COMMON POSITION (EC) No 30/97 adopted by the Council on 30 June 1997 with a view to adopting Council Directive 97/. . ./EC setting up a harmonized safety regime for fishing vessels of 24 metres in length and over (97/C 246/01)

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 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 harmonizing 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 on 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 of this Directive; whereas Member States should apply also the provisions of Chapters IV, V, VII and IX of the Annex to the Torremolinos Protocol, as adapted by Annex II of 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 recognized 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 organizations 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/EC 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 Organization (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 insofar 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 (Thirteenth 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) the building or major conversion contract is placed on or after 1 January 1999; 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 one per cent 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 organization` means an organization recognized 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 organizations 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 of 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 therefor 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 provision 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 6 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 recognized organization 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 recognized organization 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 recognized organization or of the Member State authorized 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 harmonized 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/EC.

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 twentieth day after its publication in the Official Journal of the European Communities.

Article 14 Addressees

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ No C 292, 4. 10. 1996, p. 29.

(2) OJ No C 66, 3. 3. 1997, p. 31.

(3) Opinion of the European Parliament of 24 April 1997 (OJ No C 150, 19. 5. 1997), Council Common Position of 30 June 1997 and European Parliament Decision of . . . (not yet published in the Official Journal).

(4) OJ No L 46, 17. 2. 1997, p. 25.

(5) OJ No L 247, 5. 10. 1993, p. 19. Directive as last amended by Directive 96/39/EC (OJ No L 196, 7. 8. 1996, p. 7)

(6) OJ No L 183, 29. 6. 1989, p. 1.

(7) OJ No L 307, 13. 12. 1993, p. 1.

(8) OJ No L 319, 12. 12. 1994, p. 20.

ANNEX I

ADAPTATION OF PROVISIONS OF THE ANNEX TO THE TORREMOLINOS PROTOCOL FOR APPLICATION OF ARTICLE 3 (1) OF COUNCIL DIRECTIVE . . ./. . ./EC

CHAPTER I General provisions

Regulation 2: Definitions

Paragraph (1) 'New vessel` has to be replaced by the definition of 'new fishing vessel` contained in Article 2 of this Directive.

CHAPTER V Fire protection, fire detection, fire extinction and fire fighting

Regulation 2: Definitions

Paragraph (2) 'standard fire` test to be read with the following changes at the end with regard to the standard temperature curve:

'. . . The standard time-temperature curve is defined by a smooth curve drawn through the following internal furnace temperature points:

>TABLE>

`.

CHAPTER VII Life-saving appliances and arrangements

Regulation 1: Application

Paragraph (2) to be read as follows:

'Regulations 13 and 14 shall also apply to existing vessels of 45 metres in length and over, provided that the Administration may defer the implementation of the requirements of these regulations until 1 February 1999.`.

Regulation 13: Radio life-saving appliances

Paragraph (2) to be read as follows:

'Two-way VHF radiotelephone apparatus provided on board existing vessels and not complying with the performance standards adopted by the Organization may be accepted by the Administration until 1 February 1999, provided that the Administration is satisfied that they are compatible with approved two-way VHF radiotelephone apparatus.`.

CHAPTER IX Radiocommunications

Regulation 1: Application

Paragraph (1), second sentence to be read as follows:

'However, for existing vessels, the Administration may defer the implementation of the requirements until 1 February 1999.`.

Regulation 3: Exemptions

Paragraph (2) (c) to be read as follows:

'when the vessel will be taken permanently out of service before 1 February 2001.`.

ANNEX II

ADAPTATION OF PROVISIONS OF THE CHAPTERS IV, V, VII AND IX OF THE ANNEX TO THE TORREMOLINOS PROTOCOL, IN ACCORDANCE WITH ARTICLE 3 (4) OF THE LATTER, FOR APPLICATION TO NEW FISHING VESSELS WITH A LENGTH OF 24 METRES AND OVER

CHAPTER IV Machinery and electrical installations and periodically unattended machinery spaces

Regulation 1: Application

To be read as follows:

'Unless provided otherwise, this chapter shall apply to new fishing vessels of 24 metres in length and over.`.

Regulation 7: Communication between the wheelhouse and machinery space

To be read with the following addition:

'Two separate means of communication . . . shall be provided one of which shall be an engine room telegraph, except that in vessels of less than 45 metres in length, where the propulsion machinery is directly controlled from the wheelhouse, the Administration may accept means of communication other than an engine room telegraph.`.

Regulation 8: Wheelhouse control of propulsion machinery

Paragraph (1) (d) to be read with the following addition:

'. . . or control room. On vessels of less than 45 metres in length the Administration may permit the control station in the machinery space to be an emergency station only, provided that the monitoring and control in the wheelhouse is adequate.`.

Regulation 16: Main source of electrical power

Paragraph (1) (b) to be read with the following addition:

'. . . sets being stopped. However, in vessels of less than 45 metres in length, in the event of any one of the generating sets being stopped, it shall only be necessary to ensure the functioning of the services essential for propulsion and safety of the vessel.`.

Regulation 17: Emergency source of electrical power

Paragraph (6) to be read with the following insertion:

'An accumulator battery fitted in accordance with this regulation, other than batteries fitted for the radio transmitter and receiver in vessels of less than 45 metres in length, shall be installed . . .`.

Regulation 22: Alarm system

Paragraph (2) (a) to be read with the following addition:

'The alarm system . . . at a suitable position. However, in vessels of less than 45 metres in length the Administration may permit the system to be capable of sounding and indicating visually each separate alarm function in the wheelhouse only.`.

Paragraph (2) (b) to be read with the following addition:

'In vessels of 45 metres in length and over the alarm system shall have a connection . . .`.

Paragraph (2) (c) to be read with the following addition:

'In vessels of 45 metres in length and over an engineer's alarm . . .`.

CHAPTER V Fire protection, fire detection, fire extinction and fire fighting

Regulation 2: Definitions

Paragraph (14) (b) to be read with the following change:

'. . . not less than 375 kilowatts`.

Part C

Replace the title as follows:

'Part C - Fire safety measures in vessels of 24 metres in length and over but less than 60 metres`

Regulation 35: Fire pumps

Insert the following paragraph:

'Notwithstanding the provision of Regulation V/35 (1), at least two fire pumps shall always be provided.`.

Add to paragraph (8):

'or 25 m³/h, whichever is the greatest.`.

Regulation 40: Fire-extinguishing appliances in machinery spaces

Paragraph (1) (a) to be read with the following change:

'. . . of not less than 375 kilowatts . . .`.

CHAPTER VII Life-saving appliances and arrangements

Regulation 1: Application

Paragraph (1) to be read with the following changes:

(1): 'Unless provided otherwise, this chapter shall apply to new vessels of 24 metres in length and over`.

Regulation 5: Number and types of survival craft and rescue boats

1. Beginning of paragraph (3) to be read as follows:

'Vessels of less than 75 metres in length but of 45 metres in length and over shall comply with the following:`.

2. Read with a new paragraph (3A):

'(3A) Vessels of less than 45 metres in length shall be provided with:

(a) survival craft of sufficient aggregate capacity to accommodate at least 200 per cent of the total number of persons on board. Sufficient of these survival craft to accommodate at least the total number of persons on board shall be capable of being launched from either side of the vessel;

and

(b) a rescue boat, except where the Administration is satisfied that, because of the size and the manoeuvrability of the vessel, the near availability of search and rescue facilities and meteorological warning systems, the operation of the vessel in areas not susceptible to heavy weather or the seasonal characteristics of the operation, such provision is unnecessary.`.

3. Beginning of paragraph (4) to be read as follows:

'In lieu of meeting the requirements of paragraphs (2) (a), (3) (a) and (3A) (a), vessels may carry . . .`.

Regulation 10: Lifebuoys

1. Read subparagraph (1) (b) as follows:

'six lifebuoys in vessels of less than 75 metres in length but 45 metres in length and over;`.

2. Read a new subparagraph (1) (c) as follows:

'(1) (c) four lifebuoys in vessels of less than 45 metres in length.`.

Regulation 13: Radio life-saving appliances

Insert a new paragraph (1A) to read as follows:

'(1A) However, for vessels of less than 45 metres in length, the number of such apparatuses may be reduced to two, if the Administration considers the requirement to carry three such apparatuses unnecessary taking into account the area of operation of the vessel and the number of persons employed on board;`.

Regulation 14: Radar transponders

To be read with the following addition at the end:

'. . . in each survival craft. On every vessel of less than 45 metres in length at least one radar transponder shall be carried.`.

CHAPTER IX Radiocommunications

Regulation 1: Application

Read paragraph (1), first sentence as follows:

'Unless provided otherwise, this chapter shall apply to new vessels of 24 metres in length and over and to existing vessels of 45 metres in length and over.`

ANNEX III

REGIONAL AND LOCAL PROVISIONS (ARTICLES 3 (3) AND 4 (1))

A. 'Northern` regional provisions

1. Area of application

Unless mentioned otherwise elsewhere, the waters north of the boundary as illustrated on the chart attached to this Annex, excluding the Baltic Sea. This boundary is defined by the parallel of latitude 62° N from the west coast of Norway to longitude 4° W, thence the meridian of longitude 4° W to latitude 60° 30' N, thence the parallel of latitude 60° 30' N to longitude 5° W, thence the meridian of longitude 5° W to latitude 60° N, thence the parallel of latitude 60° N to longitude 15° W, thence the meridian of longitude 15° W to latitude 62° N, thence the parallel of latitude 62° N to longitude 27° W, thence the meridian of longitude 27° W to latitude 59° N and thence the parallel of latitude 59° N to the west.

2. Definitions:

'Heavy drift ice` is drift ice covering 8/10 ore more of the sea surface.

3. Regulation III/7 (1) (Operating conditions):

In addition to the specific operating conditions given in regulation III/7 (1) the following operating conditions shall also be considered:

(e) operating condition (b), (c) or (d), whichever produces the lowest values of the stability parameters contained in the stability criteria listed in regulation 2, shall be calculated including allowance for ice accretion in accordance with the provisions of regulation III/8.

(f) for purse seiners: departure from the fishing grounds with the fishing gear, no catch and 30 per cent stores, fuel, etc., including allowance for ice accretion in accordance with the provisions of regulation III/8.

4. Regulation III/8 (Ice accretion):

The specific requirements of regulation III/8 and the specific guidance given in Recommendation 2 by the Torremolinos Conference shall be applied within the region concerned, i.e. also outside the boundaries shown in the chart accompanying the said Recommendation.

Notwithstanding the provisions of regulation III/8 (1) (a) and (b) the following icing allowance shall be made in the stability calculations for vessels operating in the area north of latitude 63° N, between longitude 28° W and longitude 11° W:

(a) 40 kilogrammes per square metre on exposed weather decks and gangways;

(b) 10 kilogrammes per square metre for projected lateral area of each side of the vessel above the water plane.

5. Regulations VII/5 (2) (b) and (3) (b) (Number and types of survival craft and rescue boats):

Notwithstanding the provisions of regulation VII/5 (2) (b), (3) (b), and (3A), for fishing vessels the hulls of which are built to comply with the rules of a recognized organization for operation in waters with heavy drift ice concentration in compliance with regulation II/1/2 of the Annex to the Torremolinos Protocol, the rescue boat/lifeboat required in (2) (b), (3) (b) or (3A) (b) shall at least be partially covered (as defined in regulation VII/18) and shall have sufficient capacity to accomodate all persons on board.

6. Regulation VII/9 (Immersion suits and thermal protective aids):

Notwithstanding the provisions of regulation VII/9 an approved immersion suit, of an appropriate size, complying with the provisions of regulation VII/25, including the measures applied to that regulation and listed in this annex under item 1.8, shall be provided for every person on board.

7. Regulation VII/14 (Radar transponder):

In addition to the provisions of Chapter VII, Part B, every lifeboat, rescue boat and liferaft shall permanently be equipped with an approved radar transponder capable of operating in the 9 GHz band.

8. Regulation VII/25 (Immersion suits):

Notwithstanding the provisions of regulation VII/25 all immersion suits required under item A.6 of this Annex shall, as a single unit, be made of material with inherent insulation and shall also comply with the buoyancy requirements of regulation VII/24 (1) (c) (i). All other relevant requirements of regulation VII/25 shall also be complied with.

9. Regulation X/3 (7) (Radar installations):

Notwithstanding the provisions of regulation X/3 (7), every vessel of 24 metres in length and over shall be fitted with a radar installation to the satisfaction of the Administration. This radar installation shall be capable of operating in the 9 GHz band.

10. Regulation X/5 (Signalling equipment):

In addition to the provisions of regulation X/5, every vessel shall, when operating in waters where drift ice may occur, be fitted with at least one searchlight with a lighting capacity of at least 1 lux, measured at a distance of 750 metres.

B. 'Southern` regional provisions:

1. Areas of application:

The Mediterranean Sea and the coastal areas, within 20 miles from the coast of Spain and Portugal, of the summer zone of the Atlantic Ocean, as defined in the 'Chart of zones and seasonal areas` in Annex II of the 1966 International Convention on Load Lines, (1) as amended.

2. Regulation VII/9 (1) (Immersion suits):

Taking into consideration the provisions of paragraph (4) of regulation VII/9, add at the end of paragraph (1) the following sentence:

'For vessels of less than 45 metres in length the number of immersion suits need not be greater than two.`.

3. Regulation IX/1 (Radiocommunications):

Add a new paragraph (1A) as follows:

'This Chapter shall also apply to new vessels of 24 metres in length and over, provided that the area in which they operate is supported appropriately by a coastal station operating in accordance with IMO Master Plan.`.

NORTHERN REGION

>START OF GRAPHIC>

ICES fishing areas

Mean linear scale

Nautical miles>END OF GRAPHIC>

>REFERENCE TO A GRAPHIC>

(1) International Convention on Load Lines, 1966 adopted on 5 April 1966 by the International Conference on Load Lines, held in London upon the invitation of the Intergovernmental Maritime Consultative Organization.

ANNEX IV

SPECIFIC SAFETY REQUIREMENTS (ARTICLE 3 (4))

CHAPTER II Construction, watertight integrity and equipment

Add following new regulations:

'Regulation 16: Working decks within an enclosed superstructure

1. Such decks shall be fitted with an efficient drainage system having an appropriate drainage capacity to dispose of washing water and fishing guts.

2. All openings necessary for fishing operations shall be provided with means for quick and efficient closure by one person.

3. Where the catch is brought on to such decks for handling or processing, the catch shall be placed in a pound. Such pounds shall comply with regulation 11 of Chapter III. An efficient drainage system shall be fitted. Adequate protection against inadvertent influx of water to the working deck shall be provided.

4. At least two exits from such decks shall be provided.

5. The clear headroom in the working space shall at all points be not less than 2 metres.

6. A fixed ventilation system providing at least 6 changes of air per hour shall be provided.

Regulation 17: Draught marks

1. All ships shall be provided with draught marks in decimetres on the stem and the stern on both sides.

2. Such marks shall be placed as close as practicable to the perpendiculars.

Regulation 18: Tanks for fish in refrigerated (RSW) or chilled (CSW) sea water

1. If RSW- or CSW-tanks or similar tank systems are used, such tanks shall be provided with a separate, permanently fitted arrangement for the filling and emptying of seawater.

2. If such tanks are to be used also for carrying dry cargo, the tanks shall be arranged with a bilge system and provided with adequate means to avoid ingress of water from the bilge system into the tanks.`.

CHAPTER III Stability and associated seaworthiness

Regulation 9: Inclination test

Add following new paragraph (4):

'(4) The inclination test and determination of conditions required by regulation III/9 (1) shall be performed at least every ten years.`.

CHAPTER IV Machinery and electrical installations and periodically unattended machinery spaces

Regulation 13: Steering gear

Add following text to paragraph 10:

'If this power source is electrical, the emergency source of electrical power shall be capable of serving the auxiliary means for activating the rudder for a period of at least 10 minutes.`

Regulation 16: Main source of electrical power

Add following paragraph (3):

'(3) Navigation lights, if solely electrical, shall be supplied through their own separate switchboard and adequate means for the monitoring of such lights shall be provided.`

Regulation 17: Emergency source of electrical power

Notwithstanding paragraph 2, for vessels of a length of 45 metres and over the emergency source of electrical power shall be capable of serving the installations listed in that regulation for a period of not less than 8 hours.

CHAPTER V Fire protection, fire detection, fire extinction and fire fighting

Regulation 22: Fire-extinguishing appliances in machinery spaces

Notwithstanding the provisions of this regulation, all machinery spaces of category A shall be fitted with a fixed fire-extinguishing arrangement.

Regulation 40: Fire-extinguishing appliances in machinery spaces

Notwithstanding the provisions of this regulation, all machinery spaces of category A shall be fitted with a fixed fire-extinguishing arrangement.

ANNEX V

FORMS OF CERTIFICATE OF COMPLIANCE, EXEMPTION CERTIFICATE, AND RECORD OF EQUIPMENT

CERTIFICATE OF COMPLIANCE

>START OF GRAPHIC>

This Certificate of Compliance shall be supplemented by a Record of Equipment>END OF GRAPHIC>

>REFERENCE TO A GRAPHIC>

>START OF GRAPHIC>

(Official seal)

(State)

for a new/existing (1) fishing vessel

Issued under the provisions of the

.

(name of the relevant measure(s) introduced by the Member State)

and confirming compliance of the vessel named hereafter with the provisions of Council Directive 97/. . ./EC setting up a harmonized safety regime for fishing vessels of 24 metres in length and over,

under the authority of the Government of .

.

(full official designation of the Member State)

by .

.

(full official designation of the competent organization recognized under the provisions of Council Directive 94/57/EC)

Name of ship

Distinctive Numbers or Letters

Port of Registry

Length (2)

Date of building or major conversion contract (3): .

Date on which the keel was laid or ship was at a similar stage of construction (3): .

Date of delivery or completion of major conversion (3): .

(1) Delete as appropriate in accordance with the definitions of Article 2 (2) and 2 (3).(2) Length as defined in Article 2 (7).(3) In accordance with the definitions of Article 2 (2). (Reverse of Certificate)

Initial survey:

THIS IS TO CERTIFY:

1. that the ship has been surveyed in accordance with Regulation I/6 (1) (a) of the Annex to the Torremolinos Protocol;

2. that the survey showed that:

1. the ship fully complies with the requirements of Council Directive 97/. . ./EC; and

2. the maximum permissible operating draught associated with each operating condition for the vessel is contained in the approved stability booklet dated . . . . . . . . . . . . . . . . . . . . . . . . . ;

3. that an Exemption Certificate has/has not (1) been issued.

This certificate is valid until . . . . . . . . . . . . . . . . . . . . . . . . . subject to surveys in accordance with regulation I/6 (1) (b) (ii), (b) (iii) and (c).

Issued at . on.

(Place of issue of certificate) (date of issue)

.

(Signature of official issuing the certificate) and/or (Seal of issuing authority)

If signed, the following paragraph is to be added:

The undersigned declares that he is duly authorized by the said Member State to issue this certificate.

.

(Signature)

(1) Delete as appropriate. (Next page of Certificate)

Endorsement to extend the validity of the certificate for a period of grace where regulation I/11 (1) applies

This certificate shall, in accordance with regulation I/11 (1), be accepted as valid until .

Signed: .

(Signature of authorized official issuing the endorsement)

Place: .

Date: .

(Seal or stamp of the issuing authority)

Endorsement to extend the validity of the certificate until reaching the port of survey or for a period of grace where regulation I/11 (2) or regulation I/11 (4) applies

This certificate shall, in accordance with regulation I/11 (2)/regulation I/11 (4) (1), be accepted as valid until . . . . . . . . . . . . . . . . . . . . . . . . .

Signed: .

(Signature of authorized official issuing the endorsement)

Place: .

Date: .

(Seal or stamp of the issuing authority)

(1) Delete as appropriate.>END OF GRAPHIC>

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 12 July 1996, the Commission submitted to the Council a proposal for a Council Directive setting up a harmonized safety regime for fishing vessels of 24 metres in length and over, which was based on Article 84 (2) of the Treaty (1).

The European Parliament issued its opinion in the first reading on 24 April 1997 (2). The Economic and Social Committee issued its opinion on 27 November 1996 (3).

The Council adopted its common position in accordance with Article 189c of the Treaty on 30 June 1997.

II. PURPOSE OF THE PROPOSAL

The purpose of this proposal is to introduce a harmonized system of safety requirements applicable to fishing vessels of 24 metres in length and over operating in Community waters, by:

- imposing, on fishing vessels registered in the Community or operating in Community waters, the provisions of the Torremolinos Protocol to the International Convention of 1977 for the safety of fishing vessels, adopted on 2 April 1993.

The Annex to the Torremolinos Protocol contains provisions on its scope, the exemptions and equivalents, the surveys and the certification of fishing vessels (Ch. I), their construction and equipment (Ch. II), stability (Ch. III), machinery and electrical installations (Ch. IV), fire protection, detection, extinction and fighting (Ch. V), the protection of their crew (Ch. VI), their life-saving appliances and arrangements (Ch. VII), emergency procedures (Ch. VIII), radio-communications (Ch. IX) and shipborne navigational equipment (Ch. X).

- extending, to fishing vessels between 24 and 45 metres in length and built after 1 January 1999, certain requirements of the Torremolinos Protocol that only apply to vessels of more than 45 metres in length;

- providing for some general and regional requirements in addition to those of the Torremolinos Protocol, such as the requirement to comply with the standards of a recognized organisation (classification society) or the equivalent rules of the administrations of the Member States;

- providing for the use of the commitology procedure in order to adopt harmonized interpretations for the about 200 provisions of the Protocol which foresee a discretionary decision by the flag administrations of the contracting parties.

III. ANALYSIS OF THE COMMON POSITION

The common position adopted by the Council corresponds largely to the Commission proposal.

The draft Directive applies to fishing vessels of 24 metres in length and over and:

- flying the flag of a Member State and registered in the Community, or

- operating in the internal waters or territorial seas of a Member State, or

- landing their catch in the port of a Member State (Article 1 and Article 3 (5)).

Article 3 specifies the general requirements to be met by such fishing vessels:

- Fishing vessels have to comply with the Torremolinos Protocol, unless Annex I to the draft Directive provides otherwise (Article 3 (1)). Annex I mainly modifies the dates of application of certain provisions in Chapters I, V, VII and IX of the Annex to the Protocol.

- New fishing vessels between 24 and 45 metres in length have to comply with those requirements of Chapters IV, V, VII and IX of the Protocol which apply to vessels of 45 metres in length and over (Article 3 (2)). However, Annex II to the draft Directive provides for certain alleviations for these vessels.

- Fishing vessels operating in specific areas have to comply with the regional and local provisions relevant to these areas ('northern` and 'southern` regional provisions, respectively) as defined in Annex III to this Directive (Article 3 (3); Annex III).

- Fishing vessels have to comply with the additional safety requirements laid down in Annex IV to the draft Directive (Article 3 (4)).

However, the draft Directive also provides for the possibility of deviating from the general rules. Subject to control under the commitology procedure, a Member State or a group of Member States may adopt:

- specific safety measures, which are to be added to Annex III to this Directive, in order to take account of specific local circumstances (Article 4 (1));

- measures containing exemptions, under certain circumstances, for vessels engaged solely in fishing near their coasts (Article 4 (2));

- measures allowing equivalents for a particular fitting, material, appliance or apparatus which are at least as effective as those required by this Directive (Article 4 (3)).

The draft Directive also requires new and existing fishing vessels to comply with the standards of recognized organizations on the design, construction and maintenance of hull, main and auxiliary machinery, electrical and automatic plants or with the equivalent rules used by the national administrations (Article 5).

Furthermore, Member States have to carry out surveys to ensure that fishing vessels meet the requirements of this draft Directive, and to issue and renew certificates of compliance, records of equipment and exemption certificates in accordance with the format laid down in Annex V (Article 6). In order to ensure full application of this Directive, fishing vessels will be subject to port State control in accordance with Article 4 of the Torremolinos Protocol (Article 7).

Within the framework of the commitology procedure, provisions may be adopted, inter alia, to ensure the harmonized interpretation within the Community of provisions of the Torremolinos Protocol which have been left to the discretion of the Administrations (Articles 8 and 9).

Finally, Member States are required to lay down a system of penalties for violations of the national provisions adopted pursuant to this Directive (Article 11).

IV. AMENDMENTS BY THE EUROPEAN PARLIAMENT

In its first reading on 24 April 1997, the European Parliament did not adopt any amendments to the Commission proposal.

V. THE COUNCIL'S AMENDMENTS TO THE COMMISSION PROPOSAL

THE PREAMBLE

The Council entirely redrafted the preamble, shortening it considerably, so that the recitals would motivate and explain the Directive and not re-iterate what is contained in the articles. The Council also added certain recitals in order to reflect new provisions introduced into the text.

THE ARTICLES

In addition to a number of editorial changes to improve the structure and readability of the text, the Council agreed to amend the Commission proposal as follows:

Article 1 (Purpose)

In paragraph 1, as well as in all other Articles using this expression, the Council replaced 'internal or territorial waters` by 'internal waters or territorial sea` in order to respect the terminology commonly used in international maritime legislation.

The Council also explicitly excluded recreational craft engaged in non-commercial fishing from the scope of the draft Directive.

Article 2 (Definitions)

In paragraph 1 ('fishing vessel` or 'vessel`), the Council replaced the text proposed by the Commission, which was based upon a text taken from Council Directive 93/103/EC concerning the minimum safety and health requirements for workers on board fishing vessels, by a wider text, based upon Article 2 of the Torremolinos Protocol. The Council mainly substituted 'equipped and used` (for commercial fishing) by 'equipped or used commercially` in order to cover:

- fishing vessels having fishing gear, but not engaged in fishing, such as factory ships not using their gear ('equipped`);

- vessels engaged in commercial fishing operations without being properly equipped for this purpose ('used commercially`).

In paragraph 2 ('new fishing vessel`), the Council replaced '1 January 1998` by '1 January 1999` in order to reflect the corresponding change in the date of implementation of this Directive (see Article 12).

In paragraph 4 ('Torremolinos Protocol`), the Council deleted the reference to IMO Resolutions of a mandatory status, since such resolutions are not an integral part of the Protocol.

Article 3 (General requirements)

In paragraph 1, the Council, taking account of the practical problems involved in adapting existing fishing vessels to the standards of the draft directive, provided for different dates of implementation for new and existing vessels, namely 1 January 1999 and 1 July 1999, respectively. However, the earlier dates in Annex I to the Directive will have to be respected ('unless provided otherwise`), the purpose being not to hinder the introduction of the Global Maritime Distress Safety System (GMDSS), which enters into force on 1 February 1999.

The Council also inserted a new fourth paragraph, as well as a corresponding Annex IV, in order to require fishing vessels to comply with specific additional safety requirements. These additional requirements were added in order to achieve the primary objective of the Directive, which is to establish, throughout the Community, uniform safety standards at the highest level possible.

Article 4 (Specific requirements, exemptions and equivalents)

For presentational reasons, the Council merged the proposed Articles 4 (specific requirements), 5 (exemptions) and 6 (equivalents) into one Article, since all those provisions are subject to the same procedure (now contained in paragraph 4 of Article 4, though slightly modified for editorial reasons).

In paragraph 1 (specific requirements), the Council also allowed a 'group` of Member States to adopt specific local safety measures, since local circumstances might not be confined to one Member State. For reasons of clarity, the Council added 'climatic conditions` to the examples of local circumstances justifying specific requirements. In order to safeguard the objective of establishing uniform safety standards throughout the Community, the Council added that any Member State wishing to adopt specific local requirements must clearly demonstrate the need for such requirements. On the other hand, the Council deleted the reference to compatibility with the principles of the EC Treaty concerning the free movement of goods and services, since Community law has to be observed in any case.

Article 5 (Standards for design, construction and maintenance; previously Article 7)

The Council agreed with the Commission's proposal that new fishing vessels should meet the relevant standards specified by a 'recognized organization` as meant by Directive 94/57/EC of 22 November 1994. The Council however did not accept applying that provision to existing vessels, since that was considered to be too onerous for existing vessels. It instead provided that these vessels have to meet, at least, the rules in force at the date of their construction specified by a recognized organization or used by an administration.

Article 6 (Surveys and Certificates; previously Article 8)

The Council slightly modified paragraph 1 concerning the issuing of certificates and carrying out of surveys, in order to take account of the procedures and provisions contained in Council Directive 94/57/EC.

Article 7 (Control provisions; previously Article 9)

Article 7 was completely redrafted in order to give a clearer reply to the question as to whether control should concern the application of the provisions of the Directive or of the Torremolinos Protocol. Distinction was made between:

- the inspection of vessels flying the flag of a Member State and the inspection of vessels flying the flag of a third State;

- the inspection of vessels that are, or are not, operating in internal waters or territorial seas or landing their catch in a Community port.

This redraft will ensure that Member States' rights and duties under this Article are in conformity with their international legal obligations, in particular with Article 4 of the Torremolinos Protocol (which provides for inspections of vessels 'when in a port of another Party`) and Article 17 of the United Nations Convention on the Law of the Sea (which provides for the 'right of innocent passage through the territorial sea`).

Article 8 (Adaptations; previously Article 10)

The Council redrafted the proposed Article because it considered the powers conferred on the Committee to be excessive and clearly going beyond the implementation mandate referred to in Article 155, indent 4, of the Treaty. For this reason, the Council:

- replaced, in the title of this Article, 'amendments` by 'adaptations`;

- added 'as far as necessary to ensure their consistent implementation in the Community` to the first indent of paragraph (a);

- replaced the second and third indent of paragraph (a) by 'the implementation of this Directive without broadening its scope`; and

- explicitly quoted the Articles which may be adapted through the Committee under paragraph (b).

Article 9 (Committee; previously Article 11)

In view of the importance of the tasks entrusted to the Committee under Article 8, the Council replaced the procedure for an advisory Committee contained in paragraph 2 by the procedure of a regulatory Committee, type IIIa. The title of the draft Article was amended accordingly.

Article 10 (Notification to the IMO; previously Article 12)

The Council agreed that not only the Commission, but also 'the Presidency of the Council` would inform the IMO of the adoption of this Directive, since the Community is not a Party to the Torremolinos Protocol.

Article 11 (Penalties; previously Article 13, paragraph 2)

This provision was transferred to this new Article 11 in order to make sure that it is covered by Article 12 (1), which leaves it up to Member States to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive, including the system of penalties.

Article 12 (Implementation; previously Article 13 (1) and (3)

In view of the likely date of entry into force of this Directive, the Council changed the date of its implementation from '1 January 1998` to '1 January 1999`.

ANNEX I

In Chapter IX, Regulation 1, the Council deleted the first sentence of paragraph 1, since it was identical to the sentence contained in the Torremolinos Protocol.

ANNEX II

In the title, the Council deleted 'but less than 45 metres`, since vessels above 45 metres have to comply with the Torremolinos Protocol anyway.

In Chapter V, Part C, the Council added two amendments to Regulation 35 in order to increase the level of safety.

In Chapter VII, Regulation 13, the Council deleted the proposed amendment to paragraph 2, since it referred to existing vessels while Annex II is restricted to new vessels. Moreover, the same provision is already contained in Annex I.

For the same reasons, the Council deleted, in Chapter IX, the second sentence of Regulation 1, as well as the adaptation of Regulation 3.

ANNEX III

Concerning the Northern regional provisions in Part A, paragraph 1, the Council replaced the area of application, 'the waters north of latitude 60N excluding the Baltic Sea`, by a more detailed definition, accompanied by a chart attached to Annex III, thus taking account of the geographical peculiarities of the region concerned.

Part A, paragraph 5 of the proposal, which required vessels to carry one satellite type EPIRB for each lifeboat, rescue boat and liferaft, was considered to be too onerous and therefore deleted.

The Council was of the opinion that a radar transponder capable of operating in the 9 GHz band was sufficient to meet the objective of this provision, which is to enable the rescue services to locate all survival craft in the water and therefore inserted a new item relating to Regulation VII/14 and requiring lifeboats, rescue boats and liferaft to be equipped with a radar transponder.

The Council deleted the proposed paragraph 10 (radio direction-finding equipment). Since the radar transponder mentioned above already makes it possible to locate survival craft, the additional requirement contained in paragraph 10 would put an unnecessary financial burden on fishing vessels without increasing the level of safety.

In Part B relating to the Southern regional provisions, the proposed paragraph 3 on radio life-saving appliances for vessels of less than 45 metres was deleted because this provision is already contained in Annex II, which also applies to southern regions.

Part B, the proposed paragraph 5 (radio-communication - definitions) was deleted because the IMO Master Plan might not always be up-to-date, and the equipment of vessels should not be made dependent upon the fulfilment of reporting obligations by the contracting Parties to the IMO.

ANNEX IV (new)

The Council inserted a new Annex IV so as to require fishing vessels to comply with specific additional safety requirements. These requirements were added in order to achieve the primary objective of the Directive, which is to establish, throughout the Community, uniform safety standards at the highest level possible (see comments on Article 3 (4) above).

(1) OJ No C 292, 4. 10. 1996, p. 29.

(2) Doc. 7144/97 PE.RE 30.

(3) OJ No C 66, 3. 3. 1997, p. 31.