Council Directive 98/25/EC of 27 April 1998 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: 1998-04-27
Institutions: Council of the European Union
Subjects: harbour installation, international standard, maritime safety, prevention of pollution, vessel, working conditions

7. 5. 98

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Official Journal of the European Communities

L 133/19

COUNCIL DIRECTIVE 98/25/EC

of 27 April 1998

in respect of
amending Directive 95/21/EC concerning the enforcement,
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)

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 (1),

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

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 Dir-
ective;

(2) Whereas since the adoption of Directive 95/21/EC,
to the
amendments to the Solas 74 Convention,
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 appro-
priate 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 and made
mandatory through the new Chapter IX of 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;

(1) OJ C 264, 30. 8. 1997, p. 33.
(2) Opinion delivered on 10 December 1997 (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 (OJ C 91, 26. 3. 1998, p. 28) and Decision of
the European Parliament of 31 March 1998 (OJ C 138, 4. 5.
1998).

(4) OJ L 157, 7. 7. 1995, p. 1.

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

(5) Whereas the ISM Code enters into force at inter-
national 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 protec-
tion 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;

(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 it is necessary in order to avoid port conges-
tion;

(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;

(5) OJ L 320, 30. 12. 1995, p. 14.

L 133/20

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Official Journal of the European Communities

7. 5. 98

(11) Whereas only the detaining Member State can lift
the refusal of access to ports within 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;

(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

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 provi-
sions 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.’.

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

Article 2

1. Article 2 shall be amended as follows:

(a) in point 1, the words ‘in force at the date of adop-
tion 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

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 documenta-
tion referred to in paragraph 1, if the inspection finds
no other deficiencies warranting detention the com-
petent authority may lift the detention order in order
to avoid port congestion. Whenever such a decision is
immediately
taken,
inform the competent authorities of the other Member
States thereof.

the competent authority shall

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

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

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

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at Luxembourg, 27 April 1998.

For the Council

The President

R. COOK