EN Official Journal of the European Union C 43/26

Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parliament and of the Council on enhancing port security

(2005/C 43/08)

THE COMMITTEE OF THE REGIONS

Having regard to the proposal for a directive of the European Parliament and of the Council on enhancing port security (COM(2004) 76 final – 2004/0031 (COD);

Having regard to the decision of the Council of 22 February 2004 to consult it on this subject, under the first paragraph of Article 265 and the Article 80 of the Treaty establishing the European Community;

Having regard to the decision of its president of 27 January 2004 to instruct its Commission for Territorial Cohesion Policy to draw up an opinion on this subject;

Having regard to its draft opinion (CdR 163/2004 rev. 1) adopted on 7 July 2004 by the Commission for Territorial Cohesion Policy (rapporteur: Mr Anders Knape, Municipal Commissioner, SE/EPP);

Whereas:

(1) Unlawful acts and terrorism are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union.

(2) The security of people, infrastructure and equipment, including means of transport, in ports as well as in relevant adjacent areas should be protected against unlawful acts and their devastating effects. Such protection would benefit transport users, the economy and society as a whole.

(3) On [Day/Month/2003] the European Parliament and the Council of the European Union adopted Regulation (EC) No. 725/2004 on maritime security. The enhanced maritime security measures imposed by this Regulation constitute only part of the measures necessary to achieve an adequate level of security throughout maritime linked transport chains. The Regulation is limited in scope to security measures onboard vessels and the immediate ship/port interface.

(4) Without prejudice to the rules of the Member States in the field of national security and measures which might be taken on the basis of Title VI of the Treaty on European Union, the security objective described in recital 2 should be achieved by adopting appropriate measures in the field of port policy establishing joint standards for establishing a sufficient port security level throughout Community ports.

(5) Member States should rely upon detailed security assessments to identify the exact boundaries of the security-relevant port area, and decide the different measures required to ensure appropriate port security, taking into account the opinion of the local and regional bodies involved. Such measures should be different according to the security level in place and reflect differences in the risk profile of different subareas in the port.

(6) Member States or, if appropriate, local or regional bodies, should establish port security plans which thoroughly transpose the findings of the port security assessment. The efficient working of security measures also requires clear task divisions between all parties involved as well as regular exercise of measures. The retention of task divisions and exercise procedures in the format of the port security plan is considered to contribute strongly to the effectiveness of both preventive and remedial port security measures.

(7) Member States should ensure that a national focal point acts as a contact point between the Commission and Member States.

(8) This directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(9) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission. A procedure should be defined for the adaptation of the directive to take account of developments in international instruments and, in the light of experience, to adapt or complement the detailed provisions of the Annexes to the directive, without widening its scope.

(10) Since the objectives of the proposed action, namely the balanced introduction and application of appropriate measures in the field of maritime transport and port policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of the European scale of this directive, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that Article, this directive is limited to the basic joint standards required to achieve the objectives of port security and does not go beyond what is necessary for that purpose,

adopted the following opinion at its 56th plenary session on 29 and 30 September 2004 (meeting of 30 September).

1. Views of the Committee of the Regions

THE COMMITTEE OF THE REGIONS

shares the view that unlawful acts and terrorism are among the greatest threats to the ideals of democracy and freedom and to the values of peace, which are the very essence of the European Union;

notes that terrorism and similar criminal acts are transnational in nature and, as such, must essentially be addressed using transnational measures. It is not generally possible to quantify and assess terror threats against ports or other infrastructures only from a local and regional perspective;

considers that protection against terrorist attacks and other criminal activities is chiefly a national competence and that the Member States should therefore bear both the financial and overall responsibility for the security measures decided at national or Community level. Any measures adopted to enhance port security against criminal acts must be weighed against the likely threat to individual ports. However, in accordance with the subsidiarity principle, port protection plans should be drawn up at local and regional level;

notes that the Commission communication on Enhancing maritime transport security (COM(2003) 229 final) contains a proposal for the protection of ships and the ship/port interface, and that the proposal is currently going through the legislative procedure;

believes that port security will also be enhanced by the security measures for ships and ports provided for in the amended SOLAS Convention, the ISPS Code and Commission Regulation (EC) No. 725/2004. However, the Regulation only applies to that part of the port that represents the ship/port interface, i.e. the terminal;

recognises that for some ports further security measures may be required, both for ports and for coordination between ports and their hinterland, once Regulation (EC) No. 725/2004 has been implemented and evaluated. The need for protection extends to people working in or passing through ports, infrastructure and equipment, including means of transport. The Committee of the Regions notes that the IMO and ILO are currently drawing up a Code of Practice for port security;

considers that the enhanced port and shipping security measures provided for in regulations and directives must be effective without requiring any further financial or staffing resources than warranted from a security and protection standpoint, and paying particular attention to the size, geographical location and activity of ports;

considers that any regulation of activity, measures and monitoring must be commensurate with the perceived threat and the need for an efficient, competitive transport network, resulting in increased shipping activity and relieving other modes of transport;

considers that authorisation of the assessment and plans under the directive and implementation thereof should be guaranteed by means of inspections monitored by the individual Member State;

considers that the definition of a port as a ship/port interface should be extended to cover the terminal, and areas such as anchorages, waiting berths and approaches from seaward, and any goods storage areas that should be included in the port area;

considers that inside ports should be considered as an exemption

endorses the view that, in view of the diverse activities of Community ports, a directive provides the best way to achieve the necessary flexibility and common port security level;

is aware that a number of port security systems are already in operation in the Member States and that it is possible to maintain existing security measures and structures as long as they comply with the rules of the directive;

1.1 Content of the port security Directive

1.1.1 considers that maritime and ship/port interface security in some ports could need improving through enhanced port security, and that this would ensure that the security measures are improved upon thanks to security measures being applied throughout the port area. In some ports the counter-terrorism measures that are in place could need supplementing with security measures designed to protect businesses located in the vicinity of the ports and which could be a potential terrorist target, for instance fuel depots and chemical or fertilizer production sites;

1.1.2 considers that the individual Member States, in consultation with local and regional bodies and stakeholder port representatives, must determine the need for and scope of any measures;

1.1.3 considers that the choice between various security levels based on normal, heightened or imminent threats is not a matter for the port authorities but is horizontal in nature;

1.2 General principles

1.2.1 emphasises the importance of the subsidiarity principle, particularly in view of the recently adopted constitutional Treaty and the new subsidiarity protocol;

1.2.2 considers it positive that the proposal builds on the same structure and security body as Regulation (EC) No 725/2004, whereby a security system can, where necessary, be set up to include the whole maritime transport chain, from ships, the ship/port interface and ports generally, to the port area/hinterland interface;

1.2.3 welcomes the fact that the Member States are to determine the boundaries within which the directive shall apply to their ports. This should be decided in consultation with the local and regional bodies concerned. A basic risk/need assessment must be carried out in order to establish which ports require enhanced security measures;

1.2.4 also welcomes the fact that the Member States are to ensure that proper port security assessments and port security plans are developed, establish and communicate security levels and any changes to these, and appoint a port security authority. In accordance with the subsidiarity principle, it must be left to the individual Member States, in consultation with stakeholder authorities and local and regional bodies, to determine the need for assessments, plans and authorities, taking into account an individual Member State's assessment of the threat and the local and regional situation;

1.2.5 welcomes the proposal to appoint a security officer for each individual port to ensure proper coordination for establishing, updating and follow-up of the port security assessments and plans including security plans for the adjacent businesses that the individual Member States, in consultation with the security officer, deem necessary, and for the appointment of focal points in the Member States to provide the necessary communication both to other Member States and to the Commission;

1.2.6 does not see the need for a general requirement of a security committee for every port, as these should be set up on the basis of actual need;

1.2.7 considers that the proposed minimum requirements for security assessments and plans and for inspection procedures to monitor the implementation of port security measures should be in the form of general advice and recommendations rather than regulations;

1.3 Legal considerations

1.3.1 considers that the penalties for breaching the national provisions adopted pursuant to the directive must be established by the individual Member States. Since most Member States already have adequate legislation, there is, generally speaking, no need for any further criminal law provisions;

1.4 Impact assessment

1.4.1 calls on the Commission to carefully assess the cost implications of the proposal on enhancing port security. The increased costs incurred as a consequence of the proposed directive in terms of establishing plans, various types of measures, monitoring and control procedures etc., should be borne largely by the Member States, in order to avoid maritime passenger and goods transport costs becoming so high as to encourage a switch to other less environmentally-friendly or less safe modes of transport.

2. The Committee of the Regions' Recommendations

Amendment

Recommendation 1

Recital (1) a (new)

Text of the Commission proposal CoR amendment (1a) Terrorism and similar criminal acts are transnational in nature and, as such, must essentially be addressed using transnational measures. It is not usually possible to quantify and assess terror threats against ports or other infrastructures from a local and regional perspective. Consequently, protection against terrorist attacks and other criminal activities is chiefly a national competence and the Member States should therefore bear both the financial and overall responsibility for the security measures decided at national or Community level.

Reason

The preamble should state explicitly that terrorism and similar criminal acts are transnational in nature and, as such, must essentially be addressed using transnational measures for which the Member States have overall responsibility. It is important that the level responsible for taking a regulatory decision should also be responsible for financing it, so as to reduce the risk of over-regulation and any ensuing negative socio-economic repercussions. Consequently, it would seem natural that the state should also bear financial responsibility for measures to prevent and deter such action.

Recommendation 2

Recital (4)

Text of the Commission proposal CoR amendment In order to achieve the fullest protection possible for maritime and port industries, port security measures should be introduced. They should extend beyond the ship/port interface and cover the entire port thus both protecting the port areas and ensuring that security measures taken in application of Regulation (EC) No. 725/2004 benefit from enhanced security in adjacent areas. These measures should apply to all those ports in which one or more port facilities are situated which are covered by Regulation (EC) No. 725/2004. In order to achieve the fullest protection possible for maritime and port industries, port security measures should be introduced. They should extend beyond the ship/port interface and cover the entire port thus both protecting the port areas and ensuring that security measures taken in application of Regulation (EC) No. 725/2004 benefit from enhanced security in adjacent areas. These measures should apply to all those ports in which one or more port facilities are situated which are covered by Regulation (EC) No. 725/2004. In order to achieve the fullest protection possible for maritime and port industries, port security measures could become necessary. Such measures should cover the ship/port interface and the port areas that require enhanced security. The Member States should determine which port facilities covered by Regulation (EC) No. 725/2004 require further measures.

Reason

Measures in addition to Regulation (EC) No. 725/2004 might need to be introduced in a second stage, when the impact of the implementation of the Regulation can be assessed. In accordance with the subsidiarity principle, individual Member States should determine which ports will be affected. Additional security measures will not necessarily be needed by all ports covered by the Regulation.

Recommendation 3

Recital (5) a (new)

Text of the Commission proposal CoR amendment The Committee of the Regions considers that the The enhanced port and shipping security measures provided for in regulations and directives must be effective without requiring any further financial or staffing resources than warranted from a security and protection standpoint, and paying particular attention to the size, geographical location and activity of ports.

Reason

In order to avoid inhibiting maritime goods and passenger flows, it is important that the security measures decided should be relevant and cost-effective. Otherwise, there is a risk that the measures could have negative socio-economic repercussions. It is important that the directive should state clearly that the security measures must be cost-effective from a socio-economic perspective.

Recommendation 4

Recital (8)

Text of the Commission proposal CoR amendment Member States should ensure that responsibilities in port security are clearly recognised by all parties involved. The Member States should monitor compliance with security rules and establish a clear responsible authority for all their ports, approve all security assessments and plans for its ports, set and communicate security levels, ensure that measures are well communicated, implemented and coordinated, and provide for enhancing the effectiveness of security measures and alertness by means of a platform for advice within the port community Member States should ensure that responsibilities in port security are clearly recognised by all parties involved, including appropriate local and regional authorities. The Member States should monitor compliance with security rules and establish a clear responsible authority for all their ports, approve all security assessments and plans for its ports, set and communicate security levels, ensure that measures are well communicated, implemented and coordinated, and provide for enhancing the effectiveness of security measures and alertness by means of a platform for advice within the port community

Reason

Local and regional authorities may have responsibility for some aspects of port security such as port health, examination of ships' cargo by environment health officers and other civil contingencies responsibilities.

Recommendation 5

Recital (9)

Text of the Commission proposal CoR amendment Member States should approve assessments and plans and monitor the implementation in their ports. The effectiveness of the implementation monitoring should be the subject of inspections supervised by the Commission. Member States should approve assessments and plans and monitor the implementation in their ports. The effectiveness of the implementation monitoring should be the subject of inspections supervised by the Commissionrelevant Member State and reported to the Commission.

Reason

The Commission's monitoring inspection proposals are more comprehensive and regulated than is warranted by the current situation. Measures, monitoring and follow-up arrangements should be commensurate with security and protection needs, bearing in mind, in particular, the size, geographical location and activity of the ports in question. It should be possible to carry out monitoring and inspection at Member State level.

Recommendation 6

Article 2(2)

Text of the Commission proposal CoR amendment The measures laid down in this directive shall apply to any port located in the territory of a Member State in which one or more port facilities are situated which are covered by Regulation (EC) No. 725/2004. The measures laid down in this directive shall apply to any port such ports located in the territory of a Member State in which one or more port facilities are situated which are covered by Regulation (EC) No. 725/2004 and which the Member State considers requires enhanced port security.

Reason

The amendment is a consequence of the amendment to Recital 4. The Commission proposal covers any port located in the territory of a Member State in which one or more port facilities are situated which are covered by Regulation (EC) No. 725/2004. The Committee of the Regions is not convinced that it is necessary to adopt additional measures for all ports.

Recommendation 7

Article 3(1)

Text of the Commission proposal CoR amendment ‘Port’ or ‘seaport’ means an area of land and water made up of such works and equipment as to permit principally, the reception of ships, their loading and unloading, the storage of goods, the receipt and delivery of these goods, and the embarkation and disembarkation of passengers. ‘Port’ or ‘seaport’ means an area of land and water defined and demarcated by the Member State and made up of such works and equipment as to permit, principally, commercial maritime transport, and directly linked to a port facility. the reception of ships, their loading and unloading, the storage of goods, the receipt and delivery of these goods, and the embarkation and disembarkation of passengers.

Reason

What qualifies as a ‘port area’ must be decided on a case-by-case basis and the definition of a ‘port’ must not be over-restrictive. The above amendment provides the Member States with the flexibility they need to define and demarcate these areas, without allowing port areas to extend beyond reasonable proportions.

Recommendation 8

Article 5(1)

Text of the Commission proposal CoR amendment Member States shall designate a port security authority for each port covered by this directive. A port security authority may be appointed for more than one port. Member States shall ensure that designate a port security authority is designated for each port covered by this directive on the basis of uniform criteria. A port security authority may be appointed for more than one port.

Reason

In accordance with the subsidiarity principle, it should be possible for the regional and local level to appoint the port security authority. However, the Member States should continue to have financial and overall responsibility for port security, as argued in Recommendation 1.

Recommendation 9

Article 5(3)

Text of the Commission proposal CoR amendment Member States may appoint a 'competent authority for maritime security' under Regulation (EC) No. 725/2004 as port security authority. Member States may appoint a A ‘competent authority for maritime security’may be appointed as port security authority under Regulation (EC) No. 725/2004as port security authority

Reason

In accordance with the subsidiarity principle, it should be possible for the regional and local level to appoint the port security authority. The amendment is a consequence of the amendment to Article 5(1).

Recommendation 10

Article 9(1)

Text of the Commission proposal CoR amendment A port security officer shall be designated for each port. Each port shall have a different port security officer. Small adjacent ports may have a shared security officer. A port security officer shall be designated for each port. Each port shall have a different port security officer. Small adjacent Adjacent ports may have a shared security officer. Exceptionally, the same individual may be designated port security officer for more than one port even where the ports are not adjacent when, due to their low volume of activity, it would be disproportionate for them to have their own security officer and provided that an adequate level of security is guaranteed.

Reason

Generally speaking, adjacent ports should be able to have a shared security officer, regardless of size.

Recommendation 11

Article 10(1)

Text of the Commission proposal CoR amendment Member States shall ensure that port security committees are established to provide practical advice in the ports covered by this directive, unless the specificity of a port renders such committees superfluous. Member States shall ensure that may, where necessary, establish port security committees are established to provide practical advice in the ports covered by this directive, unless the specificity of a port renders such committees superfluous.

Reason

It is unlikely that all ports covered by the directive will need a security committee. It is probably only the larger ports that need one. Consequently, the general rule should be that a security committee is not required and that one may be established only where necessary.

Recommendation 12

Article 14(2)

Text of the Commission proposal CoR amendment Six months after the date referred to in Article 19, the Commission, in co-operation with the focal points referred to in Article 13, shall start a series of inspections, including inspections of a suitable sample of ports, to monitor the application by Member States of this directive. These inspections shall take account of the data supplied by the focal points, including monitoring reports. The procedures for conducting such inspections shall be adopted in accordance with the procedure referred to in Article 16 (2). Six months after the date referred to in Article 19, the Member State Commission, in co-operation with the focal points referred to in Article 13, shall start a series of inspections, including inspections of a suitable sample of ports, to monitor the application by Member States of this directive. These inspections shall take account of the data supplied by the focal points, including monitoring reports. The procedures for conducting such inspections shall be adopted in accordance with the procedure referred to in Article 16(2).

Reason

The amendment is a consequence of the amendment to Recital 9.

Recommendation 13

Article 14(3)

Text of the Commission proposal CoR amendment The officials mandated by the Commission to conduct such inspections in accordance with paragraph 2 shall exercise their powers upon production of an authorisation in writing issued by the Commission and specifying the subject-matter, the purpose of the inspection and the date on which it is to begin. The Commission shall in good time before inspections inform the Member States concerned of the inspections. The Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections. The officials mandated by the Commission to conduct such inspections in accordance with paragraph 2 shall exercise their powers upon production of an authorisation in writing issued by the Commission and specifying the subject-matter, the purpose of the inspection and the date on which it is to begin. The Commission shall in good time before inspections inform the Member States concerned of the inspections. The port security authority Member State concerned shall submit to such inspections and shall ensure that bodies or persons concerned also submit to those inspections.

Reason

The amendment is a consequence of amendments to Article 14(2) and Recital 9.

Recommendation 14

Article 14(4)

Text of the Commission proposal CoR amendment The Commission shall communicate the inspection reports to the Member State concerned, which within three months of receipt of the report shall indicate sufficient details of the measures taken to remedy any shortcomings. The report and the answers shall be communicated to the Committee referred to in Article 16. The Commission Member State shall communicate the inspection reports to the Commission Member State concerned, which can require the Member State to indicate, within three months of receipt submission of the reports, shall indicate sufficient details of the measures taken to remedy any shortcomings. The report and the answers shall be communicated to the Committee referred to in Article 16.

Reason

The amendment is a consequence of amendments to Articles 14(2), 14(3) and Recital 9.

Recommendation 15

Article 17(2)

Text of the Commission proposal CoR amendment Any personnel carrying out security inspections, or handling confidential information related to this directive, must have an appropriate level of security vetting by the Member State of which the personnel concerned has the nationality. Any personnel carrying out security inspections, or handling confidential information related to this directive, must have an appropriate level of security vetting by the Member State of which the personnel concerned has the nationality.

Reason

The amendment is a consequence of amendments to Articles 14(2), 14(3), 14(4) and Recital 9.

Recommendation 16

Text of the Commission proposal CoR amendment The Committee proposes that security representatives from individual ports chosen by Member States should be invited to exchange experience at least once a year.

Reason

The proposals and arguments put forward by the CoR in its reasons for amendments to the directive make it clear that the coordination of security measures extending beyond the port/ship interface is a matter which should as far as possible be dealt with by individual Member States.