Proposal for a Council Directive amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port state control)
Date: 1997-07-25
Institutions: European Commission
Subjects: EU waters, harbour installation, maritime safety, prevention of pollution, safety standard

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.07.1997 
COM(97) 416  final 

97/0215 (SYN) 

Proposal for a 

COUNCIL DIRECTIVE 
AMENDING COUNCIL 

DIRECTIVE 95/21/EC CONCERNING THE  ENFORCEMENT, IN RESPECT OF 
SHIPPING USING COMMUNITY PORTS AND SAILING IN THE WATERS 
UNDER THE  JURISDICTION OF THE MEMBER STATES, OF INTERNATIONAL 
STANDARDS FOR SHIP SAFETY, POLLUTION PREVENTION AND SHIPBOARD 
LIVING AND WORKING CONDITIONS (PORT STATE CONTROL) 

(presented by the Commission) 

EXPLANATORY  MEMORANDUM 

1. 

Context 

1.1 
On  19 June  1995  the  Council  of  Ministers  adopted  Council  Directive  95/21/EC 
concerning the enforcement,  in respect of shipping using Community  ports and  sailing in 
the waters under the jurisdiction  of the Member  States, of international  standards  for  ship 
safety,  pollution  prevention  and  shipboard  living  and  working  conditions  (port  State 
control).1 

As  stated  in  Article  1,  the  purpose  of  this  Directive  is  to  help  drastically  to  reduce 
substandard  shipping in the waters under the jurisdiction  of Member States. 

Under this Directive,  each Member  State is committed to  inspect  a set  percentage  of the 
ships  entering  its  ports  to  ensure  that  they  comply  with  the  principal  international 
conventions  in force  on  maritime  safety  and  protection  of the  marine  environment.  The 
Directive also provides for  cooperation  between  the Member  States and the  Commission 
on  laying  down  priorities  and  practices  which  will  allow  more  effective  targeting  of 
ships which could present  deficiencies. 

1.2 

This proposal for  a Council Directive has three essential  objectives: 

- 

- 

- 

to  adapt  the  Directive  to  recent  amendments  to  the  international  conventions 
applicable for the purpose of the Directive; 

to lay down specific  procedures for  ships not carrying the certificates  issued  under the 
IMO's ISM Code onboard; 

to facilitate  adaptation  of  the Directive  to  changes  in  the  international  legislation,  by 
applying the committee procedure. 

2. 

Content of the proposal 

2.1 

Adaptation of the Directive 

Article  2 of  Directive  95/21/EC  states  that  the  conventions  listed  therein  together  with 
the protocols  and the  amendments  to  those  conventions  and  related  codes  of  mandatory 

OJNoL  157, 7.7.1995. p. 1. 

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status in force  at the date of  adoption  of  the Directive,  i.e.  on  19 June  1995, must  apply 
for the purposes of the Directive. 

Since then, a number of amendments have been made to these international  conventions, 
in  particular  the  amendments  to  the  Marpol  Convention  (1992,  1994,  1995  and  1996 
amendments),  to  the  Solas  Convention  (new  Chapters X  and  XI  and  1992,  1994  and 
1995  amendments)  and  the  1995  amendments  to  the  1978  STCW  Convention 
(Convention  on  Standards  of  Training,  Certification  and  Watchkeeping  for  Seafarers). 
The proposed  amendment  to Article 2 of Directive 95/21/EC changes the date  to  1 July 
1998,  coinciding  with  the entry  into force,  at  international  level, of  the  new  Chapter  IX 
of  the  Solas  Convention  which  makes  the  ISM  Code  (International  Management  Code 
for  the  Safe  Operation  of  Ships  and  for  Pollution  Prevention)  mandatory  for  certain 
categories of ship. 

2.2 

Procedure applicable in the absence of ISM  certificates 

In  accordance  with  Chapter  IX,  Regulation  2  of  the  Solas  Convention,  the  ISM  Code 
enters into force at international level on  1  July  1998 for: 

-  passenger ships, including passenger high-speed  craft;2 

-  oil  tankers,  chemical  tankers,  gas  carriers,  bulk  carriers  and  cargo  high-speed  craft 

with a gross tonnage of 500 tonnes or more. 

The ISM Code is a key component  in a strategy  aiming at establishing  a safety  culture in 
maritime transport  at international  level.  In particular,  it requires  companies  to  establish 
safety  objectives  and develop, implement and maintain a safety management system. 

It also provides for the national administrations  to verify  compliance with  the ISM  Code 
and issue documents of compliance to the companies and safety  management  certificates 
for the ships. 

The current version of Directive 95/21/EC already  contains a reference  to the ISM Code. 
The  certificates  and  documents  which  the  port  State  control  inspector  must  check, 
pursuant to Article 6(1) of the Directive, include the copy of the document of compliance 
and  the  safety  management  certificate  (cf.  Annex  II,  point  13).  The  amendment 
described  in paragraph  2.1 will allow the administrations  in the Member  States  in  charge 
of  port  State  control  to  check  implementation  of  the  ISM  Code  on  board  all  ships 
concerned. 

However,  the  international  shipping  community  has  expressed  great  concern  about 
whether the provisions of the ISM Code will  be  implemented  effectively  by the set  date 
(1 July  1998).  In  January  1997  representatives  of  the  International  Association  of 
Classification  Societies  (IACS) announced  that  only  7% of  the fleet  subject  to  the  ISM 

At  Community  level,  Council  Regulation  (EC)  No  3051/95  (OJ  No  L  320,  30.12.1995,  p.  14) 
provides for advance mandatory enforcement,  with effect  from  1  July  1996, of the ISM code for all 
roll-on/roll-off passenger ferries to or from Community ports, regardless of their flag. 

^ 

Code  had  yet  been  certified  by  an  IACS  member.  Although  the  classification  societies 
are  not  the  only  bodies  performing  certification,  which  is  sometimes  handled  by  the 
national  administrations,  the current  ISM certification  rate  is nonetheless  still  extremely 
low,  and  suggests,  particularly  in  view  of  the  length  of  time  needed  to  obtain 
certification  (inter alia, audits must be carried out), that a large number of companies and 
ships will not have ISM certificates  by the set date. 

In  response  to this  situation,  the Community  must  react  strongly  and  take  the  measures 
necessary to inform  the shipping world that with  effect  from  1 July  1998 all  Community 
Member  States  will  check  compliance  with  the  ISM  Code.  Moreover,  this  approach  is 
fully  in line with the International Maritime Organisation's  message that no extension  of 
the time limit set in Regulation 2 of Chapter IX of Solas is possible. 

With  effect  from  1  July  1998  compliance  with  the  ISM  Code  will  be  checked  in 
accordance  with  the  usual  rules  and  procedures  on  port  State  control,  as  set  out  in 
Directive  95/21/EC  and  in  the  Paris  Memorandum  on  port  State  control,  to  which  the 
European  Community  Member  States  are  parties.  In  particular,  at  its  last  meeting  the 
Paris  Memorandum  Committee  decided  that  a  three-month  expanded 
inspection 
campaign  would  be  conducted,  starting  on  1 July  1998,  to  check  compliance  with  the 
ISM Code. 

However,  failure  to  carry  certificates  on board  is a  particularly  serious  situation  calling 
for tougher measures. This proposed  amendment to the Directive is therefore  designed to 
establish specific procedures to deal with cases where no ISM certificates  are on board. 

Given  the  delays  expected  in  application  of  the  ISM  Code,  strict  enforcement  of  the 
traditional  control  procedures  would  lead  to  the  detention  of  considerable  numbers  of 
ships  in European  ports. This would  be unacceptable  for  most  ports, both  for  economic 
reasons,  as large numbers  of  berths  would  be occupied,  and  for  safety,  bearing  in  mind 
the foreseeable  congestion of ports. 

Consequently,  it  must  be  possible  to  lift  the  detention  orders  which  will  normally  be 
imposed in the absence of ISM certificates  and to allow the ship to leave the port and put 
the  situation  right.  Naturally,  however,  the  detention  order  could  be  lifted  only  if  there 
were no other serious deficiencies  which also warrant detention of the vessel. 

Ships which the port State control authority  authorises to leave port must satisfy  the ISM 
Code  and  must  be  refused  access  to  Community  ports  until  the  owner  or  operator  has 
demonstrated to the authorities in the Member  State where detention was ordered that the 
vessel now has valid certificates  issued in accordance with the ISM Code. 

2.3 

Amendment of the scope of the committee procedure 

The  procedure  in  Article  19(b)  of  Directive  95/21/EC  allows  referral  to  the  committee 
set up  by  Article  12 of  Directive  93/75/EEC  only  to  adapt  the  annexes  in  order  to  take 
into  account  amendments  which  have  entered  into  force  to  the  conventions,  protocols, 
codes  and resolutions of relevant  international  organisations  and  to the Memorandum  of 
Understanding. 

u 

Consequently,  any adaptation of the Directive  itself  not  limited  to the  annexes,  such  as 
the  amendment  described  in paragraph  2.1  above,  can only  be  effected  by  means  of  a 
proposal for a Council Directive. 

Since  port  State control  is  intended  to  check  compliance  with  a very  large  number  of 
international  conventions,  codes and resolutions which  are continuously  being  amended 
by  the International  Maritime  Organisation,  it  is  proposed  that the  procedure  provided 
for  in  Article  19 of  the  Directive  should  apply  to  the  entire  Directive,  not just  to  the 
Annexes. 

5" 

COUNCIL DIRECTIVE  97/.. ./EC AMENDING DIRECTIVE 95/21/EC 
CONCERNING THE ENFORCEMENT,  IN RESPECT OF SHIPPING USING 
COMMUNITY PORTS AND SAILING IN THE WATERS UNDER THE 
JURISDICTION  OF THE MEMBER  STATES, OF INTERNATIONAL  STANDARDS 
FOR SHIP SAFETY, POLLUTION PREVENTION AND SHIPBOARD LIVING AND 
WORKING CONDITIONS (PORT  STATE CONTROL) 

(Text with EEA relevance) 

THE COUNCIL  OF THE EUROPEAN  UNION, 

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

Having regard to the proposal from  the Commission, 

Having regard to the opinion of the Economic and Social Committee, 

Acting in accordance with the procedure laid down in Article  189c of the Treaty, 

Having  regard  to  Council  Directive  95/21/EC  of  19  June  1995  concerning  the 
enforcement,  in  respect  of  shipping  using  Community  ports  and  sailing  in  the  waters 
under  the jurisdiction  of  the  Member  States,  of  international  standards  for  ship  safety, 
pollution prevention and shipboard living and working conditions (port State control),1 

1.  Whereas, for  the purpose of Directive  95/21/EC, Article 2(1) thereof  stipulates  that 
international  conventions  means the conventions  in force  at the time of  adoption  of 
the Directive; 

2.  Whereas  since  the  adoption  of  Directive  95/21/EC  amendments  to  the  Solas  74 
Convention, to the Marpol  73/78 Convention  and to the STCW 78 Convention  have 
entered  into  force;  whereas  it  is  appropriate  to  apply  these  amendments  for  the 
purpose of the Directive; 

3.  Whereas  the  International  Management  Code  for  the  Safe  Operation  of  Ships  and 
for  Pollution  Prevention  (ISM  Code)  adopted  by  the  International  Maritime 
Organisation  on  4 November  1993  establishes  a  safety  management  system 
applicable both shipboard  and on shore by the company responsible for  operation of 
the  ship  and  verified  by  the  administration  of  the  country  in  which  the  company 
conducts its business; 

4.  Whereas  the  ISM  Code  is  an  essential  contribution  to  maritime  safety  and  to 

protection of the marine environment in Community waters; 

5.  Whereas  Council  Regulation  (EC)  No  3051/95  of  8 December  1995  on  the  safety 
management  of  roll-on/roll-off  passenger  ferries2  aims  at  advanced  mandatory 

1  OJNoL157,  7.7.1995, p. 1. 

2  OJ No L 320, 30.12.1995, p. 14. 

6 

enforcement  of  the  provisions  of  the  ISM  Code  to  all  ro-ro  ferries  to  or  from 
Community ports, regardless of their flag; 

6.  Whereas the ISM Code enters into force  at international  level  on  1  July  1998 for  ali 
passenger  ships,  oil  tankers,  chemical  tankers,  gas  carriers,  bulk  carriers  and  cargo 
high-speed  craft  with a gross tonnage of 500 tonnes or more; 

7.  Whereas the delays in implementing the provisions of the ISM Code at  international 
level  by  companies  and  administrations  from  several  flag  States  are  creating  a 
situation giving  extreme cause for  concern  from  the point  of view  of  marine  safety 
and protection of the environment; 

8.  Whereas  expand  the control  measures  it is necessary  to at  Community  level  with  a 
view to  enforcement  of  the obligations  imposed  by  the  ISM  Code  as  soon  as  they 
enter into force; whereas these measures must include detention  of  all  ships  without 
certificates  issued pursued to the ISM Code; 

9.  Whereas  in  the  absence  of  other  serious  deficiencies  warranting  detention  of  the 
vessel,  the  Member  State  concerned  should  give  authorisation  to  lift  the  detention 
order on the ship; whereas, however,  the ship  in  question  should  be refused  access 
to Community ports until valid certificates  have been issued under the ISM Code; 

10.  Whereas  it  must  be  possible  to  adapt  Directive  95/21/EC  to  amendments  to  the 
international  conventions  and  the  Memorandum  of  Understanding  mentioned  in 
Article 2 by  a simplified  procedure;  whereas  the  procedure  provided  for  in  Article 
18  of  the  Directive  appears  the  most  appropriate  for  such  amendments;  whereas 
Article  19 must be extended to this end, 

HAS ADOPTED THIS DIRECTIVE. 

Article I 

Directive 95/21/EC is hereby amended as follows: 

In Article 2(1)  "in force  at the date of  adoption  of this Directive"  is replaced  by 

1. 
"in force on 1  July 1998". 

2. 

The following Article is added: 

Procedure applicable in the absence of ISM certificates 

"Article 9a 

1.  Where the inspection reveals that the copy of the document of  compliance 
or  certificate  issued  in  accordance  with  the  International  Management 
Code for  the  Safe  Operation  of  Ships  and  for  Pollution  Prevention  (ISM 
Code)  are missing,  the  competent  authority  shall  ensure  that  the  vessel  is 
detained. 

2. 

Notwithstanding 
to  m 
paragraph  1,  if  the  inspection  finds  no  other  deficiencies  warranting 

the  absence  of  the  documentation  referred 

¥ 

detention  the  competent  authority  may  authorise  the  ship  to  leave  port. 
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 until the owner or operator of the vessel  has demonstrated,  to 
the satisfaction  of the Member  State  in which  detention  was ordered,  that 
the ship has valid certificates  issued in accordance with the ISM Code. " 

3. 

In Article  19 the following  point is added: 

"(c) 

apply,  for  the  purpose  of  this  Directive,  subsequent  amendments  which 
have  entered  into  force  to  the  international  conventions  and  to  the 
Memorandum of Understanding mentioned  in Article 2(1) and (2)." 

Article 2 

Member  States  shall  adopt  the  laws,  regulations  and  administrative  provisions 
1. 
necessary  to  implement  this  Directive  not  later  than  1 July  1998  and  shall  forthwith 
inform  the Commission thereof. 

When  Member  States  adopt  these  measures,  they  shall  contain  a  reference  to  this 
Directive  or  shall  be  accompanied  by  such  reference  on  the  occasion  of  their  official 
publication.  The  methods  of  making  such  a  reference  shall  be  laid  down  by  Member 
States. 

Member  States  shall  communicate  to  the  Commission  the  text  of  the  provisions 

2. 
of national law which they have adopted in the field  governed by this Directive. 

Article 3 

This Directive shall enter into force on the twentieth  day following  that of its publication 
in the OfficialJournal of the European Communities. 

This Directive is addressed to the Member States. 

Article 4 

Done at Brussels, 

•8 

ISSN 0254-1475 

COM(97) 416 final 

DOCUMENT 

EN 

07  04  05  14 

Catalogue number  :  CB-CO-97-421-EN-C 

ISBN 92-78-23711-6 

Office  for Official  Publications of the European  Communities 

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