Opinion of the Economic and Social Committee on:

- the "Proposal for a Regulation of the European Parliament and of the Council concerning the Committee on Safe Seas and amending the Regulations on maritime safety and the prevention of pollution from ships", and

- the "Proposal for a Directive of the European Parliament and of the Council amending the Directives on maritime safety and the prevention of pollution from ships"

(2001/C 139/06)

On 6 October 2000 the Council decided to consult the Economic and Social Committee, under Article 80(2) of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 30 January 2001. The rapporteur was Dr Bredima-Savopoulou and the co-rapporteur was Mr Retureau.

At its 379th plenary session of 28 February and 1 March 2001 (meeting of 28 February 2001) the Economic and Social Committee adopted the following opinion unanimously.

1. Introduction

1.1. The proposed measures come under the common policy on safe seas. Their objective is to set up a Committee on Safe Seas and to have it replace the committees referred to in the Council regulations and directives in force in the field of maritime safety. In addition, the proposals aim to facilitate the subsequent updating of the regulations and directives on maritime safety in the light of developments in international law. Due to technological developments in the past few years, there has been a proliferation of maritime safety standards and the international rules have constantly been updated. Updating of the EU legislation is to a large extent driven by the adoption of new rules at the international level.

1.2. The measure applies in the maritime safety area the provisions of Article 202 of the Treaty by which the Council can confer on the Commission the power to take measures implementing the rules it adopts. It is also designed to facilitate the implementation of Community policy in an area where responsibility is shared by the Commission and Member States.

1.2.1. The planned measure corresponds to the Commission's commitment to update all Community legislation in the light of Council Decision 1999/468/EC on committee procedures. It is intended to make it easier for Member States to implement amendments to international conventions and reduce the need for the Commission to amend at frequent intervals the basic acts in the field of maritime safety.

1.3. The value of a single committee dealing with maritime safety issues was already underscored in the Commission Communication on a common policy on safe seas (24 February 1993), which explicitly mentions setting up a Committee on Safe Seas in its action programme.

According to the Communication, the establishment of such a committee would ensure coherent implementation of the Community measures planned in the field of maritime safety, as the comitology procedures provided for by the directives and regulations in this field have a common denominator: they primarily concern the incorporation into Community law of amendments and updates to the international conventions and international instruments that are an integral part of Community law.

1.4. Under a resolution adopted on 8 June 1993, the Council approved in principle the establishment of a Committee on Safe Seas, in accordance with Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, with the purpose of:

a) centralising the duties of the committees, created by the implementation of the aforementioned decision in existing or future Community legislation, concerning maritime safety matters;

b) assisting and advising the Commission in all maritime safety matters and matters of prevention or limitation of environmental pollution due to maritime activities.

2. The Commission's Proposal

2.1. Two separate proposals(1) have been made:

- A proposal for a European Parliament and Council Regulation, which sets up the Committee on Safe Seas and lays down procedures governing its operation and its scope. The proposal also provides for amending existing regulations in the field of maritime safety, both to take account of the creation of the Committee on Safe Seas and to facilitate their subsequent updating.

- A proposal for a European Parliament and Council Directive, the aim of which is to amend the existing directives in the field of maritime safety in order to take account of the establishment of the Committee on Safe Seas and to facilitate their subsequent updating.

2.2. In choosing the legal form for the act setting up the Committee on Safe Seas and applying the regulatory procedure to the Community legislation, the Commission has followed the principle of congruent forms. As the committees were established by two different types of legal act, namely Council regulations or directives, this principle implies that the provisions of regulations in force are amended by a regulation, and those of directives by means of a directive under the co-decision procedure described in Article 251 of the Treaty.

Moreover, in the proposal amending the directives in force, the Commission proposes correcting some anomalies of an editorial nature to be found in Directive 94/57/EC (classification societies) and 98/18/EC (safety of passenger ships).

2.3. The proposal is designed to replace the five existing committees by the Committee on Safe Seas, a regulatory committee composed of representatives of the Member States and chaired by the representative of the Commission. It would also replace the regulatory procedure applicable to the existing regulations and directives, based on Decision 87/373/EEC by the new regulatory procedure adopted recently by Council Decision 1999/468/EC (28 June 1999) laying down the procedures for the exercise of implementing powers conferred on the Commission to Community legislation in the field of maritime safety. Decision 1999/468/EC simplifies the above procedures and ensures greater involvement and more comprehensive information to the European Parliament and the general public regarding the use of these powers and in particular the work of the committees. According to the Commission, the establishment of a Committee on Safe Seas would have positive practical effects such as a reduction in the number of meetings and lower costs in organising and running them.

3. General Comments

3.1. It is a long standing policy of the ESC corroborated in a string of past opinions(2) that given the international character of shipping, international standards are the most effective means of improving maritime safety and environmental protection. Updating of regulations and directives to keep in step with developments in international standards and technical progress is an important task for the Commission and Member States.

3.2. In its opinion(3) on the Communication on Safe Seas regarding the proposal to create a Committee on Safe Seas, the ESC had misgivings about the need to set up a new administrative layer. In its view it "would appear less bureaucratic and more appropriate given the prime role of Member States, if the existing Council Working Group machinery were used, adjusted as necessary". It was recognised that if the consultation/coordination procedure was to be enhanced a mechanism had to be found whereby such discussions could take place between Member States. However, the Communication on Safe Seas did not spell out in any detail the composition and role of the Committee on Safe Seas and this fact was pinpointed in the ESC opinion.

3.3. The situation has evolved over the past seven years since adoption of the above Communication. Some of the Member States' competences in the field of maritime safety have been transferred to the Community. The EU maritime safety legislation nowadays covers the key aspects of the IMO(4) conventions in force, its main objective being to ensure efficient and informed application of the international safety rules in the EU.

3.4. The ESC appreciates the reasoning of the Commission that the cost of failure to take action would be a confused legal situation and cumbersome administrative procedures owing to the co-existence of several committees operating in accordance with the rules laid down by Decision 87/373/EEC and new legislative measures involving a committee governed by Decision 1999/468/EC.

3.5. The ESC endorses the purpose of the proposed creation of a Committee on Safe Seas replacing the existing committees as well as its proposed tasks regarding the existing EU maritime safety legislation. It, however, wonders how the current proposal relates with the Communication on the Safety of Seaborne Oil Trade (15 March 2000) and the Communication on a second set of Community Measures on Maritime Safety following the sinking of the Oil Tanker "Erika"(5) whereby the creation of a European Maritime Safety Agency is proposed. Such a structure would support the Commission's and the Member States actions in applying and monitoring EU law and help in preparing its technical adjustments. More particularly, it would be entrusted with: evaluations or audit missions (e.g. of classification societies as per Directive 94/57/EC), inspections of conditions under which Member States carry out controls of ships, operation of Commission databases (e.g. database on inspection of passenger ships under Directive 1999/35/EC). However, application of the same Directives would also be the task of the proposed Committee on Safe Seas.

3.6. The ESC shares the Commission's view(6) that "these tasks should be performed exclusively by personnel highly qualified in the area of maritime safety who have both comprehensive technical knowledge and are fully familiar with European and international maritime safety and pollution prevention regulations". However, the ESC believes that there must be no overlapping between the role and competences of the proposed unified regulatory Committee on Safe Seas and the envisaged administrative European Maritime Safety Agency. Although an Agency institutionally cannot have any legislative or regulatory powers, there is a need to clearly define the role and competences of the European Maritime Safety Agency in order to avoid any risk of confusion or duplication of work with the Committee on Safe Seas.

3.6.1. The ESC acknowledges that the proposal addresses a thorny legal issue, namely, the relationship between the EU legal system and international law that arises when Member States implement regulations or directives in the field of maritime safety. Amendments to the current international conventions, resolutions or codes are adopted by the IMO frequently and rapidly enter into force worldwide.

3.6.2. According to the Commission, given the lengthy nature of the internal procedures, the updating of EU legislation generally takes effect after the entry into force of the amendments at international level. This slippage is even worse in the case of the time allowed for transposition of directives. There is, thus, a systematic time lag between entry into force at the international level and the date on which a provision becomes applicable in the EU. This creates confusion and legal uncertainty for national authorities and private individuals regarding the rules that should be applied. It also has adverse repercussions on maritime safety and environmental protection since the international amendments represent an improvement in safety standards yet are applied with delay by the Member States. The EU suffers an image loss as a region applying outdated or less rigorous standards.

The Commission, therefore, proposes the establishment of a procedure for advance conformity checking to ensure that an international amendment in direct conflict with the common policy on safe seas, or any lower safety standards, cannot be introduced at Community level. This procedure would involve calling an emergency meeting of the Committee on Safe Seas at the initiative of the Commission or a Member State to take the appropriate action. The emergency meeting will examine the disputed amendments and will issue an opinion on appropriate Community measures. As a precaution, the Commission can also ask Member States to suspend or delay any plans to accept or apply the international amendment concerned.

3.6.3. The ESC shares the Commission's view that the current situation is unquestionably unsatisfactory since the inherent delays in the internal procedures leading to the adoption of a legislative act by the committee procedure are the main obstacle for speeding up the updating of Community legislation. The ESC, however, understands that the delay caused by the current committee procedure is insignificant compared to the subsequent time needed for the detailed examination of the international amendments to the final entry into force of the Community act and thereafter its transposition in national legislation. In any event, in most cases, the time required for the completion of the Community procedure would exceed the time normally required under the IMO tacit procedure for entry into force of amendments to legally binding instruments, i.e. 18 months from the date of adoption. Therefore, under the envisaged procedure which starts off after the adoption of the amendment even with the proposed new structure, there will be an unavoidable time lag between entry into force at the international level and the date on which a provision becomes applicable in the Community. Consequently, there is a need to establish a mechanism and procedures which would ensure legal harmony and order.

3.6.4. The ESC notes the originality of the proposed approach compared with the normal practice. It believes that power could only be delegated to the Commission strictly within the framework of Article 202 of the Treaty, third indent (former Article 145). According to the Commission the power conferred to it is "strictly limited to maritime safety where international standards are essentially technical in nature". Nevertheless, the ESC observes that the wording of the defined objectives seems to widen the limited scope of the proposal and the limited powers to be conferred to the Committee.

3.6.5. The ESC observes that a distinction should be made regarding the negotiating phase of an amendment to an international Convention in IMO and the phase following its adoption. Regarding the negotiating phase, according to the jurisprudence of the European Court of Justice(7) a distinction should be made between matters for which the EU has exclusive competence and cases of mixed competence of the EU and Member States. The EU has exclusive competence on matters that are covered by acts of secondary EU law. In such cases, Member States are not entitled to take up international commitments and the EU has to decide how these competences will be exercised. Where no acts of secondary EU law have been adopted and in cases of mixed competence of the EU and Member States, Member States can continue to take up international commitments while being bound by Article 5 of the Treaty which imposes the duty of abstaining from any measure which could jeopardise the attainment of the objectives of the Treaty(8). In essence, therefore, the EU and Member States have a duty to cooperate(9) with a view to reaching a common position vis-à-vis a proposed amendment in IMO. Current practice indicates that the EU and Member States do cooperate in all instances in the negotiating phase. Moreover, the ESC does not share the fear of the Commission that the incorporation of international legislation on maritime safety in the national legislation of EU Member States may result in EU law differing from Member State law and to a fall in EU safety standards. The Commission acknowledges(10) that the proposed conformity checking procedure will be very rarely initiated and that the likelihood of a lowering of existing safety levels (resulting from a change of international safety standards) is remote in practice. Indeed, whenever international maritime safety rules have been amended or added to in the past, the aim has been to improve safety standards in international shipping.

3.6.6. Regarding the phase following the adoption of an amendment by IMO, under the tacit procedure it is appropriate that following prior consultation any objections are lodged at the time of adoption. In this regard it is noted that on very few occasions have IMO members expressed reservations at the time of adoption, or subsequent objections after the adoption. Therefore, it would be inconsistent, untimely and embarrassing for both IMO and the EU, if EU Member States were subsequently forced to lodge formal objections with very limited practical effect, if any.

3.6.7. All EU Member States are parties to the relevant IMO conventions and are bound by their terms. All EU Member States, and the EU itself, are parties to the United Nations Convention on the Law of the Sea. Under the terms of the latter convention (e.g. Article 211) they have the increased legal obligation to ensure that ships flying the flags of EU Member States comply with the maritime safety and environmental protection provisions laid down under the authority of the competent international organisation, i.e. IMO. Therefore, the objective of the proposed measures should be to ensure timely and full implementation of the international standards, with the understanding that wherever these may be deemed to be lower or incompatible with the EU corresponding standards, proper action at EU level may be taken.

3.6.8. Moreover, the ESC notes that whilst the current proposal refers to Decisions 1999/468/EC and 87/373/EEC regarding committee procedures, there is no mention of Decision 77/587/EEC(11). This Decision set up a consultation procedure on relations between Member States and third countries in shipping matters and an action relating to such matters in international organizations. It is precisely this consultation mechanism that the current proposal seems to amend without making the slightest reference to it. The ESC also notes that in 1997 a new Decision was proposed(12) to repeal Decision 77/587/EEC but it was not progressed.

The ESC, in its relevant opinion, whilst endorsing the proposed ex ante consultation mechanism, stated its preference for a committee operating as a Council body instead of a Committee under the authority of the European Commission, in view of the fact that it would cover a wide range of subjects which do not come under the exclusive competence of the EU.

3.6.9. In the light of the above considerations, whilst acknowledging the purpose of the measures to be applied in extremely rare cases, the ESC firmly believes that the scope and the timing of the proposed advance conformity checking procedure need to be adjusted in order to avoid undesirable legal conflicts and complications with international law.

4. Specific Comments

4.1. Article 1 of the proposed Regulation

4.1.1. In order to be more specific in terms of the intent and scope it would be appropriate to rephrase in Article 1, b) the definition of "international instruments" as "the international instruments referred to in the Community maritime legislation, as defined in Article 2, paragraph 2".

4.2. Article 4.1 of the proposed Regulation

4.2.1. The Commission acknowledges that the delayed application of amendments to international standards, which generally represent an improvement in safety standards, has adverse repercussions on maritime safety and environmental protection. In contrast, in paragraph 1 of Article 4 it cites as one of the cases of possible amendments to Community 1egislation the inconceivable manifest risk that the international amendments will lower the standards of maritime safety or protection of the environment.

4.3. Article 4.2 and 4.3 of the proposed Regulation

4.3.1. In the opinion of the ESC, the relevant Community legislation in force conferring powers to the corresponding existing Committees does not preclude ex ante consultation. In any event, the proposed measures provide the opportunity to expand the role of the Committee on Safe Seas from re-active to pro-active. The benefits of the necessary change are obvious. Amendments to IMO international instruments are normally considered by its Sub-Committees and Committees long before they are approved and eventually adopted. EU Member States have ample opportunities individually, or in consultation and under co-ordination, to influence the outcome. Therefore, the Committee on Safe Seas should be consulted regularly during the various stages of the development of the amendments to allow Member States to formulate a common position or approach, in particular in cases of amendments adopted by IMO under the tacit procedure. In such cases, and where warranted, it is appropriate that any objections are formally lodged at the time of the adoption.

4.3.2. The ESC believes that in the light of Council Decision 1999/468/EC and for the purpose of expediting the internal procedures, a parallel consultation mechanism with the European Parliament could be established before an amendment is adopted in IMO, so as to involve it from the very early stages in the development of the EU legislation. The added value of such a mechanism would be that it will minimise the case of different opinions on specific issues and the need for conciliation.

5. Conclusions

5.1. The ESC endorses the purpose of the proposed creation of a Committee on Safe Seas replacing the existing committees as well as its proposed tasks regarding the existing EU maritime safety legislation. However, these tasks should be clearly defined in order to avoid overlapping and duplication of work with the proposed creation of the European Maritime Safety Agency.

5.2. Regarding the proposed advance conformity checking procedure, whilst acknowledging the purpose of the measures to be applied in extremely rare cases the ESC firmly believes that its scope and timing need to be adjusted in order to avoid undesirable legal conflicts and complications with international law.

Brussels, 28 February 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) The proposals are amending Directives 94/57/EC, 93/74/EC, 94/58/EC, 95/21/EC, 96/98/EC, 97/70/EC, 98/18/EC, 98/41/EC, 1999/35/EC and Regulations (EEC) No 613/91, (EC) No 2978/94 and (EC) 3051/95.

(2) Opinion on positive measures for maritime transport, OJ C 56, 7.3.1990; Opinion on the Communication on Safe Seas, OJ C 34, 2.2.1994, p. 47; Opinion on Directive 94/57/EC (classification societies), OJ C 34, 2.2.1994, p. 14; Opinion on Directive 95/21/EC (port state control), OJ C 393, 31.12.1994, p. 50; Opinion on the new maritime strategy, OJ C 56, 24.2.1997, p. 9; Opinion on Directive amending Directive 93/75/EEC - Minimum requirements for vessels carrying dangerous and polluting goods, OJ C 133, 28.4.1997, p. 7; Opinion on Maritime Safety, Opinion on Safety of Bulk Carriers.

(3) OJ C 34, 2.2.1994, p. 47.

(4) International Maritime Organisation (IMO).

(5) COM(2000) 802 final of 6 December 2000.

(6) Communication on the Safety of Seaborne Oil Trade (15 March 2000).

(7) This issue is inevitably linked to the legal problem of the EU's external competence. The European Court of Justice has already given a series of rulings on the subject. Despite these rulings, the dividing line between exclusive competence of the EU, competence shared with the Member States and exclusive competence of the Member States continues to be indistinct. However, there is no doubt that in all the above cases the Member States and the Commission should cooperate closely to define their positions.

In Case No 22/70 ERTA (Commission v. Council, 31 March 1971, European Court Reports 1971, p. 263) the ECJ decided that insofar as the EC lays down common internal rules, it is also competent in the field of external negotiations which can influence those common rules.

In Opinion No 1/76 (on the Draft Agreement establishing a European laying-up fund for inland waterway vessels, European Court Reports 1977. p. 741), it ruled that if the EC has internal competence to achieve a specific objective, it consequently has exclusive external competence for the matter in question, insofar as such external competence is necessary for achieving that objective. The ECJ's opinion 1/94 (Agreement establishing the WTO 15 November 1994, European Court Reports, p. I-5267) tends in the same direction, stating that in the event of shared competence for external negotiations there is an obligation to cooperate closely with the Member States in order to define their position. (cf, Judgement of the Court of 9 July 1987, in joint cases 281, 283, 284, 285, 287/85, European Court Reports 1987, p. 3203). ESC Opinion on relations between EU/ILO (OJ C 102, 24.4.1995).

(8) Doc. 10201/97 MAR 52/29.7.1997.

(9) ESC Opinion for a Council Decision setting up a consultation procedure on relations between Member States and third countries in shipping matters and on action relating to such matters in international organizations (OJ C 355, 21.11.1997, p. 25).

(10) Explanatory Memorandum § 19.

(11) OJ L 239, 17.9.1977.

(12) COM(96) 707 final of 14.3.1997, OJ C 355, 21.11.1997, p. 25.