Proposal for a Council Directive on the registration of persons sailing on board passenger ships (97/C 31/05) (Text with EEA relevance) COM(96) 574 final - 96/0281(SYN)

(Submitted by the Commission on 26 November 1996)

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,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure referred to in Article 189c of the Treaty and in co-operation with the European Parliament,

Whereas Community action in the sector of maritime transport should aim at the improvement of transport safety; whereas the Community has a major interest in the establishment of harmonized safety standards for passenger ships; whereas this Directive represents one of a series of measures improving safety at sea;

Whereas the Community is seriously concerned about the latest shipping casualties in which passenger ships were involved resulting in a massive loss of life, particularly the Estonia accident; whereas European citizens and many others using passenger ships and high speed passenger craft throughout the Community have the right to expect and to rely on an appropriate level of safety and upon an adequate information system which will facilitate search and rescue operations; whereas it appears necessary to take all appropriate measures to achieve these expectations and avoid the possibility that passenger ships involved in marine accidents in waters for which Member States bear responsibility under the 1979 International Convention on Maritime Search and Rescue would present unnecessary concerns for relatives and other persons concerned;

Whereas the safety of ships is the primary responsibility of flag States; whereas Member States can ensure compliance with adequate safety management rules by passenger ships flying their flag and companies operating them; whereas the only way to ensure the safety of all passenger ships, irrespective of their flag, operating or wishing to operate from their ports, is for the Member State to require effective compliance with safety rules as a condition for operating from their ports;

Whereas for search and rescue purposes the ability to regulate exemptions of passenger ships sailing to and from a port of a Member State cannot be left solely to the flag State; whereas it is only the port State that is in the position to determine the requirements for best possible search and rescue operations;

Whereas Member States and third countries have no reasons, other than those mentioned in this Directive, to derogate from the relevant Solas provisions on 'information on passengers` for voyages starting from or arriving at Community ports;

Whereas it appears necessary to ensure that the number of passengers on board a passenger ship does not exceed the number for which the ship and its safety equipment have been certified; whereas information on passengers needs to be established in order to facilitate identification of persons after an accident;

Whereas this Directive recalls what measures are available to Member States under international law; whereas the relevant international Conventions leave important points of interpretation to the discretion of individual Member States; whereas there does not at present exist an international mandatory standard on the registration of passengers to which all passenger ships even on domestic voyages must conform;

Whereas the mandatory registration of passengers for all passenger ships regardless of their flag also takes into account Regulation 27 of the Solas Convention which contains similar requirements; whereas this Directive does not affect the right of Member States to impose certain more stringent requirements in respect of the passenger vessels concerned hereby;

Whereas for reasons of avoiding distortion of competition, a uniform approach has to be established in dense traffic areas with varying distances between ports; whereas the 20 mile threshold is the result of taking into consideration general principles and specific concerns endorsed by all Member States; whereas passenger ships operating exclusively in sheltered waters and passenger ships operating on very short scheduled voyages in sheltered waters constitute a more limited risk and should, therefore, enjoy the possibility of derogation;

Whereas, in view, in particular, of the internal market dimension of maritime passenger transport, action at Community level is the only possible way to establish a common minimum level of safety for ships throughout the Community; inaction by the Community would not only lead to insufficient protection for passengers but to the persistence of overly complex and uncertain systems within the Community to the detriment and expense of the industry;

Whereas a common minimum level of safety requirements must be attained by binding Community measures; a Council Directive, respecting the proportionality principle by leaving to each Member State the right to decide the implementation tools that fit its internal system is, however, sufficient in this case;

Whereas the collection and processing of data about named individuals is necessary for the identification of passengers in case of an accident; whereas the collection and processing of such data must be carried out in accordance with the principles of data protection laid down in Directive 95/46/EC; whereas, in particular, individuals should be fully informed at the time of collection about the purposes for which the data are required, and the data should be retained for only a very short period, being deleted once the ship in question has safely arrived at its destination;

Whereas it is necessary for a committee composed of representatives of the Member States to assist the Commission in the effective application of the Directive; whereas the committee set up in Article 12 of Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (1) can assume this function;

Whereas through this committee certain provisions of the Directive may be adapted to take into account future amendments to the Solas Convention, and to establish additional provisions to ensure a harmonized regime of exemptions and for the implementation of IMO Resolutions,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to enhance the safety and possibilities of rescue of passengers and crew aboard passenger ships operating to or from ports of the Member States of the Community and to ensure that the aftermath of any accident which may occur can be dealt with more effectively.

Article 2

For the purpose of this Directive:

- 'persons` means all people on board, whether passengers or crew, irrespective of age,

- 'a passenger ship` means a seagoing passenger ship or a high speed passenger craft which carries more than twelve passengers,

- 'a high speed passenger craft` means a high speed craft as defined in regulation 1 of chapter X of the 1974 Solas Convention, as amended at the date of adoption of this Directive,

- 'company` means the owner of the passenger ship or any other organization or person such as the manager, or the bareboat charterer, who has assumed responsibility for operating the passenger ship from the owner,

- 'designated person` means the responsible person designated by a company to fulfil the ISM-Code obligations or any other person designated by the company as responsible for the keeping of information on persons embarked on board a passenger ship of the company,

- 'designated authority` means the competent authority of the Member State responsible for search and rescue and mentioned in Article 8,

- 'ISM-Code` means the International Management Code for the Safe Operation of Ships and for pollution prevention, adopted by the IMO through Assembly Resolution A.741 (18) of 4 November 1993,

- 'a mile` is 1 852 metres,

- 'sheltered waters` means areas where the annual probability of the significant wave height exceeding 1,5 metres is less than 10 %, and in which a passenger ship is at no time more than six miles from a place of refuge where shipwrecked persons can land.

Article 3

1. This Directive shall apply to passenger ships with the exception of:

- ships of war and troop ships, and

- pleasure yachts unless they are or will be crewed and carrying more than twelve passengers for commercial purposes.

2. Ships flying the flag of a Member State carrying out voyages fully outside the Community are excluded from the scope of application of this Directive.

Article 4

1. When Member States, under the relevant Solas provisions, grant exemptions related to information on passengers to ships flying their own flag arriving at ports inside the Community from ports outside the Community, they may only do so under the conditions laid down for derogations in the provisions of this Directive.

2. Each Member State shall, for passenger ships flying their own flag which depart from a port located outside the Community and bound for a port inside the Community, require the company to ensure that the information under Articles 5 (1) and 6 is provided.

3. Each Member State shall, for passenger ships flying a flag of a third country which depart from a port located outside the Community and bound for a port inside the Community, require the company to ensure that the information in accordance with the provisions referred to in Articles 5 (1) and 6 of this Directive, is collected and maintained so that it is accessible to the designated authority when needed.

Article 5

1. All persons on board passenger ships which depart from a port located in a Member State shall be counted prior to departure of the passenger ship.

2. The number of persons shall be communicated prior to departure to the master of the passenger ship as well as to the designated person of the company, or to any other shore based system of the company serving the same purpose.

Article 6

The following information shall be recorded for all passenger ships departing from a port located in a Member State and undertaking voyages of more than 20 miles from the point of departure:

- the names of the persons on board,

- the first name or initial,

- the gender,

- an indication about the age category (adult, child or infant) to which the person belongs,

- when volunteered by a passenger, information as to the need for special care or assistance in emergency situations.

This information shall be communicated not later than 30 minutes after departure of the passenger ship to the designated person of the company.

Article 7

The master shall ensure that the number of persons aboard a passenger ship which departs from a port located in a Member State does not exceed the number for which the passenger ship has been certified.

Article 8

All companies assuming the responsibility for operating a passenger ship referred to in Article 3, shall:

- set up a system for the registration of the information required under the provisions of Articles 5 and 6. The system shall conform with the criteria set out in Article 11,

- appoint a designated person responsible for the keeping and transmission of the information required by this Directive.

The company shall ensure that information required by this Directive is immediately transmitted to the designated authority or can at all times be made readily available to this authority. The information shall not be kept longer than necessary for the purpose of this Directive and as a general rule shall be deleted as soon as the ship's voyage in question has been safely completed.

The company shall ensure that information on details of persons who have declared a need for special care or assistance in emergency situations shall be properly recorded and communicated to the master prior to departure of the passenger ship.

Article 9

1. A Member State from whose port a passenger ship departs may lower the 20 mile threshold mentioned in Article 6.

2. A Member State from whose port a ship departs may exempt passenger ships operating in sheltered waters on scheduled services, with a duration of less than 30 minutes between port calls, from the obligation to communicate to the designated person of the company as mentioned in Article 5.

A Member State from whose port a ship departs may exempt from the obligations of Article 6 passenger ships operating exclusively in sheltered waters on the condition that adequate and sufficient search and rescue facilities are available in the area in which such ships operate.

A Member State shall not exempt, under the provisions of this Directive, passenger ships sailing from its ports, flying the flag of a third party contracting flag State to Solas, which under the relevant Solas provisions do not concur with the application of such exemptions.

3. In the circumstances set out in paragraph 2, the following procedure shall apply:

(a) the Member State shall inform the Commission without delay of the exemption decision giving substantial reasons therefor;

(b) If the Commission, within a period of six months from the notification, considers that the exemption is not justified or could have adverse effects on competition, it may, acting in accordance with the procedure laid down in Article 13 (2), require the Member State to amend or withdraw the exemption.

Article 10

The registration systems set up in accordance with Article 8 shall be to the satisfaction and approval of the Member States.

Member States shall check at random the proper functioning of the registration systems set up pursuant to this Directive on their territory.

Member States shall designate the authority to whom the information required by this Directive shall be provided by the companies referred to in Article 8.

Article 11

1. Registration systems shall meet the following functional criteria:

(i) Readability:

The required data must be in a format that is easy to read;

(ii) Accessibility:

The required data must be easily accessible to the authorities for which the information contained in the system is relevant;

(iii) Readiness:

The required data must be collected before departure;

(iv) Facilitation:

The system must be worked out in such a way that no undue delay is caused for passengers embarking on and/or disembarking from the vessel;

(v) Security:

The data should be appropriately protected against accidental or unlawful destruction or loss, and unauthorized alteration, disclosure or access;

(vi) Alternative means:

In case of system failure, an alternative means or equivalent registration system should be available.

2. A multiplicity of systems should be avoided on same or similar routes

Article 12

In accordance with the procedure laid down in Article 13 (2), the following measures may be adopted:

(a) provisions:

(i) establishing a harmonized regime of exemptions granted under the provisions of Article 9 (2);

(ii) for the implementation of IMO resolutions and circulars related to the registration systems;

(b) the amendment of the functional criteria mentioned in Article 11 (1);

(c) without prejudice to the procedures for amending the Solas convention, the amendment of this Directive, to ensure the application for the purpose of this Directive, of subsequent amendments to the Solas convention which have entered into force after the adoption of this Directive related to the registration systems.

Article 13

1. The Commission shall be assisted by the committee set up pursuant to Article 12 (1) of Directive 93/75/EEC.

2. Where reference is made to this paragraph, the following procedure shall apply:

(a) The representative of the Commission shall submit to the committee referred to in paragraph 1 a draft of the measures to be taken;

(b) 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, if necessary by taking a vote;

(c) The opinion shall be recorded in the minutes; in addition each Member State has the right to have its opinion recorded in the minutes;

(d) The Commission shall take the utmost account of the opinion delivered by the committee. It shall inform the committee of the manner in which its opinion has been taken into account.

Article 14

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 1998 and forthwith inform the Commission thereof. Article 6 shall be applied not later than 1 January 1999.

2. 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.

3. Member States shall lay down the system of sanctions for breaching the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those sanctions are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive.

4. The Member States shall immediately notify 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 15

This Directive shall enter into force on the 20th day after its publication in the Official Journal of the European Communities.

Article 16

This Directive is addressed to the Member States.

(1) OJ No L 247, 5. 10. 1993, p. 19.