COMMON POSITION (EC) No 14/98 adopted by the Council on 12 February 1998 with a view to adopting Directive 98/.../EC of ... 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)
Date: 1998-02-12
Institutions: Council of the European Union
Subjects: harbour installation, international standard, maritime safety, prevention of pollution, vessel, working conditions

C  91/28

EN

Official  Journal  of  the  European  Communities

26.3.98

COMMON  POSITION  (EC)  No  14/98

adopted  by  the  Council  on  12  February  1998

with  a  view  to  adopting  Directive  98/. . ./EC  of  . . .  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)

(98/C  91/02)

THE  COUNCIL  OF  THE  EUROPEAN  UNION,

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

Having  regard  to  the  proposal  from  the  Commission (1),

IX  of 

November 1993 and made mandatory through the
new  Chapter 
the  Solas  Convention
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;

Having regard to the opinion of the Economic and Social
Committee (2),

(4)  Whereas the ISM Code is an essential contribution
to maritime safety and to protection of the marine
environment  in  Community  waters;

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189c  of  the  Treaty (3),

(1)  Whereas  Article  2(1)  of  Directive  95/21/EC (4)
defines  ‘Conventions’  in  terms  of  the  Conventions
cited  in  that  Article  in  force  at  the  time  of
adoption  of  the  Directive;  whereas  Article  2(2)
stipulates  that  ‘MOU’  means  the  Memorandum  of
Understanding  on  port  State  control,  signed  in
Paris  on  26  January  1982,  as  it  stood  at  the  date
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  the
latest  amendments  to  the  Paris  MOU  have  entered
into  force  on  14  January  1998;  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 
the
International  Maritime  Organisation  on  4

(ISM  Code) 

adopted 

by 

(1)  OJ  C  264,  30.8.1997,  p.  33.
(2)  OJ  C  73,  9.3.1998,  p.  64.
(3)  Opinion  of  the  European  Parliament  of  4  December  1997
(OJ C 388, 22.12.1997, p. 16), Council common position of
12  February  1998  and  Decision  of  the  European  Parliament
of  . . .  (not  yet  published  in  the  Official  Journal).

(4)  OJ  L  157,  7.7.1995,  p.  1.

(5)  Whereas  the  ISM  Code  enters 

into  force  at
international level on 1 July 1998 for all passenger
ships  and  for  oil  tankers,  chemical  tankers,  gas
carriers,  bulk  carriers  and  cargo  high-speed  craft
with  a  gross  tonnage  of  500  tonnes  or  more;

(6)  Whereas  Council  Regulation  (EC)  No  3051/95  of
8  December  1995  on  the  safety  management  of
roll-on/roll-off  passenger  ferries  (ro-ro  ferries) (5)
aims  at  advanced  mandatory  enforcement  of  the
provisions  of  the  ISM  Code  to  all  ro-ro  ferries  to
or  from  Community  ports,  regardless  of  their
flag;

(7)  Whereas  delays  in  implementing  the  provisions  of
the  ISM  Code  at  international  level  by  companies
and  administrations  would  create  cause 
for
concern  from  the  point  of  view  of  marine  safety
and  protection  of  the  environment;

(8)  Whereas  it  is  therefore  necessary  to  establish
specific  Community-wide  measures  to  deal  with
cases  where  no  ISM  certificates  are  on  board;
whereas  these  measures  must  include  detention  of
all ships without certificates issued pursuant to the
ISM  Code;

(5)  OJ  L  320,  30.12.1995,  p.  14.

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C  91/29

(9)  Whereas,  however,  in  the  absence  of  other  serious
deficiencies  warranting  detention  of  the  vessel,  the
Member  State  concerned  should  be  able  to  give
authorisation to lift the detention order on the ship
when  this  is  necessary  in  order  to  avoid  port
congestion;

(10)  Whereas, in this case, Member States need to take,
in  conformity  with  Article  11  of  Directive
95/21/EC,  well-coordinated  measures  to  ensure
that  ships  which  have  been  authorised  to  leave
port  without  proper  ISM  certification  are  refused
access  to  all  ports  within  the  Community  until
valid  certificates  have  been  issued  under  the  ISM
Code, without prejudice to paragraph 6 of the said
Article;

refusal  of  access 

(11)  Whereas  only  the  detaining  Member  State  can  lift
the 
the
Community; whereas this State may accept, if it so
wishes,  any  information  from  another  Member
State  which  is  deemed  to  be  proof  that  a  ship  has
valid certificates issued in accordance with the ISM
Code,

to  ports  within 

(12)  Whereas  it  should  be  possible  to  adapt  Directive
95/21/EC  to  take  account  of  amendments  to  the
international conventions and the Memorandum of
Understanding  on  port  State  control  mentioned  in
Article  2  of 
that  Directive  by  a  simplified
procedure;  whereas  the  procedure  provided  for  in
Article  18  of  the  said  Directive  appears  the  most
appropriate  for  such  amendments;  whereas  to  that
end  Article  19  should  be  extended,

HAS  ADOPTED  THIS  DIRECTIVE:

Article  1

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

1.  Article  2  shall  be  amended  as  follows:

(a)  in  point  1,  the  words  ‘in  force  at  the  date  of
adoption of this Directive’ shall be replaced by ‘in
force  on  1  July  1998’;

(b) in  point  2,  the  words  ‘as  it  stands  at  the  date  of
adoption of this Directive’ shall be replaced by ‘as
it  stands  on  14  January  1998’.

2.  The  following  Article  shall  be  inserted:

‘Article  9a

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.

of 

absence 

the
the 
2. Notwithstanding 
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.’.

3.  In  Article  19  the  following  point  shall  be  added:

‘(c)  adapt the dates in Article 2 in order to take into
account  amendments  which  have  entered  into
force to the international conventions and to the
MOU  referred  to  in  the  said  Article  with  the
exception  of  protocols  to  such  conventions.’.

Article  2

1. Member  States  shall  bring  into  force  the  laws,
regulations  and  administrative  provisions  necessary  to
comply with this Directive before 1 July 1998. They shall
forthwith  inform  the  Commission  thereof.

Procedure  applicable 
certificates

in 

the  absence  of 

ISM

1. Where  the  inspection  reveals  that  the  copy  of  the
document  of  compliance  or  the  safety  management

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
reference  shall  be  laid  down  by  Member  States.

C  91/30

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Official  Journal  of  the  European  Communities

26.3.98

2. Member States shall communicate to the Commission
the  text  of  the  main  provisions  of  domestic  law  which
they  adopt  in  the  field  governed  by  this  Directive.

Article  4

This  Directive  is  addressed  to  the  Member  States.

Article  3

Done  at  . . .

This  Directive  shall  enter  into  force  on  the  day  of  its
publication  in  the  Official  Journal  of  the  European
Communities.

For  the  Council

The  President

26.3.98

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C  91/31

STATEMENT  OF  THE  COUNCIL’S  REASONS

I. 

INTRODUCTION

On  29  July  1997,  the  Commission  submitted  to  the  Council  a  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).  This  proposal  was  based  on
Article  84(2)  of  the  Treaty (1).

The  European  Parliament  issued  its  opinion  in  the  first  reading  on  4  December  1997 (2).
The  Economic  and  Social  Committee  issued  its  opinion  on  10  December  1997 (3).  The
Parliament  approved  the  Commission  proposal  without  amendment.

The  Council  adopted  its  common  position  in  accordance  with  Article  189c  of  the  Treaty
on  12  February  1998.

II.  PURPOSE  OF  THE  PROPOSAL

The purpose of this proposal is to amend Directive 95/21/EC on port State control in order
to:

—  extend  port  State  control  to  recent  amendments  to  the  Marpol,  SOLAS  and  STCW

Conventions,

—  oblige  Member  States  to  ensure  that  ships  entering  their  ports  comply  with  the
International  Management  Code  for  the  safe  operation  of  ships  and  for  pollution
prevention  (ISM  Code) (4),

—  establish specific detention procedures for ships not carrying ISM certificates on board,
taking account of the fact that a considerable number of companies and ships will not
have  ISM  certificates  by  the  entry  into  force  of  the  ISM  Code  on  1  July  1998,

—  extend  the  scope  of  the  comitology  procedure.

III.  ANALYSIS  OF  THE  COMMON  POSITION

The  common  position  adopted  by  the  Council  corresponds  largely  to  the  Commission
proposal.

The draft Directive amends the dates of reference contained in points 1 and 2 of Article 2
(‘definitions’)  of  Directive  95/21/EC  in  order  to  cover  recent  amendments  of  certain
international  conventions  (point  1)  and  of  the  Paris  Memorandum  of  Understanding
(MOU)  and  port  State  control  (point  2).

(1)  OJ  C  264,  30.8.1997,  p.  33.
(2)  OJ  C  388,  22.12.1997,  p.  16.
(3)  OJ  C  73,  9.3.1997,  p.  64.
(4)  The  ISM  Code  requires  ships  to  have  on  board  a  copy  of  the  ‘document  of  compliance’,  in  which  the
flag  State  approves  the  safety  management  system  of  the  company,  as  well  as  a  ‘safety  management
certificate’,  in  which  the  flag  State  approves  the  safety  management  system  of  the  ship.

C  91/32

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26.3.98

Furthermore,  a  new  Article  9a  was  inserted  in  order  to:

—  ensure  that  vessels  which  are  not  able  to  present  a  ‘document  of  compliance’  or  the
‘safety  management  certificate’  issued  in  accordance  with  the  ISM  Code  are  detained
(paragraph  1),

—  enable Member States to lift such a detention order, provided that no other deficiencies
warranting  detention  have  been  found,  and  that  this  measure  is  necessary  in  order  to
avoid  port  congestion  (paragraph  2),

—  ensure  that  vessels  which  have  been  allowed  to  leave  a  port  in  accordance  with
paragraph 2 are, in principle, refused access to all Community ports until they are able
to  prove  compliance  with  the  ISM  Code  (paragraph  3).

Moreover, the draft Directive extends the scope of the Committee procedure laid down in
Article  19(b),  which  at  present  merely  covers  adaptations  of  the  technical  Annexes  to  the
Directive  in  the  light  of  future  amendments  of  the  instruments  mentioned  in  Article  2,
points  1  and  2,  so  that  the  Committee  may  also  amend  the  dates  specified  in  those
points.

IV.  AMENDMENTS  BY  THE  EUROPEAN  PARLIAMENT

In  its  first  reading  on  4  December  1997,  the  European  Parliament  did  not  adopt  any
amendments  to  the  Commission  proposal.

V.  THE  COUNCIL’S  AMENDMENTS  TO  THE  COMMISSION  PROPOSAL

PREAMBLE

The  Council  redrafted  the  preamble  in  the  light  of  the  amendments  to  the  Commission’s  original
proposal.  Apart  from  several  editorial  changes,  the  Council:

—  completed recitals 1 and 2 in order to indicate that Directive 95/21/EC should also be adapted in

the  light  of  recent  amendments  to  the  Paris  MOU,

—  modified recital 9 in order to clarify that the need to avoid port congestion is the only reason that

justifies  the  lifting  of  a  detention  order,

—  inserted  new  recitals  10  and  11  in  order  to  clarify  the  rights  and  obligations  of  Member  States
with  regard  to  the  lifting  of  detention  orders  and  the  subsequent  refusal  of  access  to  all
Community  ports  until  the  vessels  concerned  can  prove  compliance  with  the  ISM  Code.

ARTICLES

The  Council  agreed  to  amend  the  Commission  proposal  as  follows:

Article  1.1.b  (amendment  of  Article  2(2)  of  Directive  95/21/EC)

The  Council  introduced  a  new  Article  1.1.b  in  order  to  update  the  definition  of  the  Paris  MOU
contained in Article 2(2) of Directive 95/21/EC. By replacing the reference to the ‘date of adoption of
this Directive’ with ‘as it stands on 14 January 1998’, the Council took into account the amendments
to  the  Paris  MOU  which  entered  into  force  after  the  date  of  adoption  of  Directive  95/21/EC.

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C  91/33

Article  1.2  (new  Article  9a)

In paragraph 1, the Council replaced ‘certificate’ by ‘safety management certificate’ in order to ensure
consistency  with  the  language  used  in  the  ISM  Code.  Moreover,  the  Council  inserted  the  words  ‘on
board  a  vessel  to  which,  within  the  European  Community,  the  ISM  Code  is  applicable  at  the  date  of
the  inspection’  in  order  to  avoid  any  ambiguity  with  regard  to  the  scope  of  application  of  this
Directive.

In paragraph 2, the Council replaced ‘may authorise the ship to leave port’ by ‘may lift the detention
order’  in  order  to  ensure  consistency  with  the  language  used  in  Article  9(2)  of  Directive  95/21/EC.
Moreover, the Council added the words ‘in order to avoid port congestion’ so as to introduce a clear
criterion  on  the  basis  of  which  the  derogation  from  the  general  rule  to  detain  a  vessel  can  be
granted.

In  paragraph  3,  the  Council:

—  inserted  the  words  ‘except  in  the  situations  referred  to  in  Article  11(6)’  in  order  to  clarify  that
vessels may be permitted access to a specific port in the Community ‘in the event of force majeure
or  overriding  safety  considerations,  or  to  reduce  or  minimise  the  risk  of  pollution  or  to  have
deficiencies rectified’,

—  replaced ‘to the satisfaction of the Member State’ by ‘to the satisfaction of the competent authority
of  the  Member  State’  in  order  to  ensure  consistency  with  the  language  used  in  Article  11(6)  of
Directive  95/21/EC,

—  added a new sentence in order to clarify that, under the specific circumstances outlined in Article
11 of Directive 95/21/EC, a vessel which, in principle, should be refused access to all ports in the
Community,  may  be  allowed  to  proceed  to  the  nearest  appropriate  repair  yard  available.

Article  1.3  (Amendment  to  Article  19  of  Directive  95/21/EC)

The Council replaced the paragraph contained in the Commission proposal by a new text in order to
define  more  narrowly  the  powers  granted  to  the  Committee  procedure  in  the  event  of  subsequent
amendments to the international conventions and to the Memorandum of Understanding referred to in
Article  2  of  Directive  95/21/EC.