OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL AMENDING COUNCIL DIRECTIVE 94/57/EC ON COMMON RULES AND STANDARDS FOR SHIP INSPECTION AND SURVEY ORGANISATIONS AND FOR THE RELEVANT ACTIVITIES OF MARITIME ADMINISTRATIONS - AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

1. Background

a) On 22 March 2000, the Commission forwarded to the Council and to the European Parliament its proposal for an amended Directive (document COM(2000)142 final - 2000/0066 COD of 21 March 2000) [1].

[1] OJ C 212 E, 25.7.2000, p. 114.

b) The Economic and Social Committee delivered its opinion on 19 October 2000 [2].

[2] OJ C 14, 16.1.2001, p. 22.

c) The Committee of the Regions delivered its opinion on 21 September 2000 [3]

[3] OJ C 22, 24.1.2001, p. 19.

d) On 30 November 2000, the European Parliament adopted at first reading its opinion [4] including 18 amendments to the Commission proposal.

[4] Opinion of the European Parliament (Not yet published)

e) The Commission on 12 December 2000 adopted [5] an amended proposal incorporating most of the amendments proposed by Parliament and the opinions of the Economic and Social Committee and the Committee of the Regions.

[5] OJ C 154E, 29.5.2001, p 51 (COM (2000)849 final 12.12.2000)

f) The Council adopted its Common Position on 26 February 2001 [6].

[6] OJ C 101, 30.3.2001, p. 1

g) The Council Common Position and the Commission Opinion [7] were transmitted to Parliament on 28 February 2001.

[7] SEC(2000) 343 final, 27.2.2001 (Not yet published)

h) On 16 May 2001, the Parliament adopted a resolution (second reading) including 7 amendments to the common position.

In this opinion, the Commission adopts a position on Parliament's amendments in accordance with Article 251(2)(c) of the EC Treaty.

2. Objective of the Commission Proposal

The Commission proposal aim at amending Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations.

The proposal is part of the so-called ERIKA I package and aims at stricter monitoring of recognised organisations to which Member States may authorise statutory tasks (arising from the international conventions) to inspect the quality of ships and issue the relevant safety certificates.

More specifically, the proposal introduces:

- A new sanction for the recognised organisation: the suspension of recognition for one year, which leads to the withdrawal of the recognition if the shortcomings causing the suspension are not removed. (Without EU-recognition a class society cannot work on behalf of an EU Member State.)

- A good record of safety and pollution prevention performance of the recognised organisations - measured in respect of all the ships they have in class, irrespective of the flag they fly - becomes a conditio sine qua non to grant and maintain the recognition.

- The conditions of the financial liability of the recognised organisation carrying out statutory tasks on behalf of the Member States can be limited to different levels in accordance with the seriousness of the negligent act of the classification society.

- More stringent qualitative criteria have to be met by the recognised organisations, including the need to respect certain procedures when ships change class and the need to communicate more information about the ships they have in class to the port State control authorities.

3. Commission opinion on the amendments proposed by Parliament

Parliament adopted (second reading) seven amendments to the Council common position.

The Commission can accept four of those amendments in full or in part, but reject the other three.

3.1 Amendments accepted by the Commission

Amendment 2 introduces the arbitration reference in the text of article 6 (2)(b) "...on the administration ... or as part of the settlement of a dispute through arbitration procedures,...".

This is covered in recital 16 but the Commission can accept this additional text in the interest of consistency and clarity.

Amendment 5 which is deleting the word "minimum" in the revision clause in article 6(5) in order not to limit the scope of the revision clause to minimum liability only but rather take a wider approach and look at liability in the wide sense.

The Commission agrees with the Parliament that the scope of the revision clause should be to look at liability in a wide sense and can accept this amendment.

Amendment 6 which changes the word "increase" in article 8(1) final indent, to "alter".

The Commission believes there will in practice be little difference between "increase" or "alter" but can accept the word "alter" as well.

Amendment 7, which concerns the consultation between recognised organisations on technical standards as stipulated in Article 15 (1) and (2), but also repeats the reference to IMO Resolution 847(20) 'Guidelines to assist flag states in the implementation of IMO instruments'.

The Commission can accept the amendment without the reference to the IMO resolution. The Commission agrees with the Parliament that the reference to the IMO Resolution 847(20) is important and has therefore included the reference to the IMO Resolution in Article 3 (and recital 6) of the directive, which indeed concerns the responsibilities of flag State administrations. It is incorrect to repeat the IMO Resolution also in Article 15, as that Article does not address flag state administrations but the technical co-operation between recognised organisations. The Commission is of the firm opinion that it would create confusion in the application of the directive if the reference were repeated also in article 15.

3.2 Amendments rejected by the Commission

Amendment 1 introduces a wording in recital 20, "authorised or engaged to"

The Commission cannot accept this amendment, as it is impossible to apply. In order for a flag administration not to authorise or engage a classification society in case there is a link between the society and the ship, they would have to know and check each individual case and give approval or not. In order to do that the administration would need to have updated information at all times as to whom the surveyor used by the Recognised organisation is, and who s/he is married to or who his brother in law is or, with whom s/he has any business contacts etc. An administration normally doesn't have this information. The text would introduce an unreasonable burden on the administration relative to the improvement it would achieve.

The Commission in its amended proposal and the Council in its common position accepted this amendment in principle, both in the recital and in the Annex to the directive - Annex A point 6 - where it stipulates that "the recognised organization must not carry out statutory work if it is identical with or has business, personal or family links to the shipowner or operator...". This makes it an obligation on the recognised organisation to ensure that there is no link between the surveyor they use and the ship under survey.

Amendment 3 and 4 introduces fixed minimum and maximum levels of liability for negligence as stipulated in Article 6(2) (ii) and (iii) (minor negligence cases).

The Commission cannot accept this amendment in its entirety. The Commission did not oppose at an earlier stage (see Commission Opinion on Council's Common Position) the introduction of a common minimum level in cases of minor negligence. However, the Commission sees no need for fixing a common maximum level at this stage. The Commission agrees with the Parliament that the principle of setting maximum amounts should be introduced, and can therefore accept the change of the word "may" into "shall". However, in view of the introduction of the revision clauses in article 6(5) and article 8(1) final indent, the Commission is prepared to leave the setting of the specific maximum amount to the individual Member States in the framework of the agreements the Member States will negotiate and conclude with the classification societies they wish to authorise to work on their behalf.

4. Conclusion

In accordance with Article 250(2) of the Treaty, the Commission is altering its proposal as indicated above.

The Commission urges the Council and Parliament to do everything possible to find common ground as soon as possible so that this amended Directive, which will contribute to maritime safety and aims to prevent disasters like ERIKA from happening again, can be adopted without further delay.