COUNCIL DECISION
of 12 December 2011
concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, with the exception of Articles 10 and 11 thereof
(2012/22/EU)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2), in conjunction with point (a) of Article 218(6) and the first subparagraph of Article 218(8) thereof,
Having regard to the proposal from the European Commission,
Having regard to the consent of the European Parliament,
Whereas:
(1)
The Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (‘Athens Protocol’) represents a major improvement to the regime relating to the liability of carriers and the compensation of passengers carried by sea. In particular, it provides for a strict liability of the carrier, including compulsory insurance, with a right of direct action against insurers up to specified limits, and for rules on jurisdiction and the recognition and enforcement of judgments. The Athens Protocol is therefore in accordance with the Union’s objective of improving the legal regime relating to carriers’ liability.
(2)
The Athens Protocol modifies the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (‘Athens Convention’) and establishes in Article 15 that the two instruments shall, as between the Parties to the Athens Protocol, be read and interpreted together as one single instrument.
(3)
The majority of the rules of the Athens Protocol have been incorporated into Union law by means of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents (1). Thus, the Union exerted competence as regards the matters governed by that Regulation. Member States, however, retain their competence regarding a number of provisions of the Athens Protocol, such as the opt out clause whereby they are allowed to fix limits of liability higher than those prescribed under the Athens Protocol. The matters of Member State competence under the Athens Protocol and those falling under the exclusive competence of the Union are interdependent. Therefore, in matters of their competence under the Athens Protocol, Member States should act in a coordinated manner, taking into account their duty of sincere cooperation.
(4)
The Athens Protocol is open for ratification, acceptance, approval or accession by States and by Regional Economic Integration Organisations which are constituted by sovereign States that have transferred competence over certain matters governed by the Athens Protocol to those Organisations.
(5)
According to Article 17(2)(b) and Article 19 of the Athens Protocol, Regional Economic Integration Organisations may conclude the Athens Protocol.
(6)
The Legal Committee of the International Maritime Organization adopted in October 2006 the IMO Reservation and Guidelines for Implementation of the Athens Convention (‘IMO Guidelines’) to address certain issues within the Athens Convention, such as, in particular, compensation for terrorism-related damages.
(7)
Regulation (EC) No 392/2009 reproduces in its annexes the relevant provisions of the consolidated version of the Athens Convention as amended by the Athens Protocol and the IMO Guidelines.
(8)
Under the terms of Article 19 of the Athens Protocol, a Regional Economic Integration Organisation must declare at the time of signature, ratification, acceptance, approval or accession the extent of its competence in respect of the matters governed by the Athens Protocol.
(9)
The Union should consequently accede to the Athens Protocol and make the reservation contained in the IMO Guidelines. The making of such a reservation should not be interpreted as altering the current division of competence between the Union and the Member States in relation to certification and the controls by State authorities.
(10)
Certain provisions under the Athens Protocol concern judicial cooperation in civil matters and therefore fall within the scope of Title V of Part Three of the TFEU. A separate Decision relating to those provisions is to be adopted in parallel to this Decision.
(11)
Member States which are to ratify or accede to the Athens Protocol should, if possible, do so simultaneously. Member States should therefore exchange information on the state of their ratification or accession procedures in order to prepare as far as possible the simultaneous deposit of their instruments of ratification or accession. When ratifying or acceding to the Athens Protocol, Member States should make the reservation contained in the IMO Guidelines,
HAS ADOPTED THIS DECISION:
Article 1
The accession of the European Union to the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (‘Athens Protocol’) is hereby approved on behalf of the European Union as regards matters falling within the Union’s exclusive competence, with the exception of Articles 10 and 11 thereof.
The text of the Athens Protocol, with the exception of Articles 10 and 11, is reproduced in the Annex.
Article 2
1. The President of the Council is hereby authorised to designate the person or persons empowered to deposit the instrument of accession of the Union to the Athens Protocol in accordance with Articles 17(2)(c), 17(3) and 19 of that Protocol.
2. At the time of the deposit of the instrument of accession, the Union shall make the following declaration of competence:
‘1.
Article 19 of the Athens Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 provides that Regional Economic Integration Organisations which are constituted by sovereign States that have transferred competence over certain matters governed by that Protocol to them may sign it, on condition that they make the declaration referred to in that Article. The Union has decided to accede to the Athens Protocol and is accordingly making that declaration.
2.
The current Members of the European Union are the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
3.
This declaration is not applicable to the territories of the Member States of the European Union in which the Treaty on the Functioning of the European Union (TFEU) does not apply and is without prejudice to such acts or positions as may be adopted under the Protocol by the Member States concerned on behalf of, and in the interests of, those territories.
4.
The Member States of the European Union have conferred exclusive competence to the Union as regards measures adopted on the basis of Article 100 of the TFEU. Such measures have been adopted as regards Articles 1 and 1 bis, Article 2(2), Articles 3 to 16 and Articles 18, 20 and 21 of the Athens Convention as amended by the Athens Protocol and the provisions of the IMO Guidelines, by means of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents.
5.
The exercise of competence which the Member States have transferred to the European Union pursuant to the TFEU is, by its nature, liable to continuous development. In the framework of the TFEU, the competent institutions may take decisions which determine the extent of the competence of the European Union. The European Union therefore reserves the right to amend this declaration accordingly, without this constituting a prerequisite for the exercise of its competence with regard to matters governed by the Athens Protocol. The European Union will notify the amended declaration to the Secretary-General of the International Maritime Organization.’.
3. The person or persons designated under paragraph 1 of this Article shall make the reservation contained in the IMO Guidelines when depositing the instrument of accession of the Union to the Athens Protocol.
Article 3
The Union shall deposit its instrument of accession to the Athens Protocol by 31 December 2011.
Article 4
1. Member States shall take the necessary steps to deposit the instruments of ratification of, or accession to, the Athens Protocol within a reasonable time and, if possible, by 31 December 2011.
2. Member States shall make the reservation contained in the IMO Guidelines when depositing their instruments of ratification of, or accession to, the Athens Protocol.
Done at Brussels, 12 December 2011.