Proposal for a COUNCIL DECISION adapting Council Decision 2004/246/EC by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia

(presented by the Commission)

EXPLANATORY MEMORANDUM

On 2 March 2004 the Council adopted a Decision authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments.

This Decision, which is not applicable in Denmark, involves the following two main provisions:

- The first seeks,

- on the one hand, to authorise the Member States that are Contracting Parties to the underlying instruments (1992 Convention on civil liability and 1992 Convention establishing the Fund) - namely, all Member States with the exception of Luxembourg and Austria - to sign, ratify or accede to this 2003 Protocol,

- on the other hand, to authorise Luxembourg and Austria, which are not Contracting Parties to the underlying instruments, to accede to these underlying instruments and to the 2003 Protocol.

- The second seeks,

- on the one hand, to invite the Member States - with the exception of Luxembourg and Austria - to agree to be bound by this Protocol before 30 June 2004,

- on the other hand, to authorise Luxembourg and Austria to agree to be bound by the underlying instruments and by the 2003 Protocol before 31 December 2005.

The Decision is addressed to all Member States within the meaning of Title IV of the EC Treaty.

In accordance with Article 53 of the Act of Accession of 2003, this Decision will therefore apply to the new Member States from the moment of accession.

On the basis of this Decision, the new Member States which are Contracting Parties to the underlying instruments are authorised to sign, ratify or accede to the 2003 Protocol. These new Member States are also invited, under this Decision, to agree to be bound by this Protocol before the end of June 2004.

The situation is different with regard to the new Member States that are not Contracting Parties to the underlying instruments, viz. the Czech Republic, Estonia, Hungary and Slovakia.

Indeed, the Council Decision of 2 March 2004 refers specifically only to Luxembourg and Austria and not, in the abstract, to any Member State that is not a Contracting Party to the underlying instruments.

Accordingly, the Decision of 2 March 2004 needs to be adapted within the meaning of the Act of Accession of 2003.

This adaptation seeks, on the one hand, to authorise the Czech Republic, Estonia, Hungary and Slovakia to accede to the underlying instruments and to the 2003 Protocol and, on the other hand, to invite these new Member States to agree to be bound by these underlying instruments and by the Protocol before the end of December 2005.

The adaptation consists in amending the text of the Decision of 2 March 2004 by adding to each existing reference to Austria and Luxembourg a corresponding reference to the Czech Republic, Estonia, Hungary and Slovakia.

No provision was made for such adaptation in the Act of Accession of 2003 nor in the Annexes thereto. The adaptation in question is a technical adaptation which can be carried out in accordance with the procedure provided for in Article 57 of the Act of Accession.

Proposal for a COUNCIL DECISION adapting Council Decision 2004/246/EC by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia,

Having regard to the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and in particular Article 57(1) thereof,

Having regard to the proposal from the Commission, [1]

[1] OJ C [...], [...], p. [...].

Whereas:

(1) For certain acts which remain valid beyond 1 May 2004 and require adaptation by reason of accession, the necessary adaptations were not provided for in the 2003 Act of Accession, or were provided for, but further adaptations are necessary. All these adaptations need to be adopted before accession in order to enter into force as from accession.

(2) Pursuant to Article 57(2) of the Act of Accession, such adaptations are to be adopted by the Council in all cases where the Council adopted the original act alone or jointly with the European Parliament.

(3) Under Council Decision 2004/246/EC, [2] Member States are authorised to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and, at the same time, Austria and Luxembourg are authorised, in the interest of the European Community, to accede to the underlying instruments.

[2] OJ L 78, 16.3.2004, p. 22.

(4) In accordance with Article 53 of the Act of Accession of 2003, Decision 2004/246/EC will therefore apply to the new Member States from the moment of accession. However, in the case of the new Member States that are not Contracting Parties to the underlying instruments, namely the Czech Republic, Estonia, Hungary and Slovakia, specific authorisation is required from the Council enabling these States to accede to the underlying instruments and to the 2003 Protocol and inviting them to agree to be bound by these underlying instruments and by the Protocol before the end of December 2005.

(5) Decision 2004/246/EC should be amended accordingly.

(6) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision and is therefore not bound by it or subject to its application.

HAS ADOPTED THIS DECISION:

Article 1

Decision 2004/246/EC is amended as follows:

Article 1(2) is replaced by the following:"2. Furthermore, the Czech Republic, Estonia, Luxembourg, Hungary, Austria and Slovakia are hereby authorised to accede to the underlying instruments."

Article 2 is amended as follows:

(a) paragraph 1 is replaced by the following:"1. Member States shall take the necessary steps to agree to be bound by the Supplementary Fund Protocol, pursuant to Article 19(2) thereof, within a reasonable time limit and, if possible, before 30 June 2004, with the exception of the Czech Republic, Estonia, Luxembourg, Hungary, Austria and Slovakia, which have already agreed to be bound by the Protocol subject to the conditions set out in paragraph 3 of this Article"

(b) Paragraph 3 is replaced by the following:"3. The Czech Republic, Estonia, Luxembourg, Hungary, Austria and Slovakia shall take the necessary steps to agree to be bound by the underlying instruments and the Supplementary Fund Protocol, if at all possible before 31 December 2005."

Article 2

This Decision shall enter into force as from the date of entry into force of the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia.

Article 3

This Decision is addressed to the Member States in accordance with the Treaty establishing the European Community.

Done at Brussels,

For the Council

The President