Council Directive 98/41/EC of 18 June 1998 on the registration of persons sailing on board passenger ships operating to or from ports of the Member States of the Community
Date: 1998-06-18
Institutions: Council of the European Union
Subjects: EU Member State, carriage of passengers, crew, data recording, harbour installation, maritime safety, traveller, vessel

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Official Journal of the European Communities

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COUNCIL DIRECTIVE 98/41/EC

of 18 June 1998

on the registration of persons sailing on board passenger ships operating to or
from ports of the Member States of the Community

THE COUNCIL OF THE EUROPEAN UNION,

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

Member States bear responsibility under the 1979
International Convention on Maritime Search and
Rescue (SAR);

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

(5) Whereas passengers should therefore be counted

and registered before any ship departs;

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 within the framework of the common
transport policy further measures must be taken to
enhance safety in maritime transport;

(2) Whereas the Community is seriously concerned by
shipping accidents involving passenger ships which
have resulted in massive loss of life, particularly
those involving the Herald of Free Enterprise and
the Estonia; whereas persons using passenger ships
and high-speed passenger craft
the
Community have the right to expect and to be able
to rely on an appropriate level of safety and upon
an adequate information system which will facil-
itate search and rescue and the efficient handling
of the aftermath of any accident that might occur;

throughout

(3) Whereas it is necessary to ensure that the number
of passengers on board a passenger ship does not
exceed the number for which the ship and its
safety equipment have been certified; whereas
companies should be able to inform the search and
rescue services of the number of persons involved
in an accident;

(4) Whereas information must be compiled on passen-
gers and crew in order to facilitate search and
rescue and the efficient handling of the aftermath
of an accident, i.e. identifying the persons involved,
information on related legal
providing clearer
issues
appropriate
medical care for rescued persons; whereas such
information would prevent unnecessary anxiety on
the part of relatives and other persons concerned
ships
regarding persons on board passenger
involved in marine accidents in waters for which

and contributing to more

(1) OJ C 31, 31. 1. 1997, p. 5 and OJ C 275, 11. 9. 1997, p. 7.
(2) OJ C 206, 7. 7. 1997, p. 111.
(3) Opinion of the European Parliament of 29 May 1997 (OJ C
138, 16. 6. 1998, p. 31), Council common position of 11
December 1997 (OJ C 23, 23. 1. 1998, p. 17), and Decision of
the European Parliament of 11 March 1998 (OJ C 104, 6. 4.
1998).

(6) Whereas Chapter III of the International Conven-
tion on the Safety of Life at Sea (the SOLAS
Convention) provides for the counting and registra-
tion of all persons on board all passenger ships
sailing on international voyages, from 1 July 1997
and 1 January 1999 respectively, while permitting
Administrations to exempt passenger ships sailing
in sheltered waters from those requirements and
from the requirement to register if the scheduled
voyages of such ships render it impracticable for
them to prepare such records; whereas that Chapter
the SOLAS Convention does not apply to
of
domestic voyages and leaves important points of
interpretation to the discretion of
individual
Member States;

(7) Whereas this Directive is in accordance with the
right of Member States to impose on passenger
ships sailing to or from their ports certain require-
ments more stringent than those laid down in the
SOLAS Convention;

(8) Whereas in view,

in particular, of

the internal-
market dimension of maritime passenger transport,
action at Community level is the most effective
way of establishing a common minimum level of
safety for ships throughout the Community;

(9) Whereas, in view of the principle of proportionality
a Council Directive is the appropriate legal instru-
ment as it provides a framework for the Member
States’ uniform and compulsory application of
safety standards while leaving each Member State
the right to decide which implementation tools
best fit its internal system;

(10) Whereas a Member State can ensure compliance
with the safety rules applicable on the part of
passenger ships flying its flag and the companies
that operate them; whereas those rules should not
be imposed upon ships operating between ports in
third countries; whereas
the
the provisions of
SOLAS Convention apply to those voyages;

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(11) Whereas the only way of ensuring the safe and
efficient handling of the aftermath of accidents for
all passenger ships, irrespective of their flags, oper-
ating or wishing to operate from their ports, is for
the Member States to require effective compliance
with the relevant rules as a condition of operating
from their ports; whereas the granting of exemp-
tions from those rules cannot be left solely to the
flag State since only the port State is in a position
to determine the requirements for the best possible
search and rescue operations for passenger ships
sailing to and from a port;

(12) Whereas in order to harmonise safety protection
and avoid distortions of competition, Member
States should not,
for reasons other than those
mentioned in this Directive, grant exemptions or
derogations from the relevant SOLAS provisions on
‘information on passengers'
for voyages starting
from or arriving at Community ports;

(13) Whereas for reasons of practicability and to avoid
distortion of competition, a uniform approach must
be established to determine the voyages for which
the registration of all persons on board should be
mandatory; whereas the twenty-mile threshold is
the result of taking into consideration general prin-
ciples and specific points of concern endorsed by
all Member States;

(14) Whereas,

for

reasons,

the
specific operational
counting of persons on board passenger ships
crossing the Strait of Messina might, for a limited
period of time, be done in a simpler way than
individual counting; whereas Member States should
enjoy the possibility of granting some relaxation
from the obligation to communicate to the shore
the number of persons in the case of passenger
ships operating on regular services of short dura-
tion carried out exclusively in protected sea areas,
as defined in this Directive; whereas passenger
ships operating exclusively in protected sea areas
constitute a more limited risk and should, there-
fore, enjoy the possibility of exemption; whereas in
certain specific circumstances it may be impractic-
able for shipping companies to register persons on
board and therefore a derogation from the obliga-
tion to register could be permitted under specific
circumstances and well defined conditions;

(15) Whereas the collection and processing of data
concerning named individuals must be carried out
in accordance with the principles of data protection
laid down in Directive 95/46/EC (1); whereas,
in
particular, individuals should be fully informed at
the time of collection of the purposes for which

the data are required, and the data should be
retained only for a very short period which should
not in any case be any longer than necessary for
the purposes of this Directive;

(16) Whereas it is necessary that a committee consisting
of representatives of the Member States assist the
Commission in the effective application of this
Directive; whereas the committee set up by Article
12 of Directive 93/75/EEC (2) can assume that
function;

(17) Whereas certain provisions of this Directive may be
adapted by that Committee to take into account
future amendments to the SOLAS Convention that
have entered into force,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive shall be to enhance the
safety and possibilities of rescue of passengers and crew
on board passenger ships operating to or from ports in
Member States of the Community and to ensure that
search and rescue and the aftermath of any accident
which may occur can be dealt with more effectively.

Article 2

For the purposes of this Directive:

(cid:190) ‘persons' shall mean all people on board irrespective

of age,

(cid:190) ‘passenger ship' shall mean a sea-going ship or a
sea-going high-speed craft which carries more than
twelve passengers,

(cid:190) ‘high-speed craft' shall mean a high-speed craft as
defined in Regulation 1 of Chapter X of the 1974
SOLAS Convention, as in force at the time of the
adoption of this Directive,

(cid:190) ‘company' shall mean the owner of a passenger ship
or any other organisation or person such as the
manager or the bareboat charterer, who has assumed
responsibility for operating the passenger ship from
the owner,

(cid:190) ‘ISM Code' shall mean the International Management
Code for the Safe Operation of Ships and for Pollu-
tion Prevention adopted by the International Maritime
through Assembly Resolution
Organization (IMO)
A.741(18) of 4 November 1993,

(1) OJ L 281, 23. 11. 1995, p. 31.

(2) OJ L 247, 5. 10. 1993, p. 19.

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(cid:190) ‘passenger registrar' shall mean the responsible shore-
based person designated by a company to fulfil the
ISM Code obligations or a shore-based person desig-
nated by a company as responsible for the keeping of
information on persons who have embarked on a
company passenger ship,

(cid:190) ‘designated authority'

shall mean the competent
authority of the Member State responsible for search
and rescue or concerned with the aftermath of an
accident,

(cid:190) ‘a mile' is 1 852 metres,

(cid:190) ‘protected sea area' shall mean a sea area sheltered
from open sea effects where a ship is at no time more
than six miles from a place of refuge where ship-
wrecked persons can land and in which the proximity
of search and rescue facilities is ensured,

(cid:190) ‘regular service' shall mean a series of ship crossings
operated so as to serve traffic between the same two or
more ports, either:

(a) according to a published timetable, or

(b) with crossings so regular or frequent that they

constitute a recognizable systematic series,

(cid:190) ‘third country' shall mean any country which is not a

Member State.

Article 3

This Directive shall apply to passenger ships with the
exception of:

(cid:190) ships of war and troop ships, and

(cid:190) pleasure yachts unless they are or will be crewed and
carry more than twelve passengers for commercial
purposes.

Article 4

1. All persons on board any passenger ship which
departs from a port located in a Member State shall be
counted before that passenger ship departs.

2.
Before the passenger ship departs the number of
persons on board shall be communicated to the master of
the passenger ship and to the company’s passenger regis-
trar or to a shore-based company system that performs
the same function.

Article 5

The

following

information shall be

recorded
1.
regarding every passenger ship that departs from a port
located in a Member State to undertake a voyage of more
than twenty miles from the point of departure:

(cid:190) the family names of the persons on board,

(cid:190) their forenames or initials,

(cid:190) their sex,

(cid:190) an indication of the category of age (adult, child or
infant) to which each person belongs, or the age, or
the year of birth,

(cid:190) when volunteered by

information
concerning the need for special care or assistance in
emergency situations.

a passenger,

2.
That information shall be collected before departure
and communicated not later than thirty minutes after the
passenger ship’s departure to the company’s passenger
registrar or
to a shore-based company system that
performs the same function.

Article 6

1.
Each Member State shall, as regards every passenger
ship that flies its flag and departs from a port located
outwith the Community and is bound for a port located
within the Community, require the company to ensure
that the information specified in Articles 4(1) and 5(1) is
provided as laid down in Articles 4(2) and 5(2).

2.
Each Member State shall, as regards every passenger
ship that flies the flag of a third country and departs from
a port located outwith the Community and is bound for a
port located within the Community, require the company
to ensure that the information specified in Articles 4(1)
and 5(1) is collected and maintained so that it is available
to the designated authority when needed for purposes of
search and rescue and in the aftermath of an accident.

the relevant SOLAS provisions a
3. Where under
Member State grants an exemption or derogation relating
to the information concerning passengers to a ship flying
its flag arriving at a port located within the Community
from a port located outwith the Community, it may do so
only under the conditions laid down for exemptions or
derogations in this Directive.

Article 7

Before a passenger ship departs from a port located in a
Member State its master shall ensure that the number of
the
persons on board does not exceed the number
passenger ship is permitted to carry.

Article 8

Each company assuming responsibility for operating a
passenger ship shall, where required under Articles 4 and
5:

(cid:190) set up a system for the registration of passenger in-
formation. The system shall meet the criteria laid
down in Article 11,

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(cid:190) appoint a passenger

the
keeping and the transmission of
information
should an emergency occur or in the aftermath of an
accident.

responsible for

registrar

that

The company shall ensure that the information required
by this Directive is at all times readily available for trans-
mission to the designated authority for search and rescue
purposes in the event of an emergency or in the after-
math of an accident.

Personal data collected in accordance with Article 5 shall
not be kept longer than necessary for the purposes of this
Directive.

The company shall ensure that information concerning
persons who have declared a need for special care or
assistance in emergency situations is properly recorded
and communicated to the master before the passenger
ship departs.

Article 9

1. A Member State from a port in which a passenger
ship departs may lower the twenty-mile threshold laid
down in Article 5.

Any decision lowering that
journeys
between two ports in different Member States shall be
taken jointly by those two Member States.

threshold for

2.

(a) When implementing Article 4(1)

the

Italian
for regular services crossing the
Republic may,
Strait of Messina, adopt provisions for counting the
maximum number of persons permitted to be
carried on board a passenger
ship carrying
passenger-train carriages and road vehicles on the
the maximum number of passengers
basis of
authorised to be carried by train carriages and all
other vehicles on board, if the persons cannot be
counted individually for operational reasons. The
application of this provision shall be limited to a
four years. Any extension shall be
period of
decided, in accordance with paragraph 3, in the
light of the experience gained.

(b) A Member State from a port

in which a ship
departs may exempt passenger ships operating,
exclusively in protected sea areas, regular services
of less than one hour between port calls from the
obligation laid down in Article 4(2) to commun-
icate the number of persons on board to the
passenger registrar or to a shore-based company
system that performs the same function.

(c) A Member State may exempt passenger ships
sailing, exclusively in protected sea areas, between
two ports or from and to the same port without
intermediate calls from the obligations laid down
in Article 5.

In the circumstances set out in paragraph 2, the

3.
following procedure shall apply:

(a)

the Member State shall without delay inform the
Commission of its decision to grant an exemption or
a derogation from the relevant provisions of Articles 4
and 5 giving substantive reasons therefor;

(b) if within six months of such notification the Commis-
sion considers that that decision is not justified or
could have adverse effects on competition,
it may,
acting in accordance with the procedure laid down in
Article 13, require the Member State to amend or
withdraw its decision.

4.
For regular services in an area where the annual
probability of the significant wave height’s exceeding two
metres is less than 10%, and

(cid:190) if the voyage does not exceed about thirty miles from

the point of departure or

(cid:190) where the primary purpose of the service is to provide
regular links to outlying communities for customary
purposes,

a Member State from a port in which passenger ships sail
on domestic voyages or two Member States between ports
in which passenger ships sail may request the Commis-
sion, if they consider it impracticable for companies to
record the information specified in Article 5(1)
to
derogate, wholly or partly, from this requirement.

To this end, evidence of such impracticability shall be
provided. In addition, it shall be demonstrated that in the
area where such ships operate, shore-based navigational
guidance and reliable weather forecasts are provided and
that adequate and sufficient search and rescue facilities
are available. Derogations granted under this paragraph
may not have any adverse effect on competition.

A decision shall be taken in accordance with the
procedure laid down in Article 13.

5. A Member State shall not, under the provisions of
this Directive, exempt or grant derogations
to any
passenger ship sailing from its ports and flying the flag of
a third country that is a contracting party to the SOLAS
Convention which under the relevant SOLAS provisions
does not agree to the application of such exemptions.

Article 10

The registration systems set up in accordance with Article
8 shall be approved by the Member States.

Member States shall at least carry out random checks on
the proper functioning of the registration systems set up
pursuant to this Directive within their territories.

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Each Member State shall designate the authority to which
the companies covered by Article 8 shall communicate
the information required by this Directive.

committee shall operate in accordance with the procedure
laid down in paragraphs 2 and 3 of that Article.

Article 11

For

1.
systems shall meet the following functional criteria:

this Directive registration

the purposes of

(i) readability:

the required data must be in a format that is easy to
read,

(ii) availability:

the required data must be easily available to the
designated authorities for which the information
contained in the system is relevant,

(iii) facilitation:

the system must be designed in such a way that no
undue delay is caused for passengers embarking
and/or disembarking the vessel;

(iv) security:

the data must be appropriately protected against acci-
dental or unlawful destruction or loss and unauthor-
ised alteration, disclosure or access.

2. A multiplicity of systems on the same or similar
routes is to be avoided.

Article 14

Member States shall lay down systems of penalties for
breaching the national provisions adopted pursuant to
this Directive and shall take all the measures necessary to
ensure that those penalties are applied. The penalties thus
provided for shall be effective, proportionate and dis-
suasive.

Article 15

1. Member States shall bring into force the laws, regula-
tions and administrative provisions necessary to comply
with this Directive by 1 January 1999. They shall forth-
with inform the Commission thereof. Article 5 shall be
applied no later than 1 January 2000.

2. When the Member States adopt those measures, they
shall contain references to this Directive or shall be
accompanied by such references on the occasion of their
official publication. The methods of making such refer-
ences shall be laid down by the Member States.

3.
The Member States shall immediately communicate
to the Commission the texts of all provisions of national
in the field governed by this
law which they adopt
inform the other
Directive. The Commission shall
Member States thereof.

Article 12

Article 16

Without prejudice to the procedures for amending the
SOLAS Convention, this Directive may be amended in
accordance with the procedure laid down in Article 13, in
order to ensure the application, for the purposes of this
Directive and without broadening its scope, of subsequent
amendments to the SOLAS Convention relating to the
registration systems which have entered into force after
the adoption of this Directive.

Article 13

The Commission shall be assisted by the committee set
up pursuant to Article 12(1) of Directive 93/75/EEC. The

This Directive shall enter into force on the twentieth day
after its publication.

Article 17

This Directive is addressed to the Member States.

Done at Luxembourg, 18 June 1998.

For the Council

The President

G. STRANG