DIRECTIVE 2010/65/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 20 October 2010
on reporting formalities for ships arriving in and/or departing from ports of the Member States and repealing Directive 2002/6/EC
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,
Having regard to the proposal from the European Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
Having regard to the opinion of the Committee of the Regions (2),
Acting in accordance with the ordinary legislative procedure (3),
Whereas:
(1)
Directive 2002/6/EC of the European Parliament and of the Council of 18 February 2002 on reporting formalities for ships arriving in and/or departing from ports of the Member States of the Community (4) requires Member States to accept certain standardised forms (FAL forms) in order to facilitate traffic, as defined by the International Maritime Organisation (IMO) Convention on Facilitation of International Maritime Traffic (FAL Convention), adopted on 9 April 1965, as amended.
(2)
For the facilitation of maritime transport and in order to reduce the administrative burdens for shipping companies, the reporting formalities required by legal acts of the Union and by Member States need to be simplified and harmonised to the greatest extent possible. However, this Directive should be without prejudice to the nature and content of the information required, and should not introduce any additional reporting requirements for ships not already under such obligation according to legislation applicable in Member States. It should deal solely with how the information procedures can be simplified and harmonised, and how the information could be gathered more effectively.
(3)
The transmission of data required upon arrival in and/or departure from ports under Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (5), Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system (6), Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security (7), Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (8), and, where appropriate, the International Maritime Dangerous Goods Code adopted in 1965, with the amendments thereto adopted and having entered into force, covers the information required by FAL forms. Therefore, where that information corresponds to the requirements in the above-mentioned legal acts, FAL forms should be accepted for providing it.
(4)
In view of the global dimension of maritime transport, legal acts of the Union must take account of IMO requirements if simplification is to take place.
(5)
Member States should deepen the cooperation between the competent authorities, such as their customs, border control, public health and transport authorities in order to continue to simplify and harmonise reporting formalities within the Union and make the most efficient use of electronic data transmission and information exchange systems, with a view to the, as far as possible, simultaneous elimination of barriers to maritime transport and the achievement of a European maritime transport space without barriers.
(6)
Detailed statistics on maritime transport should be available to assess the efficiency of and the need for policy measures aiming at facilitating maritime traffic within the Union, taking into account the need not to create unnecessary additional requirements with regard to the collection of statistics by the Member States and to make full use of Eurostat. For the purposes of this Directive, it would be important to collect relevant data concerning ship traffic within the Union and/or ships calling at third country ports or in free zones.
(7)
It should be easier for shipping companies to benefit from the status of ‘authorised regular shipping service’ in line with the objective of the Commission communication of 21 January 2009 entitled ‘Communication and action plan with a view to establishing a European maritime transport space without barriers’.
(8)
Widespread use should be made of electronic means of data transmission for all reporting formalities as soon as possible and by 1 June 2015 at the latest, building on the international standards developed by the FAL Convention, whenever practicable. In order to streamline and accelerate the transmission of potentially very large amounts of information, electronic formats for reporting formalities should be used, whenever practicable. Within the Union, the provision of information in FAL forms in paper format should be the exception and should be accepted only for a limited period of time. Member States are encouraged to use administrative means, including economic incentives, to promote the use of electronic formats. For the above-mentioned reasons exchange of information between the competent authorities of the Member States should take place electronically. In order to facilitate such a development, electronic systems need to be technically interoperable to a greater extent and as far as possible by the same deadline to ensure the smooth functioning of the European maritime transport space without barriers.
(9)
Parties involved in trade and transport should be able to lodge standardised information and documents via an electronic single window to fulfil reporting formalities. Individual data elements should only be submitted once.
(10)
The SafeSeaNet systems established at national and Union level should facilitate the reception, exchange and distribution of information between the information systems of Member States on maritime activity. To facilitate maritime transport and to reduce the administrative burdens for maritime transport, the SafeSeaNet system should be interoperable with other systems of the Union for reporting formalities. The SafeSeaNet system should be used for additional exchange of information for the facilitation of maritime transport. Reporting formalities regarding information for solely national purposes should not need to be introduced in the SafeSeaNet system.
(11)
When adopting new Union measures, it should be ensured that Member States can maintain the electronic transmission of data and are not required to use paper formats.
(12)
The full benefits of electronic data transmission can only be achieved where there is smooth and effective communication between SafeSeaNet, e-Customs and the electronic systems for entering or calling up data. To that end, in order to limit the administrative burdens, recourse should be had in the first instance to the applicable standards.
(13)
FAL forms are regularly updated. This Directive should therefore refer to the version of these forms that is currently in force. Any information required by Member States’ legislation which goes beyond the requirements of the FAL Convention should be communicated in a format to be developed on the basis of FAL Convention standards.
(14)
This Directive should not affect Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (9), Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (10), Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (11), or national legislation in the area of border control for those Member States which do not apply the Schengen border control acquis, and Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (12).
(15)
In the interest of making the electronic transmission of information standard and for the facilitation of maritime transport, Member States should extend the use of electronic means of transmitting data according to an adequate timetable, and should, in cooperation with the Commission, discuss the possibility of harmonising the use of electronic means of transmitting data. To this end, consideration should be given to the work of the High Level Steering Group for the SafeSeaNet system as regards the SafeSeaNet road map, when adopted, and to the concrete funding requirements and respective allocation of Union financial means for the development of electronic transmission of data.
(16)
Ships operating between ports situated in the customs territory of the Union should be exempt from the obligation to send the information referred to in the FAL forms, where the ships do not come from, call at or are headed towards a port situated outside that territory or a free zone subject to type I controls within the meaning of customs legislation, without prejudice to the applicable legal acts of the Union and the information Member States may request in order to protect internal order and security and to enforce customs, fiscal, immigration, environmental or sanitary laws.
(17)
Exemptions from administrative formalities should also be permitted on the basis of the ship’s cargo, not merely on the basis of its destination and/or place of departure. This is necessary to ensure that additional formalities for ships that have called at a port in a third country or a free zone are minimised. The Commission should examine this issue within the framework of the report to the European Parliament and the Council on the functioning of this Directive.
(18)
A new temporary form should be introduced in order to harmonise the information required for the prior Declaration of Security provided for by Regulation (EC) No 725/2004.
(19)
National language requirements are often an obstacle to the development of the coastal shipping network. The Member States should make all possible efforts to facilitate written and oral communication in maritime traffic between Member States, in accordance with international practice, with a view to finding common means of communication.
(20)
The Commission should be empowered to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union in respect of the Annex to this Directive. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level.
(21)
The various legal acts of the Union requiring, for example, pre-notification formalities at the entry into ports, such as Directive 2009/16/EC, may impose different time limits for the accomplishment of these pre-notification formalities. The Commission should examine the possibility of shortening and harmonising these time-limits, taking advantage of ongoing progress in electronic data processing in the framework of the report to the European Parliament and the Council on the functioning of this Directive which should contain, if appropriate, a legislative proposal.
(22)
Within the framework of the report to the European Parliament and the Council on the functioning of this Directive, the Commission should consider how far the purpose of this Directive, namely the simplification of administrative formalities for ships arriving in and/or departing from ports of the Member States, should be extended to the areas inland of those ports, particularly to river transport, with a view to the quicker and smoother movement of maritime traffic inland and a lasting solution to congestion in and around seaports.
(23)
Since the objectives of this Directive, in particular to facilitate maritime transport in a harmonised way across the Union, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may take measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. 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.
(24)
According to the case-law of the Court of Justice of the European Union, where transposition of a directive is pointless for reasons of geography, this transposition is not mandatory. Therefore, requirements foreseen in this Directive are not relevant for Member States which do not have any ports at which ships falling under the scope of this Directive normally can call.
(25)
The measures stipulated in this Directive help achieve the objectives of the Lisbon Agenda.
(26)
Access to SafeSeaNet and to other electronic systems should be regulated in order to protect commercial and confidential information and without prejudice to the applicable law on the protection of commercial data and, in respect of personal data, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (13) and to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (14). The Member States and the Union institutions and bodies should pay particular attention to the need to protect commercial and confidential information through appropriate access control systems.
(27)
In accordance with point 34 of the Interinstitutional Agreement on better law-making (15), Member States are encouraged to draw up, for themselves and in the interest of the Union, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public.
(28)
In the interest of clarity, Directive 2002/6/EC should be replaced by this Directive,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Subject matter and scope
1. The purpose of this Directive is to simplify and harmonise the administrative procedures applied to maritime transport by making the electronic transmission of information standard and by rationalising reporting formalities.
2. This Directive shall apply to the reporting formalities applicable to maritime transport for ships arriving in and ships departing from ports situated in Member States.
3. This Directive shall not apply to ships exempted from reporting formalities.
Article 2
Definitions
For the purposes of this Directive, the following definitions shall apply:
(a)
‘reporting formalities’ means the information set out in the Annex which, in accordance with the legislation applicable in a Member State, must be provided for administrative and procedural purposes when a ship arrives in or departs from a port in that Member State;
(b)
‘FAL Convention’ means the IMO Convention on Facilitation of International Maritime Traffic, adopted on 9 April 1965, as amended;
(c)
‘FAL forms’ means the standardised forms, as provided for in the FAL Convention;
(d)
‘ship’ means any seagoing vessel or craft;
(e)
‘SafeSeaNet’ means the Union maritime information exchange system as defined in Directive 2002/59/EC;
(f)
‘electronic transmission of data’ means the process of transmitting information that has been encoded digitally, using a revisable structured format which can be used directly for storage and processing by computers.
Article 3
Harmonisation and coordination of reporting formalities
1. Each Member State shall take measures to ensure that the reporting formalities are requested in a harmonised and coordinated manner within that Member State.
2. The Commission shall, in cooperation with the Member States, develop mechanisms for the harmonisation and coordination of reporting formalities within the Union.
Article 4
Notification prior to arrival into ports
Subject to specific provisions on notification provided for in the applicable legal acts of the Union or under international legal instruments applicable to maritime transport and binding on the Member States, including provisions on control of persons and goods, Member States shall ensure that the master or any other person duly authorised by the operator of the ship provides notification, prior to arriving in a port situated in a Member State, of the information required under the reporting formalities to the competent authority designated by that Member State:
(a)
at least 24 hours in advance; or
(b)
at the latest, at the time the ship leaves the previous port, if the voyage time is less than 24 hours; or
(c)
if the port of call is not known or it is changed during the voyage, as soon as this information is available.
Article 5
Electronic transmission of data
1. Member States shall accept the fulfilment of reporting formalities in electronic format and their transmission via a single window as soon as possible and in any case no later than 1 June 2015.
This single window, linking SafeSeaNet, e-Customs and other electronic systems, shall be the place where, in accordance with this Directive, all information is reported once and made available to various competent authorities and the Member States.
2. Without prejudice to the relevant format set out in the FAL Convention, the format referred to in paragraph 1 shall comply with Article 6.
3. Where reporting formalities are required by legal acts of the Union and to the extent necessary for the good functioning of the single window established pursuant to paragraph 1, the electronic systems referred to in paragraph 1 must be interoperable, accessible and compatible with the SafeSeaNet system established in accordance with Directive 2002/59/EC and, where applicable, with the computer systems stipulated in Decision No 70/2008/EC of the European Parliament and of the Council of 15 January 2008 on a paperless environment for customs and trade (16).
4. Without prejudice to specific provisions on customs and border control set out in Regulation (EEC) No 2913/92 and Regulation (EC) No 562/2006, Member States shall consult economic operators and inform the Commission of progress made using the methods stipulated in Decision No 70/2008/EC.
Article 6
Exchange of data
1. Member States shall ensure that information received in accordance with the reporting formalities provided in a legal act of the Union is made available in their national SafeSeaNet systems and shall make relevant parts of such information available to other Member States via the SafeSeaNet system. Unless otherwise provided by a Member State, this shall not apply to information received pursuant to Regulation (EEC) No 2913/92, Regulation (EEC) No 2454/93, Regulation (EC) No 562/2006 and Regulation (EC) No 450/2008.
2. Member States shall ensure that the information received in accordance with paragraph 1 is accessible, upon request, to the relevant national authorities.
3. The underlying digital format of the messages to be used within national SafeSeaNet systems in accordance with paragraph 1 shall be established in accordance with Article 22a of Directive 2002/59/EC.
4. Member States may provide relevant access to the information referred to in paragraph 1 either through a national single window via an electronic data exchange system or through the national SafeSeaNet systems.
Article 7
Information in FAL forms
Member States shall accept FAL forms for the fulfilment of reporting formalities. Member States may accept that information required in accordance with a legal act of the Union is provided in a paper format until 1 June 2015 only.
Article 8
Confidentiality
1. Member States shall, in accordance with the applicable legal acts of the Union or national legislation, take the necessary measures to ensure the confidentiality of commercial and other confidential information exchanged in accordance with this Directive.
2. Member States shall take particular care to protect commercial data collected under this Directive. In respect of personal data, Member States shall ensure that they comply with Directive 95/46/EC. The Union institutions and bodies shall ensure that they comply with Regulation (EC) No 45/2001.
Article 9
Exemptions
Member States shall ensure that ships falling within the scope of Directive 2002/59/EC and operating between ports situated in the customs territory of the Union, but which do not come from, call at or are headed towards a port situated outside that territory or a free zone subject to type I controls under customs legislation, are exempt from the obligation to send the information referred to in the FAL forms, without prejudice to the applicable legal acts of the Union and the possibility that Member States may request information in the FAL forms referred to in points 1 to 6 of Part B of the Annex to this Directive which is necessary to protect internal order and security and to enforce customs, fiscal, immigration, environmental or sanitary laws.
Article 10
Amendment procedure
1. The Commission may adopt delegated acts, in accordance with Article 290 of the Treaty on the Functioning of the European Union, as regards the Annex to this Directive, so as to ensure that account is taken of any relevant changes to the FAL forms introduced by the IMO. These amendments shall not have the effect of widening the scope of this Directive.
2. For the delegated acts referred to in this Article, the procedures set out in Articles 11, 12 and 13 shall apply.
Article 11
Exercise of the delegation
1. The power to adopt the delegated acts referred to in Article 10 shall be conferred on the Commission for a period of 5 years from 18 November 2010. The Commission shall make a report in respect of the delegated powers at the latest 6 months before the end of the 5-year period. The delegation of power shall be automatically extended for periods of an identical duration, unless the European Parliament or the Council revokes it in accordance with Article 12.
2. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
3. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in Articles 12 and 13.
Article 12
Revocation of the delegation
1. The delegation of powers referred to in Article 10 may be revoked by the European Parliament or by the Council at any time.
2. The institution which has commenced an internal procedure for deciding whether to revoke the delegation of powers shall endeavour to inform the other institution and the Commission within a reasonable time before the final decision is taken, indicating the delegated powers which could be subject to revocation and possible reasons for a revocation.
3. The decision of revocation shall put an end to the delegation of the powers specified in that decision. It shall take effect immediately or at a later date specified therein. It shall not affect the validity of the delegated acts already in force. It shall be published in the Official Journal of the European Union.
Article 13
Objections to delegated acts
1. The European Parliament or the Council may object to a delegated act within a period of 2 months from the date of notification.
At the initiative of the European Parliament or the Council that period shall be extended by 2 months.
2. Where, on expiry of the initial 2-month period or, if applicable, the extended period, neither the European Parliament nor the Council has objected to the delegated act, it shall be published in the Official Journal of the European Union and enter into force on the date stated therein.
The delegated act may be published in the Official Journal of the European Union and enter into force before the expiry of the initial 2-month period or, if applicable, the extended period where the European Parliament and the Council have both informed the Commission of their intention not to raise objections.
3. Where the European Parliament or the Council objects to a delegated act, it shall not enter into force. The institution which objects shall state the reasons for objecting to the delegated act.
Article 14
Transposition
1. Member States shall adopt and publish, by 19 May 2012 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from 19 May 2012.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 15
Report
The Commission shall report to the European Parliament and the Council, by 19 November 2013, on the functioning of this Directive, including on the:
(a)
possibility of extending the simplification introduced by this Directive to cover inland waterway transport;
(b)
compatibility of the River Information Services with the electronic data transmission process referred to in this Directive;
(c)
progress towards harmonisation and coordination of reporting formalities that has been achieved under Article 3;
(d)
feasibility of avoiding or simplifying formalities for ships that have called at a port in a third country or free zone;
(e)
available data concerning ship traffic/movement within the Union, and/or calling at third country ports or in free zones.
The report shall, if appropriate, be accompanied by a legislative proposal.
Article 16
Repeal of Directive 2002/6/EC
Directive 2002/6/EC shall be repealed as of 19 May 2012. Any references to the repealed Directive shall be construed as references to this Directive.
Article 17
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 20 October 2010.