COUNCIL REGULATION (EC) No 3051/95
of 8 December 1995
on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing he European Community, and in particular Article 84 (2) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
Acting in accordance with the procedure referred to in Article 189c of the Treaty (3),
Whereas the Community is seriously concerned by shipping casualties with loss of life;
Whereas the International Safety Management Code providing for the safe operation of ships and for pollution prevention, hereinafter referred to as the 'ISM Code', was adopted by the International Maritime Organization (IMO) through Assembly Resolution A.741(18) of 4 November 1993 in the presence of the Member States and, through its incorporation into the International Convention on the Safety of Life at Sea 1974, will apply to ro-ro passenger vessels from 1 July 1998;
Whereas this represents one of a series of measures to improve safety at sea; whereas the ISM Code is not yet of a mandatory but of a recommendatory nature;
Whereas safety of human life at sea may be effectively enhanced by applying the ISM Code strictly and on a mandatory basis;
Whereas the Community's most urgent concern is for the safety management of ro-ro passenger ferries; whereas a uniform and coherent implementation of the ISM Code in all Member States can constitute a step towards the safety management of ro-ro passenger ferries;
Whereas in its resolution of 22 December 1994 on the safety of roll-on/roll-off passenger ferries (4), the Council invited the Commission to submit a proposal on the advance mandatory application of the ISM Code to all regular roll-on/roll-off passenger ferry services operating to or from European ports, in compliance with international law;
Whereas strict and mandatory application of the ISM Code is required to ensure the establishment and proper maintenance of safety management systems by companies operating seagoing ro-ro passenger ferries both at ship and at company level;
Whereas action at Community level is the best way to ensure advance mandatory enforcement of the provisions of the ISM Code and effective control of its application, while avoiding distortion of competition between different Community ports and ro-ro ferries; whereas only a regulation, which is of direct applicability, can ensure such enforcement; whereas advance implementation requires that the Regulation be applicable as from 1 July 1996;
Whereas the advance mandatory implementation of the ISM Code to all ro-ro ferries regardless of their flag also takes into account the request contained in point 2 of IMO Resolution A.741(18) which strongly urges Governments to implement the Code as soon as possible, giving priority inter alia to passenger ships;
Whereas the safety of ships is the primary responsibility of flag States; whereas Member States can ensure compliance with adequate safety management rules by ferries flying their flag and companies operating them; whereas the only way to ensure the safety of all ro-ro ferries, irrespective of their flag, operating or wishing to operate on a regular service from their ports is for the Member States to require effective compliance with safety rules as a condition for operating on a regular service from their ports;
Whereas companies operating ro-ro ferries exclusively in sheltered waters between ports in the same Member State constitute a more limited risk and will need to assume a proportionately greater administrative work-load than other companies, and should therefore enjoy a temporary derogation;
Whereas it is necessary to identify the requirements under which the provisions of the ISM Code are enforced and to define the conditions for the issue and verification of the document of compliance and of the safety management certificate;
Whereas Member States might find it necessary to delegate or rely upon specialized bodies in order to fulfil their obligations pursuant to this Regulation; whereas the appropriate way of ensuring a uniform and adequate level of control is to require that such bodies should only be those which meet the requirements of Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations (1);
Whereas a Member State must have the possibility of suspending the operation of certain ro-ro ferries from its ports where it considers that there is a risk of serious danger to safety of life or property or the environment, subject to a decision to be taken in the framework of a regulatory committee, to which the Member States must conform;
Whereas a simplified procedure involving a committee of a regulatory nature is necessary to amend this Regulation taking into account developments at international level;
Whereas the rapid introduction of these safety rules raises specific technical and administative problems for Greece because of the very large number of companies established in Greece operating ferries under the Greek flag and exclusively between Greek ports; whereas a derogation of limited duration to cover this situation should therefore be granted bearing in mind in addition that regular passenger and ferry services between Greek ports have been excluded until 1 January 2004 from the freedom to provide services granted by Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (2),
HAS ADOPTED THIS REGULATION:
Article 1
The purpose of this Regulation is to enhance the safe management, safe operation and pollution prevention of ro-ro passenger ferries operating to or from ports of the Member States of the Community on a regular service by ensuring that companies operating ro-ro ferries comply with the ISM Code through:
- the establishment and proper maintenance of shipboard and shore-based safety management systems by companies, and
- the control thereof by flag and port State administrations.
Article 2
For the purpose of this Regulation and with a view to the implementation of the ISM Code:
(a) 'ro-ro ferry' means a seagoing passenger vessel with facilities to enable road or rail vehicles to roll on and roll off the vessel, and carrying more than 12 passengers;
(b) 'regular service' means a series of ro-ro ferry crossings operated so as to serve traffic between the same two or more points, either:
1. according to a published timetable; or
2. with crossings so regular or frequent that they constitute a recognizable systematic series;
(c) 'company' means the owner of a ro-ro ferry or any other organization or person such as the manager, or the bareboat charterer, who has assumed responsibility for operating the ro-ro ferry from the owner;
(d) 'recognized organization' means a body recognized in compliance with the provisions of Directive 94/57/EC;
(e) 'ISM Code' means the International Management Code for the Safe Operation of Ships and for Pollution Prevention, adopted by the IMO through Assembly Resolution A.741(18) of 4 November 1993, and annexed to this Regulation;
(f) 'administration' means the Government of the State whose flag the ro-ro ferry is entitled to fly;
(g) 'document of compliance' means the document issued to companies in conformity with paragraph 13.2 of the ISM Code;
(h) 'safety management certificate' means the certificate issued to ro-ro ferries in conformity with paragraph 13.4 of the ISM Code;
(i) 'sheltered waters' means areas where the annual probability of the significant wave height exceeding 1,5 m is less than 10 %, and in which a ro-ro ferry is at no time more than six nautical miles from a place of refuge where shipwrecked persons can land.
Article 3
The Regulation shall apply to all companies, operating at least one ro-ro ferry to or from a port of a Member State of the Community on a regular service regardless of its flag.
Article 4
1. All companies shall comply with all the provisions of paragraphs 1.2 to 13.1 and of paragraph 13.3 of the ISM Code, as if the provisions thereof were mandatory, as a requirement for their vessels to provide regular services to or from a port of a Member State of the Community.
2. By way of derogation from paragraph 1, companies operating a ro-ro ferry or ferries on a regular service exclusively in sheltered waters between ports situated in the same Member State may defer compliance with the provisions of this Regulation until 1 July 1997.
Article 5
1. Member States shall comply with the provisions of paragraphs 13.2, 13.4 and 13.5 of the ISM Code as if the provisions thereof were mandatory, in relation to companies and ro-ro ferries.
2. For the purposes of paragraph 1, Member States may only authorize, or rely upon, fully or in part, a recognized organization.
For the purposes of paragraph 13.2 of the ISM Code, a Member State may only issue documents of compliance for a company which has its principal place of business on its own territory. Prior to such issue, the Member States shall consult the administration of the States whose flag the ro-ro ferries of that company are entitled to fly, if that administration is not that of the issuing Member State.
3. The document of compliance shall only be valid for five years from the date of its issue, provided always that a verification takes place once a year, in order to confirm the proper functioning of the safety management system, and to confirm that possible modifications introduced since the latest verification satisfy the provisions of the ISM Code.
4. The safety management certificate shall only be valid for five years from the date of its issue, provided always that an intermediate verification takes place at least every 30 months or more frequently in order to confirm the proper functioning of the safety management system and to confirm that possible modifications introduced since the latest verification satisfy the provisions of the ISM Code.
5. For the purposes of this Regulation, and in particular Article 6, each Member State shall accept a document of compliance or a safety management certificate issued by the administration of any other Member State or by a recognized organization acting on its behalf.
6. A Member State shall recognize the documents of compliance and safety management certificates issued by, or on behalf of, the administrations of third countries if it is satisfied that they demonstrate compliance with the provisions of this Regulation.
Documents of compliance and safety management certificates issued on behalf of administrations of third countries may only be recognized if they have been issued by a recognized organization.
Article 6
Member States shall satisfy themselves that all companies providing regular ro-ro ferry services to or from their ports comply with the provisions of this Regulation.
Article 7
Where a Member State considers that a company, notwithstanding the fact that it holds a document of compliance, cannot operate a ro-ro ferry on a regular service to or from its ports on the grounds that there is a risk of serious danger to safety of life or property, or the environment, the operation of such service may be suspended until such time as the danger is removed.
In the above circumstances the following procedure shall apply:
(a) the Member State shall inform the Commission and the other Member States of its decision without delay, giving substantiated reasons therefor;
(b) the Commission shall examine whether the suspension is justified for reasons of serious danger to safety and the environment;
(c) it will be decided, in accordance with the procedure laid down in Article 10 (2), whether or not the decision of the Member State to suspend the operation of such service is justified for reasons of serious danger to safety of life or property, or the environment and, if the suspension is not justified, that the Member State concerned will be requested to withdraw the suspension.
Article 8
In order to take account of the general terms of the ISM Code, the Commission shall review the implementation of this Regulation three years after its entry into force and propose any appropriate measures.
Article 9
In order to take account of developments at international level and, in particular, in the IMO,
(a) the definition of the 'ISM Code' in Article 2;
(b) the periods of validity of the document of compliance and/or the safety management certificate and the frequency of verification relating thereto in Article 5 (3) and (4);
(c) the Annex;
(d) the definition of 'recognized organization' in Article 2;
may be amended, in accordance with the procedure laid down in Article 10 (2), in particular to introduce into the Annex guidelines for administrations for the implementation of the ISM Code.
Article 10
1. The Commission shall be assisted by the Committee established by Article 12 (1) of Council Directive 93/75/EEC (1).
2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.
(b) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.
(c) If, on the expiry of a period of 40 days from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.
Article 11
This Regulation shall enter into force on 1 January 1996.
It shall be applicable as from 1 July 1996.
By way of derogation from the first subparagraph, this Regulation shall not apply until 31 December 1997 to companies which are incorporated under Greek law, which have their principal place of business in Greece, and which operate ro-ro- ferries registered in and flying the flag of Greece providing regular services exclusively between ports situated in Greece.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 December 1995.