EUROPEAN COMMISSION Brussels, 21.1.2022 COM(2022) 21 final REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the application of Directive 2013/53/EU of the European Parliament and of the Council of 20 November 2013 on recreational craft and personal watercraft and repealing Directive 94/25/EC of the European Parliament and of the Council



Report from the Commission to the European Parliament and the Council on the application of Directive 2013/53/EU of the European Parliament and of the Council of 20 November 2013 on recreational craft and personal watercraft and repealing Directive 94/25/EC of the European Parliament and of the Council 1. Introduction On 20 November 2013, Directive 2013/53/EU on recreational craft and personal watercraft (‘the Directive’ or ‘the RCD’) was adopted. It aims to ensure a high level of protection for human health and safety, and the environment while guaranteeing the operation of the single market by setting harmonised requirements for recreational craft and personal watercraft (‘watercraft’) and minimum requirements for the market surveillance. EU and EEA Member States (‘Member States’) had to transpose the Directive into national law by 18 January 2016, with it becoming applicable in all of these countries from that day. Article 51 second paragraph of the RCD requires the Commission to submit to the European Parliament and the Council, by 18 January 2022 and every 5 years thereafter, a report on how the Directive has been applied. That report must refer to the responses from Member States to the questionnaire sent by the Commission. They submitted their responses and will be asked to respond to such a survey every 5 years thereafter. The Commission has been assessing the Directive since it came into operation. To support this report, the Commission assessed the responses of the Member States to the questionnaire issued on 22 March 2020 where the Commission asked the respondents about various aspects of applying and enforcing the RCD. 2. The Directive’s aim and main provisions The RCD repealed Directive 94/25/EC as amended by Directive 2003/44/EC to take account of technological developments and environmental requirements in the market, and to provide clarification on the framework within which products covered by that Directive may be marketed. The RCD established the legal framework to harmonise rules and procedures related to the design and manufacture of watercraft placed on the EU market. It reflects the changes brought by the new legislative framework including horizontal provisions on: ·accrediting conformity assessment bodies; ·the CE marking; ·the EU market surveillance framework; ·the general obligations of economic operators; ·the presumption of conformity. It also reflects the provisions on procedures dealing with products that pose a risk, which apply to products covered by the Directive. The RCD contains requirements on both administration and protection for watercraft. The administrative requirements include affixing a CE marking and a builder’s plate, and enclosing technical documentation, the owner’s manual and the EU Declaration of Conformity. The Directive also lays out requirements for type testing and quality control procedures.

The Directive regulates the safety and environmental characteristics of boats with hull lengths of between 2.5 m and 24 m and intended to be used for sport or leisure by setting the design, construction and emission requirements. Certain particular pieces of equipment are also covered, e.g. the ignition-protected equipment for inboard and stern drive engines. The Directive includes substantial safety requirements for the watercraft’s structure, stability, buoyancy and flotation. It also regulates flooding and discharge prevention, steering, visibility, handling and anchoring, as well as the installation requirements on engine, gas, electrical and fuel systems. Article 5 of the RCD allows Member States to lay down such requirements as they may deem necessary concerning: ·navigation on certain waters to protect the environment from e.g. noise pollution; ·the fabric of waterways ·the safety of waterways. This is allowed as long as these provisions do not require change to the watercraft which would already be in conformity with this Directive, and that they are justified and proportionate to the objectives to be achieved. Compared with the previous legal framework under Directive 94/25/EC as amended by Directive by 2003/44/EC, the new provisions of the RCD brought in, specifically, the following changes: ·clarification of the Directive’s scope (by excluding amphibious vehicles, specifying what types of canoes and kayaks are excluded and including the motorised surfboards); ·introduction of sector-specific definitions of ‘watercraft built for own use’, and ‘private importer’, and extension of the previous definition of ‘propulsion engine’ to also cover innovative propulsion solutions; ·stricter exhaust emissions limits; ·strengthened safety requirements, such as protection from falling overboard, improved visibility from main steering position, discharge prevention, improved buoyancy and means of escape for multi-hull boats; ·additional provisions on installing and protecting electrical systems (to reflect the increasing use of hybrid systems); and ·basing the titles of the watercraft design categories only on the essential environmental conditions for navigation, namely specific ranges of wind force and significant wave height. 3. Transposition and implementation To enable the Directive to achieve its objectives, certain aspects of Member States’ laws, regulations and administrative provisions related to products covered by its scope were harmonised. Article 54.1 required Member States to adopt and publish national laws, regulations and administrative provisions needed to comply with the Directive by 18 January 2016, so measures could be applied from that day. The Commission carried out extensive checks on how Member States transposed the Directive. Member States chose different transposition techniques: some transposed the Directive by incorporating it into existing laws (e.g. their civil codes), some adopted a new piece of legislation transposing the Directive almost verbatim, while some chose a combination of the two. These checks have revealed that Member States fully and consistently transposed and implemented the Directive. No significant problems have been detected in the transposition of the Directive’s legal provisions into national legislation. In particular, this is the case with respect to the provisions on placing products on the market and the related obligations for i) manufacturers and authorised representatives; ii) Member States’ as regards their role and responsibilities; iii) conformity assessment procedures; and iv) notified bodies.

On the contrary, some differences have been found with respect to market surveillance, particularly the extent to which Member States monitor activities. This situation mostly depends on sufficient resources being allocated to this specific area compared to others regulated by EU harmonisation legislation in the single market. As yet, no infringement cases against Member States have been opened for breaching or incorrectly transposing or applying the RCD on basis of an ex officio check of transpositions or complaints received by the Commission regarding the RCD’s application. Article 49.1 of the Directive provided for the Commission to adopt specific implementing acts in order to take into account progress made in increasing technical knowledge and to ensure that the Directive is applied in a uniform manner. In January 2017, the Commission, on the basis of Article 49.1 (c) of the Directive, adopted Implementing Regulation (EU) 2017/1. This laid down the detailed procedures for identifying watercraft set out in point 2.1 of Part A of Annex I to the RCD, including clarification of terminology (namely the country code and the unique code of the manufacturer), and set up the procedures for assigning and administrating manufacturer’s codes granted to manufacturers established outside the EU. It also specified that other features of the watercraft identification number (such as its composition and placement ) are regulated by relevant harmonised standards. Article 47 of the Directive conferred upon the Commission an empowerment to adopt the delegated acts to amend specific provisions of the Directive. To date, the Commission has not adopted any delegated acts. In April 2018, the Commission submitted to the European Parliament and the Council a report on the exercise of the power to adopt delegated acts, as required by Article 48.2 of the Directive. In accordance with the third sentence of Article 48.2 of the Directive, the delegation of power was tacitly extended until 17 January 2024. In June 2018, the Commission issued a guidance document on the RCD (hereinafter the ‘RCD Guidance’) following consultations with Member States’ authorities in charge of transposing and enforcing the Directive, as well as with the industry and consumer stakeholders. The RCD Guidance aims to help national authorities and courts apply the Directive in a uniform and consistent way, providing practical guidance on the Directive’s key concepts and provisions. The RCD Guidance is the tool that Member States find the most useful in promoting compliance with the Directive. The implementation and management of the Directive is supported by well-established sectoral working parties, involving representatives of all the relevant actors at EU level: Member States, notified bodies, standardisers and stakeholders from industry, consumer organisations and environmental associations. These are: • the Committee for the harmonisation of national legislation related to recreational craft established on basis of Article 50 (1) of the Directive (the ‘RCD Committee’); • the Commission Expert Group on Recreational Craft and Personal Watercraft (the ‘RCD Expert Group’), previously operating as a working group on the RCD; • the Administrative Cooperation Group of market surveillance authorities in the RCD field (the ‘RCD AdCo’); • the Recreational Craft Sectoral Group – coordination group of notified bodies in the RCD field (the ‘RSG’). 4. Information communicated by Member States to the Commission’s questionnaire of 22 March 2020 issued on basis of Article 51 first paragraph of the RCD As required by the RCD, under Article 51 first paragraph, the Commission on 22 March 2020 sent out a questionnaire about the application of the Directive to the EU and EEA Member States. The deadline for submitting the responses was 18 January 2021. A reminder was then issued on 2 January 2021, extending the deadline until 1 March 2021. During the meeting of the RCD Expert Group held on 1 March 2021, the remaining Member States were urged to submit the responses to the questionnaire without further delay. To date, six Member States (namely Hungary, Lithuania, Poland, Czechia, Greece and Croatia) have not yet submitted their replies to the questionnaire. The questionnaire consisted of 35 questions related to different aspects of applying and enforcing the RCD, grouped into three parts. The first part concentrated on general issues on implementation and enforcement of the RCD in national legal systems. The second part concerned certain specific provisions of the Directive, which the Commission considered as particularly complex and for which it frequently received questions about interpretation. In the third part, the Commission invited Member States to raise any other relevant issue as regards applying the RCD and enquired about the possible harmonisation of watercraft registration across the EU/EEA. Regarding the transposition and implementation of the Directive in the national legal systems, none of the respondents identified any major loopholes or inadequacies in the Directive’s contents which would prevent it being enforced effectively. All Member States, having made use of the possibility set out in Article 5 of the RCD to lay down national rules on i) navigation on certain waters in order to protect the environment, ii) the fabric of waterways, and iii) ensuring safety of waterways, confirmed that such national provisions did not require watercraft which already conformed to the Directive to be modified. In that context, Member States confirmed that the national rules on navigation are generally understood and effectively enforced. All Member States responding to the questionnaire consider the enforcement action in their countries is generally effective. They believe their authorities possess adequate sanctions and remedies, and that the compliance is high. However, five Member States underlined the scarcity of resources for market surveillance in this sector, preventing the full enforcement of the Directive. Furthermore, two Member States (Italy and Ireland) pointed out that the specific characteristics of the sector (e.g. small family businesses, watercrafts produced as single products) are an obstacle to the unified approach to enforcement and pose a challenge to ensuring that the Directive is fully understood and implemented. Three other Member States (Italy, Spain and Belgium) indicated that the most efficient enforcement tool is the strict approach to registering watercrafts. Member States were also asked if the potential harmonisation of rules for registering watercrafts across the EU/EEA would help achieve the Directive’s goals. There were different opinions on this issue. In general, most Member States (also Iceland and Norway) did not oppose this idea. Nevertheless, they indicated that a final position would have to be taken on the basis of a concrete Commission proposal after a thorough debate with the other Member States. Five Member States (Austria, Belgium, Cyprus, Germany and Malta) concluded that the harmonisation is not needed and would not help achieve the Directive’s objectives. These respondents pointed out that harmonising the rules on watercraft registration would affect some aspects of tax and property law which are not covered by the Directive because they are not related to product safety.

Most countries did not report any difficulties with the clarity and application of Articles 2.1 and 2.2 defining the scope and exclusions. Several respondents admitted that most of the questions on interpretation of the Directive are adressed in the RCD Guidance or were answered during the RCD AdCo and RSG meetings. However, seven Member States indicated some difficulties with determining whether the novel watercraft appearing on the market are within the RCD’s scope. Consequently, there seems to be a suggestion that the scope should better reflect the emergence of new technology products. Five Member States reported uncertainty over the practical application of two definitions: ‘major engine modification’ and ‘major craft conversion’. Four other Member States reported uncertainties over the practical application of the exclusion from Article 2.2 for hydrofoils, which would require further guidance or including hydrofoils within the RCD’s scope. Regarding the definition of partly completed watercraft referred to in Articles 6.2 and 15.5 of the Directive in connection with Annex III (as regards content of a Declaration of partly completed watercraft), most Member States reported no major difficulties. The feedback from the respondents indicates that this subject has been sufficiently addressed in the RCD Guidance. However, three Member States (France, Latvia and Italy) stated that in practice, the Declaration of Annex III rarely accompanies the partly completed watercraft because their builders have insufficient knowledge of this requirement. These builders usually carry out particular work on behalf of the final manufacturer and rely on the EU Declaration of Conformity issued by the manufacturer for the final product placed on the market. One Member State (Sweden) as well as Norway proposed stricter rules for builders of partly completed watercraft, where the RCD should clearly define partly completed watercraft, and the complete technical documentation at the construction stage should accompany the Declaration of Annex III. Regarding the provisions on engines adapted for installation in a watercraft (Article 6.4 second subparagraph, of the Directive), most Member States with experience in that area signal no problems with interpreting and enforcing the legal provisions. Several Member States explained that their market surveillance authorities cannot verify if the installed or adapted engines comply with the limits for exhaust emissions. They lack ressources and suitable portable instruments to complete such checks. Instead, they rely on documentary checks and assessments carried out by notified bodies. Sweden suggested that only engine manufacturers should be allowed to adapt engines. Two other Member States reported some interpretation issues with the relations between the original manufacturer and the person adapting engines. A majority of the Member States consider the obligations of private importers referred to in Article 12 of the Directive as clear and appropriate. Three Member States would welcome a definition of the term ‘non-commercial activity’ in relation to private importers. Eleven Member States declared that privately imported watercraft rarely comes with technical documentation. It appears to be burdensome and costly for a private importer to draw up the technical documentation as required by Annex IX of the Directive. They suggest that a more realistic requirement would be the presentation of available technical files rather than full documentation. There are also divergent interpretations over what comprises ‘appropriate expertise’ under Article 12.2 of the RCD. This provision sets out that a private importer shall have the technical documentation drawn up using ‘appropriate expertise’ should the technical documentation not be available from the manuacturer. Although the Member States generally acknowledge that the notified bodies have the necessary expertise to prepare the relevant technical documentation, five Member States only accept naval architects and qualified marine surveyors for this work. This is because there may be a conflict of interest when notified bodies prepare relevant technical documentation and carry out conformity assessments at the same time. The choice and descriptions of the conformity assessment modules are clear for most Member States. More specifically, Italy reported that modules A and A1 are the most used, while the modules D, E, H are rarely applied for watercraft. Norway added that some small manufacturers misinterpret the A1 module, as they believe it assesses all essential requirements instead of the essential requirements specifically related to watercraft’s stability, buoyancy and noise. However, three respondents noted that small businesses have insufficient knowledge and understanding of differences between the modules. A majority of the Member States did not report any problems with the interpretation and enforcement of post-construction assessment (PCA) in scenarios described in Articles 19.2, 19.3 and 19.4. Several respondents refer to misunderstandings in the case of PCA used by private importers (Article 19.2) and by people modifying or converting the watercraft (Article 19.3). Some Member States report problems in identifying ‘major craft conversion’ and ‘major engine modification’, and have asked for a more detailed description in the Directive. There are divergent views on these subjects. Norway argues that almost all changes may constitute major craft conversion where the essential requirements are not met. On the other side, Italy proposes that major craft conversion involves changes to the main technical characteristics of the product (dimensions, capacity, power, etc.). France and Spain issued internal guidance on that subject. Two Member States claim that they lack the procedures as well as the expertise to verify whether the person modifying a watercraft carries out major craft conversion. Others report that some end users tend to declare that the modification of watercrafts are not major in order to avoid expenses from the PCA. Most Member States do not signal any problem with identifying ‘watercraft built for own use’. Some Member States argue that the mandatory registration of boats is crucial in order to enforce this rule. Some other countries have prepared the ‘checklists’ on ascertaining whether ‘building for own use’ takes place. Four Member States explicitly state that the PCA would be an appropriate solution for regularising second hand watercrafts from the EU and third countries that lack the CE marking, the EU Declaration of Conformity or any technical file. The second hand watercrafts imported from the third countries are used by private individuals who often lack knowledge of their statutory obligations, standards and administrative requirements. Member States authorities rely on the notified bodies to inform these individuals about their obligations. Seven Member States claimed that the notified bodies often lack detailed technical documentation as well as historical navigation data to determine the design category of the watercraft, while carrying out the PCA. Italy and Spain specified that this requires more tests and calculations to be conducted by laboratories or consultants. Notified bodies assess drawings, make calculations and carry out non-destructive tests (x-ray, , and ultrasonic inspection) in order to demonstrate the work carried out. It is assumed that the stability test is always necessary, and other tests (manoeuvring, sound test) are carried out depending on each case. For the transparency of the assessment process, Italy requires notified bodies to demonstrate their assessment by means of video and photographic evidence. With respect to the reporting obligations of the notified bodies described in Article 40.1 of the RCD, nine Member States, which had notified the conformity assessment bodies for the RCD to the Commission, recorded very good cooperation and communication between the notified bodies and the notifying authorities. These respondents stated that the notified bodies submit regular (usually yearly) assessment reports to the notifying authorities and are required to participate in the RSG meetings. On applying the general essential requirements set out in point 2.1 of Annex I.A of the Directive, several Member States did not report any specific problems with interpreting and enforcing the relevant provisions of RCD. However, other respondents experienced some difficulties in interpreting the term ‘model year’ as a part of watercraft identification. Two Member States reported some difficulties with the essential requirement from point 2.3 of Annex I.A of RCD (protection from falling overboard and means of reboarding) and related harmonised standards. Several respondents highlighted the practical problems with the undetermined linguistic version of owner’s manual from point 2.5 of Annex I.A of the Directive. Two other Member States reported ongoing discussions within the market surveillance authorities about interpreting the essential requirement 2.4 of Annex I.A of the RCD (visibility from the main steering position). On questions related to the essential requirements for exhaust emissions from propulsion engines (Annex I.B of the Directive), none of the Member States reported any problems with clarity or enforcement of the exhaust emission limits set out in points 2.1 and 2.2 of Annex I.B of the Directive. On enforcing applicable test cycles and applicable test fuels set out in points 2.3 and 2.5 of Annex I.B of the Directive, Member States also did not report any particular problems. However, in relation to determining the test cycles applicable to hybrid engine installations (combination of internal combustion engine, electric generator and electric motor), Sweden made a specific point that no test cycle as yet covers specifically hybrid applications; and, in general, engines used in hybrid propulsion applications are certified with existing test cycles.. With respect to the clarity and enforcement of durability criteria set out in point 3 of Annex I.B of the Directive, respondents did not report any issues. Regarding the essential requirements for noise emissions (Annex I.C of the Directive), Member States that responded to this question did not highlight any difficulties with the clarity or enforcement of noise emissions limits set out in point 1.1 of Annex I.C of the Directive. They also did not report problems with the clarity or enforcement of the alternative to the sound measurement test, which is set out in points 1.2 and 1.3 of Annex I.C of the Directive. Some Member States claimed they did not have the direct experience, the need or the opportunity to conduct such measurements or that they relied on the contents of the Declaration of Conformity and the assessments carried out by the notified bodies or industry. 5. Conclusions and way forward