COMMON POSITION (EC) No 2/98 adopted by the Council on 11 December 1997 with a view to adopting Council Directive 98/. . ./EC of . . . amending Directive 93/75/EEC concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (98/C 23/02)

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 (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),

Whereas Directive 93/75/EEG (4) does not explicitly mention provisions applicable to the carriage by sea of the radioactive materials referred to in Resolution A.748(18) of the International Maritime Organisation (IMO) concerning the Code for the safe carriage of irradiated nuclear fuel, plutonium and high-level radioactive wastes in flasks on board ships (INF Code);

Whereas there is a need to enhance safety at sea and to prevent pollution of the sea in connection with the transport of irradiated nuclear fuel, plutonium and high-level radioactive waste;

Whereas it is essential, for reasons of clarity, that the INF Code is included in the list of international Conventions, Codes and Resolutions referred to in Article 2 of the Directive; whereas that clarification will enable the competent authorities to obtain the relevant information as to the nature of radioactive materials carried and their location on board ships and thus help prevent and minimise the risk of accidents involving ships transporting such materials;

Whereas the notification of the INF class of the ship, which refers to the total radioactive quantity which may be carried on board, will provide more detailed information to the relevant competent authorities, and thus contribute to improving their response in case of an accident or incident at sea involving radioactive materials;

Whereas it should be possible to amend Annexes I and II to Directive 93/75/EEC, through a simplified procedure, in line with developments in international law and, in particular, with amendments to international Conventions, Codes and Resolutions not referred to in Article 2 of the Directive which have entered into force since the Directive was adopted; whereas, however, these amendments should neither broaden the scope of this Directive, nor alter the reporting requirements as described in the Directive, and in particular should not lead to extending the reporting requirements of the Directive to transiting ships; whereas the procedure provided for in Article 12 of the Directive appears to be the most appropriate way of introducing such amendments; whereas Article 11 should be supplemented to that effect;

Whereas the contents of Annexes I and II to Directive 93/75/EEC should be amended to take account of the amendments to international Conventions, Codes and Resolutions not referred to in Article 2 thereof which have entered into force since the Directive was adopted,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 93/75/EEC is hereby amended as follows:

1. in Article 2:

- the following shall be inserted in paragraph (c), after the words 'IMDG Code`:

', including radioactive materials as referred to in the INF Code`,

- the following paragraph shall be inserted:

'(i) "INF Code": means the IMO code for the safe carriage of irradiated nuclear fuel, plutonium and high-level radioactive wastes in flasks on board ships, as in force on 1 January 1996`,

- paragraphs (i), (j) and (k) shall become paragraphs (j), (k) and (l) respectively.

2. In Article 11:

- in the first indent, '(e), (f), (g), (h) and (i)` shall be replaced by '(e), (f), (g), (h), (i) and (j)`,

- the following indent shall be added:

'- amend the Annexes to this Directive in line with the relevant subsequent amendments to international Conventions, Codes and Resolutions on safety at sea and the protection of the marine environment which have entered into force, without broadening its scope`.

3. Annexes I and II shall be replaced by the Annexes to this Directive.

Article 2

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive no later than 30 June 1998. They shall forthwith inform the Commission thereof.

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 the Member States.

2. Member States shall communicate to the Commission the texts of the basic provisions of national law which they adopt in the field governed by this Directive.

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at . . . . . . . . . .

For the Council

The President

(1) OJ C 334, 8.11.1996, p. 11 and OJ C 264, 30.8.1997, p. 4.

(2) OJ C 133, 28.4.1997, p. 7.

(3) Opinion of the European Parliament delivered on 24 April 1997 (OJ C 150, 19.5.1997, p. 31), Council Common Position of 11 December 1997 and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ L 247, 5.10.1993, p. 19. Directive as last amended by Commission Directive 97/34/EC (OJ L 158, 17.6.1997, p. 40).

ANNEX

'ANNEX I

Information on vessels carrying dangerous or polluting goods

(Article 5)

1. Name and call sign of the vessel and, where appropriate, its IMO identification number

2. Nationality of the vessel

3. Length and draught of the vessel

4. Port of destination

5. Estimated time of arrival at the port of destination or pilot station, as required by competent authority

6. Estimated time of departure

7. Intended route

8. The correct technical names of the dangerous or polluting goods, the United Nations (UN) Nos where they exist, the IMO hazard classes in accordance with the IMDG, IBC and IGC codes and, where appropriate, the class of the vessel as defined by the INF Code, the quantities of such goods and their location on board and, if in portable tanks or freight containers, their identification marks

9. Confirmation that a list or manifest or appropriate loading plan giving details of the dangerous or polluting goods carried and of their location on the vessel is on board

10. Number of crew on board

ANNEX II

CHECK LIST FOR VESSELS (Article 6(3), Article 8 and Annex III)

>START OF GRAPHIC>

A. Vessel identification

Name of vessel: Owner: Year built:

...

Flag: Gross tonnage:

..

Port of registry: Length overall:

..

Distinctive letters or numbers (call sign): IMO identification number, where appropriate:

..

Classification society: Sea areas in which the ship is certified to operate:

..

Class notation: Hull: Machinery:

...

Propulsion machinery: Output:

..

Agent:

.

Draught: Forward: Amidships: Aft:

....

Volume/mass of dangerous or polluting cargo:

.

B. Safety installations aboard

In good working order

Yes

No

Deficiencies

1. Construction and technical equipment

Main and auxiliary engines .

Main steering gear .

Auxiliary steering gear .

Anchor gear .

Fixed fire-extinguishing system .

Inert gas system (if applicable) .

In good working order

Yes

No

Deficiencies

2. Navigational equipment

Manoeuvring characteristics available .

First radar installation .

Second radar installation .

Gyro compass .

Standard magnetic compass .

Radio direction-finding apparatus .

Echo-sounding device .

Other electronic position-fixing aids .

Equipment for measuring speed and distance (log) .

- Speed through the water .

- Speed over ground .

3. Radio equipment

Radiotelegraphy equipment .

Radiotelephony equipment .

GMDSS radio equipment .

Radio equipment for life-saving appliances .

C. Documents

Certificates/documents valid on board

Yes

No

Remarks

International tonnage certificate (1969) .

Passenger ship safety certificate .

Cargo ship safety certificate .

Cargo ship safety construction certificate .

Cargo ship equipment certificate .

Cargo ship safety radio certificate .

Cargo ship safety radiotelegraphy certificate (1) .

Cargo ship safety radiotelephony certificate (1) .

Exemption certificate (SOLAS) .

International load line certificate .

International load line exemption certificate .

Class certificate .

Certificate of insurance or other financial security in respect of civil liability for oil pollution damage .

Document of compliance with the special requirements for ships carrying dangerous goods (SOLAS) .

(1) These certificates are relevant only for ships constructed before 1 February 1995.

Certificates/documents valid on board

Yes

No

Remarks

Oil/cargo record book filled in .

(International) certificate of fitness for the carriage of dangerous chemicals in bulk .

(International) certificate of fitness for the carriage of liquified gases in bulk .

International oil pollution prevention certificate (IOPP certificate) .

International pollution prevention certificate for the carriage of noxious liquid substances in bulk (NLS certificate) .

High-speed craft safety certificate .

Permit to operate high-speed craft .

Dangerous goods stowage plan .

Stability information .

Minimum safe manning document .

Copy of the document of compliance (ISM Code) .

Safety management certificate (ISM Code) .

D. Officers and ratings

Certificate of competency (detailed description and serial number)Issued by (issuing authority)At (place/country)GMDSS (1)

Yes

No

Master ...

Chief mate ...

Second mate ...

Third mate ...

Chief engineer ...

First engineer officer ...

Second engineer officer ...

Third engineer officer ...

Radio operator ...

Total number of ratings

Deck

Engine room

..

Deep-sea pilot taken aboard ..

Date

Signature of the master or, if he is indisposed, of the deputy

(1) Mark if holder of a GMDSS operator's general certificate.>END OF GRAPHIC>

`

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 24 September 1996, the Commission submitted to the Council a proposal for a Council Directive amending Directive 93/75/EEC concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (1). This proposal was based on Article 84(2) of the EC Treaty.

The Economic and Social Committee issued its opinion on 26 February 1997 (2). The European Parliament issued its opinion in the first reading on 24 April 1997 (3).

The Commission amended its proposal in the light of the European Parliament's opinion and transmitted it to the Council on 24 July 1997 (4).

The Council adopted its common position in accordance with Article 189c of the Treaty on 11 December 1997.

II. PURPOSE OF THE PROPOSAL

The purpose of the Commission proposal is to amend Council Directive 93/75/EEC concerning minimum requirements for vessels bound for a leaving Community ports and carrying dangerous or polluting goods, in order to:

- clarify that the Directive covers certain radioactive materials as referred to in the INF Code (5) (New Article 2(c) and (i)),

- amend the current Annexes to Directive 93/75/EEC in the light of developments in international legislation (Article 1(3) and Annexes),

- permit the application of the committee procedure so as to amend the Annexes to the Directive in line with relevant developments in international law on safety at sea and the protection of the environment (New Article 11, third indent).

III. ANALYSIS OF THE COMMON POSITION

The common position amends the definition of 'dangerous goods` (Article 2 (c)), which originally only referred to the International Maritime Dangerous Goods Code (IMDG Code), in order to clarify that it covers radioactive materials as referred to in the INF Code. It also requires ships to notify their INF class (addition to Annex I Part 8). As a consequence, the common position also provides for a definition of 'INF Code` (new paragraph (i) of Article 2).

Moreover, the competences of the regulatory committee provided for pursuant to Directive 93/75/EEC have been extended so that it will be in a position:

- to apply, for the purposes of the Directive, subsequent amendments to the INF Code which have entered into force (amendment to Article 11, first indent),

- to amend the Annexes in line with subsequent amendments to the relevant international Conventions, Codes and Resolutions which have entered into force, but without broadening the scope of the Directive (Article 11, new third indent).

The common position also amends Annex I (information on vessels carrying dangerous or polluting goods) and Annex II (checklist for vessels) in the light of amendments to the relevant international instruments which have entered into force since the date of adoption of Directive 93/75/EEC.

The Member States will have to comply with the Directive no later than 30 June 1998.

IV. AMENDMENTS BY THE EUROPEAN PARLIAMENT

The Council followed the Commission's amended proposal on all points.

1. Amendments by Parliament, accepted by Council and Commission

Amendment 8 was accepted because it will permit applying, for the purposes of the Directive, subsequent amendments to the INF Code by using the committee procedure set up pursuant to Directive 93/75/EEC (see amendment to the first indent of Article 11).

Amendment 9 was accepted as the availability of information on the number of crew on board was considered to be important for authorities in charge of emergency response in the case of an accident or incident at sea involving a ship carrying hazardous materials (See new paragraph 10 to Annex I).

2. Amendments by Parliament, not accepted by the Council, nor by the Commission

Amendment 1, which aimed at prohibiting the transport of radioactive materials on board passenger ships, was rejected because it was considered to go beyond the scope of the Directive, which exclusively deals with notification requirements.

Amendment 2, aiming at the introduction of an obligation to carry radioactive materials in containers meeting the latest IAEA requirements, was rejected for the same reason.

Amendments 4, 5 and 6, concerning the extension of reporting requirements to cover ship in transit, were rejected because the situations covered by those amendments are being examined within the framework of the Commission proposal for a Council Directive concerning the setting up of a European vessel reporting system (Eurorep) (6) (See also recital 5 and Part V below, with reference to Article 1(2)).

Regarding Amendment 7, the proposal to forward information received pursuant to that Directive 'systematically` rather than only 'on request`, was rejected because the transmission of a considerable amount of information was considered to be justified only in exceptional circumstances (see amendment to Article 10(1) of Directive 93/75/EEC).

Amendment 10 aiming at the introduction of an additional paragraph to Annex I in order to oblige the operator of a vessel to prove compliance with the INF Code, was rejected since it was felt that Directive 93/75/EEC is not the appropriate instrument to make the INF Code mandatory for all ships bound for a leaving Community ports.

Amendment 11, aimed at adding to Annex I a number of safety and emergency requirements relating to the transport of radioactive materials, was rejected since it went beyond the scope of the Directive. Moreover, those requirements have not yet been adopted at international level.

Amendment 12 concerning Annex II, which would oblige passenger ships carrying hazardous materials to have on board a passenger list, was rejected because that requirement is already contained in the Council's Common Position on the registration of persons aboard passenger ships operating to or from ports of the Member States of the Community, which was adopted on 11 December 1997, and which applies to all seagoing passenger ships and high-speed craft which carry more than 12 passengers.

V. AMENDMENTS BY THE COUNCIL, NOT PROPOSED BY PARLIAMENT

The recitals

The Council redrafted the preamble in the light of the amendments to the Commission's original proposal. In particular:

- the proposed first recital, which indicated that Directive 93/75/EEC does not concern the carriage by sea of radioactive materials was corrected to indicate that that Directive does not explicitly apply to such carriage: in fact, radioactive materials were already included in the IMDG Code, quoted in Article 2(c) of the basic Directive,

- the proposed second recital was split. Its second part (Council recital 3) was reformulated in order to explain that the INF Code was included in Article 2, not in order to extend the scope of Directive 93/75/EEC to radioactive materials, but in order to make it abundantly clear that the Directive already covers radioactive materials and in order to pave the way for including, in Annex I Part 8, a new notification requirement concerning the INF class of a ship,

- the Council introduced a new recital 4 which justifies the new requirement in Annex I Part 8,

- amended recital 5 explains that the simplified procedure to amend the Annexes to the Directive in line with subsequent developments in international law may only be used as long as it does not broaden the scope of the Directive. In particular, it may not be used to extend the reporting requirements of this Directive to transiting ships (recital 5; see also Part IV(2)).

Article 1(1) (amendment to Article 2 of Directive 93/75/EEC)

Regarding the definition of 'dangerous goods` in paragraph (c) the Council replaces the proposed addition: 'and radioactive materials as defined by the INF Code`, by: 'including radioactive materials as referred to in the INF Code`. This amendment was motivated by the fact that the INF Code, adopted on 4 November 1993, does not in itself define the notion of 'radioactive materials` but refers back to the definition of 'radioactive materials` already contained in the IMDG Code. The amending Directive therefore does not widen the scope of the basic Directive.

In new paragraph (i), concerning the introduction of a definition of the INF Code, the Council replaces 'as it is in force at the time of adoption of Directive . ./. . ./EC` by 'as it is in force on 1 January 1996` in order to ensure the uniform application of the Codes, Conventions and Resolution referred to in Article 2 of Directive 93/75/EEC, which according to Commission Directive 96/39/EC of 19 June 1996, are to be applied as they stand on 1 January 1996.

Article 1(2) (amendment to Article 11 of Directive 93/75/EEC)

In the new indent to be added to Article 11, allowing the use of the commitology procedure to amend the Annexes to the Directive in line with relevant 'developments in international law`, the Council replaced that broad reference by a more specific text which restricts the scope of the mandate of the committee to amendments to those relevant Conventions, Codes and Resolutions 'which have entered into force` and which would not 'broaden the scope of the Directive`. These amendments were introduced because it was felt that the committee should not be entrusted with legislative powers. This point was also stressed in new recital 5, which, in addition, clarifies that the commitology procedure may not be used to extend reporting requirements to transiting ships (see above).

Article 2(1) (date of implementation)

The Council replaced '31 December 1997` by '30 June 1998`, taking into account the time needed to complete the legislative process both within the Community and at national level.

Annex I (Information requirements)

The Council replaced Annex I in its entirety, taking into account that several amendments to this Annex were carried out. In addition to the amendment to paragraph 1 proposed by the Commission and the amendment proposed by Parliament, the Council also inserted, in paragraph 8, the words 'and, where appropriate, the class of the vessel as defined by the INF Code`, because it felt that information on the INF class of a vessel would be important for the competent authority that has to intervene in the case of an accident or incident involving hazardous materials.

Annex II (Check list for vessels)

In view of the large number of amendments to Annex II, the Council replaced that Annex in its entirety.

In Section A (Vessel identification), the Council added the requirement to specify the 'sea areas in which the ship is certified to operate` in order to enable the competent authorities to assess what equipment and certificates a ship is supposed to have.

In Section B(2) (Navigational equipment), the Council replaced 'Instrument for measuring speed and distance (loch)` by 'Equipment for measuring speed and distance (log)`, and introduced, for the sake of clarity, a distinction between 'Speed through the water` and 'Speed over ground`.

In Section B(3) (Radio equipment), the Council replaced all references to 'installation` by 'equipment`, and 'survival craft` by 'life-saving appliances` to bring the text into line with the terminology used in the SOLAS Convention.

In Section C (Documents), the Council:

- introduced a new column headed 'remarks` in order enable the master of a ship to indicate the reasons why a particular document was found to be 'invalid` (for example, because of its expiration),

- amended the proposed names of the following documents in order to bring them into line with the relevant international Conventions on which they are based:

>TABLE>

- deleted the entry concerning the 'Passenger safety certificate` in the 14th line of the Commission proposal, because the list of documents already contained the 'Passenger ship safety certificate` in the second line,

- added the following documents which were felt to be relevant for ships carrying dangerous or polluting goods: International load line exemption certificate; High-speed craft safety certificate; Permit to operate high-speed craft,

- inserted a footnote after the Cargo ship safety radiotelegraphy and radiotelephony certificates, in order to clarify that, according to SOLAS Chapter IV, Part A, Regulation 1.5.1.2., these certificates are only relevant for ships constructed before 1 February 1995.

In paragraph D (Officers and ratings), the Council:

- added 'Radio operator` to the list of officers and ratings for whom detailed description and serial numbers of their certificates of competency have to be specified,

- slightly modified the presentation of the Commission's proposal to insert a new column for holders of a GMDSS operator's general certificate.

(1) OJ C 334, 8.11.1996, p. 11.

(2) OJ C 133, 28.4.1997, p. 7.

(3) OJ C 150, 19.5.1997, p. 31.

(4) OJ C 264, 30.8.1997, p. 4.

(5) INF Code = IMO Code for the safe carriage of irradiated nuclear fuel, plutonium and high-level radioactive wastes in flasks on board ships, adopted on 4 November 1993.

(6) OJ C 22, 26.1.1994, p. 7. OJ C 193, 16.7.1994, p. 7.