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 Regulation of the European Parliament and of the Council establishing a European Maritime Safety Agency

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2000/0327 (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 Regulation of the European Parliament and of the Council establishing a European Maritime Safety Agency

1. BACKGROUND

Proposal submitted to the European Parliament and the Council: 8 December 2000 (document COM(2000)802 final - 2000/00327 (COD))

Economic and Social Committee Opinion: 30 May 2001

Committee of the Regions Opinion: 13 June 2001

Opinion of European Parliament at first reading: 14 June 2001

Amended proposal submitted: 13.12.2001

Common position adopted: [5.3.2002]

2. PURPOSE OF THE COMMISSION PROPOSAL

In addition to the first ERIKA package with proposals to enhance the safety on seaborne oil trade, the Commission has come up with the second ERIKA package including three legislative proposals with the aim to bring about a lasting improvement in the protection of human life at sea and of the marine environment in Europe.

One of the legislative proposals of the ERIKA-II package concerns the setting-up of a European Maritime Safety Agency. This new Agency will provide the Member States and the Commission with the necessary technical and scientific support and a high level of expertise to properly apply the Community legislation in the field of maritime safety and pollution prevention from ships, monitor its implementation and evaluate the effectiveness of the measures in place.

The main tasks of the Agency will be:

- Technical assistance to the Commission in the monitoring of existing legislation and the preparation of new Community legislation

- Inspection missions in Member States in order to verify the conditions in which they operate PSC

- Technical assistance to Member States in the application of Community legislation

- Organisation of appropriate training actions for national inspectors

- Collection of information and management of the data bases on maritime safety which will allow to establish a "black list" of substandard ships

- Missions related to the monitoring of navigation and the management of information relating to maritime traffic

- Missions of evaluation and control of classification societies

- Participation or co-ordination of activities relating to accident investigations

- Assistance to candidate for accession countries in the implementation of Community acquis

The Agency will be managed by an Executive Director, under the supervision of an Administrative Board. The Agency's budget will be mainly financed by a subsidy from the Community.

3. COMMENTS ON THE COMMON POSITION

3.1. General observations on the common position

The Council, unanimously, has brought an important number of amendments to the initial proposal of the Commission. Many of them however mainly aim at clarifying the text. The objectives of the initial Commission's proposal have largely been kept intact or even been strengthened. The Common position also takes largely into account the views of the European Parliament in first reading.

3.2. Action taken on Parliament's amendments

During its 14 June 2001 Plenary Session, the European Parliament approved, subject to a number of amendments, the Commission's proposal for a European Parliament and Council Directive establishing a European Maritime Safety Agency. The Economic and Social Committee and the Committee of Regions supported the legislative initiative as well.

a) Parliament amendments incorporated into the amended proposal and the common position

The Commission in its amended proposal and the Council in its common position have accepted the following European Parliament (EP) amendments:

* The addition of a new recital in relation to the transparency and control of the Community budget allocated to the Agency (EP amendment 1, appearing in recital 12 [1]).

[1] The numbering is based on the text of the common position, which is different from the corresponding provisions in the initial Commission's proposal.

* The possibility for the Agency to act with regard to assistance to accession countries without an explicit request by the Commission (EP amendment 4, as included in article 2.g). Although article 2 was restructured in the common position, the provision of article 2.g has exactly the same effect as EP amendment 4.

* The obligation for the Agency to communicate the findings of the visits to Member States, not only to the Commission but also to the Member State concerned (EP amendment 7, appearing in article 3.3).

* The requirement for the Members of the Administrative Board to be appointed on the basis of their degree of experience and expertise in the fields dealt with by the Agency (EP amendment 22, appearing in article 11.1)

* The appointment/dismissal of the Executive Director to be decided by the Administrative Board, in relation to which the Commission may propose a candidate or candidates (EP amendment 14, appearing in article 16.1)

* A specific article regarding the combat against fraud (EP amendment 16, appearing as article 20).

b) Parliament amendments incorporated partly into the amended proposal and the common position

* The provision concerning the composition of the Administrative Board of the Agency, in which the Parliament decided not to be represented (EP amendment 9 taken into account in the modified article 11). In view of the above change and the increased role the Agency will play vis-à-vis Member States, article 11 has been modified to provide that the Administrative Board will consist of: 1 representative of each Member State, 4 representatives of the Commission and 4 professionals nominated by the Commission. Furthermore, the Common position provides that in order to exclude cases of conflict of interest, these professionals should not represent specific organisations and that they will not have the right to vote. The Commission has accepted the composition which appears in the common position but made a specific declaration on this issue for the minutes of the Council (this is presented in Annex 1).

* Most of the provisions concerning the Agency budget (EP amendment 15, as included in article 18)

* The provisions regarding the evaluation of the Agency, within five years of its operation. As proposed by the Parliament, this evaluation will be external, in consultation with the parties involved and its findings will be forwarded to the European Parliament (EP amendment 17, as included in article 22).

c) Parliament amendments which did not appear in the amended proposal but which were incorporated fully or partly into the common position.

In the following three cases the Council accepted unanimously the Parliament amendments which were not included in the amended proposal:

* The Commission's role in the adoption of the work programme of the Agency by its Administrative Board. Almost in line with the Parliament, the Council has agreed that the Administrative Board will proceed "taking the opinion of the Commission into account" (EP amendment 8 as included in article 10.2.d)

* The obligation for the Executive Director to respond to requests for assistance from a Member State (EP amendment 11 as included in article 15.2.a).

* The process of preparation of the work programme. The Council has specified that the Executive Director will submit the work programme to the Administrative Board after consultation with the Commission. This modification in article 15.2.a is close to the spirit of the Parliament amendment 12, which had abolished the obligation for prior Commission approval of the work programme.

d) Parliament amendments which appeared in the modified proposal but which were not incorporated into the common position.

The Commission has included in its modified proposal a number of EP amendments, which were not taken up by the Council. These relate to the following:

* The name of the Agency. The Parliament proposed to incorporate in the name of the Agency a reference to its mission regarding prevention of pollution from ships (EP amendment 2) and this was included in the Commission modified proposal. The Council did not take up this proposal but it agreed however to incorporate a clear reference to this mission in article 1 which presents the aims of the Agency, as well as in all other relevant provisions both in the articles and in the recitals. In view of the above, the Commission can accept the common position text.

* The terms of the office of the Chairman and Vice-Chairman of the Administrative Board for which the Parliament had proposed a five year term (EP amendment 10) and the requirement for the Administrative Board to meet following a request by the Parliament or six of its members (EP amendment 23). In both cases the Council preferred the text appearing in the original Commission proposal. The Commission can accept the Council common position regarding the above provisions.

3.3. New provisions introduced by the Council and the Commission's position on them

The following are the main amendments introduced by the Council in its common position, to which the Commission can agree. The changes introduced by the Council, and in particular the deletion of one article, has led to a change in the numbering of the final articles of the Regulation:

The article referring to the tasks of the Agency (article 2) has been improved to the extent that it presents clearly the Agency tasks, under seven sections: a-b) assistance to the Commission, c) co-operation with Member States, d-e) facilitation of the co-operation between Member States and the Commission, f) elaboration and treatment of the relevant data bases on maritime safety and pollution prevention, g) assistance to accession countries. This presentation does not change the substance of the Commission proposal and reinforces it, with specific reference to the assistance to the Commission for developing of new Community legislation under (a) and the technical assistance to Member States for implementing Community legislation under (c). In view of the above, the Commission can support the redrafted text of article 2 as appears in the common position.

In article 3 (visits to Member States) the Council has deleted from the text the reference to the specific tasks of the Agency officials, during their visits to Member States and has included in paragraph 1 that these visits will be carried out in accordance with the policy defined by the Administrative Board. It should be noted that this particular provision is close to one of the EP amendments (amendment 25), which indicated that these visits should be decided by the Administrative Board. The Commission can endorse these modifications which do not change the substance of article 3.

The title of article 4 has been changed to "Transparency and protection of information" and it now makes reference to the new Regulations EC/1049/2001 and EC/45/2001, which relate to transparency and the protection of information on individuals.

In article 5 (legal status, regional centres) the Council has deleted the reference to the decision regarding the location for the Agency, a change on which the Commission made a specific declaration for the minutes of the Council (this is presented in Annex 1).

Article 6 (staff) contains in paragraph 3 a specific reference to officials seconded to the Agency by Member States.

Article 9 (languages) was modified and the Council has established that the official language regime of the Community (Regulation 1/58/EC) shall apply to the Agency.

Regarding the powers of the Administrative Board as defined in article 10, the Council has included a number of modifications, the most important of which are: the addition of a provision whereby the Administrative Board examine the requests of assistance from Member States (paragraph 2c) and the establishment of a special procedure for the adoption of the work programme of the Agency in case of Commission disagreement with this programme (paragraph 2d).

With relation to the procedures for the meetings (article 13), the Council has specified that the Administrative Board may decide to examine certain questions without the presence of the 4 professionals, when there is matter of confidentiality or conflict of interest (paragraph 4).

The content of article 14 (voting) has been clarified and improved and specifies that the Executive Director will not have the right to vote in the meetings of the Administrative Board.

The procedure for the appointment/dismissal of the Executive Director as established in article 16 provides for a decision by four-fifth majority of all Board members with the right to vote.

Article 17 (verification of lawfulness) was deleted by the Council on the grounds of transparency, with the reasoning that the Agency will not take any binding legal decisions affecting third parties. For all cases where third parties may be affected by administrative decisions of the Agency, they will have the possibility to challenge such decisions before the competent Community bodies.

While the content of the provisions referring to the possible participation of third countries to the Agency (new article 17) have not been modified, the Council and the Commission have made a joint declaration for the minutes of the Council in this respect (Annex 1).

4. Conclusion

The Commission considers that the text of the common position, adopted unanimously by the Council, is acceptable as it respects the key principles of the original proposal. It increases the transparency in the Agency functioning and contributes to a higher involvement of Member States in the Agency, which is in line with its aim. As explained under point 3, an important number of modifications have been introduced in the light of the amendments adopted by Parliament at its first reading.

ANNEX 1

Statements to the minutes of the Council

Commission Declaration on Article 11 (Administrative Board)

"The Commission maintains its right to re-evaluate in the future the composition of the Administrative Board of the Agency, in the light of the experience gained and the proven efficiency of the Agency functioning."

Commission Declaration on Article 5 (Location)

"The Commission considers that the location is one of the constitutional elements of its original proposal. Consequently, the Commission reserves its position for making a proposal for the location of the Agency at the appropriate moment."

Joint Council and Commission declaration on article 17 (participation of third countries)

"In applying Article 17 and with the aim of securing a high uniform maritime safety level, the Council and the Commission declare that third countries will be invited to co-operate with the European Maritime Safety Agency. The co-operation will give third countries the possibility to participate in the work of the Agency and concerning the Agency, in respect of Community law. Consequently, the Council and the Commission agree to intensify contacts with third countries in order to agree in due time on the conditions of their association."