[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 23.11.2005

COM(2005) 588 final

2005/0238 (COD)

Proposal for a

DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of […]

on port State control

(Recast)

(presented by the Commission){SEC(2005) 1499}

EXPLANATORY MEMORANDUM

1) CONTEXT OF THE PROPOSAL

110

- Grounds for and objectives of the proposal

1) Recast Directive 95/21/EC on port State control.

This text has been the subject of numerous amendments which have made it particularly complex. The recasting will clarify the provisions of the Directive to make them more understandable, in line with the "better law-making" policy promoted by the Commission.

2) Reinforce and improve the effectiveness of port State control.

The latter objective results from a number of undertakings entered into by the Commission and requests made by the other institutions, in particular as a result of the PRESTIGE accident in November 2002. As early as 3 December 2002, the Commission adopted a Communication (COM(2002) 681 final of 3.12.2002) on improving safety at sea in response to the PRESTIGE accident, followed on 6 December 2002 by Council conclusions concerning ship safety and the prevention of pollution in which the Council invites the Commission to present as soon as possible a proposal aimed at reinforcing port State control procedures. Finally, it should be emphasised that in its Resolution adopted on 27 April 2004 following the work of the temporary committee on improving safety at sea (the MARE Committee), the European Parliament also called for an improvement and intensification of ship inspections in European Union ports.

- General context

The existing regulations are contained in Directive 95/21/EC and its successive amendments. Part of the objective of the proposed measure is precisely to recast these elements in a consolidated text.

In addition, the proposal aims to:

- amend certain provisions, with a view to either simplification or clarification (for example in the case of the expanded inspection programme) or reinforcement (this is the case in particular with provisions on the role of pilots in detecting faults and rules concerning the banning of substandard ships),

- add a number of new provisions in areas which were not covered by port State control, such as maritime safety, in order to take account of recent developments in international and Community law.

- Existing provisions in the area of the proposal

Directive 95/21/EC.

- Consistency with the other policies and objectives of the Union

The reinforcement of ship inspections will have a direct environmental impact by reducing the risks of accidents and consequently of the pollution that such accidents may cause.

Moreover, the measure will have positive economic repercussions as a result of this reduction of the risks of accidents and pollution. These changes are also designed to establish fairer competition conditions for maritime transport operators by reducing unfair competition from substandard vessels, which will be the subject of stricter penalties, and by granting the operators of quality vessels the benefit of less rigorous inspections.

Finally, the measure contributes to European Union social policy through the monitoring of onboard living and working conditions and the introduction of stricter rules regarding the following up of complaints made by seamen.

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT

- Consultation of interested parties

Consultation methods, main sectors targeted and general profile of respondents

In May 2004 and then in February 2005, the Commission held a twin series of consultation meetings with the representatives of the Member States and the shipping industry, on the basis of working documents from its services containing a detailed list of questions on the proposed changes.

Summary of responses and how they have been taken into account

The results of the consultations and impact studies carried out have confirmed:

- the added value of carrying out a complete recasting of the existing text to meet the need for clarity and regulatory simplification,

- the need to tighten up measures concerning those vessels posing the greatest risks, particularly through the strengthening of the banning regime,

- the importance of establishing the bases of a new inspection system ensuring that no vessel can evade inspection and that the inspection intervals are differentiated in favour of vessels of a high standard so as not to adversely affect their competitiveness through unjustified constraints.

The data collected and the detailed conclusions of the impact assessment are contained in the attached document SEC …/… .

- Collection and use of expertise

Scientific/expertise domains concerned

Maritime safety, safeguarding of human life, environmental protection and security.

Methodology used

Commission participation in Paris Memorandum groups of experts, studies entrusted to the European Maritime Safety Agency on certain points (example: overview of the application of the possibility of refused access to ports since the entry into force of the Directive, examination of the possible impacts of the new inspection regime), collection and analysis of information obtained from the database of the Paris Memorandum of Understanding on port State control.

Main organisations/experts consulted

Work of the European Parliament temporary committee on the improvement of maritime safety following the sinking of the tanker Prestige in 2002 (conclusions of the "MARE" Committee).

Experts from EMSA and the Paris Memorandum.

Summary of advice received and used

The existence of potentially serious risks with irreversible consequences has been mentioned. The existence of such risks is universally accepted.

The advice of the Paris Memorandum experts helped to determine the scale of the problem and to isolate possible practical difficulties on subjects such as the inspection of ships at anchor. The work of the group of experts on the introduction of the new inspection regime, in which the Commission participated with the assistance of the Agency, allowed the broad lines of the future inspection regime to be determined.

The studies carried out by EMSA have revealed the shortcomings of the existing legislation, particularly those concerning the application of existing measures on refusal of access which have led to the proposed tightening up of the regime on this point. The experience gained by EMSA in managing the database on inspections of ro-ro passenger ships (under Directive 99/35/EC) has made it possible to propose a simplification and harmonisation of similar provisions in the two Directives.

Methods used to make the results of these expert opinions available to the public

The expert opinions are described in the impact assessment. Moreover, the Internet sites of the Paris Memorandum (http://www.parismou.org/) and EMSA (http://www.emsa.eu.int/) contain information on the application of the port State control regime (black lists of banned ships, black list of flags whose ships are most frequently detained).

- Impact assessment

The data collected and the detailed conclusions of the impact study are contained in the attached document SEC ../.. , which is summarised below:

Option 1: No action

The present arrangements are maintained. However, the status quo does not meet the demands made by the European Parliament and the Council or the undertakings made by the Commission following the PRESTIGE accident. It obliges Member States to apply conditions which have been overtaken by developments in international law or the situation within the EU. The balance sheet is therefore negative from an environmental and social point of view. From an economic point of view, although there are no extra administrative costs for the authorities, this option allows the unfair competition suffered by quality shipowners from substandard ships to persist.

Option 2: Resolve the problem through increased cooperation between Member States.

Cooperation between Member States, whether directly or through the Paris Memorandum, is legally conceivable only in areas not already covered by the Directive. This could, however, lead to a divergence between Community rules and the procedures applied under these intergovernmental agreements which would be extremely detrimental to the effective and harmonised application of port State control. The social, environmental and economic impacts would therefore be negative, particularly as some Member States are not parties to the Paris Memorandum.

Option 3: Simplification and improvement of the existing legislation

Simply adopting a technical adaptation of the Directive has the advantage of leaving the existing framework in place and proposing only targeted changes to meet identified needs. The environmental, social and economic costs would therefore be low. However, its benefits are less than the more ambitious approach described in Option 4, particularly at the economic level, since although it tightens up sanctions on substandard vessels by making it easier to ban ships, it does not fully meet the objective of promoting high quality maritime transport.

Option 4: Modification of the existing regime

This would involve replacing the present regime based on a quantitative approach (25% of ships inspected by Member State) by a more qualitative and global approach at EU level. The new inspection system would be more cost effective by concentrating inspection resources on high risk ships and relaxing inspections of vessels of a high standard, which would provide the environmental, social and economic advantages without the drawbacks.

The impact assessment is contained in the Commission legislative and work programme, the report of which is available on the Commission's Internet site:

http://europa.eu.int/comm/secretariat_general/impact/index_en.htm ."

3) LEGAL ELEMENTS OF THE PROPOSAL

- Summary of the proposed measures

It is proposed to:

- recast Directive 95/21/EC on port State control and its successive amendments in a single text,

- make a number of amendments in order to update, complement and reinforce the Directive with a view to improving safety and security at sea, and the protection of seamen and the environment.

- Legal basis

Article 80(2) of the Treaty.

- Principle of subsidiarity

The principle of subsidiarity applies insofar as the proposal does not affect an area where the Community has exclusive competence.

The objectives of the proposal cannot be achieved to a sufficient extent by the action of Member States for the following reasons.

Individual action by the Member States is by its nature incompatible with the objectives of port State control which seeks to ensure that in a particular geographical region, onboard inspections are carried out in a harmonised way.

Moreover, one of the objectives of action at regional level is to reduce costs and optimise through coordinated action the resources needed for an effective control of ships. Less rigorous application of port State control in a particular Member State would increase safety risks and might lead to the appearance of ports of convenience thus creating an unacceptable distortion of competition within the Community.

The objectives of the proposal can be achieved more effectively through Community action for the following reasons.

The proposal reinforces the provisions of an existing Directive.

Community action guarantees a harmonised application of inspection procedures in particular through the establishment of qualification standards and training programmes for inspectors, the sharing of information between Member States via a common information system and the following up of measures from one Member State to another (for example, in the matter of refusal of access).

The scope of the existing Directive is unchanged.

The proposal therefore conforms to the principle of subsidiarity.

- Principle of proportionality

The proposal conforms to the principle of proportionality for the following reasons.

The precise and detailed nature of the measures contained in the proposal is essential for the establishment of uniform inspection rules in the European Union.

The proposal combines greater effectiveness in removing substandard ships with better use of existing resources, while penalising reputable operators as little as possible..

- Choice of instruments

Proposed instrument(s): Directive.

Other instruments would not have been adequate for the following reasons.

This is primarily a question of recasting an existing Directive. Moreover, self-regulation is not a possibility since the objective of port State control is for the public authorities to check compliance with binding safety standards and to penalise failure to do so in a uniform and proportionate manner. A recommendation is excluded, since it would not make it possible to fix binding objectives and require compliance therewith by the Member States.

4) BUDGETARY IMPLICATIONS

The proposal has no budgetary implications for the Community.

5) ADDITIONAL INFORMATION

- Simulation, pilot phase and transitional period

The proposal has been or will be the subject of a transitional period.

- Simplification

The proposal introduces a simplification of the legislative framework, of the administrative procedures applying to the public authorities (whether national or European).

In accordance with the objectives of European Union policy on better law-making, a number of improvements have been made in the presentation of the text: repeated or cross-references to other provisions in the text have been kept to a minimum. Moreover, in order to improve the legibility of the text, the provisions concerning procedures or technical details of inspections have been consigned to the Annex, to ensure that the operative part contains only the principles, objectives and essential elements.

For reasons of clarity, and having regard to the very considerable number of amendments of varying degrees of importance made in the recasting exercise, the main amendments proposed are set out below in a thematic form according to objective.

The simplification results from the removal of certain obligations considered to be obsolete (for example procedures applicable where no ISM certificates are carried onboard), and from harmonisation with procedures and tools put in place under other Directives (harmonisation of checks for ro-ro passenger ships with the expanded inspections provided for under Directive 95/21/EC).

The proposal forms part of the Commission programme updating and simplifying the Community acquis.

- Review/revision/sunset clause

The proposal contains a revision clause.

- Legislative recasting

The proposal involves a recasting of the legislative provisions in force.

- European Economic Area

This draft Act concerns a field covered by the EEA Agreement and should therefore be extended to the European Economic Area.

- Detailed explanation of the proposal by Article

(1) Ensuring more effective application of the system of controls in ports and anchorages of the European Union (Articles 10 and 13)

As regards ports, the primary objective is to ensure that port State control is carried out in a uniform manner in ports of all States of the European Union. Thus the arrangements for banning a vessel will be based on detentions enforced in all Member States and not only in the Paris Memorandum ports as is the case in the present Directive. The proposal also lays down the inspection procedures applicable in anchorages.

(2) Reinforcing the notification obligations on pilots (Article 17)

The Directive already contains an obligation for pilots to report defects. The PRESTIGE accident showed that information had not been transmitted by sea pilots in the Baltic approaches in the absence of a clear legal basis. The existing provisions have therefore been amended to extend this obligation to deep sea pilots, including those on ships in transit. Moreover, it is proposed to amend the provisions of the Directive to ensure that reports made by pilots and port authorities are followed up more effectively by the Member States.

(3) Extending and simplifying access refusal measures (Article 10)

Refusal of access is a very effective dissuasive tool in the campaign against substandard vessels. The current rules will be

- extended to all ships: statistics show that bulk carriers and cargo ships are on average the most frequently detained in the European Union;

- simplified: the present criteria are obscure and difficult to implement. A clear message will be given, since the proposal is now based on two simple criteria: firstly, poor management of the vessel by its operator, as indicated by repeated detentions without a significant improvement in the condition of the vessel and secondly, inadequate monitoring by the flag State, attested to by its inclusion on the black and grey lists of the Paris Memorandum;

- tightened up: a minimum banning period is established in order to counter abuses already observed in the implementation of the Directive, in particular access refusals which are lifted too quickly, without any proper inspection of the condition of the vessel. Repeat offenders will be penalised more severely, with the ultimate possibility of permanent banning from European Union ports.

(4) Tightening up requirements concerning administrations responsible for inspections and the competence of inspectors (Articles 4 and 16)

In accordance with international law, port State control can be exercised by a State only if the latter is fully in compliance with the rules that it imposes on foreign vessels in its ports. The Directive will restate this minimum requirement imposed on Member States of the European Union.

Moreover, the competent authorities must be in a position to carry out the compulsory inspections when the ships concerned are in port, including if necessary at weekends and on public holidays, in order to ensure that the vessels concerned do not evade inspection.

Finally, it is proposed to tighten up requirements concerning the professional profile of inspectors, by requiring Member States to regularly check their qualifications, particularly in the light of new rules resulting from amendments to the Directive or international conventions. The Commission will also establish, with the assistance of EMSA, harmonised rules on the qualifications and training of inspectors in order to reach a high level of competence of inspectors in the enlarged European Union.

(5) Improving the planning, preparation and carrying out of inspections (Articles 7 and 18)

Under the improved cooperation between authorities pre-notifications received by ports and other bodies will have to be transmitted immediately to the inspectors, which will enable them to better plan and prepare their inspections.

Finally, it is laid down that when carrying out inspections, the inspector verifies whether defects detected but not corrected in a previous port have indeed been rectified in the meantime.

(6) Improving the expanded inspection regime (Article 8)

Practical improvements have been made to the expanded inspection regime: ships eligible for an expanded inspection will be informed in advance by the inspector that they will be subjected to the expanded inspection on their arrival in port and, in return, will have to take appropriate measures to be available for such an inspection.

Moreover, with a view to simplification, the expanded inspection scheme will be applied to the categories of vessels concerned from a uniform minimum age (12 years).

(7) Tightening up provisions concerning the human element (Article 12)

The Paris Memorandum statistics show a high number of anomalies connected with the qualifications of seamen onboard ships and their living and working conditions. Provisions tighten up controls on these aspects, in order in particular to respond to the worrying phenomenon of the increasing number of fraudulent certificates. Moreover, complaints by crew members regarding the safety and health of crews, living conditions and more generally the safety of the ship and the prevention of pollution will be dealt with systematically and seamen informed of the outcome of their complaint.

(8) Controls regarding security (Article 7)

Maritime transport is particularly vulnerable to the risk of terrorist or other criminal acts. In order to facilitate the application of Regulation (EC) No 725/2004 of the European Parliament and of the Council on enhancing ship and port facility security, the inspection procedures established under the Paris Memorandum have been introduced in the Directive.

(9) Greater transparency and wider dissemination of information on ships and operators (Article 20)

In order to reinforce the dissuasive effect on the operators of ships penalised under the Directive, the Commission, through the European Maritime Safety Agency, is planning to publish a black list of owners of ships which have been the subject of repeated detention or access refusal measures. A black list of ships banned under the terms of the Directive will also be published in accordance with the same procedures and updated constantly.

(10) Facilitating monitoring by the Commission of the implementation of the Directive by the Member States (Article 23)

The existing provisions, which do not allow satisfactory control by the Commission of implementation of the Directive by the Member States, will be amended to enable the European Maritime Safety Agency, acting on behalf of the Commission, to obtain precise electronic data on ships' movements. On this basis, detailed analyses of the operation of the regime in the ports of the Member States can be carried out, which will make it possible for example to optimise inspection resources on the basis of traffic or avoid the risk of seeing "ports of convenience" appear.

(11) Establishment of a new inspection regime (Article 5)

The current port State control regime is based on compliance with the purely quantitative threshold of 25% of ships inspected by Member State, which not only allows many ships to pass through the net but also sometimes causes the authorities to carry out unjustified inspections solely to reach this figure. The approach proposed establishes a collective objective which is to inspect all ships calling at ports in the Union, with high risk ships being inspected more frequently and quality ships less so.

The new inspection regime will help to ease the burden of inspections on quality ships on the basis of criteria relating to the ship itself and its flag (in particular the fact that the flag State applies the IMO voluntary audit system). However, it should be stressed that this new regime must not lead to a weakening of the present system which would result in greater insecurity. In particular, the aim of the new regime should not be a reduction of the resources allocated by the Member States to port State control but their more effective use.

The principle is simple but its implementation is complex: a precondition of such a regime, if the development of ports of convenience is to be avoided, is that an objective mechanism is found which guarantees a fair – and verifiable – distribution of the number of inspections between the Member States.

The details of such a mechanism are currently being studied under the Paris Memorandum – where a specific task force has been set up – and in EMSA.

It is therefore proposed at this stage to incorporate the principles of this new inspection regime in the Directive, along with its essential elements: establishment of a risk profile applicable to ships, incentives for ships with a low risk profile and the adaptation of existing procedures relating to inspections and follow-up.

Subsequent amendments to the Directive which become necessary will be introduced through the "comitology" procedure, once all the elements and practical details of the new inspection regime have been established.

However, until these technical details have been adopted and have entered into force at Community level, the existing regime continues to apply and in particular the threshold of 25% of individual ships inspected by Member State.

2005/0238 (COD)

ê 95/21/EC

Proposal for a

DIRECTIVE …/…/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of […]

ê 2001/106/EC Art. 1 pt. 1 (adapted)

on port State control of shipping

ê 95/21/EC (adapted)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84(2) Ö 80(2) Õ thereof,

Having regard to the proposal from the Commission[1],

Having regard to the opinion of the European Economic and Social Committee[2],

Having regard to the opinion of the Committee of the Regions[3],

Acting in accordance with the procedure laid down in Article 189c Ö 251 Õ of the Treaty[4],

Whereas:

ò new

(1) Council Directive 95/21/EC of 19 June 1995 on port State control of shipping[5] has been substantially amended several times. Since further amendments are to be made, it should be recast in the interests of clarity.

ê 95/21/EC Recital 1

(2) The Community is seriously concerned about shipping casualties and pollution of the seas and coastlines of the Member States.

ê 95/21/EC Recital 2

(3) The Community is equally concerned about on-board living and working conditions.

ê 95/21/EC Recital 3 (adapted)

The Council, at its meeting on 25 January 1993, adopted conclusions that urged the Community and the Member States to ensure more effective application and enforcement of adequate international maritime safety and environment protection standards and to implement the new measures when adopted;

ê 95/21/EC Recital 4 (adapted)

In its resolution of 8 June 1993 on a common policy on safe seas[6], the Council urged the Commission to submit as soon as possible to the Council suggestions for specific action and formal proposals concerning criteria for the inspection of ships, including the harmonization of detention rules, and including the possibility of publication of the results of the inspections and refusal of access to Community ports;

ê 95/21/EC Recital 5 (adapted)

(4) Safety, pollution prevention and shipboard living and working conditions may be effectively enhanced through a drastic reduction of substandard ships from Community waters, Ö which will be achieved Õ by strictly applying international Conventions, codes and resolutions.

ê 95/21/EC Recital 6 (adapted)

(5) Monitoring the compliance of ships with the international standards for safety, pollution prevention and shipboard living and working conditions should rest primarily with the flag State. However, there is Ö has been Õ a serious failure on the part of an increasing number of flag States to implement and enforce international standards. Henceforth the monitoring of compliance with the international standards for safety, pollution prevention and shipboard living and working conditions has Ö should Õ also to be ensured by the port State.

ê 95/21/EC Recital 7

(6) A harmonised approach to the effective enforcement of these international standards by the Member States in respect of ships sailing in the waters under their jurisdiction and using their ports will avoid distortions of competition.

ò new

(7) The shipping industry is vulnerable to acts of terrorism. Transport security measures should be implemented effectively and Member States should vigorously monitor compliance with the security rules by carrying out security checks.

ê 95/21/EC Recital 8 (adapted)

A framework in Community law for harmonizing inspection procedures is fundamental to ensuring the homogeneous application of the principles of shipping safety and prevention of pollution which lie at the heart of Community transport and environment policies;

ê 95/21/EC Recital 10 (adapted)

The adoption of a Council Directive is the appropriate procedure for laying down the legal framework and the harmonized rules and criteria for port State control.

ê 95/21/EC Recital 11 (adapted)

(8) Advantage should be taken of the experience gained during the operation of the Paris Memorandum of Understanding (MOU) on Port State Control (PSC), signed in Paris on 26 January 1982.

ò new

(9) The European Maritime Safety Agency (EMSA) established by Regulation (EC) No 1406/2002 of the European Parliament and of the Council,[7] should provide the necessary support to ensure the convergent and effective implementation of the port State control system. EMSA should in particular contribute to the development of a harmonised Community scheme for the qualification and training of port State control inspectors.

ê 95/21/EC Recital 12 (adapted)

(10) The inspection by each Member State of at least 25% of the number Ö one quarter Õ of individual foreign ships which enter its ports in a given year in practice means that a large number of ships operating within the Community area at any given time have undergone an inspection.

ò new

(11) An efficient port State control regime should however seek to ensure that all ships calling at a port within the European Union are regularly inspected, instead of limiting itself to the current objective of inspecting one quarter of incoming ships in each Member State. Inspection should concentrate on substandard ships, while quality ships, meaning those which have satisfactory inspection records or which fly the flag of a State complying with the IMO Member State Audit Scheme, should be rewarded by undergoing less frequent inspections. Such new inspection arrangements should be incorporated into the Community’s port State control regime as soon as its various aspects have been defined and on the basis of an inspection-sharing scheme whereby each Member State contributes fairly to the achievement of the Community objective of a comprehensive inspection scheme.

ê 95/21/EC Recital 13 (adapted)

Further efforts should be made to develop a better targeting system.

ê 95/21/EC Recital 14 (adapted)

(12) The rules and procedures for port-State inspections, including criteria for the detention of ships, must Ö should Õ be harmonised to ensure consistent effectiveness in all ports, which would also drastically reduce the selective use of certain ports of destination to avoid the net of proper control.

ò new

(13) Certain categories of ships present a major accident or pollution hazard when they reach a given age and should therefore be subject to an expanded inspection; the details of such expanded inspection need to be laid down

ê 95/21/EC Recital 15 (adapted)

The casualty, detention and deficiency statistics published in the Commission's communication entitled «A common policy on safe seas» and in the annual report of the MOU show that certain categories of ships need to be subject to an expanded inspection.

ê 2001/106/EC Recital 4 (adapted)

(14) Some ships pose a manifest risk to maritime safety and the marine environment because of their poor condition, flag and history; among which , in particular, ships flying the flag of a State described as «very high risk» or «high risk» in the black list as published in the annual report of the MOU. They should therefore be refused access to Community ports, unless it can be demonstrated that they can be operated safely in Community waters. Guidelines must Ö should Õ be established setting out the procedures applicable in the event of the imposition of such an access ban and of the lifting of the ban. In the interests of transparency, the list of ships refused access to Community ports should be made public.

ò new

(15) In order to reduce the burden placed on certain administrations and companies by repetitive inspections, a survey carried out on a ro-ro ferry or high-speed passenger craft under Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services[8], to the satisfaction of the host State, should be regarded as an expanded inspection under the port State control system.

ê 95/21/EC Recital 16 (adapted)

(16) Non-compliance with the provisions of the relevant Conventions must be rectified. Ships which are required to take Ö need to be the subject of Õ corrective action must, where the Ö observed Õ deficiencies in compliance are clearly hazardous to safety, health or the environment, be detained until such time as the non-compliance hasÖ shortcomings have Õ been rectified.

ê 95/21/EC Recital 17

(17) A right of appeal should be made available against decisions for detention taken by the competent authorities, in order to prevent unreasonable decisions which are liable to cause undue detention and delay.

ê 95/21/EC Recital 18 (adapted)

The facilities in the port of inspection may be such that the competent authority will be obliged to authorize the ship to proceed to an appropriate repair yard, provided that the conditions for the transfer are complied with. Non-complying ships would continue to pose a threat to safety, health or the environment and to enjoy commercial advantages by not being upgraded in accordance with the relevant provisions of the Conventions and should therefore be refused access to all ports in the Community.

ê 95/21/EC Recital 19 (adapted)

There are circumstances where a ship which has been refused access to ports within the Community has to be granted permission to enter. Under such circumstances the ship should only be permitted access to a specific port if all precautions are taken to ensure it safe entry.

ê 95/21/EC Recital 20 (adapted)

Given the complexity of the requirements of the Conventions as regards a ship's construction, equipment and manning, the severe consequences of the decisions taken by the inspectors, and the necessity for the inspectors to take completely impartial decisions, inspections must be carried out only by inspectors who are duly authorized public service employees or other such persons, and highly knowledgeable and experienced.

ò new

(18) Authorities and inspectors involved in port State control activities should have no conflict of interests, whether with the port of inspection or with the ships inspected and related interests. Inspectors should be adequately qualified and should receive appropriate training so as to maintain and improve their competence in the conduct of inspections. Member States should cooperate in developing and promoting a harmonised Community scheme for the qualification and training of inspectors.

ê 95/21/EC Recital 21 (adapted)

(19) Pilots and port authorities may Ö should Õ be able Ö enabled Õ to provide useful information on Ö defects found on board ships Õ the deficiencies of such ships and crews.

ò new

(20) Complaints regarding living and working conditions on board should be investigated. Any person lodging a complaint should be informed of the follow-up action given to that complaint.

ê 95/21/EC Recital 22

(21) Cooperation between the competent authorities of the Member States and other authorities or organizations is necessary to ensure an effective follow-up with regard to ships with deficiencies which have been permitted to proceed and for the exchange of information about ships in port.

ê 95/21/EC Recital 23 (adapted)

ð new

(22) ð Since the inspection database is an essential part of port State control, Member States should ensure that it is updated in the light of Community requirements. ï The information system called Sirenac E established under the MOU provides a large amount of the additional information needed for the application of this Directive.

ê 95/21/EC Recital 24 (adapted)

(23) Publication of information concerning ships Ö and their operators or companies Õ which do not comply with international standards on safety, health and protection of the marine environment, may be an effective deterrent discouraging shippers Ö from using Õ to use such ships, and an incentive to their owners to take corrective action without being compelled to do so.

ê 95/21/EC Recital 25 (adapted)

(24) All costs of inspecting ships which warrant detention Ö, and those incurred in lifting a refusal of access, Õ should be borne by the owner or the operator.

ê 95/21/EC Recital 26 (adapted)

For the purposes of implementing this Directive use should be made of the Committee set up pursuant to Article 12 of Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods[9] in order to assist the Commission with the task of adapting Member States' inspection obligations on the basis of experience gained, taking into account developments in the MOU, and also adopting the Annexes as necessary in the light of amendments to the Conventions, Protocols, codes and resolutions of relevant international bodies and to the MOU.

ê 2001/106/EC Recital 18 (adapted)

(25) The measures necessary for the implementation of Ö this Õ Directive 95/21/EC should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[10].

ò new

(26) Since the objectives of the action to be taken, namely to reduce substandard shipping in Community waters through improvement of the Community’s inspection system for seagoing ships and the development of the means of taking preventive action in the field of pollution of the seas cannot be sufficiently achieved by the Member States and may, therefore, on account of their scale and their effects, be better achieved at Community level, the Community can take measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.

(27) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.

(28) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XVII, Part B,

ê 95/21/EC (adapted)

ð new

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

The purpose of this Directive is to help drastically to reduce Ö drastically Õ substandard shipping in the waters under the jurisdiction of Member States, by:

(a) increasing compliance with international and relevant Community legislation on maritime safety, ð maritime security, ï protection of the marine environment and living and working conditions on board ships of all flags,;

(b) establishing common criteria for control of ships by the port State and harmonizing procedures on inspection and detention., taking proper account of the commitments made by the maritime authorities of the Member States under the Paris Memorandum of Understanding on Port State Control (MOU).

Article 2

Definitions

ê 95/21/EC (adapted)

For the purpose of this Directive including its Annexes:

ê 2001/106/EC Art. 1 pt. 2 (adapted)

1. “ Conventions” means Ö the following Conventions, together with the Protocols and amendments thereto and related codes of mandatory status, in their up-to-date version Õ:

ê 2001/106/EC Art. 1 pt. 2

(a) the International Convention on Load Lines, 1966 (LL 66),;

(b) the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74),;

(c) the International Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78),;

(d) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78),;

(e) the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72),;

(f) the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69),;

(g) the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147),;

(h) the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92),.

ê 2001/106/EC Art. 1 pt. 2 (adapted)

è1 2002/84/EC Art. 4 pt. 1(a)

together with the Protocols and amendments to these Conventions and related codes of mandatory status, è1 in its up-to-date version ç.

ê 2001/106/EC Art. 1 point 2 (adapted)

è1 2002/84/EC Art. 4 pt. 1(b)

2. “Ö Paris Õ MOU” means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, è1 in its up-to-date version ç.

ê 95/21/EC

3. “ Ship ” means any seagoing vessel to which one or more of the Conventions apply, flying a flag other than that of the port State.

4. “ Off-shore installation” means a fixed or floating platform operating on or over the continental shelf of a Member State.

ò new

5. “ Anchorage” means a place in a port or another area within the jurisdiction of a port suitable for ships to anchor.

ê 95/21/EC

6. “ Inspector” means a public-sector employee or other person, duly authorised by the competent authority of a Member State to carry out port-State control inspections, and responsible to that competent authority.

ò new

7. “Competent authority” means a maritime authority responsible for port State control in accordance with this Directive.

8. “Competent authority for maritime security” means a competent authority for maritime security as defined in Article 2, point 7 of Regulation (EC) No 725/2004 of the European Parliament and of the Council[11].

ê 95/21/EC (adapted)

ð new

9. “ Inspection” means a visit on board a ship ð by an inspector, in order to check the ship’s compliance with the relevant Conventions and regulations and including at least the checks required by Article 7 (1) ï in order to check both the validity of the relevant certificates and other documents and the condition of the ship, its equipment and crew, as well as the living and working conditions of the crew.

10. “ More detailed inspection” means an inspection where the ship, its equipment and crew as a whole or, as appropriate, parts thereof are subjected, in the circumstances specified in Article Ö 7 (4) Õ 6 (3), to an in-depth Ö examination Õ inspection covering the ship's construction, equipment, manning, living and working conditions and compliance with on-board operational procedures.

11. “ Expanded inspection” means an inspection ð whose scope includes as a minimum the items listed in Annex VIII Part C. An expanded inspection may include a more detailed inspection whenever there are clear grounds in accordance with Article 7 (4) ï .as specified in Article 7.

ò new

12. “ Complaint” means any information or report submitted by the master of the ship, a member of the crew, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to its crew, shipboard living and working conditions and the prevention of pollution.

ê 95/21/EC

13. “ Detention” means the formal prohibition of a ship to proceed to sea due to established deficiencies which, individually or together, make the ship unseaworthy.

ò new

14. “ Refusal of access order ” means a document issued to the master of a ship and to the company responsible for the ship notifying them that the ship will be refused access to ports of the Community.

ê 95/21/EC

15. “ Stoppage of an operation” means a formal prohibition of a ship to continue an operation due to established deficiencies which, individually or together, would render the continued operation hazardous.

ò new

16. “ Company ” means the corporate owner of the ship or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the International Safety Management (“ISM”) Code.

17. “ Recognised Organisation” means a classification society or other private body, carrying out statutory tasks on behalf of a flag State administration.

18. “ Statutory certificate ” means a certificate issued by or on behalf of a flag State in accordance with international Conventions.

19. “ Class certificate ” means a document issued by a recognised organisation certifying the fitness of a ship for a particular use or service in accordance with the rules and regulations laid down and made public by that recognised organisation.

20. “ Inspection database ” means the central information system for port state inspection records.

ê 95/21/EC (adapted)

ð new

Article 3

Scope

1. This Directive applies to any ship and its crew ð calling at a port or at an anchorage of a Member State. ï:

(a) calling at a port of a Member State or at an off-shore installation ,; or

(b) anchored off such a port or such an installation.

ð For the purposes of this Directive a Member State may also exercise a power of inspection and detention, in accordance with international law, in relation to a ship which is in waters within its jurisdiction or at, or anchored off, an offshore installation or at any other installation or facility in the waters within its jurisdiction. ï

Nothing in this Article shall affect the rights of intervention available to a Member State under the relevant international Conventions.

2. In the case of ships of a gross tonnage below 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment. In their application of this paragraph, Member States shall be guided by Annex 1 to the Ö Paris Õ MOU.

3. When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment given to such ship and its crew is no more favourable than that given to a ship flying the flag of a State which is a party to that Convention.

4. Fishing vessels, ships of war, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade shall be excluded from the scope of this Directive.

ê 2001/106/EC Art. 1 pt. 3 (adapted)

Article 4

Ö Obligations of Member States Õ

Inspection body

ò new

1. Member States shall take all necessary measures in order to be legally entitled to carry out on board foreign ships the inspections referred to in this Directive in accordance with international law.

ê 2001/106/EC Art. 1 pt. 3

ð new

2. Member States shall maintain appropriate national maritime administrations with the requisite number of staff, in particular qualified inspectors, hereinafter called competent authorities for the inspection of ships and shall take whatever measures are appropriate to ensure that their competent authorities perform their duties as laid down in this Directive. ð In particular, they shall recruit and retain the requisite number of staff, including qualified inspectors, taking into account the volume and characteristics of shipping traffic at each port. ï

ð Member States shall put in place appropriate arrangements to ensure that inspectors are available for carrying out expanded and mandatory inspections in accordance with Article 8 and Annex I, Part A.1. ï

ê 95/21/EC

Article 5

Inspection commitments

ò new

1. Member States shall contribute an individual inspection effort which, added to the number of inspections carried out by the other Member States and States signatory to the Paris MOU, shall ensure that all ships entering the ports or anchorages of the European Union are inspected. This effort shall ensure that ships posing a higher risk are subject to a more in-depth inspection carried out at more frequent intervals.

The inspection regime established with a view to achieving the objective referred to in the first subparagraph shall include the elements described in Annex II.

2. The detailed rules of the inspection referred to in paragraph 1 shall be adopted by the Commission in accordance with the procedure referred to in Article 24(2).

ê 2001/106/EC Art. 1 point 4 (adapted)

ð new

Ö 3. Õ 1. ð As long as measures envisaged in paragraph 2 are not in force, ï the total number of inspections of the ships referred to in paragraph (2) and Article 7 to be carried out annually by the competent authority of each Member State shall correspond to at least 25% of the average annual number of individual ships which entered its ports, calculated on the basis of the three most recent calendar years for which statistics are available ð . This annual number shall be the average of the last three calendar years for which statistics are available. The end of the period used shall not be more than one year prior to the start of the inspection year. ï

ò new

4. In selecting ships for inspection, the competent authority shall comply with the rules set out in Annex I.

ê 2001/106/EC Art. 1 point 4

2. (a) The competent authority shall, subject to the provisions of Article 7a, ensure that an inspection in accordance with Article 6 is carried out on any ship not subject to an expanded inspection with a target factor greater than 50 in the Sirenac information system, provided that a period of at least one month has elapsed since the last inspection carried out in a port in the MOU region.

(b) In selecting other ships for inspection, the competent authorities shall determine the order of priority as follows:

- the first ships to be selected for inspection shall be those listed in Annex I, Part I, irrespective of their target factor,

- the ships listed in Annex I, Part II shall be selected in decreasing order, depending on the order of priority resulting from the value of their target factor ranges as referred to in the Sirenac information system.

3. Member States shall refrain from inspecting ships which have been inspected by any Member State within the previous six months, provided that:

- the ship is not listed in Annex I,

- no deficiencies have been reported, following a previous inspection,

- no clear grounds exist for carrying out an inspection,

- the ship is not covered by paragraph 2(a).

ê 95/21/EC

4. The provisions of paragraph 3 shall not apply to any of the operational controls specifically provided for in the Conventions.

5. The Member States and the Commission shall cooperate in seeking to develop priorities and practices which will enable ships likely to be defective to be targeted more effectively.

Any consequent amendment of this Article, except to the figure of 25% in paragraph 1, shall be made under the provisions of Article 19.

ò new

Article 6

Notification of arrival of ships

The operator, agent or master of a ship calling at a port or anchorage of a Member State shall notify its arrival in accordance with Annex III.

ê 95/21/EC (adapted)

ð new

Article Ö 7 Õ 6

Inspection procedure

1. The competent authority shall ensure that the inspector shall as a minimum:

(a) check the certificates and documents ð required to be kept on board in accordance with the Community maritime safety legislation and international Conventions, in particular those ï listed in Annex Ö IV Õ , to the extent applicable;

ð (b) verify, where appropriate, whether outstanding deficiencies from the previous inspection carried out by a Member State or by a State signatory to the Paris MOU have been rectified; ï

Ö (c) Õ (b) satisfy himself of the overall condition of the ship, Ö including the hygiene Õ of the ship, including the engine room and accommodation and including hygienic conditions.

ò new

2. When a ship has been authorised to leave a port on condition that the deficiencies are rectified at the next port, the inspection at the next port shall be limited to verifying whether these deficiencies have been rectified.

However, the inspector may, in the exercise of his professional judgment, decide that the inspection must be extended to cover additional verifications.

ê 95/21/EC (adapted)

Ö 3. Õ 2. The inspector may examine all relevant certificates and documents, other than those listed in Annex Ö IV Õ II , which are required to be carried on board in accordance with the Conventions.

Ö 4. Õ 3. Whenever there are clear grounds for believing, after the inspection referred to in paragraphs 1, and 2 Ö and Õ 3, that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention, a more detailed inspection shall be carried out, including further checking of compliance with on-board operational requirements.

“Clear grounds” exist when the inspector finds evidence which in his professional judgement warrants a more detailed inspection of the ship, its equipment or its crew.

Examples of “«clear grounds» “ are set out in Annex Ö V and VII, section C Õ III.

Ö 5. Õ 4. The relevant procedures and guidelines for the control of ships specified in Annex Ö VI Õ IV shall also be observed.

ò new

However, when the procedures and guidelines referred to in Annex VI, point 4, diverge from Community legislation in force, Member States shall not adopt any provision of national law or any administrative measure which would result in the implementation of procedures or in inspection practices contrary to such Community legislation. They shall ensure that their competent authorities are duly informed of the relevant guidelines or procedures to be implemented in accordance with Community legislation and they shall verify their proper implementation.

6. When carrying out security checks on board, the inspector shall follow the procedures set out in Annex VII.

ê 2001/106/EC Art. 1 pt. 5 (adapted)

Article Ö 8 Õ 7

Mandatory Expanded inspection of certain ships

ê 2001/106/EC Art. 1 pt. 5 (adapted)

ð new

1. A ship in one of the categories in Annex Ö VIII, point B, Õ V, section A, is Ö shall be eligible for Õ liable to an expanded inspection after a period of 12 months since the last expanded inspection carried out in a port of ð a Member State or of ï a State signatory of Ö to Õ the Ö Paris Õ MOU.

ê 2001/106/EC Art. 1 pt. 5 (adapted)

ð new

2. If such a ship is selected for inspection in accordance with Ö Annex I, point A.2, Õ Article 5(2) (b), an expanded inspection shall be carried out. However an inspection in accordance with Article Ö 7 Õ 6 may be carried out in the period between two expanded inspections.

3. (a) The operator or master of a ship to which paragraph 1 applies shall communicate all the information listed in Annex V, section B, to the competent authority of the Member State of each port visited after a period of 12 months since the last expanded inspection. This information shall be provided at least three days before the expected time of arrival in the port or before leaving the previous port if the voyage is expected to take fewer than three days.

b) Any ship ð referred to in paragraph 1 ï not complying with ð the notification requirements in Article 6 ï subparagraph (a) shall be subject to an expanded inspection at the port of ð anchorage or ï destination.

Ö 3. Õ 4. Member States shall, subject to Article Ö 9, Õ 7a ensure that an expanded inspection is carried out on a ship to which paragraph Ö 1 Õ 3 applies and which has a target factor of 7 or more Ö , as referred to in Annex I, Õ at its first port visited after a period of 12 months since the last Ö previous Õ expanded inspection.

ê 2001/106/EC Art. 1 pt. 5 (adapted)

In cases where the Member States are unable to increase their capacity in time to carry out all the additional inspections required, particularly because of problems connected with the recruitment and training of inspectors, they shall be allowed until 1 January 2003 to build up their inspection service gradually. This period may be extended by six months for the port of Rotterdam. The Commission shall notify the Member States and the European Parliament of any such extension.

Ö 4. Õ 5. Ö An Õ expanded inspection shall be carried out in accordance with the procedures Ö set out Õ in Ö Annex VIII, point C Õ, Annex V, section C.

6. Where there is a risk that an amendment or draft amendment to the MOU may weaken the scope of the obligation for expanded inspection under this Article, the Commission shall submit without delay to the Committee established by Article 18, draft measures with a view to reintroducing target factor values complying with the objectives of this Directive.

ê 2001/106/EC Art. 1 pt. 6 (adapted)

ð new

Article Ö 9 Õ 7a

Procedure in case certain ships cannot be inspected

1. In cases where, for operational reasons, a Member State is unable to carry out an inspection of a ship with a target factor of more than 50 as referred to in Ö Annex I Õ Article 5(2)(a) or a mandatory expanded inspection as referred to in Article Ö 8(3) Õ 7(4), the Member State shall, without delay, inform the ð competent authorities of the next port, if it is a port of a Member State or of a State signatory to the Paris MOU ï Sirenac system that such inspection did not take place.

2. Such cases shall be notified, at intervals of six months, to the Commission together with the reasons for not inspecting the ships concerned. ð In addition, Member States shall provide the total number of inspections as referred to in Article 8(2) and in Annex I, point A.1 carried out during these six months. ï

ð These notifications shall be provided within four months from the end of the period to which data pertained. ï

3. During any ð three consecutive ï calendar years, ð the missed inspections ï such non-inspections ð as referred to in paragraph 1 ï shall not exceed 5 % of the average annual number of individual ships eligible for the inspections referred to in paragraph 1 calling at the ports of the Member State ð during that period. ï, calculated on the basis of the three most recent calendar years for which statistics are available.

ê 2001/106/EC Art. 1 pt. 6 (adapted)

4. Ships referred to in paragraph 1 shall be subject to Ö a mandatory Õ an inspection, as provided for in Ö Annex I, point A.1 ÕArticle 5(2)(a) or a mandatory expanded inspection as referred to in Article Ö 8(2) Õ 7(4), as appropriate, in the next port of call in the Community.

5. By 22 July 2008 the figure of 5 % referred to in paragraph 3 shall be amended on the basis of an assessment by the Commission, if it is considered appropriate, in accordance with the procedure referred to laid down in Article Ö 24(2) Õ 19.

ê 2001/106/EC Art. 1 pt. 7 (adapted)

ð new

Article Ö 10 Õ 7b

Access refusal measures concerning certain ships

1. A Member State shall ensure that ð any ï a ship ð meeting the criteria listed in Annex IX, point A. ï in one of the categories of Annex XI, section A, is refused access to its ports ð and anchorages ï , except in the situations described in Article ð 15(6). ï 11(6), if the ship:

either

– flies the flag of a State appearing in the black list as published in the annual report of the MOU, and

– has been detained more than twice in the course of the preceding 24 months in a port of a State signatory of the MOU,

or

– flies the flag of a State described as «very high risk» or «high risk» in the black list as published in the annual report of the MOU, and

– has been detained more than once in the course of the preceding 36 months in a port of a State signatory of the MOU.

ê 2001/106/EC Art. 1 pt. 7 (adapted)

ð new

The refusal of access shall become applicable immediately Ö as soon as Õ the ship has ð left the port or anchorage ï been authorised to leave the port where it has been the subject of a second or third detention ð and where a refusal of access order has been issued ï as appropriate.

2. For the purposes of paragraph 1, Member States shall comply with the procedures laid down in Annex IX, XI, section Ö point Õ B.

3. The Commission shall publish every six months the information relating to ships that have been refused access to Community ports in application of this Article.

ê 2001/106/EC Art. 1 pt. 8 (adapted)

Article Ö 11 Õ 8

Report of inspection to the master

On completion of an inspection, a more detailed inspection or an expanded inspection, the inspector shall draw up a report in accordance with Annex Ö X Õ IX. A copy of the inspection report shall be provided to the ship's master.

ò new

Article 12

Complaints

All complaints regarding conditions on board shall be investigated.

When the competent authority deems the complaint to be manifestly unfounded, it shall inform the complainant of its decision and of the reasons for it.

The identity of the person lodging the complaint shall not be revealed to the master or the shipowner of the ship concerned. The inspector shall ensure confidentiality during any interviews of crew members.

Member States shall inform the flag State administration, with a copy to the International Labour Organization (ILO) if appropriate, of complaints not manifestly unfounded and of follow-up actions taken.

ê 95/21/EC (adapted)

Article Ö 13 Õ 9

Rectification and detention

ê 2001/106/EC Art. 1 pt. 9(a) (adapted)

1. The competent authority shall be satisfied that any deficiencies confirmed or revealed by the inspection referred to in Article 5(2) and Article 7 are or will be rectified in accordance with the Conventions.

ê 95/21/EC

2. In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained, or the operation in the course of which the deficiencies have been revealed is stopped. The detention order or stoppage of an operation shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

ò new

3. Without prejudice to restrictions on security grounds decided in accordance with Regulation (EC) No. 725/2004, a detention order issued by a competent authority may:

(a) include a direction that the ship shall remain in a particular place, or shall move to a particular anchorage or berth; and

(b) specify the circumstances in which the master of the ship may move the ship from a specified place for reasons of safety or prevention of pollution.

ê 2001/106/EC Art. 1 pt. 9(b) (adapted)

ð new

Ö 4. Õ 3. When exercising his professional judgement as to whether or not a ship should be detained, the inspector shall apply the criteria set out in Annex Ö XI Õ VI.

In this respect, Ö if the inspection reveals that the ship is Õ the ship shall be detained, if not equipped with a functioning voyage data recorder system, when its use is compulsory in accordance with ð Directive 2002/59/EC of the European Parliament and of the Council[12] ïAnnex XII, Ö the competent authority shall ensure that the ship is detained Õ .

If ð the deficiencies justifying detention ïthis deficiency cannot be readily rectified in the port of detention, the competent authority may allow the ship to proceed to the ð nearest available repair yard to the port of detention where it ïnearest appropriate port where it shall Ö may Õ be readily rectified or Ö it may Õ require that the ð deficiencies be ïdeficiency is rectified within a maximum period of 30 days ð , in accordance with the guidelines developed by the Paris MOU ï . For these purposes, the procedures laid down in Article Ö 15 Õ 11 shall apply.

ê 95/21/EC (adapted)

Ö 5. Õ 4. In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the responsible parties have taken the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

ê 2001/106/EC Art. 1 pt. 9(c) (adapted)

Ö 6. Õ 5. In Ö the event of Õ the event that the inspections referred to in Article 5(2) and Article 7 give rise to detention, the competent authority shall immediately inform, in writing and including the report of inspection, the Ö flag State Õ administration of the State whose flag the ship is entitled to fly (hereinafter called «flag administration») or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organisations responsible for the issue of class certificates or certificates issued on behalf of the flag State in accordance with the international Cconventions shall also be notified where relevant.

ê 95/21/EC (adapted)

Ö 7. Õ 6. The provisions of this Directive shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control.

Ö 8. Õ 7. When exercising port State control under this Directive, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship.

ò new

9. In order to alleviate port congestion, a competent authority may allow a detained ship to be moved to another part of the port if it is safe to do so. However, the risk of port congestion shall not be a consideration when deciding on a detention or on a release from detention.

Port authorities shall cooperate with the competent authority with a view to facilitating the accommodation of detained ships.

ê 98/25/EC Art. 1 pt. 2

Article 9a

Procedure applicable in the absence of ISM certificates

1. Where the inspection reveals that the copy of the document of compliance or the safety management certificate issued in accordance with the International management code for the safe operation of ships and for pollution prevention (ISM Code) are missing on board a vessel to which, within the Community, the ISM Code is applicable at the date of the inspection, the competent authority shall ensure that the vessel is detained.

2. Notwithstanding the absence of the documentation referred to in paragraph 1, if the inspection finds no other deficiencies warranting detention the competent authority may lift the detention order in order to avoid port congestion. Whenever such a decision is taken, the competent authority shall immediately inform the competent authorities of the other Member States thereof.

3. Member States shall take the measures necessary to ensure that all ships authorised to leave a port in a Member State under the circumstances referred to in paragraph 2 shall be refused access to all ports in the Community, except in the situations referred to in Article 11(6), until the owner or operator of the vessel has demonstrated, to the satisfaction of the competent authority of the Member State in which detention was ordered, that the ship has valid certificates issued in accordance with the ISM Code. Where deficiencies as referred to in Article 9(2) are found and cannot be rectified in the port of detention, the relevant provisions of Article 11 shall also apply.

ê 95/21/EC (adapted)

Article Ö 14 Õ 10

Right of appeal

ê 2001/106/EC Art. 1 pt. 10

1. The owner or the operator of a ship or his representative in the Member State shall have a right of appeal against a detention decision or refusal of access taken by the competent authority. An appeal shall not cause the detention or refusal of access to be suspended.

ê 95/21/EC

2. Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.

3. The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal.

ò new

4. When, as a result of an appeal or of a request made by the owner or the operator of a ship or his representative, a detention or a refusal of access order is revoked or amended:

(a) Member States shall ensure that the inspection database is amended accordingly without delay,

(b) The Member State where the detention or refusal of access order has been issued shall, within 24 hours of such a decision, ensure that the information published in accordance with Article 19 is rectified.

ê 95/21/EC (adapted)

ð new

Article Ö 15 Õ 11

Follow-up to inspections and detentions

1. Where deficiencies as referred to in Article Ö 13 Õ 9 (2) cannot be rectified in the port of inspection, the competent authority of that Member State may allow the ship concerned to proceed to the ð nearest available repair yard to the port of detention where follow-up action can be taken ïnearest appropriate repair yard available, as chosen by the master and the authorities concerned, provided that the conditions determined by the competent authority of the flag State and agreed by that Member State are complied with. Such conditions shall ensure that the ship can proceed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

ò new

2. Where the decision to send a ship to a repair yard is due to a lack of compliance with IMO Resolution A. 744(18), either with respect to a ship's documentation or with respect to a ship's structural failures and deficiencies, the competent authority may require that the necessary thickness measurements be carried out in the port of detention before the ship is allowed to sail.

ê 95/21/EC (adapted)

Ö 3. Õ 2. In the circumstances referred to in paragraph 1, the competent authority of the Member State in the port of inspection shall notify the competent authority of the State where the repair yard is situated, the parties mentioned in Article Ö 13(6) Õ 9 (5) and any other authority as appropriate of all the conditions for the voyage.

3. The notification of the parties referred to in paragraph 2 shall be in accordance with Annex 2 to the MOU.

The competent authority of a Member State receiving such notification shall inform the notifying authority of the action taken.

4. Member States shall take measures to ensure that Ö access to any port within the Community is refused to Õ ships referred to in paragraph 1 which proceed to sea:

Ö (a) Õ (i) without complying with the conditions determined by the competent authority of any Member State in the port of inspection; or

Ö (b) Õ (ii) which refuse to comply with the applicable requirements of the Conventions by not calling into the indicated repair yard;.

shall be refused access to any port within the Community,Ö Such refusal shall be maintained Õ until the owner or operator has provided evidence to the satisfaction of the competent authority of the Member State where the ship was found defective Ö , demonstrating Õ that the ship fully complies with all applicable requirements of the Conventions.

5. In the circumstances referred to in paragraph 4 Ö (a) Õ (i), the competent authority of the Member State where the ship was found defective shall immediately alert the competent authorities of all the other Member States.

In the circumstances referred to in paragraph 4 Ö (b) Õ (ii), the competent authority of the Member State in which the repair yard lies shall immediately alert the competent authorities of all the other Member States.

Before denying entry, the Member State may request consultations with the flag administration of the ship concerned.

6. Notwithstanding Ö By way of derogation from Õ the provisions of paragraph 4, access to a specific port may be permitted by the relevant authority of that port State in the event of force majeure or overriding safety considerations, or to reduce or minimize the risk of pollution or to have deficiencies rectified, provided Ö that Õ adequate measures to the satisfaction of the competent authority of such Member State have been implemented by the owner, the operator or the master of the ship to ensure safe entry.

ê 95/21/EC (adapted)

ð new

Article Ö 16 Õ 12

Professional profile of inspectors

1. The inspections shall be carried out only by inspectors who fulfil the qualification criteria specified in Annex Ö XII Õ VII ð and who are authorized to carry out port State control by the competent authority ï .

2. When the required professional expertise cannot be provided by the competent authority of the port State, the inspector of that competent authority may be assisted by any person with the required expertise.

3. The ð competent authority, the ï inspectors carrying out port State control and the persons assisting them shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall the inspectors be employed by or undertake work on behalf of non-governmental organizations which issue statutory and classification certificates or which carry out the surveys necessary for the issue of those certificates to ships.

4. Each inspector shall carry a personal document in the form of an identity card issued by his competent authority in accordance with ð Commission Directive 96/40/EC[13] ïthe national legislation, indicating that the inspector is authorized to carry out inspections.

ê 95/21/EC

A common model for such an identity card shall be established in accordance with the procedure in Article 19.

ò new

5. Member States shall ensure that the competence of inspectors is verified, and their knowledge as referred to in Annex XII is tested, before authorising them to carry out inspections and at intervals of five years thereafter.

6. Member States shall ensure that inspectors receive appropriate training in relation to changes to the port State control regime as laid down in this Directive and amendments to the Conventions.

7. In cooperation with Member States, the Commission shall develop and promote a harmonised Community scheme for the qualification and training of inspectors.

ê 95/21/EC (adapted)

ð new

Article Ö 17 Õ 13

Reports from pilots and port authorities

1. ð Member States shall take appropriate measures to ensure that their pilots engaged on the berthing or unberthing of ships or engaged on ships bound for a port or in transit within a Member State ïPilots of Member States, engaged in berthing or unberthing ships or engaged on ships bound for a port within a Member State, shall immediately inform the competent authority of the port State or the coastal State, as appropriate, whenever they learn in the course of their normal duties that there are Ö defects Õ deficiencies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

2. If port authorities, when exercising their normal duties, learn that a ship within their port has Ö defects Õ deficiencies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, such authority shall immediately inform the competent authority of the port State concerned.

ò new

3. Member States shall require pilots and port authorities to use the model report in Annex XIII or that of an equivalent report, in electronic format whenever possible.

Member States shall ensure that proper follow-up action is taken on defects notified by pilots and port authorities.

Every year Member States shall provide the Commission with a report on the implementation of paragraphs 1 and 2, including details on action taken to follow up defects reported by pilots and port authorities.

ê 95/21/EC (adapted)

ð new

Article 18 14

Cooperation

1. Each Member State shall ð ensure that its port authorities and other relevant authorities or bodies provide the competent port State control authority with the following types of information in their possession: ï make provision for cooperation between its competent authority, its port authorities and other relevant authorities or commercial organizations to ensure that its competent authority can obtain all relevant information on ships calling at its ports.

ð – information notified in accordance with Annex III; ï

ð – information concerning ships which have failed to comply with notification requirements in accordance with this Directive and with European Parliament and Council Directives 2000/59/EC[14] and 2002/59/EC[15], as well as, if appropriate, with Regulation (EC) No. 725/2004; ï

ð – information concerning ships which have proceeded to sea without having complied with Article 7 or 10 of Directive 2000/59/EC; ï

ð – information concerning ships which have been denied entry or expelled from port on security grounds. ï

ê2001/106/EC Art. 1 pt. 11 (adapted)

ð new

2. Member States shall maintain provisions for the exchange of information and cooperation between their competent authority and the competent authorities of all other Member States and maintain the established operational link between their competent authority, the Commission and the Ö inspection database. Õ Sirenac information system set up in St Malo, France.

ð Member States shall take all appropriate measures to ensure the updating of the inspection database in the light of the requirements arising from this Directive. ï

For the purposes of carrying out the inspections referred to in Article 5(2) and Article 7, inspectors shall consult the public and private databases relating to ship inspection accessible through the Equasis information system.

ê 95/21/EC (adapted)

ð new

3. ð Member States shall take all appropriate measures to ensure that the information related to inspections is transferred to the inspection database without delay. ï

The information referred to in Ö this Õ paragraph 2 shall be that specified in Annexes ð X and XIV and all the information relevant for the selection of the ship in accordance with Article 5(4) ï 4 to the MOU, and that required to comply with Article 15 of this Directive.

ê 1999/97/EC Art. 1 pt. 2 (adapted)

Article Ö 19 Õ 15

Ö Publication Õ Release of information

ê 1999/97/EC Art. 1 point 2 (adapted)

ð new

1. The competent authority of each Member State shall take Ö the Õ necessary measures in order to ensure ð the publication of information related to inspections, detentions and refusals of access in accordance with Annex XIV ïthat information listed in Annex VIII, Part I, concerning ships which have been detained in, or which are subject to refusal of access to, a port of this Member State during the previous month, is published at least every month.

ê 2001/106/EC Art. 1 pt. 12

2. The information listed in Annex VIII, Parts I and II, and the information on changes, suspensions and withdrawals of class referred to in Article 15(3) of Directive 94/57/EC, shall be available in the Sirenac system. It shall be made public through the Equasis information system, as soon as possible after the inspection has been completed or the detention has been lifted.

ê 1999/97/EC Art. 1 pt. 2

3. Member States and the Commission shall cooperate in order to establish the appropriate technical arrangements referred to in paragraph 2.

4. Where appropriate, the Sirenac information system is amended in order to implement the abovementioned requirements.

ê 2001/106/EC Art. 1 pt. 13 (adapted)

Ö 2. Õ 5. The provisions of this Article Ö shall Õ do not affect national legislation on liability.

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Article 20

Black-list on performance of ship operators and companies

The Commission shall establish and publish every year a black-list showing the performance of ship operators and companies in accordance with the procedures and criteria laid down in Annex XV.

ê 95/21/EC (adapted)

Article Ö 21 Õ 16

Reimbursement of costs

1. Should the inspections referred to in Articles Ö 7 and 8 Õ 6 and 7 confirm or reveal deficiencies in relation to the requirements of a Convention warranting the detention of a ship, all costs relating to the inspections in any normal accounting period shall be covered by the shipowner or the operator or by his representative in the port State.

2. All costs relating to inspections carried out by the competent authority of a Member State under the provisions of Article Ö 15(4) and Article 10 Õ 11(4) shall be charged to the owner or operator of the ship.

ê 2001/106/EC Art. 1 pt. 14 (adapted)

Ö 3. Õ 2a. In the case of detention of a Ö ship Õ vessel for deficiencies or lack of valid certificates as laid down in Article 9 and Annex VI, all costs relating to the detention in port shall be borne by the owner or operator of the ship.

ê 95/21/EC (adapted)

Ö 4. Õ 3. The detention shall not be lifted until full payment has been made or a sufficient guarantee has been given for the reimbursement of the costs.

ê 2001/106/EC Art. 1 pt. 15 (adapted)

Article Ö 22 Õ 17

Data to monitor implementation

ê 2001/106/EC Art. 1 point 15 (adapted)

Member States shall provide the Commission with the information listed in Annex Ö XVI Õ X at the intervals stated in that Annex.

ò new

Member States shall take all appropriate measures to ensure that the Commission has a full and unrestricted access to all data administered by the inspection database referred to in Article 18(2).

Article 23

Monitoring of compliance and performance of Member States

In order to ensure the effective implementation of this Directive and to monitor the overall functioning of the Community’s port State control regime in accordance with Article 2(b)(i) of Regulation (EC) No 1406/2002, the Commission shall collect the necessary information and carry out visits to Member States.

ê 2001/106/EC Art. 1 pt. 15 (adapted)

Article Ö 24 Õ 18

Regulatory Committee

ê 2002/84/EC Art. 4 pt. 2 (adapted)

1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) created by Article 3 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS)[16].

ê 2001/106/EC Art. 1 pt. 15

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.

ê 95/21/EC (adapted)

Article Ö 25 Õ 19

Amendment procedure

ê 2001/106/EC Art. 1 pt. 16 (adapted)

This Directive may, without broadening its scope, be amended in accordance with the procedure laid down Ö referred to Õ in Article Ö 24(2) Õ 18(2), in order to:

ê 2001/106/EC Art. 1 pt. 16 (adapted)

ð new

(a) adapt the obligations referred to in Articles except the figure of 25 % referred to in paragraph 1 thereof, in Articles ð 5 to 17 and 19 to 22 ï and in the Annexes to which these Articles refer, on the basis of the experience gained from the implementation of this Directive and taking into account developments in the Ö Paris Õ MOU;

ê 95/21/EC (adapted)

ð new

(b) adapt the Annexes in order to take into account amendments which have entered into force to ð the Community legislation on maritime safety and security, and to ï the Conventions, Protocols, codes and resolutions of relevant international organizations and to the Ö Paris Õ MOU.;

ê 2002/84/EC Art. 4 pt. 3(a)

ð new

(c) ð amend the definitions in, and ï update, in Article 2(1), the list of international Conventions which are relevant for the purposes of this Directive.

ê 2002/84/EC Art. 4 pt. 3(b)

The amendments to the international instruments referred to in Article 2 may be excluded from the scope of this Directive, pursuant to Article 5 of Regulation (EC) No 2099/2002.

ò new

Article 26

Integration of the new inspection regime into Community law

Additional measures may be adopted, in accordance with the procedure referred to in Article 24 (2), in order to:

- establish the values attributed to each risk parameter; Flag State performance, elements related to classification societies and company performance should be given higher values than other criteria;

- determine the combination of risk parameters corresponding to each level of ship risk profile;

- develop criteria and procedures related to the type and scope of inspections;

- develop the principles and modalities related to the inspection commitments of Member States;

Each year, the Commission shall review the implementation of the ship risk parameters and, if appropriate, make a proposal in accordance with the procedure referred to in Article 24(2) with a view to adjusting the parameters in the light of experience gained or policy objectives to be met.

ê 2001/106/EC Art. 1 pt. 17 (adapted)

Article Ö 27 Õ 19a

Ö Sanctions Õ Penalties

Member States shall lay down a system of Ö sanctions Õ penalties for the breach of national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those Ö sanctions Õ penalties are applied. The Ö sanctions Õ penalties thus provided shall be effective, proportionate and dissuasive.

ê 2001/106/EC Art. 3 (adapted)

ð new

Ö Article 28 Õ

Ö Review Õ

The Commission shall review the implementation of this Directive no later ð than 18 months after expiry of the time-limit for the transposition of this Directive ï22 July 2006. The review will examine, inter alia , the number of port State control inspectors in each Member State and the number of inspections carried out, including mandatory expanded inspections.

The Commission shall communicate the findings of the review to the European Parliament and the Council and shall determine on the basis of the review whether it is necessary to propose an amending Directive or further legislation in this area.

ê

Article 29

Implementation and notification

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles […] and points […] of Annexes [….] [ articles or subdivisions thereof, and points of Annexes which have been changed as to their substance by comparison with the earlier Directive] not later than 18 months after the date fixed in Article 31. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

2. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive[s] repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

3. Member States shall communicate to the Commission the text of the main provisions of national law adopted in the field covered by this Directive.

4. In addition, the Commission shall inform the European Parliament and the Council on a regular basis of progress in the implementation of the Directive within the Member States.

Article 30

Repeal

Directive 95/21/EC, as amended by the Directives listed in Annex XVII, Part A, is repealed, with effect from [date of entry into force of the recast Directive], without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex XVII, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XVIII.

Article 31

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

Articles […] and points […] of annexes […] [articles or subdivisions thereof, and points of annexes which are unchanged by comparison with the earlier directive shall apply from [date of entry into force of the recast directive].

Article 32

Addressees

This Directive is addressed to the Member States.

Done at Brussels, […]

F or the European Parliament For the Council

The President The President […] […]

ê 98/42/EC Art. 1 pt. 2 and Annex pt. 1 (adapted)

ANNEX I

Ö SELECTING Õ SHIPS TO BE CONSIDERED FOR PRIORITY INSPECTION

(as referred to in Article 5(4) (2))

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A. Inspection commitments

1. The competent authority shall ensure that an inspection is carried out on any ship in port or at an anchorage, other than a ship which has been selected for an expanded inspection, with a target factor greater than 50 in the inspection database provided that a period of at least one month has elapsed since the last inspection carried out by a Member State or by a State signatory to the Paris MOU.

2. In selecting other ships for inspection, the competent authorities shall determine the order of priority as follows:

(a) the first ships to be selected for inspection shall be those listed in Part B.I of this Annex, irrespective of their target factor,

(b) the ships listed in Part B.II shall be selected in decreasing order, depending on the order of priority resulting from the value of their target factor ranges as referred to in the inspection database, provided that a period of at least one month has elapsed since the last inspection carried out in a port or anchorage of a Member State of the European Union or in the Paris MOU region.

3. Member States shall refrain from inspecting ships which have been inspected by any Member State of the European Union or the Paris MOU region within the previous six months, provided that:

(a) the ship, other than a ship eligible for an expanded inspection, has a target factor lower than 7,

(b) the ship is not an overriding priority under part B.I,

(c) no deficiencies have been reported following a previous inspection,

(d) no clear grounds exist for carrying out an inspection,

(e) the ship is not covered by paragraph 2(a).

4. A survey of a ro-ro ferry or a high-speed passenger craft carried out by a host State in accordance with Articles 6 and 8 of Directive 1999/35/EC[17] shall be considered as a more detailed or an expanded inspection, as relevant, and recorded as such in the inspection database. In the case of deficiencies which are clearly hazardous to safety, health or the environment, the ship shall be detained in accordance with Article 13.

B. SHIPS TO BE CONSIDERED FOR PRIORITY INSPECTION

ê 98/42/EC Art. 1 pt. 2 and Annex pt. 1 (adapted)

ð new

Ö B. Õ I. OVERRIDING FACTORS

Regardless of the value of the target factor, the following ships shall be considered as an overriding priority for inspection . :

1. Ships which have been reported by pilots or port authorities as having Ö defects Õ deficiencies which may prejudice their safe navigation (pursuant to Directive 93/75/EEC[18] and Article 13 of this Directive) Ö or pose a threat of harm to the environment in accordance with Article 17 of this Directive Õ .

2. Ships which have failed to comply with the ð relevant notification requirements ïobligations laid down in Directive 93/75/EECð referred to in Article 6 of this Directive, in Directive 2000/59/EC, Directive 2002/59/EC and, if appropriate, in Regulation (EC) No 725/2004 ï.

3. Ships which have been the subject of a report or notification by another Member State.

ò new

4. Ships which have been reported by a Member State for failure to comply with the Recommendation on navigation through the entrances to the Baltic Sea as given in the Annexes to Resolution MSC.138(76) of the IMO.

ê 98/42/EC Art. 1 pt. 2 and Annex pt. 1 (adapted)

è1 1999/97/EC Art. 1 pt. 3 and Annex pt. 1(a)

ð new

5. 4. Ships which have been the subject of a report or complaint by the master, a crew member, or any person or organiszation with a legitimate interest in the safe operation of the ship, shipboard living and working conditions or the prevention of pollution, unless the Member State concerned deems the report or complaint to be manifestly unfounded; the identity of the person lodging the report or complaint must not be revealed to the master or the shipowner of the ship concerned.

6. 5. Ships which have been:

(a) involved in a collision, grounding or stranding on their way to the port,;

(b) accused of an alleged violation of the provisions on discharge of harmful substances or effluents,;

(c) manoeuvred in an erratic or unsafe manner whereby routing measures, adopted by the IMO, or safe navigation practices and procedures have not been followed,; or

(d) otherwise operated in such a manner as to pose a danger to persons, property or the environment.

7. 6. Ships which have been suspended è1 or withdrawn çfrom their class for safety reasons in the course of the preceding six months ð since the last inspection in the European Union or in the Paris MOU region. ï.

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8. Ships carrying certificates issued by a former recognised organisation whose recognition has been withdrawn. in accordance with Article 9 of Directive XX/XX on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations

ê 2001/106/EC Art. 1 pt. 19 (adapted)

ð new

Ö B. Õ II. OVERALL TARGETING FACTOR

ð The competent authority shall select the ships listed below in decreasing order, depending on the order of priority resulting from the value of their target factor ranges as referred to in the inspection database. ï The following ships shall be considered as priority for inspection.

1. Ships visiting a port of a Member State for the first time or after an absence of 12 months or more. In applying these criteria Member States shall also take into account those inspections which have been carried out by members of the Ö Paris Õ MOU. In the absence of appropriate data for this purpose, Member States shall rely upon the available Sirenac data Ö in the inspection database Õ and inspect those ships which Ö do not appear in the inspection database Õ have not been registered in the Sirenac following the entry into force of that database on 1 January 1993.

2. Ships not inspected by any Member State within the previous six months.

3. Ships whose statutory certificates on the ship's construction and equipment, issued in accordance with the Cconventions, and the classification certificates, have been issued by organisations which are not recognised under the terms of [Council Directive 94/57/EC].

4. Ships flying the flag of a State Ö whose detention rate, as calculated on the last three calendar years of inspections recorded in the inspection database, falls into Õappearing in the black list as Ö defined by Õ in the annual report of the Ö Paris Õ MOU.

5. Ships which have been permitted to leave the port ð or anchorage ï of a Member State on certain conditions, such as:

(a) deficiencies to be rectified before departure;

(b) deficiencies to be rectified at the next port of call;

(c) deficiencies to be rectified within 14 days;

(d) deficiencies for which other conditions have been specified.

If ship-related action has been taken and all deficiencies have been rectified, this is taken into account.

6. Ships for which deficiencies have been recorded during a previous inspection, according to the number of deficiencies.

7. Ships which have been detained in a previous port ð or anchorage ï .

8. Ships flying the flag of a country which has not ratified all relevant international Cconventions referred to in Article 2 of this Directive.

9. Ships classed with classification ð societies described as having a performance level of “low” or “very low” in the table of “three-year detention rates per Classification Society” published by the Paris MOU. ï society with deficiency ratio above average.

ê 2001/106/EC Art. 1 pt. 19 (adapted)

ð new

10. Ships of the categories referred to in Annex Ö VIII(B). Õ V(A).

11. Ships above 13 years old.

In determining the order of priority for the inspection of the ships listed above, the competent authority shall take into account the overall target factor displayed on the Sirenac information system, according to Annex I, Section I, of the MOUItems 5, 6 and 7 shall only apply to inspections carried out in the last 12 months. The overall target factor shall not be less than the sum of the values established for items 3, 4, 8, 9, 10 and 11.

However, For the purpose of Article Ö 8(3) Õ 7.4, the overall target factor shall not take into account item 10.

ð For the purposes of items 4 and 9, the lists defined by the Paris MOU shall enter into force as from the 1 July each year following the calendar year on which the statistics are based. ï

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ANNEX II

Main elements of the Community Port State Inspection Regime (as referred to in Article 5(2))

The following elements shall be included in the Community Port State Inspection Regime:

I. SHIP RISK PROFILE

The risk profile of a ship is determined by a combination of the following parameters:

(a) Type of ship

Passenger ships, oil and chemical tankers, gas carriers and bulk carriers are considered as posing a higher risk.

(b) Age of ship

Older ships are considered as posing a higher risk.

(c) Flag State performance

(i) Ships flying the flag of a State with a high detention rate within the EU and Paris MOU region are considered as posing a higher risk.

(ii) Ships flying the flag of a State with a low detention rate within the EU and Paris MOU region are considered as posing a lower risk.

(iii) Ships flying the flag of a State for which an independent audit has been carried out in accordance with the Code for the implementation of mandatory IMO instruments which has demonstrated compliance with the relevant instruments are considered as posing a lower risk.

(d) Recognised organisations

(i) Ships which have been delivered certificates from recognised organisations having a low or very low performance level in relation with their detention rates within the EU and the Paris MOU region are considered as posing a higher risk.

(ii) Ships which have been delivered certificates from recognised organisations having a high performance level in relation with their detention rates within the EU and the Paris MOU region are considered as posing a lower risk.

(iii) Ships with certificates issued by organisations recognised under the terms of Council Directive 94/57/EC are considered as posing a lower risk.

(e) Company performance

(i) Ships of a company with a low or very low performance as determined by its ships’ deficiency and detention rates within the European Union and the Paris MOU region are considered as posing a higher risk.

(ii) Ships of a company with a high performance as determined by its ships’ deficiency and detention rates within the European Union and the Paris MOU region are considered as posing a lower risk.

(f) Inspection history in the European Union and Paris MOU region

(i) Ships which have been detained more than once are considered as posing a h