COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC-Treaty concerning the Council common position on the amended proposal for a European Parliament and Council Directive on port reception facilities for ship-generated waste and cargo residues

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT

1. History of the file:

Proposal transmitted to the Council on: 20.07.1998

Opinion of the European Parliament (first reading) delivered on: 11.02.1999

Amended proposal adopted by the Commission on: 19.04.1999

Confirmation of Parliament's first reading by the new Parliament: 16.09.1999

Common position adopted on: 08.11.1999

Opinion of the Economic and Social Committee delivered on: 24.03.1999

Opinion of the Committee of Regions 11.03.1999

2. Purpose of the Commission proposal:

The purpose of the Commission proposal is to reduce marine pollution by ensuring the provision of adequate waste reception facilities in all EU ports including recreational ports and marinas. It also provides instruments to ensure that all ships, including fishing vessels and recreational craft, visiting these ports make use of the facilities provided. Those instruments consist of, inter alia, notification requirements, delivery obligations, rules on convergence of fee systems and harmonized control procedures.

The proposal thus builds upon existing international obligations, which all Member States have already accepted under the International Convention for the Prevention of Pollution from Ships, 1973 and the Protocol of 1978 related thereto (Marpol 73/78), but goes one step further by addressing in detail the practical, legal and financial responsibilities between the different players involved in the delivery of waste and residues in ports.

3. Comments on the common position:

3.1 General observations on the common position:

In its first reading the European Parliament adopted eighteen amendments to the Commission's original proposal. The Commission accepted eight of these amendments, some of them partly, others on their main principles or subject to redrafting, and modified its original proposal accordingly. The amendments - or at least their basic principles - accepted by the Commission are consistent with the aim of the original proposal and provide an added value by clarifying its provisions.

The Commission could not accept the other amendments for reasons explained in the explanatory memorandum of the amended proposal (COM (1999) 149 final) and orally by Commissioner Neil Kinnock to the plenary of the European Parliament on 11 February 1999.

The Council adopted a common position on a text that contains the substance of most amendments incorporated in the Commission's amended proposal, as well as a number of additional provisions. It represents a balanced compromise between the various wills of the Member States, but retains the main thrust of the Commission's proposal.

3.2 Outcome of the amendments of the European Parliament, first reading:

Recitals:

- Three of the amendments of the European Parliament that were included in the Commission's amended proposal were additions to the recitals. The Council accepted two of them (the reference to the Helsinki Convention and the reference to the benefits of an information system for evaluating the implementation of the Directive). The third addition, however, related to the amendment of article 12.3, which was considered to be most appropriately dealt with in a statement for the Council minutes. Consequently, recital 22bis is now removed and the agreement between the Member States and the Commission to co-operate to establish common criteria for identifying environmentally friendly ships is found as a statement for the Council minutes. The Commission can accept this change.

The amendment to article 3:

- The Commission accepted this amendment in principle, subject to rewording in order to bring it in line with the Marpol 73/78 text (article 12.1.i. of the amended proposal). However, the Council preferred to deal with the issue of exempted ships by means of a statement for the Council minutes, due to the special position of military vessels in EC legislation and the difficulties in enforcing the proposed provision. The Commission accepts those arguments and considers that the declaration by the Council will sufficiently ensure that even vessels subject to sovereign immunity which are flying the flag of Member States should comply with the waste disposal regime.

The amendments to article 11:

- As regards the Parliament's amendment to article 11.3 on the consequences of non-compliance with the Directive, both the Commission and the Council agreed with the Parliament that the link of the inspection to cargo handling operations or embarking of passengers may be excessive. While the Commission in its amended proposal followed the wording proposed by the Parliament, the Council considered that a more detailed inspection under Directive 95/21/EC may not be appropriate in this context, as it involves a number of purely safety related checks. It was also considered that a reference to that Directive would be inappropriate, given that the waste inspections are not always carried out by port State control officials. The Commission accepts these arguments and accepts also that a reference to prohibition of leaving the port until a proper examination has been carried out, is a sufficient deterrent and control mechanism, if coupled with the penalty regime as provided for in article 13.

The amendments to article 12:

- As regards the proposal to include a new paragraph 12.3bis on EU-wide criteria for environmentally friendly ships, the Commission's amended proposal contained a provision to this effect, although considerably redrafted. The Council agreed with the principle of aiming at such criteria, but it considered that the most appropriate way to include this principle was by means of a statement for the Council minutes, which is, attached to the Common Position. The Commission can accept this way to deal with the matter.

The amendments on a new article 17bis:

- The Parliament indicated concern over the coverage of sewage and the lacking definition of adequacy in the original Directive proposal and proposed to include a reference to updating the Directive as soon as the corresponding issues have been clarified internationally, within the IMO. As regards sewage, the Commission agreed in principle and proposed a new article 15.3 in its amended proposal. The Council agreed with the principle, but was prepared to go one step further by making the coverage of Marpol Annex IV substances 'automatic' following the entry into force of Annex IV. This follows from the amendments to articles 2.3 and 16.1 of the Common Position and is supported by the Commission. As regards the definition of adequacy, the Marine Environment Protection Committee of the IMO concluded its work on this subject during the deliberation of this proposal in the Council working group. Consistency with the IMO approach has been sought in the Common Position and the amended text of article 4 ensures this. The Commission supports those amendments.

The amendment to Annex I:

- Both the Commission and the Council accepted the principle of referring to an EC Regulation instead of ISO standards for indicating an environmental management scheme. This is particularly so, as the change of reference does not alter the purpose of the provision, given that the two environmental management schemes are largely similar. However, it has to be ensured that an eco-management and audit scheme which builds upon voluntary participation is not made mandatory or 'quasi-mandatory' in this context. The Commission and the Council therefore retained the original wording of the proposal ("Such conformity is presumed...") although agreeing to the change of reference to the EMAS Regulation.

3.3 New provisions introduced by the Council and position of the Commission thereto:

Recitals:

- The Council modified and re-arranged the recitals in accordance with the text of the common position and in order to rationalise them. The Commission agreed with this re-arrangement for reasons of consistency and clarity.

Article 2:

- Apart from editorial amendments and the reworded definition of 'ship-generated waste', which was dealt with in the previous section, two definitions have been changed by the Council. The first one is the definition of 'ships', where the inclusion of the word 'seagoing' excludes from the scope of the Directive inland waterway vessels and, through article 3, ports solely used by such vessels. The other change is that of 'ports'. The purpose of the new definition is to avoid the tautological elements of the original definition and to clarify the coverage in some more detail. In substance, however, no difference is envisaged, as both definitions ensure a very wide coverage of ports, including terminals and marinas. The Commission welcomes these clarifications.

Article 3:

- The words "including fishing vessels and recreational craft" in paragraph 1 were inserted to reinforce the position that such vessels are 'ships' within the meaning of the Directive. "Unless expressly provided otherwise" was considered unnecessary. The addition to paragraph 2 ensures that ports which are only used by inland waterway vessels or by ships enjoying sovereign immunity are excluded from the scope of the Directive. This follows the logic of the Marpol 73/78 Convention. The Commission can accept this clarification, which emanates from jurisdictional considerations, but considers that even ports that are exclusively used by naval or other immune ships should provide waste reception facilities, through the declaration by the Member States, which forms part of the Common Position.

Article 4:

- The Council decided to link the requirements on provision of reception facilities to the needs of ships that normally visit the port, in order to avoid excessive requirements on the ports. The specification of adequacy in paragraph 2 was prompted by subsequent developments within the International Maritime Organization and the need to harmonise as much as possible the European concepts with the international ones. The changes to the third paragraph direct the obligation to ensure proper notification of inadequate facilities to Member States rather than to ship masters. The Commission accepts all these changes as they provide additional clarity without affecting the main thrust of its original proposal.

Article 5:

- The Council added some provisions to article 5 in order to clarify the text. The new text in the first paragraph reinforces the duty to consult with the relevant parties, including port users, when developing the waste reception and handling plan. This consultation process was only dealt with in the Annex in the original proposal and is thus being strengthened by this addition. As this supports and reinforces the objectives of its original proposal, the Commission accepts this addition.

- The new paragraph 2 seeks to avoid undue burdens on ports, by allowing plans to be developed in a regional context, where required for reasons of efficiency. The Commission considers that this is a viable solution for small ports situated close to each other, for which common waste management strategies may exist, and for which the administrative burden of planning individually could be disproportionate. However, the Commission regards it as imperative that this provision is not misused or misinterpreted so as to diminish the national waste management exercise by means of a limited number of regional plans covering the whole coastline. Therefore it emphasises the importance of the provision on specification for each individual port and considers that the option of regional planning should be limited primarily to small ports located close to each other.

Article 6:

- The Council specified two provisions regarding the prior notification obligation for ships. The addition at the end of the first paragraph clarifies that the receiver also can be the operator of the reception facility and that, in that case, this person should forward the information to the relevant authority. The Commission considered that this option was catered for in its original proposal, but does not oppose the clarification proposed by the Council. The other change is the specification in paragraph 2 on how long the information shall be kept on board. The Commission considers that this specification is an improvement and agrees with the Council that keeping it on board until the next port of call is the appropriate duration. Tracking of waste disposal history over a longer time can be done through the ships oil and garbage record books.

Article 7:

- The Council has introduced a number of new provisions to article 7.2 on the delivery obligations of ships. The change of wording in the first sentence of the paragraph indicates the existence of a right for ships to proceed to sea if the conditions are fulfilled, while the previous text implied that it was for the Member State authorities to give permission in each individual case. Since the latter approach could lead to an undue administrative burden on both ships and authorities, the Commission considers this clarification to be an improvement. Some added words towards the end of the sentence further clarify that the intended waste storage space has to be specifically dedicated for that purpose and that it is the total amount of waste, not only the part which still is to be accumulated, which is relevant.

- The second sentence in paragraph 2 is new. It provides for additional precautionary measures by port States if the ship has sufficient waste storage capacity, but nevertheless, due to reasons of its future itinerary, poses a risk to the marine environment. The Commission considers that the risk that the waste could be discharged at sea should be the crucial test in this context.

- The Commission is of the view that the third paragraph, which was also inserted by the Council, is important in light of the changes made to the second one. The third paragraph ensures that Member States may opt for more stringent delivery requirements if they are adopted in accordance with international law. On the one hand this means that the Directive does not prevent Member States from implementing more stringent regional standards of delivery requirements which are agreed internationally, such as the amendment of Annex IV to the 1974/1992 Helsinki Convention covering the Baltic Sea. On the other hand it means that any delivery requirements which do not correspond to, or comply with, international law, will not have such effects.

Article 8:

- In paragraph 8.2.a, the word 'substantially' has been deleted from the principle on contribution by all ships calling at the port in the costs for waste reception, irrespective of actual delivery. In its first reading, the Parliament proposed an amendment on this issue providing that at least 90% of the waste reception costs shall be recovered by contributions from all ships. This was not supported by the Commission, who considered that it did not sufficiently take into account the need for different solutions in different ports and Member States.

- The Council was also of the opinion that a more flexible approach is needed for the fee system, without, however, endangering the fundamental principles underlying the article on fee systems (i.e. that all ships shall contribute to the costs and that the fee system shall provide no incentive to discharge waste at sea). The Common Position represents a delicate balance between the various views of the Member States on this issue. The view of the Commission is that the fee system must allow some flexibility and that the most important aspect of this article is that the two above-mentioned principles are preserved. It has accepted Common Position as a compromise, also having in mind the joint declaration referred to below. The Commission further believes that the practical implications between the original wording and that of the Common Position are relatively limited.

- The Parliament's proposal to include a new paragraph on follow-up measures in case the fee system would negatively effect competition was not accepted by the Commission. Apart from the practical difficulties to assess negative effects on competition on the basis of one (minor) element of the overall port fee, it was unacceptable for formal reasons: if true competitive problems did arise, the Commission can use the powers granted to it under the Treaty. On the other hand, both the Council and the Commission share the concerns of the Parliament that a fee system which does not sufficiently discourage discharge at sea may have adverse environmental effects, and that a fee system which is too flexible may have unwanted impacts on the waste flow patterns within the Community. The Common Position therefore includes a statement for the minutes by the Council and the Commission that there should be a proposal to amend the Directive if such effects were to occur.

- Apart from the above, only editorial changes have been made to article 8. The deletion of the 10 words in the first sentence of paragraph 2 follows from the assumption that a fee by definition is unlikely to have the effect of encouraging delivery. The change of wording in sub-paragraph (b.) follows from the deletion of the word 'substantially' in subparagraph (a.) and is intended to emphasise the neutral position of the article as to the relationship between the fixed and the variable part of the fee. The Commission can accept these changes.

Article 9:

- In the article on exemptions, the Council decided to make reference specifically to the first paragraph of article 7, instead of referring to the whole article. The reason for this change is to make it clear that no exemption may have the effect of permitting a ship that does not have sufficient waste storage capacity to continue its voyage. The changes to the second paragraph make clear that Member States do not have to inform the Commission individually of each individual exemption, but a less bureaucratic notification system will suffice for this purpose. The Commission can accept these changes, as they only clarify the ideas underlying its original proposal.

Article 11:

- Apart from the change in the enforcement regime, which was described in the previous section, only editorial changes have been made to article 11. The only alteration that involves a change of wording is the broadening of the scope of the examination under paragraph 2, second indent, where 'inaccuracies' in the notification information has been broadened to encompass 'other grounds to believe that the ship does not comply with this Directive'. The Commission welcomes the changes made to article 11 and considers that they improve the clarity of the article.

Article 12:

- The Council decided to delete paragraph (g.) of article 12, which provided for appropriate compensation of shipowners which have complied with the Directive but are unduly delayed due to inadequacy of port waste reception facilities. The reason for the deletion was the argument that existing legal procedures in any event allow ships to be compensated and that the subparagraph was unnecessary. The Commission is of the opinion that this safeguard for ships and shipowners was an important element in the establishment of a proper balance between the rights and obligations of ships and those of ports in the Directive, and that the deletion therefore was unfortunate. It made a statement for the Council minutes, where it took note of the views of the Member States and stated that it will keep this issue under review and come back to it if necessary. In this way, the Commission has ensured that problems related to insufficient regard to the needs and rights of ships within the scope of this Directive will be dealt with in the future if they prove to be substantial.

Article 14

- The amended text of article 14 refers to Decision 1999/468/EC of 28 June 1999. This Decision was adopted after the Commission gave its amended proposal and the text has consequently been updated to conform to the most recent text. The Commission can accept this way of referring to Decision 1999/468/EC.

Article 15:

- The Council specified that only the definition of Marpol 73/78 should be able to be amended under the Committee procedure, rather than all definitions. It also preferred the use of the wider term 'IMO instruments' instead of 'Resolutions' to allow for a simplified updating of any relevant IMO text which has been updated or changed which is referred to in this Directive. The Commission does not oppose any of these changes.

Article 16

- The Council wished to extend the time limit for the implementation of this Directive from 18 months to 24 months. The Commission would have preferred a shorter deadline, considering in particular that all Member States are contracting parties to the Marpol 73/78 Convention and thus already have an obligation under international law to provide adequate reception facilities in their ports. The Commission realises, however, that even the time limit of 24 months is a compromise between various wills of the Member States and does not oppose this compromise. Nor does the Commission oppose the deletion of the third paragraph of article 16, which partly duplicated the first paragraph and prescribed a notification procedure which might have been excessively bureaucratic.

Annexes I & II:

- The Council introduced some changes to the annexes of the Directive. All changes only seek to clarify the original intention of the Commission's proposal and to make the annexes more user-friendly. As far as Annex II is concerned, the changes in information to be notified is intended to provide the port with the minimum of data which is necessary for the proper monitoring of the application of the Directive. The Commission accepts all changes to the annexes, as they provide more clarity without affecting the main principles of its original and amended proposal.

3.4 Problems regarding committee procedures when adopting the common position:

See under Article 14

4. Conclusions

The Commission is of the opinion that the substance of the common position is acceptable, since it respects the basic principles of the original proposal and provides considerable added value by its clarifications and additional provisions. Furthermore the substance of the amendments adopted by the European Parliament and incorporated in the Commission amended proposal have been duly taken into account in this common position.