COUNCIL DIRECTIVE 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the 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),
(1) Whereas Community action in the sector of maritime transport should aim at the improvement of maritime safety;
(2) Whereas the Torremolinos Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels 1977, hereinafter referred to as the 'Torremolinos Protocol` was adopted on 2 April 1993;
(3) Whereas the enforcement of this Protocol at Community level for fishing vessels flying the flag of a Member State or operating in the internal waters or territorial sea of a Member State or landing their catch in a port of a Member State will enhance the safety of such fishing vessels as various national legislations do not yet require the safety level established by the Protocol; whereas such a common safety level will, by harmonising the different and varying national safety requirements, ensure that competition will take place on an equal level for fishing vessels operating in the same area without compromising safety standards;
(4) Whereas, in view, in particular, of the internal market dimension, action at Community level is the most effective way to establish a common safety level for fishing vessels throughout the Community;
(5) Whereas a Council Directive is the appropriate legal instrument as it provides a framework for a uniform and compulsory application of the safety standards by Member States, while leaving to each Member State the choice of form and methods, that best fit its internal system;
(6) Whereas several important chapters of the Torremolinos Protocol apply only to fishing vessels of 45 metres in length and over; whereas limiting the application of the Protocol at Community level only to such vessels would create a safety gap between the latter and smaller fishing vessels between 24 and 45 metres in length, and would therefore distort competition;
(7) Whereas Article 3(4) of that Protocol states that each Party shall determine which of its regulations for which the length limit is greater than 24 metres should apply, wholly or in part, to a fishing vessel of 24 metres in length or over but less than the prescribed length limit and entitled to fly a flag of that Party; whereas Article 3(5) of that Protocol states that Parties shall endeavour to establish uniform standards for these fishing vessels operating in the same region;
(8) Whereas, in order to enhance safety and to avoid distortions of competition, the aim must be pursued of applying the safety rules of this Directive to all fishing vessels of 24 metres in length and over, operating in the fishing zones of the Community, irrespective of the flag they fly; whereas this must be achieved, for fishing vessels flying the flag of third States operating in the internal waters or territorial sea of a Member State or landing their catch in a port of a Member State, in accordance with the general rules of international law;
(9) Whereas the relevant provisions of Council Directives adopted under the social policy of the Community must continue to apply;
(10) Whereas Member States should, for all those reasons, apply to new and, where required, to existing fishing vessels of 45 metres in length and over the provisions of the Annex to the Torremolinos Protocol, taking account of the relevant provisions listed in Annex I to this Directive; whereas Member States should also apply the provisions of Chapters IV, V, VII and IX of the Annex to the Torremolinos Protocol, as adapted by Annex II to this Directive, to all new vessels of 24 metres in length and over but less than 45 metres flying their flag;
(11) Whereas specific requirements, as set out in Annex III, can be justified for reasons relating to specific regional circumstances, such as geographical and climatic conditions; whereas such provisions have been developed for operation in the northern and southern zones, respectively;
(12) Whereas, in order to further increase the level of safety, vessels flying the flag of a Member State should comply with the specific requirements set out in Annex IV;
(13) Whereas fishing vessels flying the flag of third States should not be allowed to operate in the internal waters or territorial sea of a Member State or to land their catch in a Member State's port, and therefore compete with vessels flying the flag of a Member State, unless their flag State has certified that they comply with the technical provisions laid down in this Directive;
(14) Whereas equipment complying with the requirements of Council Directive 96/98/EC of 20 December 1996 on marine equipment (4), when installed on board fishing vessels should be automatically recognised to be in conformity with the specific provisions imposed on such equipment in this Directive, since the requirements of Directive 96/98/EC are at least equivalent to those of the Torremolinos Protocol and this Directive;
(15) Whereas Member States could encounter local circumstances which justify the application of specific safety measures to all fishing vessels operating in certain areas; whereas they may also consider it appropriate to adopt exemptions from, or equivalent requirements to, the provisions of the Annex to the Torremolinos Protocol; whereas they should be entitled to adopt such measures subject to control under the Committee procedure;
(16) Whereas at present there are no uniform international technical standards for fishing vessels as regards their hull strength, main and auxiliary machinery and electrical and automatic plants; whereas such standards may be fixed according to the rules of recognised organisations or national administrations;
(17) Whereas, for the control of the effective implementation and enforcement of this Directive, Member States should carry out surveys and issue a certificate of compliance to fishing vessels which comply with the specific requirements of this Directive;
(18) Whereas, in order to ensure full application of this Directive, and in accordance with the procedure established in Article 4 of the Torremolinos Protocol, fishing vessels should be subject to port State control; whereas a Member State may undertake controls also on board fishing vessels of third countries which are not operating in the internal waters or territorial sea of a Member State nor landing their catch in the ports of a Member State, when they are in a port of that Member State, in order to verify that they comply with that Protocol, once it has entered into force;
(19) Whereas it is necessary for a committee composed of the representatives of the Member States to assist the Commission in the effective application of this Directive; whereas the committee set up in Article 12 of Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (5), can take on this task;
(20) Whereas, in order to ensure a consistent implementation of this Directive, certain provisions may be adapted through this committee to take account of relevant developments at international level;
(21) Whereas the International Maritime Organisation (IMO) should be informed of this Directive in accordance with the Torremolinos Protocol;
(22) Whereas, in order to ensure full application of this Directive, Member States should lay down a system of penalties for breaching the national provisions adopted pursuant to this Directive,
HAS ADOPTED THIS DIRECTIVE:
Article 1 Purpose
1. The purpose of this Directive is to lay down safety standards for seagoing fishing vessels of 24 metres in length and over, both new, and existing, in so far as the Annex to the Torremolinos Protocol applies to the latter, and
- flying the flag of a Member State and registered in the Community, or
- operating in the internal waters or territorial sea of a Member State, or
- landing their catch in the port of a Member State.
Recreational craft engaged in non-commercial fishing are excluded from the scope of this Directive.
2. This Directive is without prejudice to the provisions of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (6), its individual Directives and, in particular Council Directive 93/103/EC of 23 November 1993 concerning the minimum health and safety requirements for work on board fishing vessels (13th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (7).
Article 2 Definitions
For the purpose of this Directive:
1. 'fishing vessel` or 'vessel` means any vessel equipped or used commercially for catching fish or other living resources of the sea;
2. 'new fishing vessel` means a fishing vessel for which:
(a) on or after 1 January 1999 the building or major conversion contract is placed; or
(b) the building or major conversion contract has been placed before 1 January 1999, and which is delivered three years or more after that date; or
(c) in the absence of a building contract, on or after 1 January 1999:
- the keel is laid, or
- construction identifiable with a specific ship begins, or
- assembly has commenced comprising at least 50 tonnes or 1 % of the estimated mass of all structural material, whichever is less;
3. 'existing fishing vessel` means a fishing vessel which is not a new fishing vessel;
4. 'Torremolinos Protocol` means the Torremolinos Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977, together with the amendments thereto;
5. 'Certificate` means the certificate of compliance referred to in Article 6;
6. 'length` means, unless provided otherwise, 96 % of the total length on a waterline at 85 % of the least moulded depth measured from the keel line, or the length from the foreside of the stem to the axis of the rudder stock on that waterline, if that be greater. In vessels designed with rake of keel the waterline on which this length is measured shall be parallel to the designed waterline;
7. 'operating` means catching or catching and processing fish or other living resources of the sea without prejudice to the right of innocent passage in the territorial sea and the freedom of navigation in the 200 mile exclusive economic zone;
8. 'recognised organisation` means an organisation recognised in conformity with Article 4 of 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 (8).
Article 3 General requirements
1. Member States shall ensure that the provisions of the Annex to the Torremolinos Protocol are applied to the fishing vessels concerned flying their flag, unless Annex I to this Directive provides otherwise.
Unless provided otherwise in this Directive, existing fishing vessels shall comply with the relevant requirements of the Annex to the Torremolinos Protocol not later than 1 July 1999.
2. Member States shall ensure that those requirements in Chapters IV, V, VII and IX of the Annex to the Torremolinos Protocol which apply to vessels of 45 metres in length and over are also applied to new fishing vessels of 24 metres in length and over, flying their flag, unless Annex II to this Directive provides otherwise.
3. However, Member States shall ensure that vessels flying their flag operating in specific areas shall comply with the provisions for the relevant areas, as defined in Annex III.
4. Member States shall ensure that vessels flying their flag shall comply with the specific safety requirements laid down in Annex IV.
5. Member States shall prohibit fishing vessels flying the flag of a third country from operating in their internal waters or territorial sea or landing their catch in their ports unless they are certified by their flag State administration to comply with the requirements referred to in paragraphs 1, 2, 3 and 4 and in Article 5.
6. Marine equipment listed in Annex A.1 to Directive 96/98/EC and complying with the requirements of the latter, when placed on board a fishing vessel to comply with the provisions of this Directive, shall be automatically considered to be in conformity with such provisions, whether or not these provisions require that the equipment must be approved and subjected to tests to the satisfaction of the administration of the flag State.
Article 4 Specific requirements, exemptions and equivalents
1. If a Member State or a group of Member States considers that certain situations due to specific local circumstances or the vessel's particulars require specific safety measures for fishing vessels operating in a certain area, and if the need therefore is demonstrated, they may, subject to the procedure in paragraph 4, adopt such specific safety measures to take account of local circumstances such as the nature and climatic conditions of the waters these vessels operate in, the length of their journeys, or their particulars, such as their construction material.
The measures adopted shall be added in Annex III.
2. Member States shall apply the provisions of Regulation 3, paragraph 3 of Chapter 1 of the Annex to the Torremolinos Protocol, for adopting measures containing exemptions, subject to the procedure laid down in paragraph 4 of this Article.
3. Member States may adopt measures allowing equivalents in accordance with Regulation 4, paragraph 1 of Chapter 1 of the Annex to the Torremolinos Protocol, subject to the procedure laid down in paragraph 4 of this Article.
4. A Member State which avails itself of the provisions of paragraphs 1, 2 or 3 shall follow the following procedure:
(a) The Member State shall notify the Commission of the measures which it intends to adopt, including particulars to the extent necessary to confirm that the level of safety is adequately maintained.
(b) If, within a period of six months from the notification, it is decided, in accordance with the procedure laid down in Article 9, that the proposed measures are not justified, the said Member State may be required to amend or not to adopt the proposed measures.
(c) The adopted measures shall be specified in the relevant national legislation and communicated to the Commission, which shall inform the other Member States of all particulars thereof.
(d) Any of such measures shall be applied to all fishing vessels when operating under the same specified conditions, without discrimination with regard to their flag or to the nationality of their operator.
(e) The measures referred to in paragraph 2 shall only apply as long as the fishing vessel operates under the specified conditions.
Article 5 Standards for design, construction and maintenance
The standards for the design, construction and maintenance of hull, main and auxiliary machinery, electrical and automatic plants of a fishing vessel shall be the rules in force at the date of its construction, specified for classification by a recognised organisation or used by an administration.
For new vessels, these rules shall be in accordance with the procedure and subject to the conditions laid down in Article 14(2) of Directive 94/57/EC.
Article 6 Surveys and certificates
1. Member States shall issue to fishing vessels flying their flag and complying with Articles 3 and 5, a certificate of compliance with the terms of this Directive, supplemented by a record of equipment and, where appropriate, exemption certificates. The certificate of compliance, record of equipment and exemption certificate shall have a format as laid down in Annex V. The certificates shall be issued by the administration of the flag State or by a recognised organisation acting on its behalf after an initial survey, carried out by the exclusive surveyors either of the administration of the flag State itself or of a recognised organisation or of the Member State authorised by the flag State to carry out surveys, in accordance with Regulation 6, paragraph (1)(a) of Chapter 1 of the Annex to the Torremolinos Protocol.
2. The periods of validity of the certificates referred to in paragraph 1 shall not exceed those established in Regulation 11 of Chapter 1 of the Annex to the Torremolinos Protocol. Renewal of the certificate of compliance, shall be issued after periodical surveys, in accordance with Regulation 6 of Chapter 1 of the Annex to the Torremolinos Protocol, have been carried out.
Article 7 Control provisions
1. Fishing vessels operating in the internal waters or territorial sea of a Member State or landing their catch in its ports and not being fishing vessels flying the flag of that Member State shall be subject to control by the Member State, in accordance with Article 4 of the Torremolinos Protocol and without discrimination with regard to flag or nationality of the operator, in order to verify that they comply with this Directive.
2. Fishing vessels, which are not operating in the internal waters or territorial sea of a Member State nor landing their catch in the ports of a Member State and flying the flag of another Member State, shall be subject to control by the Member State, when in its ports, in accordance with Article 4 of the Torremolinos Protocol and without discrimination with regard to flag or nationality of the operator, in order to verify that they comply with this Directive.
3. Fishing vessels flying the flag of a third State, which are not operating in the internal waters or territorial sea of a Member State nor landing their catch in the ports of a Member State, shall be subject to control by the Member State, when in its ports, in accordance with Article 4 of the Torremolinos Protocol, in order to verify their compliance with the Torremolinos Protocol, once it has entered into force.
Article 8 Adaptations
In accordance with the procedure laid down in Article 9:
(a) provisions may be adopted and incorporated for:
- a harmonised interpretation of provisions of the Annex to the Torremolinos Protocol which have been left to the discretion of the administrations of individual contracting parties, as far as necessary to ensure their consistent implementation in the Community,
- the implementation of this Directive without broadening its scope.
(b) Articles 2, 3, 4, 6 and 7 of this Directive may be adapted and its Annexes may be amended in order to apply, for the purpose of this Directive, subsequent amendments to the Torremolinos Protocol which have entered into force after the adoption of this Directive.
Article 9 Committee
1. The Commission shall be assisted by the committee established by Article 12(1) of Directive 93/75/EEC.
2. Where reference is made to this Article, the following procedure shall apply:
(a) 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.
(b) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.
(c) 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.
If, on the expiry of eight weeks from the date of the referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.
Article 10 Notification to IMO
The Presidency of the Council and the Commission shall inform the IMO of the adoption of this Directive, whereby reference shall be made to Article 3(5) of the Torremolinos Protocol.
Article 11 Penalties
Member States shall lay down the system of penalties for breaching the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for shall be effective, proportionate and dissuasive.
Article 12 Implementation
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1999. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member States.
2. Member States shall immediately communicate to the Commission all provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.
Article 13 Entry into force
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.
Article 14 Addressees
This Directive is addressed to the Member States.
Done at Brussels, 11 December 1997.