)

reports on the implementation of environmental legislation;

| (v) | cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); and |
| --- | --- |

(v)

cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); and

| (vi) | the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures in as much as they are or may be affected by the state of the elements of the environment referred to in point (i) or, through those elements, by any of the matters referred to in points (ii) and (iii); |
| --- | --- |

(vi)

the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures in as much as they are or may be affected by the state of the elements of the environment referred to in point (i) or, through those elements, by any of the matters referred to in points (ii) and (iii);

| (e) | ‘plans and programmes relating to the environment’ means plans and programmes,






  (i) | which are subject to preparation and, as appropriate, adoption by a Community institution or body; |
| --- | --- | --- |

(e)

‘plans and programmes relating to the environment’ means plans and programmes,

(i)

which are subject to preparation and, as appropriate, adoption by a Community institution or body;

| (ii) | which are required under legislative, regulatory or administrative provisions; and |
| --- | --- |

(ii)

which are required under legislative, regulatory or administrative provisions; and

| (iii) | which contribute to, or are likely to have significant effects on, the achievement of the objectives of Community environmental policy, such as laid down in the Sixth Community Environment Action Programme, or in any subsequent general environmental action programme. |
| --- | --- |

(iii)

which contribute to, or are likely to have significant effects on, the achievement of the objectives of Community environmental policy, such as laid down in the Sixth Community Environment Action Programme, or in any subsequent general environmental action programme.

General environmental action programmes shall also be considered as plans and programmes relating to the environment.

This definition shall not include financial, banking or budget plans and programmes, namely those laying down how particular projects or activities should be financed or those related to the proposed annual budgets, internal work programmes of a Community institution or body, or emergency plans and programmes designed for the sole purpose of civil protection;

| (f) | ‘environmental law’ means Community legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of Community policy on the environment as set out in the Treaty: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems; |
| --- | --- |

(f)

‘environmental law’ means Community legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of Community policy on the environment as set out in the Treaty: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems;

| (g) | ‘administrative act’ means any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects; |
| --- | --- |

(g)

‘administrative act’ means any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects;

| (h) | ‘administrative omission’ means any failure of a Community institution or body to adopt an administrative act as defined in (g). |
| --- | --- |

(h)

‘administrative omission’ means any failure of a Community institution or body to adopt an administrative act as defined in (g).

2.   Administrative acts and administrative omissions shall not include measures taken or omissions by a Community institution or body in its capacity as an administrative review body, such as under:

| (a) | Articles 81, 82, 86 and 87 of the Treaty (competition rules); |
| --- | --- |

(a)

Articles 81, 82, 86 and 87 of the Treaty (competition rules);

| (b) | Articles 226 and 228 of the Treaty (infringement proceedings); |
| --- | --- |

(b)

Articles 226 and 228 of the Treaty (infringement proceedings);

| (c) | Article 195 of the Treaty (Ombudsman proceedings); |
| --- | --- |

(c)

Article 195 of the Treaty (Ombudsman proceedings);

| (d) | Article 280 of the Treaty (OLAF proceedings). |
| --- | --- |

(d)

Article 280 of the Treaty (OLAF proceedings).

TITLE II

ACCESS TO ENVIRONMENTAL INFORMATION

Article 3

Application of Regulation (EC) No 1049/2001

Regulation (EC) No 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.

For the purposes of this Regulation, the word ‘institution’ in Regulation (EC) No 1049/2001 shall be read as ‘Community institution or body’.

Article 4

Collection and dissemination of environmental information

1.   Community institutions and bodies shall organise the environmental information which is relevant to their functions and which is held by them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology in accordance with Articles 11(1) and (2), and 12 of Regulation (EC) No 1049/2001. They shall make this environmental information progressively available in electronic databases that are easily accessible to the public through public telecommunication networks. To that end, they shall place the environmental information that they hold on databases and equip these with search aids and other forms of software designed to assist the public in locating the information they require.

The information made available by means of computer telecommunication and/or electronic technology need not include information collected before the entry into force of this Regulation unless it is already available in electronic form.

Community institutions and bodies shall make all reasonable efforts to maintain environmental information held by them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means.

2.   The environmental information to be made available and disseminated shall be updated as appropriate. In addition to the documents listed in Article 12(2) and (3) and in Article 13(1) and (2) of Regulation (EC) No 1049/2001, the databases or registers shall include the following:

| (a) | texts of international treaties, conventions or agreements, and of Community legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment; |
| --- | --- |

(a)

texts of international treaties, conventions or agreements, and of Community legislation on the environment or relating to it, and of policies, plans and programmes relating to the environment;

| (b) | progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Community institutions or bodies; |
| --- | --- |

(b)

progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Community institutions or bodies;

| (c) | reports on the state of the environment as referred to in paragraph 4; |
| --- | --- |

(c)

reports on the state of the environment as referred to in paragraph 4;

| (d) | data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment; |
| --- | --- |

(d)

data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;

| (e) | authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed; |
| --- | --- |

(e)

authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed;

| (f) | environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed. |
| --- | --- |

(f)

environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed.

3.   In appropriate cases, Community institutions and bodies may satisfy the requirements of paragraphs 1 and 2 by creating links to Internet sites where the information can be found.

4.   The Commission shall ensure that, at regular intervals not exceeding four years, a report on the state of the environment, including information on the quality of, and pressures on, the environment is published and disseminated.

Article 5

Quality of the environmental information

1.   Community institutions and bodies shall, insofar as is within their power, ensure that any information that is compiled by them is up to date, accurate and comparable.

2.   Community institutions and bodies shall, upon request, inform the applicant of the place where information on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling the information can be found, if it is available. Alternatively, they may refer them to the standardised procedure that was used.

Article 6

Application of exceptions concerning requests for access to environmental information

1.   As regards Article 4(2), first indent, of Regulation (EC) No 1049/2001, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4(2) and (3) of Regulation (EC) No 1049/2001, the fact that the information requested relates to emissions into the environment shall be taken into particular account when assessing whether or not there is an overriding public interest in disclosure.

2.   In addition to the exceptions set out in Article 4 of Regulation (EC) No 1049/2001, Community institutions and bodies may refuse access to environmental information where disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species.

3.   When a Community institution or body holds environmental information originating from a Member State it shall consult with that Member State and shall apply any relevant exceptions under Community law. The institution or body concerned shall release the information if no exception applies.

Article 7

Requests for access to environmental information which is not held by a Community institution or body

Where a Community institution or body receives a request for access to environmental information and where this information is not held by that Community institution or body, it shall, as promptly as possible, inform the applicant of the Community institution or body or the public authority within the meaning of Directive 2003/4/EC to which it believes it is possible to apply for the information requested or transfer the request to the relevant Community institution or body or the public authority and inform the applicant accordingly.

Article 8

Cooperation

In the event of an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, Community institutions and bodies shall, upon request of public authorities within the meaning of Directive 2003/4/EC, collaborate with and assist those public authorities in order to enable the latter to disseminate immediately and without delay to the public that might be affected all environmental information which could enable it to take measures to prevent or mitigate harm arising from the threat, to the extent that this information is held by or on behalf of Community institutions and bodies and/or those public authorities.

The first subparagraph shall apply without prejudice to any specific obligation laid down by Community legislation, in particular by Decision No 2119/98/EC and by Decision No 1786/2002/EC.

TITLE III

PUBLIC PARTICIPATION CONCERNING PLANS AND PROGRAMMES RELATING TO THE ENVIRONMENT

Article 9

1.   Community institutions and bodies shall provide, through appropriate practical and/or other provisions, early and effective opportunities for the public to participate during the preparation, modification or review of plans or programmes relating to the environment when all options are still open. In particular, where the Commission prepares a proposal for such a plan or programme which is submitted to other Community institutions or bodies for decision, it shall provide for public participation at that preparatory stage.

2.   Community institutions and bodies shall identify the public affected or likely to be affected by, or having an interest in, a plan or programme of the type referred to in paragraph 1, taking into account the objectives of this Regulation.

3.   Community institutions and bodies shall ensure that the public referred to in paragraph 2 is informed, whether by public notices or other appropriate means, such as electronic media where available, of:

| (a) | the draft proposal, where available; |
| --- | --- |

(a)

the draft proposal, where available;

| (b) | the environmental information or assessment relevant to the plan or programme under preparation, where available; and |
| --- | --- |

(b)

the environmental information or assessment relevant to the plan or programme under preparation, where available; and

| (c) | practical arrangements for participation, including:






  (i) | the administrative entity from which the relevant information may be obtained, |
| --- | --- | --- |

(c)

practical arrangements for participation, including:

(i)

the administrative entity from which the relevant information may be obtained,

| (ii) | the administrative entity to which comments, opinions or questions may be submitted, and |
| --- | --- |

(ii)

the administrative entity to which comments, opinions or questions may be submitted, and

| (iii) | reasonable time-frames allowing sufficient time for the public to be informed and to prepare and participate effectively in the environmental decision-making process. |
| --- | --- |

(iii)

reasonable time-frames allowing sufficient time for the public to be informed and to prepare and participate effectively in the environmental decision-making process.

4.   A time limit of at least four weeks shall be set for receiving comments. Where meetings or hearings are organised, prior notice of at least four weeks shall be given. Time limits may be shortened in urgent cases or where the public has already had the opportunity to comment on the plan or programme in question.

TITLE IV

INTERNAL REVIEW AND ACCESS TO JUSTICE

Article 10

Request for internal review of administrative acts

1.   Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.

Such a request must be made in writing and within a time limit not exceeding four weeks after the administrative act was adopted, notified or published, whichever is the latest, or, in the case of an alleged omission, four weeks after the date when the administrative act was required. The request shall state the grounds for the review.

2.   The Community institution or body referred to in paragraph 1 shall consider any such request, unless it is clearly unsubstantiated. The Community institution or body shall state its reasons in a written reply as soon as possible, but no later than twelve weeks after receipt of the request.

3.   Where the Community institution or body is unable, despite exercising due diligence, to act in accordance with paragraph 2, it shall inform the non-governmental organisation which made the request as soon as possible and at the latest within the period mentioned in that paragraph, of the reasons for its failure to act and when it intends to do so.

In any event, the Community institution or body shall act within eighteen weeks from receipt of the request.

Article 11

Criteria for entitlement at Community level

1.   A non-governmental organisation shall be entitled to make a request for internal review in accordance with Article 10, provided that:

| (a) | it is an independent non-profit-making legal person in accordance with a Member State's national law or practice; |
| --- | --- |

(a)

it is an independent non-profit-making legal person in accordance with a Member State's national law or practice;

| (b) | it has the primary stated objective of promoting environmental protection in the context of environmental law; |
| --- | --- |

(b)

it has the primary stated objective of promoting environmental protection in the context of environmental law;

| (c) | it has existed for more than two years and is actively pursuing the objective referred to under (b); |
| --- | --- |

(c)

it has existed for more than two years and is actively pursuing the objective referred to under (b);

| (d) | the subject matter in respect of which the request for internal review is made is covered by its objective and activities. |
| --- | --- |

(d)

the subject matter in respect of which the request for internal review is made is covered by its objective and activities.

2.   The Commission shall adopt the provisions which are necessary to ensure transparent and consistent application of the criteria mentioned in paragraph 1.

Article 12

Proceedings before the Court of Justice

1.   The non-governmental organisation which made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.

2.   Where the Community institution or body fails to act in accordance with Article 10(2) or (3) the non-governmental organisation may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.

TITLE V

FINAL PROVISIONS

Article 13

Application measures

Where necessary, Community institutions and bodies shall adapt their rules of procedure to the provisions of this Regulation. These adaptations shall take effect from ... (9).

Article 14

Entry into force

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

It shall apply from ... (10).

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

Done at Brussels,

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 117, 30.4.2004, p. 52.

1

(2)  Opinion of the European Parliament of 31 March 2004 (OJ C 123 E, 29.4.2004, p. 612), Council Common Position of 18 July 2005 and Position of the European Parliament of ... (not yet published in the Official Journal).

2

(3)  Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (OJ L 242, 10.9.2002, p. 1).

3

(4)  Fourth Community Action Programme for the Environment (OJ C 328, 7.12.1987, p. 1), Fifth Community Action Programme for the Environment (OJ C 138, 17.5.1993, p. 1).

4

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

5

(6)  OJ L 41, 14.2.2003, p. 26.

6

(7)  OJ L 268, 3.10.1998, p. 1. Decision as last amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

7

(8)  OJ L 271, 9.10.2002, p. 1. Decision as amended by Decision No 786/2004/EC (OJ L 138, 30.4.2004, p. 7).

8

(9)  ...

9

(10)  ...

10

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

The Commission adopted its proposal for a regulation of the European Parliament and of the Council on the Application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies on 28 October 2003.

The European Parliament adopted its first-reading opinion at its session from 29 March to 1 April 2004.

The Economic and Social Committee adopted its opinion on 29 April 2004 (1).

The Council adopted its common position on 18 July 2005.

II.   OBJECTIVE

The proposed Regulation aims to apply the principles of the Århus Convention to Community institutions and bodies, by introducing a framework of requirements for access to information, public participation in decision-making and access to justice in environmental matters at Community level. It therefore contributes to the pursuit of the objectives of Community environmental policy outlined in Article 174(1) EC Treaty. Finally, the adoption of the present proposal for a Regulation would demonstrate at global level that the European Community is determined to assume its responsibilities in environmental matters.

III.   ANALYSIS OF THE COMMON POSITION

1.   General

The common position incorporates a number of the European Parliament's first-reading amendments, either verbatim, in part or in spirit. In particular, procedural requirements which Community institutions and bodies have to meet with regard to information of the public and public participation in decision-making have been clarified and enhanced. With regard to access to justice, criteria for entitlement to make a request for internal review have been simplified. Qualified entities (now defined as NGOs meeting the relevant criteria) are no longer required to be active at Community level as such, yet any requests have to address Community level issues, i.e. be consistent with the definition of environmental law as it appears in Article 2 (f).

However, other amendments are not reflected in the common position because the Council agreed that they were unnecessary and/or undesirable or because provisions from the original Commission proposal were deleted or thoroughly redrafted.

The common position also includes changes other than those envisaged in the European Parliament's first-reading opinion. In addition, a number of drafting changes have been introduced to clarify the text or to ensure the overall coherence of the Directive.

2.   Specific

In particular, the Council agreed that:

| — | amendments 39, 40 and 41 were not acceptable because sustainable development is outside the scope of the Convention and not in line with Article 174 of the EC Treaty with regard to the objectives of environmental policy, |
| --- | --- |

—

amendments 39, 40 and 41 were not acceptable because sustainable development is outside the scope of the Convention and not in line with Article 174 of the EC Treaty with regard to the objectives of environmental policy,

| — | amendment 1 was covered by the formulation of recital 7, |
| --- | --- |

—

amendment 1 was covered by the formulation of recital 7,

| — | amendment 56 could have created an overlapping exemption regime: Regulation (EC) No 1049/2001 provides a sufficient framework to ensure compliance with the Convention; |
| --- | --- |

—

amendment 56 could have created an overlapping exemption regime: Regulation (EC) No 1049/2001 provides a sufficient framework to ensure compliance with the Convention;

| — | amendments 3 and 7 and 10 went beyond the requirements of the Århus Convention and were therefore unnecessary for ensuring compliance, |
| --- | --- |

—

amendments 3 and 7 and 10 went beyond the requirements of the Århus Convention and were therefore unnecessary for ensuring compliance,

| — | amendment 5 was not linked to any specific provisions in the Regulation; the concern that procedures should be streamlined is met in particular by Articles 10 to 12 in the common position, |
| --- | --- |

—

amendment 5 was not linked to any specific provisions in the Regulation; the concern that procedures should be streamlined is met in particular by Articles 10 to 12 in the common position,

| — | amendments 8 and 44 were no longer relevant since the notion of ’qualified entity’ was deleted from the text, |
| --- | --- |

—

amendments 8 and 44 were no longer relevant since the notion of ’qualified entity’ was deleted from the text,

| — | amendment 9 was not acceptable because the definition of ’environmental information’ which appears in the common position was taken over from Directive 2003/4/EC on access to information in the field of the environment, |
| --- | --- |

—

amendment 9 was not acceptable because the definition of ’environmental information’ which appears in the common position was taken over from Directive 2003/4/EC on access to information in the field of the environment,

| — | amendment 16 went beyond the provisions on information dissemination which are contained in Directive 2003/4/EC and would have entailed unnecessary administrative burdens, |
| --- | --- |

—

amendment 16 went beyond the provisions on information dissemination which are contained in Directive 2003/4/EC and would have entailed unnecessary administrative burdens,

| — | amendments 17 and 19 repeated provisions already clear in Regulation (EC) No 1049/2001, |
| --- | --- |

—

amendments 17 and 19 repeated provisions already clear in Regulation (EC) No 1049/2001,

| — | amendments 21, 22 and 23 seemed too prescriptive: it should be left to institutions and bodies to determine how they want to take account of public participation results, on the basis of general principles laid out in the regulation, |
| --- | --- |

—

amendments 21, 22 and 23 seemed too prescriptive: it should be left to institutions and bodies to determine how they want to take account of public participation results, on the basis of general principles laid out in the regulation,

| — | amendment 25 could not be accepted because it might have slowed down procedures considerably, |
| --- | --- |

—

amendment 25 could not be accepted because it might have slowed down procedures considerably,

| — | amendments 30, 42, 47, 48, 49, 50, 52 and 53 were unacceptable as the Århus Convention leaves it to Parties to determine the modalities for granting access to justice. Besides the fact that it limits the concept of ’qualified entity’ to NGOs meeting a number of conditions, the Common position carefully sticks to the provisions contained in Articles 230(4) and 232(3) of the EC Treaty, which are sufficient to ensure compliance, |
| --- | --- |

—

amendments 30, 42, 47, 48, 49, 50, 52 and 53 were unacceptable as the Århus Convention leaves it to Parties to determine the modalities for granting access to justice. Besides the fact that it limits the concept of ’qualified entity’ to NGOs meeting a number of conditions, the Common position carefully sticks to the provisions contained in Articles 230(4) and 232(3) of the EC Treaty, which are sufficient to ensure compliance,

| — | amendment 51 was unnecessary because the modalities of access to the Ombudsman, as set out in Article 195 of the EC Treaty, are sufficient to ensure compliance with the Convention and should therefore not be interfered with, |
| --- | --- |

—

amendment 51 was unnecessary because the modalities of access to the Ombudsman, as set out in Article 195 of the EC Treaty, are sufficient to ensure compliance with the Convention and should therefore not be interfered with,

| — | some elements of amendments 33, 35 and 58 were taken on board. Inserting a reference to sustainable development, however, was deemed inappropriate in the present context, with regard to the definition of environmental law, as explained above in relation to amendments 39, 40 and 41. Furthermore, the common position ensures that criteria for entitlement to make a request (now Article 11) avoid legal ambiguities, |
| --- | --- |

—

some elements of amendments 33, 35 and 58 were taken on board. Inserting a reference to sustainable development, however, was deemed inappropriate in the present context, with regard to the definition of environmental law, as explained above in relation to amendments 39, 40 and 41. Furthermore, the common position ensures that criteria for entitlement to make a request (now Article 11) avoid legal ambiguities,

| — | amendment 36 had lost its relevance since the corresponding article was deleted (Article 13 in the initial proposal), and given the redrafting of former Article 12 (now Article 11), |
| --- | --- |

—

amendment 36 had lost its relevance since the corresponding article was deleted (Article 13 in the initial proposal), and given the redrafting of former Article 12 (now Article 11),

| — | amendments 37 and 38 should be rejected because not all Community institutions and bodies will automatically have to adapt their rules of procedure. Should they need to do so, sufficient time would need to be given for that purpose, when necessary, and, subsequently, to apply the new regulation. |
| --- | --- |

—

amendments 37 and 38 should be rejected because not all Community institutions and bodies will automatically have to adapt their rules of procedure. Should they need to do so, sufficient time would need to be given for that purpose, when necessary, and, subsequently, to apply the new regulation.

IV.   CONCLUSION

The Council believes that the common position represents a balanced package of measures that would contribute to the pursuit of the objectives of Community environmental policy outlined in Article 174(1) EC Treaty while ensuring compliance with the requirements of the Århus Convention and compatibility with relevant legislation already in place, in particular Regulation (EC) No 1049/2001, without creating unjustified costs.

It looks forward to constructive discussions with the European Parliament with a view to the early adoption of the Regulation.

---

(1)  OJ C 117, 30.4.2004, p. 52.

---

| 25.10.2005 | EN | Official Journal of the European Union | CE 264/28 |
| --- | --- | --- | --- |

25.10.2005

EN

Official Journal of the European Union

CE 264/28

---

COMMON POSITION (EC) No 32/2005

adopted by the Council on 18 July 2005

with a view to adopting Regulation (EC) No .../2005 of the European Parliament and of the Council of ... on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95

(2005/C 264 E/03)

(Text with EEA relevance)

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),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

| (1) | The International Management Code for the Safe Operation of Ships and for Pollution Prevention, hereinafter referred to as ‘the ISM Code’, was adopted by the International Maritime Organisation (IMO) in 1993. This Code gradually became mandatory for most ships sailing on international voyages with the adoption in May 1994 of Chapter IX ‘Management for the Safe Operation of Ships’ of the International Convention for the Safety of Life at Sea (Solas), 1974. |
| --- | --- |

(1)

The International Management Code for the Safe Operation of Ships and for Pollution Prevention, hereinafter referred to as ‘the ISM Code’, was adopted by the International Maritime Organisation (IMO) in 1993. This Code gradually became mandatory for most ships sailing on international voyages with the adoption in May 1994 of Chapter IX ‘Management for the Safe Operation of Ships’ of the International Convention for the Safety of Life at Sea (Solas), 1974.

| (2) | The ISM Code was amended by the IMO by Resolution MSC.104(73), adopted on 5 December 2000. |
| --- | --- |

(2)

The ISM Code was amended by the IMO by Resolution MSC.104(73), adopted on 5 December 2000.

| (3) | Guidelines on implementation of the ISM Code by Administrations were adopted by IMO Resolution A.788(19) on 23 November 1995. These Guidelines were amended by Resolution A.913(22), adopted on 29 November 2001. |
| --- | --- |

(3)

Guidelines on implementation of the ISM Code by Administrations were adopted by IMO Resolution A.788(19) on 23 November 1995. These Guidelines were amended by Resolution A.913(22), adopted on 29 November 2001.

| (4) | Council Regulation (EC) No 3051/95 of 8 December 1995 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries) (3), made the ISM Code mandatory at Community level with effect from 1 July 1996 for all ro-ro passenger ferries operating on a regular service to and from ports of the Member States, on both domestic and international voyages and regardless of their flag. This was a first step towards ensuring uniform and coherent implementation of the ISM Code in all Member States. |
| --- | --- |

(4)

Council Regulation (EC) No 3051/95 of 8 December 1995 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries) (3), made the ISM Code mandatory at Community level with effect from 1 July 1996 for all ro-ro passenger ferries operating on a regular service to and from ports of the Member States, on both domestic and international voyages and regardless of their flag. This was a first step towards ensuring uniform and coherent implementation of the ISM Code in all Member States.

| (5) | On 1 July 1998 the ISM Code became mandatory under the provisions of Chapter IX of Solas for companies operating passenger ships, including high-speed passenger craft, oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high-speed craft of 500 gross tonnage and upwards, on international voyages. |
| --- | --- |

(5)

On 1 July 1998 the ISM Code became mandatory under the provisions of Chapter IX of Solas for companies operating passenger ships, including high-speed passenger craft, oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high-speed craft of 500 gross tonnage and upwards, on international voyages.

| (6) | On 1 July 2002 the ISM Code became mandatory for companies operating other cargo ships and mobile offshore drilling units of 500 gross tonnage and upwards, on international voyages. |
| --- | --- |

(6)

On 1 July 2002 the ISM Code became mandatory for companies operating other cargo ships and mobile offshore drilling units of 500 gross tonnage and upwards, on international voyages.

| (7) | The safety of human life at sea and the protection of the environment may be effectively enhanced by applying the ISM Code strictly and on a mandatory basis. |
| --- | --- |

(7)

The safety of human life at sea and the protection of the environment may be effectively enhanced by applying the ISM Code strictly and on a mandatory basis.

| (8) | It is desirable to apply directly the ISM Code to ships flying the flag of a Member State as well as to ships, regardless of their flag, engaged exclusively on domestic voyages or on a regular shipping service operating to or from ports of the Member States. |
| --- | --- |

(8)

It is desirable to apply directly the ISM Code to ships flying the flag of a Member State as well as to ships, regardless of their flag, engaged exclusively on domestic voyages or on a regular shipping service operating to or from ports of the Member States.

| (9) | The adoption of a new regulation with direct applicability should ensure the enforcement of the ISM Code on the understanding that it is left to the Member States to decide whether to implement the Code for ships, regardless of their flag, operating exclusively in port areas. |
| --- | --- |

(9)

The adoption of a new regulation with direct applicability should ensure the enforcement of the ISM Code on the understanding that it is left to the Member States to decide whether to implement the Code for ships, regardless of their flag, operating exclusively in port areas.

| (10) | Consequently, Regulation (EC) No 3051/95 should be repealed. |
| --- | --- |

(10)

Consequently, Regulation (EC) No 3051/95 should be repealed.

| (11) | If a Member State considers it difficult in practice for companies to comply with specific provisions of part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, it may derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code. It may, for such ships and companies, establish alternative certification and verification procedures. |
| --- | --- |

(11)

If a Member State considers it difficult in practice for companies to comply with specific provisions of part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, it may derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code. It may, for such ships and companies, establish alternative certification and verification procedures.

| (12) | It is necessary to take into account Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) (4). |
| --- | --- |

(12)

It is necessary to take into account Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) (4).

| (13) | It is also necessary to take into account Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (5), in order to define the recognised organisations for the purpose of this Regulation, and Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships (6), for the purpose of establishing the scope of application of this Regulation as regards passenger ships engaged on domestic voyages. |
| --- | --- |

(13)

It is also necessary to take into account Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (5), in order to define the recognised organisations for the purpose of this Regulation, and Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships (6), for the purpose of establishing the scope of application of this Regulation as regards passenger ships engaged on domestic voyages.

| (14) | The measures necessary for amending Annex II 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 (7). |
| --- | --- |

(14)

The measures necessary for amending Annex II 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 (7).

| (15) | Since the objectives of this Regulation, namely to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, cannot be sufficiently achieved by the Member States and can therefore 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 Regulation does not go beyond what is necessary in order to achieve those objectives, |
| --- | --- |

(15)

Since the objectives of this Regulation, namely to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, cannot be sufficiently achieved by the Member States and can therefore 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 Regulation does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

Article 1

Objective

The objective of this Regulation is to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, referred to in Article 3(1), by ensuring that companies operating those ships comply with the ISM Code by means of:

| (a) | the establishment, implementation and proper maintenance by companies of the shipboard and shore-based safety management systems; and |
| --- | --- |

(a)

the establishment, implementation and proper maintenance by companies of the shipboard and shore-based safety management systems; and

| (b) | the control thereof by flag and port State administrations. |
| --- | --- |

(b)

the control thereof by flag and port State administrations.

Article 2

Definitions

For the purpose of this Regulation the following definitions shall apply:

| (1) | ‘the ISM Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation by Assembly Resolution A.741(18) of 4 November 1993, as amended by Maritime Safety Committee Resolution MSC.104(73) of 5 December 2000 and set out in Annex I to this Regulation, in its up-to-date version; |
| --- | --- |

(1)

‘the ISM Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation by Assembly Resolution A.741(18) of 4 November 1993, as amended by Maritime Safety Committee Resolution MSC.104(73) of 5 December 2000 and set out in Annex I to this Regulation, in its up-to-date version;

| (2) | ‘recognised organisation’ means a body recognised in accordance with Directive 94/57/EC; |
| --- | --- |

(2)

‘recognised organisation’ means a body recognised in accordance with Directive 94/57/EC;

| (3) | ‘company’ means the owner of the ship or any other organisation or person, such as the manager or the bareboat charterer, who has assumed responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the ISM Code; |
| --- | --- |

(3)

‘company’ means the owner of the ship or any other organisation or person, such as the manager or the bareboat charterer, who has assumed responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the ISM Code;

| (4) | ‘passenger ship’ means a ship, including a high-speed craft, carrying more than 12 passengers, or a passenger submersible craft; |
| --- | --- |

(4)

‘passenger ship’ means a ship, including a high-speed craft, carrying more than 12 passengers, or a passenger submersible craft;

| (5) | ‘passenger’ means every person other than:






  (a) | the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and |
| --- | --- | --- |

(5)

‘passenger’ means every person other than:

(a)

the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and

| (b) | a child under one year of age; |
| --- | --- |

(b)

a child under one year of age;

| (6) | ‘high-speed craft’ means a high-speed craft as defined in Regulation X-1/2 of Solas, in its up-to-date version. For high-speed passenger craft, the limitations indicated in Article 2(f) of Directive 98/18/EC shall apply; |
| --- | --- |

(6)

‘high-speed craft’ means a high-speed craft as defined in Regulation X-1/2 of Solas, in its up-to-date version. For high-speed passenger craft, the limitations indicated in Article 2(f) of Directive 98/18/EC shall apply;

| (7) | ‘cargo ship’ means a ship, including a high-speed craft, which is not a passenger ship; |
| --- | --- |

(7)

‘cargo ship’ means a ship, including a high-speed craft, which is not a passenger ship;

| (8) | ‘international voyage’ means a voyage by sea from a port of a Member State or any other State to a port outside that State, or vice versa; |
| --- | --- |

(8)

‘international voyage’ means a voyage by sea from a port of a Member State or any other State to a port outside that State, or vice versa;

| (9) | ‘domestic voyage’ means a voyage in sea areas from a port of a Member State to the same or another port within that Member State; |
| --- | --- |

(9)

‘domestic voyage’ means a voyage in sea areas from a port of a Member State to the same or another port within that Member State;

| (10) | ‘regular shipping service’ means a series of ship crossings operated so as to serve traffic between the same two or more points, either:






  (a) | according to a published timetable; or |
| --- | --- | --- |

(10)

‘regular shipping service’ means a series of ship crossings operated so as to serve traffic between the same two or more points, either:

(a)

according to a published timetable; or

| (b) | with crossings so regular or frequent that they constitute a recognisable systematic series; |
| --- | --- |

(b)

with crossings so regular or frequent that they constitute a recognisable systematic series;

| (11) | ‘ro-ro passenger ferry’ means a seagoing passenger vessel as defined in Chapter II-1 of Solas in its up-to-date version; |
| --- | --- |

(11)

‘ro-ro passenger ferry’ means a seagoing passenger vessel as defined in Chapter II-1 of Solas in its up-to-date version;

| (12) | ‘passenger submersible craft’ means a passenger-carrying mobile vessel which primarily operates under water and relies on surface support, such as a surface ship or shore-based facilities, for monitoring and for one or more of the following:






  (a) | recharging of power supply; |
| --- | --- | --- |

(12)

‘passenger submersible craft’ means a passenger-carrying mobile vessel which primarily operates under water and relies on surface support, such as a surface ship or shore-based facilities, for monitoring and for one or more of the following:

(a)

recharging of power supply;

| (b) | recharging high pressure air; |
| --- | --- |

(b)

recharging high pressure air;

| (c) | recharging life-support; |
| --- | --- |

(c)

recharging life-support;

| (13) | ‘mobile offshore drilling unit’ means a vessel capable of engaging in drilling operations for the exploration for or exploitation of resources beneath the seabed such as liquid or gaseous hydrocarbons, sulphur or salt; |
| --- | --- |

(13)

‘mobile offshore drilling unit’ means a vessel capable of engaging in drilling operations for the exploration for or exploitation of resources beneath the seabed such as liquid or gaseous hydrocarbons, sulphur or salt;

| (14) | ‘gross tonnage’ means the gross tonnage of a ship determined in accordance with the International Convention on Tonnage Measurement of Ships, 1969 or, in the case of ships engaged exclusively on domestic voyages and not measured in accordance with the said Convention, the gross tonnage of the ship determined in accordance with national tonnage measurement regulations. |
| --- | --- |

(14)

‘gross tonnage’ means the gross tonnage of a ship determined in accordance with the International Convention on Tonnage Measurement of Ships, 1969 or, in the case of ships engaged exclusively on domestic voyages and not measured in accordance with the said Convention, the gross tonnage of the ship determined in accordance with national tonnage measurement regulations.

Article 3

Scope

1.   This Regulation shall apply to the following types of ships and to companies operating them:

| (a) | cargo ships and passenger ships, flying the flag of a Member State, engaged on international voyages; |
| --- | --- |

(a)

cargo ships and passenger ships, flying the flag of a Member State, engaged on international voyages;

| (b) | cargo ships and passenger ships engaged exclusively on domestic voyages, regardless of their flag; |
| --- | --- |

(b)

cargo ships and passenger ships engaged exclusively on domestic voyages, regardless of their flag;

| (c) | cargo ships and passenger ships operating to or from ports of the Member States, on a regular shipping service, regardless of their flag; |
| --- | --- |

(c)

cargo ships and passenger ships operating to or from ports of the Member States, on a regular shipping service, regardless of their flag;

| (d) | mobile offshore drilling units operating under the authority of a Member State. |
| --- | --- |

(d)

mobile offshore drilling units operating under the authority of a Member State.

2.   This Regulation shall not apply to the following types of ships or to the companies operating them:

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

(a)

ships of war and troopships 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, 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, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes;

| (c) | fishing vessels; |
| --- | --- |

(c)

fishing vessels;

| (d) | cargo ships and mobile offshore drilling units of less than 500 gross tonnage; |
| --- | --- |

(d)

cargo ships and mobile offshore drilling units of less than 500 gross tonnage;

| (e) | passenger ships, other than ro-ro passenger ferries, in sea areas of Class C and D as defined in Article 4 of Directive 98/18/EC. |
| --- | --- |

(e)

passenger ships, other than ro-ro passenger ferries, in sea areas of Class C and D as defined in Article 4 of Directive 98/18/EC.

Article 4

Compliance

Member States shall ensure that all companies operating ships falling within the scope of this Regulation comply with the provisions of this Regulation.

Article 5

Safety management requirements

The ships referred to in Article 3(1) and the companies operating them shall comply with the requirements of part A of the ISM Code.

Article 6

Certification and verification

For the purposes of certification and verification, Member States shall comply with the provisions of part B of the ISM Code.

Article 7

Derogation

1.   A Member State may, if it considers it difficult in practice for companies to comply with paragraphs 6, 7, 9, 11 and 12 of part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code.

2.   A Member State may, for ships and companies for which a derogation has been adopted by virtue of paragraph 1, if it considers it difficult in practice to apply the requirements laid down in Article 6, establish alternative certification and verification procedures.

3.   In the circumstances set out in paragraph 1 and, if applicable, paragraph 2, the following procedure shall apply:

| (a) | the Member State concerned shall notify the Commission of the derogation and of the measures which it intends to adopt; |
| --- | --- |

(a)

the Member State concerned shall notify the Commission of the derogation and of the measures which it intends to adopt;

| (b) | if, within six months of the notification, it is decided, in accordance with the procedure referred to in Article 12(2), that the proposed derogation is not justified or that the proposed measures are not sufficient, the Member State shall be required to amend or refrain from adopting the proposed provisions; |
| --- | --- |

(b)

if, within six months of the notification, it is decided, in accordance with the procedure referred to in Article 12(2), that the proposed derogation is not justified or that the proposed measures are not sufficient, the Member State shall be required to amend or refrain from adopting the proposed provisions;

| (c) | the Member State shall make any adopted measures public with a direct reference to paragraph 1 and, if applicable, paragraph 2. |
| --- | --- |

(c)

the Member State shall make any adopted measures public with a direct reference to paragraph 1 and, if applicable, paragraph 2.

4.   Following a derogation under paragraph 1 and, if applicable, paragraph 2, the Member State concerned shall issue a certificate in accordance with the second subparagraph of Annex II.5, indicating the applicable operational limitations.

Article 8

Validity, acceptance and recognition of certificates

1.   The Document of Compliance shall remain valid for up to five years from the date of its issue. The Safety Management Certificate shall remain valid for up to five years from the date of its issue.

2.   In cases of renewal of the Document of Compliance and the Safety Management Certificate, the relevant provisions of part B of the ISM Code shall apply.

3.   Member States shall accept Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued by the administration of any other Member State or on behalf of this administration by a recognised organisation.

4.   Member States shall accept Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued by, or on behalf of, the administrations of third countries.

However, for ships engaged on a regular shipping service, compliance with the ISM Code by the Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued on behalf of administrations of third countries shall be verified, by any appropriate means, by or on behalf of the Member State(s) concerned, unless they were issued by the administration of a Member State or by a recognised organisation.

Article 9

Penalties

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

Article 10

Reporting

1.   Member States shall report to the Commission every two years on the implementation of this Regulation.

2.   The Commission shall, in accordance with the procedure referred to in Article 12(2), establish a harmonised specimen form for such reports.

3.   The Commission shall, with the assistance of the European Maritime Safety Agency and within six months of receiving the reports from Member States, prepare a consolidated report concerning the implementation of this Regulation, with any proposed measures, if appropriate. This report shall be addressed to the European Parliament and the Council.

Article 11

Amendments

1.   Amendments to the ISM Code may be excluded from the scope of this Regulation pursuant to Article 5 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) and amending the Regulations on maritime safety and the prevention of pollution from ships (8).

2.   Any amendment to Annex II shall be made in accordance with the procedure referred to in Article 12(2).

Article 12

Committee

1.   The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) set up under Article 3 of Regulation (EC) No 2099/2002.

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.   The Committee shall adopt its Rules of Procedure.

Article 13

Repeal

1.   Regulation (EC) No 3051/95 shall be repealed with effect from ... (9).

2.   Interim Documents of Compliance, Interim Safety Management Certificates, Documents of Compliance and Safety Management Certificates issued before ... (10) shall remain valid until their expiry or until their next endorsement.

Article 14

Entry into force

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

As concerns cargo and passenger ships, which are not already required to comply with the ISM Code, this Regulation shall apply as from ... (9).

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

Done at Brussels,

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 302, 7.12.2004, p. 20.

1

(2)  Opinion of the European Parliament of 10 March 2004 ( C 102 E, 28.4.2004, p. 565), Council Common Position of 18 July 2005 and Position of the European Parliament of ... (not yet published in the Official Journal).

2

(3)  OJ L 320, 30.12.1995, p. 14. Regulation as last amended by Regulation (EC) No 2099/2002 of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 1).

3

(4)  OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive 2002/84/EC of the European Parliament and of the Council (OJ L 324, 29.11.2002, p. 53).

4

(5)  OJ L 319, 12.12.1994, p. 20. Directive as last amended by Directive 2002/84/EC.

5

(6)  OJ L 144, 15.5.1998, p. 1. Directive as last amended by Commission Directive 2003/75/EC (OJ L 190, 30.7.2003, p. 6).

6

(7)  OJ L 184, 17.7.1999, p. 23.

7

(8)  OJ L 324, 29.11.2002, p. 1. Regulation as amended by Commission Regulation (EC) No 415/2004 (OJ L 68, 6.3.2004, p. 10).

8

(9)  The date of entry into force of this Regulation.

9

(10)  Two years after the date of entry into force of this Regulation.

10

---

ANNEX I

INTERNATIONAL MANAGEMENT CODE FOR THE SAFE OPERATION OF SHIPS AND FOR POLLUTION PREVENTION (INTERNATIONAL SAFETY MANAGEMENT (ISM) CODE)

PART A —   IMPLEMENTATION

| 1. | GENERAL |
| --- | --- |

1.

| 1.1. | Definitions |
| --- | --- |

1.1.

| 1.2. | Objectives |
| --- | --- |

1.2.

| 1.3. | Application |
| --- | --- |

1.3.

| 1.4. | Functional requirements for a safety management system (SMS) |
| --- | --- |

1.4.

| 2. | SAFETY AND ENVIRONMENTAL PROTECTION POLICY |
| --- | --- |

2.

| 3. | COMPANY RESPONSIBILITIES AND AUTHORITY |
| --- | --- |

3.

| 4. | DESIGNATED PERSON(S) |
| --- | --- |

4.

| 5. | MASTER'S RESPONSIBILITY AND AUTHORITY |
| --- | --- |

5.

| 6. | RESOURCES AND PERSONNEL |
| --- | --- |

6.

| 7. | DEVELOPMENT OF PLANS FOR SHIPBOARD OPERATIONS |
| --- | --- |

7.

| 8. | EMERGENCY PREPAREDNESS |
| --- | --- |

8.

| 9. | REPORTS AND ANALYSIS OF NON-CONFORMITIES, ACCIDENTS AND HAZARDOUS OCCURRENCES |
| --- | --- |

9.

| 10. | MAINTENANCE OF THE SHIP AND EQUIPMENT |
| --- | --- |

10.

| 11. | DOCUMENTATION |
| --- | --- |

11.

| 12. | COMPANY VERIFICATION, REVIEW AND EVALUATION |
| --- | --- |

12.

PART B —   CERTIFICATION AND VERIFICATION

| 13. | CERTIFICATION AND PERIODICAL VERIFICATION |
| --- | --- |

13.

| 14. | INTERIM CERTIFICATION |
| --- | --- |

14.

| 15. | VERIFICATION |
| --- | --- |

15.

| 16. | FORMS OF CERTIFICATES |
| --- | --- |

16.

INTERNATIONAL MANAGEMENT CODE FOR THE SAFE OPERATION OF SHIPS AND FOR POLLUTION PREVENTION (INTERNATIONAL SAFETY MANAGEMENT (ISM) CODE)

PART A —   IMPLEMENTATION

1.   GENERAL

1.1.   Definitions

The following definitions apply to parts A and B of this Code.

| 1.1.1. | ‘International Safety Management (ISM) Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the Assembly, as may be amended by the Organisation. |
| --- | --- |

1.1.1.

‘International Safety Management (ISM) Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the Assembly, as may be amended by the Organisation.

| 1.1.2. | ‘Company’ means the owner of the ship or any other organisation or person such as the manager or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the shipowner and who on assuming such responsibility has agreed to take over all the duties and responsibility imposed by the Code. |
| --- | --- |

1.1.2.

‘Company’ means the owner of the ship or any other organisation or person such as the manager or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the shipowner and who on assuming such responsibility has agreed to take over all the duties and responsibility imposed by the Code.

| 1.1.3. | ‘Administration’ means the government of the State whose flag the ship is entitled to fly. |
| --- | --- |

1.1.3.

‘Administration’ means the government of the State whose flag the ship is entitled to fly.

| 1.1.4. | ‘Safety Management System’ means a structured and documented system enabling company personnel to implement effectively the company safety and environmental protection policy. |
| --- | --- |

1.1.4.

‘Safety Management System’ means a structured and documented system enabling company personnel to implement effectively the company safety and environmental protection policy.

| 1.1.5. | ‘Document of Compliance’ means a document issued to a company which complies with the requirements of this Code. |
| --- | --- |

1.1.5.

‘Document of Compliance’ means a document issued to a company which complies with the requirements of this Code.

| 1.1.6. | ‘Safety Management Certificate’ means a document issued to a ship which signifies that the company and its shipboard management operate in accordance with the approved safety management system. |
| --- | --- |

1.1.6.

‘Safety Management Certificate’ means a document issued to a ship which signifies that the company and its shipboard management operate in accordance with the approved safety management system.

| 1.1.7. | ‘Objective evidence’ means quantitative or qualitative information, records or statements of fact pertaining to safety or to the existence and implementation of a safety management system element, which is based on observation, measurement or test and which can be verified. |
| --- | --- |

1.1.7.

‘Objective evidence’ means quantitative or qualitative information, records or statements of fact pertaining to safety or to the existence and implementation of a safety management system element, which is based on observation, measurement or test and which can be verified.

| 1.1.8. | ‘Observation’ means a statement of fact made during a safety management audit and substantiated by objective evidence. |
| --- | --- |

1.1.8.

‘Observation’ means a statement of fact made during a safety management audit and substantiated by objective evidence.

| 1.1.9. | ‘Non-conformity’ means an observed situation where objective evidence indicates the non-fulfilment of a specified requirement. |
| --- | --- |

1.1.9.

‘Non-conformity’ means an observed situation where objective evidence indicates the non-fulfilment of a specified requirement.

| 1.1.10. | ‘Major non-conformity’ means an identifiable deviation that poses a serious threat to the safety of personnel or the ship or a serious risk to the environment that requires immediate corrective action and includes the lack of effective and systematic implementation of a requirement of this Code. |
| --- | --- |

1.1.10.

‘Major non-conformity’ means an identifiable deviation that poses a serious threat to the safety of personnel or the ship or a serious risk to the environment that requires immediate corrective action and includes the lack of effective and systematic implementation of a requirement of this Code.

| 1.1.11. | ‘Anniversary date’ means the day and month of each year that corresponds to the date of expiry of the relevant document or certificate. |
| --- | --- |

1.1.11.

‘Anniversary date’ means the day and month of each year that corresponds to the date of expiry of the relevant document or certificate.

| 1.1.12. | ‘Convention’ means the International Convention for the Safety of Life at Sea, 1974 as amended. |
| --- | --- |

1.1.12.

‘Convention’ means the International Convention for the Safety of Life at Sea, 1974 as amended.

1.2.   Objectives

| 1.2.1. | The objectives of the Code are to ensure safety at sea, prevention of human injury or loss of life, and avoidance of damage to the environment, in particular, to the marine environment, and to property. |
| --- | --- |

1.2.1.

The objectives of the Code are to ensure safety at sea, prevention of human injury or loss of life, and avoidance of damage to the environment, in particular, to the marine environment, and to property.

| 1.2.2. | Safety management objectives of the Company should, inter alia:






  1.2.2.1. | provide for safe practices in ship operation and a safe working environment; |
| --- | --- | --- |

1.2.2.

Safety management objectives of the Company should, inter alia:

1.2.2.1.

provide for safe practices in ship operation and a safe working environment;

| 1.2.2.2. | establish safeguards against all identified risks; and |
| --- | --- |

1.2.2.2.

establish safeguards against all identified risks; and

| 1.2.2.3. | continuously improve safety management skills of personnel ashore and aboard ships, including preparing for emergencies related both to safety and environmental protection. |
| --- | --- |

1.2.2.3.

continuously improve safety management skills of personnel ashore and aboard ships, including preparing for emergencies related both to safety and environmental protection.

| 1.2.3. | The safety management system should ensure:






  1.2.3.1. | compliance with mandatory rules and regulations; and |
| --- | --- | --- |

1.2.3.

The safety management system should ensure:

1.2.3.1.

compliance with mandatory rules and regulations; and

| 1.2.3.2. | that applicable codes, guidelines and standards recommended by the Organisation, administrations, classification societies and maritime industry organisations are taken into account. |
| --- | --- |

1.2.3.2.

that applicable codes, guidelines and standards recommended by the Organisation, administrations, classification societies and maritime industry organisations are taken into account.

1.3.   Application

The requirements of this Code may be applied to all ships.

1.4.   Functional requirements for a safety management system (SMS)

Every company should develop, implement and maintain a safety management system (SMS) which includes the following functional requirements:

| 1.4.1. | a safety and environmental protection policy; |
| --- | --- |

1.4.1.

a safety and environmental protection policy;

| 1.4.2. | instructions and procedures to ensure safe operation of ships and protection of the environment in compliance with relevant international and flag State legislation; |
| --- | --- |

1.4.2.

instructions and procedures to ensure safe operation of ships and protection of the environment in compliance with relevant international and flag State legislation;

| 1.4.3. | defined levels of authority and lines of communication between, and amongst, shore and shipboard personnel; |
| --- | --- |

1.4.3.

defined levels of authority and lines of communication between, and amongst, shore and shipboard personnel;

| 1.4.4. | procedures for reporting accidents and non-conformities with the provisions of this Code; |
| --- | --- |

1.4.4.

procedures for reporting accidents and non-conformities with the provisions of this Code;

| 1.4.5. | procedures to prepare for and respond to emergency situations; and |
| --- | --- |

1.4.5.

procedures to prepare for and respond to emergency situations; and

| 1.4.6. | procedures for internal audits and management reviews. |
| --- | --- |

1.4.6.

procedures for internal audits and management reviews.

2.   SAFETY AND ENVIRONMENTAL PROTECTION POLICY

| 2.1. | The company should establish a safety and environmental protection policy which describes how the objectives, given in paragraph 1.2, will be achieved. |
| --- | --- |

2.1.

The company should establish a safety and environmental protection policy which describes how the objectives, given in paragraph 1.2, will be achieved.

| 2.2. | The Company should ensure that the policy is implemented and maintained at all levels of the organisation both ship-based as well as shore-based. |
| --- | --- |

2.2.

The Company should ensure that the policy is implemented and maintained at all levels of the organisation both ship-based as well as shore-based.

3.   COMPANY RESPONSIBILITIES AND AUTHORITY

| 3.1. | If the entity who is responsible for the operation of the ship is other than the owner, the owner must report the full name and details of such entity to the administration. |
| --- | --- |

3.1.

If the entity who is responsible for the operation of the ship is other than the owner, the owner must report the full name and details of such entity to the administration.

| 3.2. | The company should define and document the responsibility, authority and interrelation of all personnel who manage, perform and verify work relating to and affecting safety and pollution prevention. |
| --- | --- |

3.2.

The company should define and document the responsibility, authority and interrelation of all personnel who manage, perform and verify work relating to and affecting safety and pollution prevention.

| 3.3. | The company is responsible for ensuring that adequate resources and shore-based support are provided to enable the designated person or persons to carry out their functions. |
| --- | --- |

3.3.

The company is responsible for ensuring that adequate resources and shore-based support are provided to enable the designated person or persons to carry out their functions.

4.   DESIGNATED PERSON(S)

To ensure the safe operation of each ship and to provide a link between the company and those on board, every company, as appropriate, should designate a person or persons ashore having direct access to the highest level of management. The responsibility and authority of the designated person or persons should include monitoring the safety and pollution prevention aspects of the operation of each ship and to ensure that adequate resources and shore-based support are applied, as required.

5.   MASTER'S RESPONSIBILITY AND AUTHORITY

| 5.1. | The company should clearly define and document the master's responsibility with regard to:






  5.1.1. | implementing the safety and environmental protection policy of the company; |
| --- | --- | --- |

5.1.

The company should clearly define and document the master's responsibility with regard to:

5.1.1.

implementing the safety and environmental protection policy of the company;

| 5.1.2. | motivating the crew in the observance of that policy; |
| --- | --- |

5.1.2.

motivating the crew in the observance of that policy;

| 5.1.3. | issuing appropriate orders and instructions in a clear and simple manner; |
| --- | --- |

5.1.3.

issuing appropriate orders and instructions in a clear and simple manner;

| 5.1.4. | verifying that specified requirements are observed; and |
| --- | --- |

5.1.4.

verifying that specified requirements are observed; and

| 5.1.5. | reviewing the SMS and reporting its deficiencies to the shore-based management. |
| --- | --- |

5.1.5.

reviewing the SMS and reporting its deficiencies to the shore-based management.

| 5.2. | The company should ensure that the SMS operating on board the ship contains a clear statement emphasising the master's authority. The company should establish in the SMS that the master has the overriding authority and the responsibility to make decisions with respect to safety and pollution prevention and to request the company's assistance as may be necessary. |
| --- | --- |

5.2.

The company should ensure that the SMS operating on board the ship contains a clear statement emphasising the master's authority. The company should establish in the SMS that the master has the overriding authority and the responsibility to make decisions with respect to safety and pollution prevention and to request the company's assistance as may be necessary.

6.   RESOURCES AND PERSONNEL

| 6.1. | The company should ensure that the master is:






  6.1.1. | properly qualified for command; |
| --- | --- | --- |

6.1.

The company should ensure that the master is:

6.1.1.

properly qualified for command;

| 6.1.2. | fully conversant with the company's SMS; and |
| --- | --- |

6.1.2.

fully conversant with the company's SMS; and

| 6.1.3. | given the necessary support so that the master's duties can be safely performed. |
| --- | --- |

6.1.3.

given the necessary support so that the master's duties can be safely performed.

| 6.2. | The company should ensure that each ship is manned with qualified, certificated and medically fit seafarers in accordance with national and international requirements. |
| --- | --- |

6.2.

The company should ensure that each ship is manned with qualified, certificated and medically fit seafarers in accordance with national and international requirements.

| 6.3. | The company should establish procedures to ensure that new personnel and personnel transferred to new assignments related to safety and protection of the environment are given proper familiarisation with their duties.
  Instructions which must be provided prior to sailing should be identified, documented and given. |
| --- | --- |

6.3.

The company should establish procedures to ensure that new personnel and personnel transferred to new assignments related to safety and protection of the environment are given proper familiarisation with their duties.

Instructions which must be provided prior to sailing should be identified, documented and given.

| 6.4. | The company should ensure that all personnel involved in the company's SMS have an adequate understanding of relevant rules, regulations, codes and guidelines. |
| --- | --- |

6.4.

The company should ensure that all personnel involved in the company's SMS have an adequate understanding of relevant rules, regulations, codes and guidelines.

| 6.5. | The company should establish and maintain procedures for identifying any training which may be required in support of the SMS and ensure that such training is provided for all personnel concerned. |
| --- | --- |

6.5.

The company should establish and maintain procedures for identifying any training which may be required in support of the SMS and ensure that such training is provided for all personnel concerned.

| 6.6. | The company should establish procedures by which the ship's personnel receive relevant information on the SMS in a working language or languages understood by them. |
| --- | --- |

6.6.

The company should establish procedures by which the ship's personnel receive relevant information on the SMS in a working language or languages understood by them.

| 6.7. | The company should ensure that the ship's personnel are able to communicate effectively in the execution of their duties related to the SMS. |
| --- | --- |

6.7.

The company should ensure that the ship's personnel are able to communicate effectively in the execution of their duties related to the SMS.

7.   DEVELOPMENT OF PLANS FOR SHIPBOARD OPERATIONS

The Company should establish procedures for the preparation of plans and instructions, including checklists as appropriate, for key shipboard operations concerning the safety of the ship and the prevention of pollution. The various tasks involved should be defined and assigned to qualified personnel.

8.   EMERGENCY PREPAREDNESS

| 8.1. | The company should establish procedures to identify, describe and respond to potential emergency shipboard situations. |
| --- | --- |

8.1.

The company should establish procedures to identify, describe and respond to potential emergency shipboard situations.

| 8.2. | The company should establish programmes for drills and exercises to prepare for emergency actions. |
| --- | --- |

8.2.

The company should establish programmes for drills and exercises to prepare for emergency actions.

| 8.3. | The SMS should provide for measures ensuring that the company's organisation can respond at any time to hazards, accidents and emergency situations involving its ships. |
| --- | --- |

8.3.

The SMS should provide for measures ensuring that the company's organisation can respond at any time to hazards, accidents and emergency situations involving its ships.

9.   REPORTS AND ANALYSIS OF NON-CONFORMITIES, ACCIDENTS AND HAZARDOUS OCCURRENCES

| 9.1. | The SMS should include procedures ensuring that non-conformities, accidents and hazardous situations are reported to the company, investigated and analysed with the objective of improving safety and pollution prevention. |
| --- | --- |

9.1.

The SMS should include procedures ensuring that non-conformities, accidents and hazardous situations are reported to the company, investigated and analysed with the objective of improving safety and pollution prevention.

| 9.2. | The company should establish procedures for the implementation of corrective action. |
| --- | --- |

9.2.

The company should establish procedures for the implementation of corrective action.

10.   MAINTENANCE OF THE SHIP AND EQUIPMENT

| 10.1. | The company should establish procedures to ensure that the ship is maintained in conformity with the provisions of the relevant rules and regulations and with any additional requirements which may be established by the company. |
| --- | --- |

10.1.

The company should establish procedures to ensure that the ship is maintained in conformity with the provisions of the relevant rules and regulations and with any additional requirements which may be established by the company.

| 10.2. | In meeting these requirements the company should ensure that:






  10.2.1. | inspections are held at appropriate intervals; |
| --- | --- | --- |

10.2.

In meeting these requirements the company should ensure that:

10.2.1.

inspections are held at appropriate intervals;

| 10.2.2. | any non-conformity is reported with its possible cause, if known; |
| --- | --- |

10.2.2.

any non-conformity is reported with its possible cause, if known;

| 10.2.3. | appropriate corrective action is taken; and |
| --- | --- |

10.2.3.

appropriate corrective action is taken; and

| 10.2.4. | records of these activities are maintained. |
| --- | --- |

10.2.4.

records of these activities are maintained.

| 10.3. | The company should establish procedures in the SMS to identify equipment and technical systems the sudden operational failure of which may result in hazardous situations. The SMS should provide for specific measures aimed at promoting the reliability of such equipment or systems. These measures should include the regular testing of stand-by arrangements and equipment or technical systems that are not in continuous use. |
| --- | --- |

10.3.

The company should establish procedures in the SMS to identify equipment and technical systems the sudden operational failure of which may result in hazardous situations. The SMS should provide for specific measures aimed at promoting the reliability of such equipment or systems. These measures should include the regular testing of stand-by arrangements and equipment or technical systems that are not in continuous use.

| 10.4. | The inspections mentioned in 10.2 as well as the measures referred to in 10.3 should be integrated in the ship's operational maintenance/routine. |
| --- | --- |

10.4.

The inspections mentioned in 10.2 as well as the measures referred to in 10.3 should be integrated in the ship's operational maintenance/routine.

11.   DOCUMENTATION

| 11.1. | The company should establish and maintain procedures to control all documents and data, which are relevant to the SMS. |
| --- | --- |

11.1.

The company should establish and maintain procedures to control all documents and data, which are relevant to the SMS.

| 11.2. | The company should ensure that:






  11.2.1. | valid documents are available at all relevant locations; |
| --- | --- | --- |

11.2.

The company should ensure that:

11.2.1.

valid documents are available at all relevant locations;

| 11.2.2. | changes to documents are reviewed and approved by authorised personnel; and |
| --- | --- |

11.2.2.

changes to documents are reviewed and approved by authorised personnel; and

| 11.2.3. | obsolete documents are promptly removed. |
| --- | --- |

11.2.3.

obsolete documents are promptly removed.

| 11.3. | The documents used to describe and implement the SMS may be referred to as the ‘safety management manual’. Documentation should be kept in a form that the company considers most effective. Each ship should carry on board all documentation relevant to that ship. |
| --- | --- |

11.3.

The documents used to describe and implement the SMS may be referred to as the ‘safety management manual’. Documentation should be kept in a form that the company considers most effective. Each ship should carry on board all documentation relevant to that ship.

12.   COMPANY VERIFICATION, REVIEW AND EVALUATION

| 12.1. | The company should carry out internal safety audits to verify whether safety and pollution prevention activities comply with the SMS. |
| --- | --- |

12.1.

The company should carry out internal safety audits to verify whether safety and pollution prevention activities comply with the SMS.

| 12.2. | The company should periodically evaluate the efficiency and when needed review the SMS in accordance with procedures established by the company. |
| --- | --- |

12.2.

The company should periodically evaluate the efficiency and when needed review the SMS in accordance with procedures established by the company.

| 12.3. | The audits and possible corrective actions should be carried out in accordance with documented procedures. |
| --- | --- |

12.3.

The audits and possible corrective actions should be carried out in accordance with documented procedures.

| 12.4. | Personnel carrying out audits should be independent of the areas being audited unless this is impracticable due to the size and the nature of the company. |
| --- | --- |

12.4.

Personnel carrying out audits should be independent of the areas being audited unless this is impracticable due to the size and the nature of the company.

| 12.5. | The results of the audits and reviews should be brought to the attention of all personnel having responsibility in the area involved. |
| --- | --- |

12.5.

The results of the audits and reviews should be brought to the attention of all personnel having responsibility in the area involved.

| 12.6. | The management personnel responsible for the area involved should take timely corrective action on deficiencies found. |
| --- | --- |

12.6.

The management personnel responsible for the area involved should take timely corrective action on deficiencies found.

PART B —   CERTIFICATION AND VERIFICATION

13.   CERTIFICATION AND PERIODICAL VERIFICATION

| 13.1. | The ship should be operated by a company which has been issued with a Document of Compliance or with an Interim Document of Compliance in accordance with paragraph 14.1, relevant to that ship. |
| --- | --- |

13.1.

The ship should be operated by a company which has been issued with a Document of Compliance or with an Interim Document of Compliance in accordance with paragraph 14.1, relevant to that ship.

| 13.2. | The Document of Compliance should be issued by the administration, by an organisation recognised by the administration or, at the request of the administration, by another Contracting Government to the Convention to any company complying with the requirements of this Code for a period specified by the administration which should not exceed five years. Such a document should be accepted as evidence that the company is capable of complying with the requirements of this Code. |
| --- | --- |

13.2.

The Document of Compliance should be issued by the administration, by an organisation recognised by the administration or, at the request of the administration, by another Contracting Government to the Convention to any company complying with the requirements of this Code for a period specified by the administration which should not exceed five years. Such a document should be accepted as evidence that the company is capable of complying with the requirements of this Code.

| 13.3. | The Document of Compliance is only valid for the ship types explicitly indicated in the document. Such indication should be based on the types of ships on which the initial verification was based. Other ship types should only be added after verification of the Company's capability to comply with the requirements of this Code applicable to such ship types. In this context, ship types are those referred to in regulation IX/1 of the Convention. |
| --- | --- |

13.3.

The Document of Compliance is only valid for the ship types explicitly indicated in the document. Such indication should be based on the types of ships on which the initial verification was based. Other ship types should only be added after verification of the Company's capability to comply with the requirements of this Code applicable to such ship types. In this context, ship types are those referred to in regulation IX/1 of the Convention.

| 13.4. | The validity of a Document of Compliance should be subject to annual verification by the Administration or by an organisation recognised by the Administration or, at the request of the Administration by another Contracting Government within three months before or after the anniversary date. |
| --- | --- |

13.4.

The validity of a Document of Compliance should be subject to annual verification by the Administration or by an organisation recognised by the Administration or, at the request of the Administration by another Contracting Government within three months before or after the anniversary date.

13.5.   The Document of Compliance should be withdrawn by the Administration or, at its request, by the Contracting Government which issued the document, when the annual verification required in paragraph 13.4 is not requested or if there is evidence of major non-conformities with this Code.

| 13.5.1. | All associated Safety Management Certificates and/or Interim Safety Management Certificates should also be withdrawn if the Document of Compliance is withdrawn. |
| --- | --- |

13.5.1.

All associated Safety Management Certificates and/or Interim Safety Management Certificates should also be withdrawn if the Document of Compliance is withdrawn.

| 13.6. | A copy of the Document of Compliance should be placed on board in order that the master of the ship, if so requested, may produce it for verification by the Administration or by an organisation recognised by the Administration or for the purposes of the control referred to in regulation IX/6.2 of the Convention. The copy of the document is not required to be authenticated or certified. |
| --- | --- |

13.6.

A copy of the Document of Compliance should be placed on board in order that the master of the ship, if so requested, may produce it for verification by the Administration or by an organisation recognised by the Administration or for the purposes of the control referred to in regulation IX/6.2 of the Convention. The copy of the document is not required to be authenticated or certified.

| 13.7. | The Safety Management Certificate should be issued to a ship for a period which should not exceed five years by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. The Safety Management Certificate should be issued after verifying that the Company and its shipboard management operate in accordance with the approved safety management system. Such a certificate should be accepted as evidence that the ship is complying with the requirements of this Code. |
| --- | --- |

13.7.

The Safety Management Certificate should be issued to a ship for a period which should not exceed five years by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. The Safety Management Certificate should be issued after verifying that the Company and its shipboard management operate in accordance with the approved safety management system. Such a certificate should be accepted as evidence that the ship is complying with the requirements of this Code.

| 13.8. | The validity of the Safety Management Certificate should be subject to at least one intermediate verification by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. If only one intermediate verification is to be carried out and the period of validity of the Safety Management Certificate is five years, it should take place between the second and third anniversary date of the Safety Management Certificate. |
| --- | --- |

13.8.

The validity of the Safety Management Certificate should be subject to at least one intermediate verification by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. If only one intermediate verification is to be carried out and the period of validity of the Safety Management Certificate is five years, it should take place between the second and third anniversary date of the Safety Management Certificate.

| 13.9. | In addition to the requirements of paragraph 13.5.1, the Safety Management Certificate should be withdrawn by the Administration or, at the request of the Administration, by the Contracting Government which has issued it when the intermediate verification required in paragraph 13.8 is not requested or if there is evidence of major non-conformity with this Code. |
| --- | --- |

13.9.

In addition to the requirements of paragraph 13.5.1, the Safety Management Certificate should be withdrawn by the Administration or, at the request of the Administration, by the Contracting Government which has issued it when the intermediate verification required in paragraph 13.8 is not requested or if there is evidence of major non-conformity with this Code.

| 13.10. | Notwithstanding the requirements of paragraphs 13.2 and 13.7, when the renewal verification is completed within three months before the expiry date of the existing Document of Compliance or Safety Management Certificate, the new Document of Compliance or the new Safety Management Certificate should be valid from the date of completion of the renewal verification for a period not exceeding five years from the date of expiry of the existing Document of Compliance or Safety Management Certificate. |
| --- | --- |

13.10.

Notwithstanding the requirements of paragraphs 13.2 and 13.7, when the renewal verification is completed within three months before the expiry date of the existing Document of Compliance or Safety Management Certificate, the new Document of Compliance or the new Safety Management Certificate should be valid from the date of completion of the renewal verification for a period not exceeding five years from the date of expiry of the existing Document of Compliance or Safety Management Certificate.

| 13.11. | When the renewal verification is completed more than three months before the expiry date of the existing Document of Compliance or Safety Management Certificate, the new Document of Compliance or the new Safety Management Certificate should be valid from the date of completion of the renewal verification for a period not exceeding five years from the date of completion of the renewal verification. |
| --- | --- |

13.11.

When the renewal verification is completed more than three months before the expiry date of the existing Document of Compliance or Safety Management Certificate, the new Document of Compliance or the new Safety Management Certificate should be valid from the date of completion of the renewal verification for a period not exceeding five years from the date of completion of the renewal verification.

14.   INTERIM CERTIFICATION

| 14.1. | An Interim Document of Compliance may be issued to facilitate initial implementation of this Code when:






  1. | a Company is newly established; or |
| --- | --- | --- |

14.1.

An Interim Document of Compliance may be issued to facilitate initial implementation of this Code when:

1.

a Company is newly established; or

| 2. | new ship types are to be added to an existing Document of Compliance, following verification that the Company has a safety management system that meets the objectives of paragraph 1.2.3 of this Code, provided the Company demonstrates plans to implement a safety management system meeting the full requirements of this Code within the period of validity of the Interim Document of Compliance. Such an Interim Document of Compliance should be issued for a period not exceeding 12 months by the Administration or by an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. A copy of the Interim Document of Compliance should be placed on board in order that the master of the ship, if so requested, may produce it for verification by the Administration or by an organisation recognised by the Administration or for the purposes of the control referred to in regulation IX/6.2 of the Convention. The copy of the document is not required to be authenticated or certified. |
| --- | --- |

2.

new ship types are to be added to an existing Document of Compliance, following verification that the Company has a safety management system that meets the objectives of paragraph 1.2.3 of this Code, provided the Company demonstrates plans to implement a safety management system meeting the full requirements of this Code within the period of validity of the Interim Document of Compliance. Such an Interim Document of Compliance should be issued for a period not exceeding 12 months by the Administration or by an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government. A copy of the Interim Document of Compliance should be placed on board in order that the master of the ship, if so requested, may produce it for verification by the Administration or by an organisation recognised by the Administration or for the purposes of the control referred to in regulation IX/6.2 of the Convention. The copy of the document is not required to be authenticated or certified.

| 14.2. | An Interim Safety Management Certificate may be issued:






  1. | to new ships on delivery; |
| --- | --- | --- |

14.2.

An Interim Safety Management Certificate may be issued:

1.

to new ships on delivery;

| 2. | when a company takes on responsibility for the operation of a ship which is new to the company; or |
| --- | --- |

2.

when a company takes on responsibility for the operation of a ship which is new to the company; or

| 3. | when a ship changes flag. |
| --- | --- |

3.

when a ship changes flag.

Such an Interim Safety Management Certificate should be issued for a period not exceeding six months by the Administration or an organisation recognised by the Administration or, at the request of the Administration, by another Contracting Government.

| 14.3. | An Administration or, at the request of the Administration, another Contracting Government may, in special cases, extend the validity of an Interim Safety Management Certificate for a further period which should not exceed six months from the date of expiry. |
| --- | --- |

14.3.

An Administration or, at the request of the Administration, another Contracting Government may, in special cases, extend the validity of an Interim Safety Management Certificate for a further period which should not exceed six months from the date of expiry.

| 14.4. | An Interim Safety Management Certificate may be issued following verification that:






  1. | the Document of Compliance, or the Interim Document of Compliance, is relevant to the ship concerned; |
| --- | --- | --- |

14.4.

An Interim Safety Management Certificate may be issued following verification that:

1.

the Document of Compliance, or the Interim Document of Compliance, is relevant to the ship concerned;

| 2. | the Safety management system provided by the Company for the ship concerned includes key elements of this Code and has been assessed during the audit for issuance of the Document of Compliance or demonstrated for issuance of the Interim Document of Compliance; |
| --- | --- |

2.

the Safety management system provided by the Company for the ship concerned includes key elements of this Code and has been assessed during the audit for issuance of the Document of Compliance or demonstrated for issuance of the Interim Document of Compliance;

| 3. | the company has planned the audit of the ship within three months; |
| --- | --- |

3.

the company has planned the audit of the ship within three months;

| 4. | the master and officers are familiar with the safety management system and the planned arrangements for its implementation; |
| --- | --- |

4.

the master and officers are familiar with the safety management system and the planned arrangements for its implementation;

| 5. | instructions, which have been identified as being essential, are provided prior to sailing; and |
| --- | --- |

5.

instructions, which have been identified as being essential, are provided prior to sailing; and

| 6. | relevant information on the safety management system has been given in a working language or languages understood by the ship's personnel. |
| --- | --- |

6.

relevant information on the safety management system has been given in a working language or languages understood by the ship's personnel.

15.   VERIFICATION

| 15.1. | All verifications required by the provisions of this Code should be carried out in accordance with procedures acceptable to the Administration, taking into account the guidelines developed by the Organisation (1). |
| --- | --- |

15.1.

All verifications required by the provisions of this Code should be carried out in accordance with procedures acceptable to the Administration, taking into account the guidelines developed by the Organisation (1).

16.   FORMS OF CERTIFICATES

| 16.1. | The Document of Compliance, the Safety Management Certificate, the Interim Document of Compliance and the Interim Safety Management Certificate should be drawn up in a form corresponding to the models given in the appendix to this Code. If the language used is neither English nor French, the text should include a translation into one of these languages. |
| --- | --- |

16.1.

The Document of Compliance, the Safety Management Certificate, the Interim Document of Compliance and the Interim Safety Management Certificate should be drawn up in a form corresponding to the models given in the appendix to this Code. If the language used is neither English nor French, the text should include a translation into one of these languages.

| 16.2. | In addition to the requirements of paragraph 13.3 the ship types indicated on the Document of Compliance and the Interim Document of Compliance may be endorsed to reflect any limitations in the operations of the ships described in the safety management system. |
| --- | --- |

16.2.

In addition to the requirements of paragraph 13.3 the ship types indicated on the Document of Compliance and the Interim Document of Compliance may be endorsed to reflect any limitations in the operations of the ships described in the safety management system.

---

(1)  Refer to the Guidelines on Implementation of the International Safety Management (ISM) Code by Administrations adopted by the Organisation by resolution A. 913(22).

Appendix

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ANNEX II

PROVISIONS FOR THE ADMINISTRATION CONCERNING THE IMPLEMENTATION OF THE INTERNATIONAL SAFETY MANAGEMENT (ISM) CODE

PART A   GENERAL PROVISIONS

PART B   CERTIFICATION AND STANDARDS

| 2. | CERTIFICATION PROCESS |
| --- | --- |

2.

| 3. | STANDARD OF MANAGEMENT |
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3.

| 4. | STANDARDS OF COMPETENCE |
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4.

| 5. | FORM OF DOCUMENT OF COMPLIANCE AND SAFETY MANAGEMENT CERTIFICATE |
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5.

PART A —   GENERAL PROVISIONS

| 1.1. | When carrying out verifications and certification tasks required by the provisions of the ISM Code for ships falling within the scope of this Regulation, Member States shall comply with the requirements and standards laid down in part B of this Title. |
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1.1.

When carrying out verifications and certification tasks required by the provisions of the ISM Code for ships falling within the scope of this Regulation, Member States shall comply with the requirements and standards laid down in part B of this Title.

| 1.2. | In addition Member States shall take due account of the provisions of the Revised Guidelines on the Implementation of the International Safety Management (ISM) Code by Administrations, adopted by the IMO through Resolution A.913 (22) of 29 November 2001, as far as they are not covered under part B of this Title. |
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1.2.

In addition Member States shall take due account of the provisions of the Revised Guidelines on the Implementation of the International Safety Management (ISM) Code by Administrations, adopted by the IMO through Resolution A.913 (22) of 29 November 2001, as far as they are not covered under part B of this Title.

PART B —   CERTIFICATION AND STANDARDS

2.   CERTIFICATION PROCESS

| 2.1. | The certification process relevant for the issuance of a document of compliance for a company and a safety management certificate to each ship shall be performed taking account of the provisions set out below. |
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2.1.

The certification process relevant for the issuance of a document of compliance for a company and a safety management certificate to each ship shall be performed taking account of the provisions set out below.

| 2.2. | The certification process shall normally involve the following steps:






  1. | initial verification; |
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2.2.

The certification process shall normally involve the following steps:

1.

initial verification;

| 2. | annual or intermediate verification; |
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2.

annual or intermediate verification;

| 3. | renewal verification; and, |
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3.

renewal verification; and,

| 4. | additional verification. |
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4.

additional verification.

These verifications are carried out at the request of the company to the administration or to the recognised organisation when acting on behalf of the administration.

| 2.3. | The verifications shall include a safety management audit. |
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2.3.

The verifications shall include a safety management audit.

| 2.4. | A lead auditor and, if relevant, an audit team, shall be nominated to perform the audit. |
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2.4.

A lead auditor and, if relevant, an audit team, shall be nominated to perform the audit.

| 2.5. | The nominated lead auditor shall liaise with the company and produce an audit plan. |
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2.5.

The nominated lead auditor shall liaise with the company and produce an audit plan.

| 2.6. | An audit report shall be prepared under the direction of the lead auditor, who is responsible for its accuracy and completeness. |
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2.6.

An audit report shall be prepared under the direction of the lead auditor, who is responsible for its accuracy and completeness.

| 2.7. | The audit report shall include the audit plan, identification of audit team members, dates and identification of the company, records of any observations and non-conformities and observations on the effectiveness of the safety management system in meeting the specified objectives. |
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2.7.

The audit report shall include the audit plan, identification of audit team members, dates and identification of the company, records of any observations and non-conformities and observations on the effectiveness of the safety management system in meeting the specified objectives.

3.   STANDARD OF MANAGEMENT

| 3.1. | Auditors or the audit team managing verification of compliance with the ISM Code shall have competence in relation to:






  1. | ensuring compliance with the rules and regulations including certification of seafarers, for each type of ship operated by the company; |
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3.1.

Auditors or the audit team managing verification of compliance with the ISM Code shall have competence in relation to:

1.

ensuring compliance with the rules and regulations including certification of seafarers, for each type of ship operated by the company;

| 2. | approval, survey and certification activities relevant for the maritime certificates; |
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2.

approval, survey and certification activities relevant for the maritime certificates;

| 3. | the terms of reference that must be taken into account under the safety management system as required by the ISM Code; and |
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3.

the terms of reference that must be taken into account under the safety management system as required by the ISM Code; and

| 4. | practical experience of ship operation. |
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4.

practical experience of ship operation.

| 3.2. | In performing verification of compliance with the provisions of the ISM Code it shall be ensured that independence exists between the personnel providing consultancy services and those involved in the certification procedure. |
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3.2.

In performing verification of compliance with the provisions of the ISM Code it shall be ensured that independence exists between the personnel providing consultancy services and those involved in the certification procedure.

4.   STANDARDS OF COMPETENCE

4.1.   Basic competence for performing verification

| 4.1.1. | Personnel who are to participate in the verification of compliance with the requirements of the ISM Code shall fulfil the minimum criteria for inspectors as laid down in section 2 of Annex VII to Directive 95/21/EC. |
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4.1.1.

Personnel who are to participate in the verification of compliance with the requirements of the ISM Code shall fulfil the minimum criteria for inspectors as laid down in section 2 of Annex VII to Directive 95/21/EC.

| 4.1.2. | They shall have undergone training to ensure adequate competence and skills for performing verification of compliance with the requirements of the ISM Code, particularly with regard to:






  (a) | knowledge and understanding of the ISM Code; |
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4.1.2.

They shall have undergone training to ensure adequate competence and skills for performing verification of compliance with the requirements of the ISM Code, particularly with regard to:

(a)

knowledge and understanding of the ISM Code;

| (b) | mandatory rules and regulations; |
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(b)

mandatory rules and regulations;

| (c) | the terms of reference which the ISM Code requires that companies should take into account; |
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(c)

the terms of reference which the ISM Code requires that companies should take into account;

| (d) | assessment techniques of examining, questioning, evaluating and reporting; |
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(d)

assessment techniques of examining, questioning, evaluating and reporting;

| (e) | technical or operational aspects of safety management; |
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(e)

technical or operational aspects of safety management;

| (f) | basic knowledge of shipping and shipboard operations; and |
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(f)

basic knowledge of shipping and shipboard operations; and

| (g) | participation in at least one marine related management system audit. |
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(g)

participation in at least one marine related management system audit.

4.2.   Competence for initial verification and renewal verification

| 4.2.1. | In order to assess fully whether the company or each type of ship complies with the requirements of the ISM Code, in addition to the basic competence stated above, personnel who are to perform initial verifications or renewal verifications for a document of compliance and a safety management certificate, must possess the competence to:






  (a) | determine whether or not the elements of the Safety Management System (SMS) conform with the ISM Code; |
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4.2.1.

In order to assess fully whether the company or each type of ship complies with the requirements of the ISM Code, in addition to the basic competence stated above, personnel who are to perform initial verifications or renewal verifications for a document of compliance and a safety management certificate, must possess the competence to:

(a)

determine whether or not the elements of the Safety Management System (SMS) conform with the ISM Code;

| (b) | determine the effectiveness of the company's SMS, or that of each type of ship, to ensure compliance with rules and regulations as evidenced by the statutory and classification survey records; |
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(b)

determine the effectiveness of the company's SMS, or that of each type of ship, to ensure compliance with rules and regulations as evidenced by the statutory and classification survey records;

| (c) | assess the effectiveness of the SMS in ensuring compliance with other rules and regulations which are not covered by statutory and classification surveys and enabling verification of compliance with these rules and regulations; and |
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(c)

assess the effectiveness of the SMS in ensuring compliance with other rules and regulations which are not covered by statutory and classification surveys and enabling verification of compliance with these rules and regulations; and

| (d) | assess whether the safe practices recommended by the IMO, administrations, classification societies and maritime industry organisations have been taken into account. |
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(d)

assess whether the safe practices recommended by the IMO, administrations, classification societies and maritime industry organisations have been taken into account.

| 4.2.2. | This competence can be accomplished by teams, which together possess the total competence required. |
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4.2.2.

This competence can be accomplished by teams, which together possess the total competence required.

5.   FORM OF DOCUMENTS OF COMPLIANCE AND SAFETY MANAGEMENT CERTIFICATES

When ships operate only in a Member State, Member States shall either use the forms attached to the ISM Code or the Document of Compliance, the Safety Management Certificate, the Interim Document of Compliance and the Interim Safety Management Certificate drawn up in the form set out below.

In the event of a derogation under Article 7(1) and, if applicable, Article 7(2), the certificate issued shall be different from the one referred to above and clearly indicate that a derogation in accordance with Article 7(1) and, if applicable, Article 7(2) of this Regulation, has been granted and shall include the applicable operational limitations.

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

In the framework of the co-decision procedure (Article 251/TEC), the Council reached, on 9 December 2004, a political agreement on the draft Regulation of the European Parliament and of the Council on the implementation of the International Safety Management Code (ISM Code) within the Community (1). Following legal/linguistic revision, the Council adopted its common position on 18 July 2005.

The European Parliament agreed in its opinion in first reading on 10 March 2004 to approve the Commission's proposal without amendments (2). In taking its position, the Council took account of the opinion of the Economic and Social Committee (3)
   (4).

The purpose of this Regulation is to replace and extend Council Regulation (EC) No 3051/95 with a view to enhancing the safety management, safe operation and pollution prevention. The provisions of the ISM Code shall apply to all ships flying the flag of a Member State, engaged on international and domestic voyages, and to all ships falling under the scope of the Solas Convention exclusively engaged on domestic voyages or operating to or from ports of Member States on a regular shipping service.

II.   ANALYSIS OF THE COMMON POSITION

The International Maritime Organisation (IMO) adopted in 1993 the International Management Code for the Safe Operation of Ships and Pollution Prevention, the so-called ‘ISM Code’, as part of the International Convention on the Safety of Life at Sea (Solas), in order to promote the development of a widespread safety culture and environmental conscience among the crew and companies operating ships. It provides guidelines for the management and operation of ships by their respective companies.

The Community anticipated, as a reaction to the tragic accident of the Estonia, the implementation of this ISM Code by the adoption of Regulation (EC) No 3051/95 applying to ro-ro passenger ferries engaged on international and domestic voyages within the Community.

The Council supports the principle laid down in the Commission proposal submitted in December 2003 to replace Regulation (EC) No 3051/95 by a new text obliging all companies and ships covered by Chapter IX of the Solas Convention to apply the ISM Code, taking also into account that the Code became mandatory at international level in 2002. It shares the view that the new Regulation will facilitate the correct, strict and harmonised implementation of the Code in all Member States.

With a view to reflecting in an appropriate way the international provisions, the Council considered it necessary to go beyond the Commission proposal as indicated below.

The Council agrees that, as a further logical step, the scope of the Regulation should also cover ships, flying the flag of a Member State, on domestic voyages and ships, regardless of their flag, exclusively engaged on domestic voyages or operating to or from ports of Member States on a regular shipping service. For reasons of proportionality, passenger ships, other than ro-ro passenger ferries, operating less than 5 miles from the coastline as well — in line with the ISM Code — as cargo ships and mobile offshore drilling units of less than 500 gross tonnage are excluded from the scope.

In order to provide for clear and precise legislation, the definitions have been complemented and, where appropriate, aligned in accordance with existing international instruments, taking into account high-speed crafts, passenger submersible crafts, ro-ro passenger ferries and mobile offshore drilling units as well as particularities in relation to the measurement in gross tonnage.

The Council believes that Community legislation implementing international legal instruments should be aligned as much as possible to these instruments. Thus the provisions concerning the validity of the documents to be issued to ships and the companies operating them (Document of Compliance, Interim Document of Compliance, Safety Management Certificate and Interim Safety Management Certificate) correspond to those of the ISM Code, providing for a validity of up to five years from the date of issue.

Following the principle of respecting the ISM Code, these documents shall be accepted by Member States if they are issued by the administration of any other Member State or on behalf of this administration by a recognised organisation under Directive 94/57/EC, or if they are issued by, or on behalf of, the administrations of third countries. In the latter case, Member States shall, for ships engaged on a regular shipping service, verify, by any appropriate means, the compliance of these documents with the ISM Code.

The Council is of the opinion that through the extension of the scope of the Regulation to domestic voyages the necessity arises to take into consideration that situations may differ in Member States. The Regulation therefore provides for a possible derogation scheme in case a Member State considers it practicably difficult for companies to comply with specific paragraphs of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State. Under this derogation procedure the Member State concerned shall impose measures ensuring an equivalent achievement of the objectives of the Code, notify the Commission of the derogation and the intended measures and make the adopted measures public. Consequently, in case of a derogation, the certificate issued to the ship and the operating company shall be different from the forms of Annex I or II to the Regulation, indicate clearly that a derogation in accordance with the Regulation has been granted and shall include the applicable operational limitations.

Finally, the common position incorporates a number of mainly technical modifications, which are necessary in order to bring the new text in line with existing Community legislation.

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(1)  The Commission presented its proposal on 11 December 2003.

(2)  C 102 E, 28.4.2004, p. 565.

(3)  OJ C 302, 07.12.2004, p. 20.

(4)  The Committee of Regions did not deliver an opinion.

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