COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers

2000/0121 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers

1. Background

Date of transmission of the proposal to the EP and the Council (document COM(2000)179 final - 2000/0121 COD): 22.05.2000.

Date of the opinion of the Economic and Social Committee: 19.10.2000.

Date of the opinion of the Committee of Regions: renounced.

Date of the opinion of the European Parliament, first reading: 13.02.2001.

Date of transmission of the amended proposal(COM(2001)158final): 20.03.2001.

Date of adoption of the common position: 28.6.2001.

2. Objective of the Commission proposal

The purpose of this Directive is to enhance the safety of bulk carriers calling at terminals in the Community loading or unloading of solid bulk cargoes, by reducing the risks of excessive stresses and physical damage to the ship's structure during loading or unloading. The Directive introduces into Community law the IMO BLU Code (Bulk Loading and Unloading Code) [1] and SOLAS [2] Regulation VI/7, as amended in 1996.

[1] Resolution A.862(20) adopted by the IMO General Assembly the 27 November 1997.

[2] International Convention for the Safety of Life at Sea, 1974.

This Directive applies to all bulk carriers, irrespective of their flag, calling at a terminal for the loading or unloading of solid bulk cargoes; and to all terminals within the territory of the Member States, equipped for bulk carrier loading and unloading. The proposed Directive includes the following essential components:

- requirements for the terminal operators to nominate a terminal representative responsible for the terminal's operations in loading and unloading, and defines his/her responsibilities vis-à-vis the master of the ship,

- establishment of suitability requirements for bulk carriers and terminals,

- establishment of harmonised procedures between the bulk carriers and terminals, including information exchanged and the agreement by both the master and terminal representative of a loading and unloading plan,

- requires terminal operators to apply a certified Quality Management system in accordance with ISO 9001:2000,

- gives the competent authority the right to stop loading and unloading whenever the safety of the ship would be endangered,

- establishes notification procedures and decision making procedures in relation to repairs required,

- establishes a reporting system from Member States to the Commission on implementation.

The Commission's amended proposal expresses the opinion on European Parliament's amendments, and introduces in particular:

- an interim Quality Management System certification for newly built terminals.

3. Comments on the Common Position

3.1. General observations on the common position

The European Commission agrees to the Common Position of the Council, including a number of minor and editorial changes. These concern in particular the recitals that have been adapted in the light of the amendments made to the articles of the common position. The Commission also agrees to the minor amendments introduced by the Council to Articles 1, 4, 5(2), 8(1) and (4) (ex 7(1) and (4)). The Commission furthermore accepts the editorial change to the title in certain languages. Specific comments on the substantive amendments are included below.

The Council has introduced some level of flexibility, but it is the view of the Commission that the main objective of the initial proposal is maintained, that is the translation of an internationally recognised Code into binding Community law. In certain aspects the Directive has also been strengthened.

3.2. Action taken on amendments of the European Parliament, first reading

The European Parliament expressed a favourable opinion on the Commission proposal and introduced some modifications and clarifications to reinforce certain provisions. The Commission incorporated into its amended proposal most amendments, either in full or in principle. Two amendments (to Article 3(14) and Annex IV, point 8) were rejected by both Council and the Commission.

The common position makes the following changes to the proposed Directive:

- Recital 14 (ex 16) is amended to clarify that the competent authority's safety related activities should not be dependent on commercial interests in the terminal. The Commission is in agreement with this amendment. The Commission furthermore notes that the Council's Common position does not include the Parliament's amendment to this recital regarding the possibility for Member States to empower Port State Control authorities to implement the control provisions of the Directive. The Commission accepts the view of the Council, as this clarification is not essential given the flexibility given to Member States to appoint the Competent authority, in accordance with the principle of subsidiarity. This point is also reflected in explanatory memorandum of the Commission's amended proposal, in relation to the rejected Parliament amendment to Article 3(14).

- The Parliament proposed to amend article 9(1) (ex 8(1)) and recital 14 (ex 16) to ensure that the competent authorities are required to prevent or halt the loading and unloading of solid bulk cargoes should they have been notified and consider that the safety of the ship or crew is endangered. The Commission agrees with the Council's proposed alternative wording, as it expresses the same intent as that of the Parliament, and takes into account the concern expressed by the Commission that the competent authorities must have the opportunity to act on their own initiative, rather than just reacting on notification. The importance of including an obligation, rather than a right, for the competent authority to act, is a welcome strengthening of the initial Commission proposal.

- Recital 15 (ex 17) has been amended to specify that the appropriate bodies to which damage of ships incurred during loading and unloading should be reported shall include the relevant classification societies. The Commission agrees with this amendment.

- Article 3(9) on the definition of the terminal representative is amended by the Council in line with the Commission's amended proposal, and answers to the concerns expressed by the Parliament. The amended text ensures that there is a person responsible at the terminal in relation to one particular ship at all stages of the loading and unloading operations, but specifies that this can be several physical persons working in shift in line with Community working time legislation.

- Article 7(2)(c) (ex 6(2)(c)) is amended to oblige the terminal representative to also notify the master should he note apparent deficiencies. The Commission agrees with this amendment.

- Article 8(1) (ex 7(1)) has been modified according to the Commission's amended proposal in response to the Parliament's amendment. It is crucial that each party has the capacity to judge if a change to the loading and unloading plan may affect the safety of the ship and crew, to avoid conflict.

- Article 10(2) (ex 9(2)) is amended according to the Commission's amended proposal to clarify that the decision whether immediate repair is necessary is taken by the Port State Control authority, but that also the view of the master is taken into account. It furthermore specifies that in the absence of an opinion of the administration of the flag state, urgent repairs can be carried out. In addition, such repairs shall be carried out not just to the satisfaction of the master, but also to the satisfaction of the competent authorities. The Council's addition regarding the role of the competent authorities in deciding if the ship is seaworthy after immediate repair is crucial and in accordance with International and Community maritime safety legislation, and the Commission can accept the Council's text.

- Article 11(1) (ex 10(1)) extends the verification procedures to the implementation and certification of the Quality Management System as outlined in article 5(4) in accordance with the Parliament's amendment, to take place at the end of the period given for compliance with the certification requirement for existing terminals, and for newly built terminals at the end of the period for which interim authorisation to operate is given. The Commission agrees to this amendment, since this verification will form part of the reporting and evaluation procedure.

- Article 12 (ex 10(3)) is added, introducing an evaluation procedure on "the operation of the systems provided for in the Directive", in accordance with the wording proposed by the Commission's amended proposal.

- Article 17 (ex 15) is amended by the Council according to the Commission's amended proposal, which requires Member States to adopt and publish provisions implementing this Directive no later than 18 months after its entry into force, and makes the Directive applicable 6 months later.

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

- The Council clarifies the scope of the Directive (Article 2 and Recital 8), by specifying that terminals only exceptionally visited by bulk carriers are excluded from the Directive. The Council furthermore excludes loading and unloading operations when those are carried out solely with equipment on board the bulk carrier, and thus not involving the equipment and staff of the terminal operator. The Commission can accept this, as it is in line with the definition of terminals (Article 3(7)). In both cases, it is specified in the amended article that SOLAS still applies, which safeguards a minimum requirements in relation to safe loading and unloading procedures.

- The Commission accepts the improved definition in article 3(8) of "terminal operators", which clarifies the responsibilities in situations when several terminal operators operating at the same terminal.

- The Commission accepts the clarification of the chain of responsibility in the introduction to article 5. The strengthening of the verification responsibilities in Article 5(4) in the amended article 10, furthermore enhances the role of the Member States in supervising the implementation of the Directive.

- The Commission can accept the amendments to article 5(4) proposed by the Council to allow the use of equivalent Quality Management Systems, as it is clear from the wording that ISO 9001:2000 will in practice be the minimum standard. This will ensure that the objective of the Directive is maintained. Lower quality management standards will therefore not distort competition between terminal operators on the territory of the Community. It is furthermore crucial Directive 98/34/EC [3] is complied with, when procedures for developing new or equivalent standards are carried out. The Commission can furthermore agree to the extended deadlines for application of the Quality Management System, and the Certification, in order to safeguard the important principle of certified Quality Management Systems set out in the initial proposal.

[3] OJ L 204, 21.07.1998 p. 37-48 and OJ L 217, 05.08.1998, p. 18. Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC.

- The limitation of the responsibility in Article 5(3) of the Terminals to prepare only the "Terminal Information Books" (BLU Code Appendix 1.2), and not the "Port Information Books" (BLU Code Appendix 1.1) is consistent with the responsibility of the terminal operator vis-à-vis the port authorities, and hence acceptable to the Commission.

- The Council clarifies that in order for the competent authority to be able to carry out its arbitrary function as outlined in article 9(2) (ex 8(2)), prior knowledge of such a disagreement must exist. This is acceptable to the Commission, as it does not exclude the competent authority acting on its own initiative.

- The Commission agrees with the Council's amendment of Article 10(2) (ex 9(2)) adding that both the terminal representative and the master individually may alert the port state control authorities of damage to the structural capability or watertight integrity of the hull.

- The Commission furthermore agrees with new Article 10(4) (ex 9(4)) on the role of the Port State Control authorities under Directive 95/21/EC [4]. The role of the Port State Control authorities in this Directive goes beyond that of Directive 95/21/EC as amended, in particular in relation to vessels of its own flag, but does not limit its right to intervene in relation to inspections and detentions as therein stated.

[4] OJ L 157 of 07.07.1995, p. 1 and OJ L 184 of 27.06.1998, p. 40. Council Directive 95/21/EC of 19 June 1995 concerning the enforcement in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control).

- The Commission agrees to the extension of the reporting cycle in article 11(2) (ex 10(2)) from 2 to 3 years, to limit the administrative workload.

- The Commission accepts the alterations to the Committee procedures in Article 14 (ex 12).

- The Commission agrees with the amendments to article 13 (ex 11) regarding the notification to the IMO of the adoption of the Directive, in accordance with the precedent set by Directive 97/70/EC [5].

[5] OJ L 34 of 9.02.1998, p. 1. Council Directive 97/70/EC of 11 December 1997 setting up harmonised regime for fishing vessels of 24 metres in length and over.

- The Commission agrees with the specifications in Article 15(1) (ex 13(1)) of which definitions (in Article 3) as well as the reporting obligations introduced in Article 10(2) can be amended through Comitology.

- The Commission agrees with the limitation of the notification obligations of penalties as initially included in article 16 (ex 14), as it renders the article consistent with other Community maritime safety legislation in force and recently adopted. [6]

[6] OJ L 332 of 28.12.2000, p. 81. Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues.

- The Commission agrees with the Council's amendments made to the technical annexes as follows:

- to ensure consistency with amendments to the articles (Annex I (previous point 6 deleted), Annex II (Points 1.3 and 4)),

- to simplify the procedures (Annex II, point 3 deleted),

- to ensure consistency with the BLU Code (Annex VI, new points 3,4 and 8 added.)

3.4. Action taken on the Commission's amended proposal.

The Council has included the interim arrangements for newly established terminals as proposed in the Commission's amended proposal in relation to the Quality Management System in an interim period in new article 6 (ex 5(4) and recital 11 (ex 13), introduced to avoid that new terminals operate illegally until they receive their certification. The Commission agrees with the changed wording proposed by the Council.

4. Conclusions

The Commission considers that the text of the common position is acceptable as it maintains all key components of the Directive, in some aspects introduces more flexibility, but it also clarifies and strengthens the Directive to a certain extent. Furthermore, the substance of the Commission's amended proposal has been duly taken into account.