Communication from the Commission to the European Parliament and the Council on a second set of community measures on maritime safety following the sinking of the oil tanker ERIKA
Date: 2000-12-07
Institutions: European Commission
Subjects: data collection, indemnification, maritime safety, maritime transport, oil pollution

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 6.12.2000
COM(2000) 802 final

2000/0325 (COD)
2000/0326 (COD)
2000/0327 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT AND THE COUNCIL

ON A SECOND SET OF COMMUNITY MEASURES ON MARITIME SAFETY
FOLLOWING THE SINKING OF THE OIL TANKER ERIKA

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a Community monitoring, control and information system
for maritime traffic

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the establishment of a fund for the compensation of oil pollution damage in European
waters and related measures

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a European Maritime Safety Agency

(presented by the Commission)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT AND THE COUNCIL

ON A SECOND SET OF COMMUNITY MEASURES ON MARITIME SAFETY
FOLLOWING THE SINKING OF THE OIL TANKER ERIKA

The sinking of the oil tanker Erika off the French coast in December 1999 spurred new
developments in the establishment of Europe’s maritime safety policy. Only some three
months after the accident, on 21 March 2000, the Commission adopted a “Communication on
the safety of the seaborne oil trade” together with a number of proposals for specific measures
to prevent such accidents happening again.

The Biarritz European Council called for the speedy adoption of the first “Erika” package and
urged the Commission to propose as soon as possible a second set of measures to supplement
the three legislative proposals presented on 21 March 2000.

I- Recapitulation of the proposals under consideration by the Council and European
Parliament

• A substantial amendment of the existing Directive on port State control in order to step up
inspections in ports, as they are currently inadequate. The main points of the proposal
concern the banning of sub-standard ships (including drawing up a black list of ships
which may no longer enter European Union waters) and more stringent inspections of
ships posing a risk, including oil tankers. These changes will require the number of
inspection staff in Member States’ ports to be increased.

• An amendment of the existing Directive on classification societies, to which Member
States delegate a large part of their verification powers, with the general aim of supervising
the activities of the societies more closely.

• A proposal for a regulation to generalise the ban on single-hull tankers according to a
timetable similar to that set by the USA. This will enable double-hull tankers, which
provide better protection against pollution in the event of accidents, to be introduced more
quickly. Under this timetable, the use of double hulls will become obligatory for most
categories of oil tankers in 2010.

The Commission drew the attention of the Transport Council at its meeting of 2 October to
the importance of ensuring that a weakening of its proposal on port State control did not result
in a halving of the number of hazardous ships that would be subject to more stringent
mandatory inspection in EU ports if the Presidency compromise was adopted.

With regard to the proposed regulation on double-hull oil tankers, a joint approach within
the International Maritime Organisation (IMO) found support in October 2000 for amending
the international rules in force. The IMO plans to adopt measures similar to those advocated
by the European Union in April 2001. The Council should therefore adopt a common position
at its meeting of 21 December to ensure that Community legislation at all events enters into
force before the IMO rules, which may take several years.

The Community institutions must speed up their work if the Nice European Council is to be
able to ascertain agreement on the three texts at the end of the year. The Presidents of the

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Council and of the European Parliament have again called for speedier adoption of these
measures following the wreck of the chemical carrier Ievoli Sun on 31 October 2000.

II - A second set of measures to bring about a lasting improvement in the protection of
European waters against the risk of accidents at sea and marine pollution.

1)

Measures to improve the safety of shipping and prevent pollution from ships

The safety of shipping in European waters is of crucial importance: 90% of the European
Union’s trade with third countries is seaborne. The risk of accidents due to the concentration
of traffic in the main European seaways is particularly high in areas where the traffic
converges, such as the Dover Strait or the Strait of Gibraltar. Furthermore, the environmental
consequences of an accident at sea, which can also occur outside areas of high traffic density
(as in the Erika case), can be disastrous for the economy and the environment of the Member
States concerned.

Even after the first package of measures is adopted, sub-standard ships may escape inspection
in the European Union. Moreover, Directive 93/75/EEC laying down notification
requirements for vessels carrying dangerous or polluting goods, as it stands, is inadequate for
the purposes of identifying and closely monitoring ships, in particular those in transit off
Europe's coasts. The European Union must therefore acquire the means to monitor and control
more effectively the traffic off its coasts and to take more effective action in the event of
critical situations arising at sea.

The proposal provides in particular for:

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improving the identification of ships heading for European ports and monitoring all
ships in transit in areas of high traffic density or hazardous to shipping, and requiring
ships sailing in Community waters to carry transponder systems so that they can be
automatically identified and constantly monitored by the coastal authorities;

extending the reporting requirements already provided for by Directive 93/75/EEC to
other dangerous or polluting goods and in particular to bunker fuels carried on board,
given the highly polluting nature of these products;

simplifying and harmonising the procedures relating to the transmission and use of
data on dangerous or polluting goods carried by ships, notably through the systematic
use of electronic data interchange (EDI);

requiring ships calling at Community ports to carry black boxes (or voyage data
recorders), in order to facilitate the investigation of accidents, and thereby contribute
to improving accident prevention policy. These black boxes will be made mandatory
sooner and more extensively (cargo ships and ships on domestic voyages) than
required by IMO standards;

stepping up the development of common databases and the interconnection of the
stations responsible for managing the information gathered under the Directive;

ensuring closer monitoring of ships posing a particularly serious threat to maritime
safety and the environment and requiring information about them to be circulated
among Member States, to enable the latter to identify dangerous situations sooner
and take any preventive action necessary in respect of such ships;

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enhancing the powers of intervention of Member States, as coastal States, where
there is an accident hazard or threat of pollution off their coasts (territorial waters
and the high seas). Member States will thus be able to order the re-routing of a ship
posing a threat to their coasts, to instruct the ship's master to stop a pollution risk, to
put an assessment team on board or to impose mandatory pilotage or towage of the
ship;

requiring Member States to take measures to receive ships in distress in ports of
refuge, and prohibit ships from leaving ports in exceptional weather conditions
involving a serious threat to safety or the environment.

2)

Improving the liability and damage compensation schemes in force

Since the 1970s, the international community has drawn up international conventions under
the auspices of the IMO laying down detailed rules on liability and compensation for damage
in the event of pollution caused by tanker ships.

The Commission's proposal complements the existing international
two-tier regime on
liability and compensation for oil pollution damage by tankers by creating a European
supplementary fund, the COPE Fund, to compensate victims of oil spills in European waters.
The COPE Fund will only compensate victims whose claims have been considered justified,
but who have nevertheless been unable to obtain full compensation under the international
regime, owing to insufficient compensation limits. The current ceiling is EUR 200 million.

Compensation from the COPE fund would thus be based on the same principles and rules as
the current international fund system, but subject to a ceiling which is deemed to be sufficient
for any foreseeable disaster, i.e. EUR 1 000 million. The COPE Fund could also be used to
speed up the payment of full compensation to the victims.

The COPE fund will be financed by European oil receivers. Any person in a Member State
who receives more than 150 000 tonnes of crude oil and/or heavy fuel oil per year will have to
pay its contribution to the COPE Fund, in a proportion which corresponds to the amounts of
oil received.

The COPE Fund will only be activated once an accident that exceeds, or threatens to exceed,
the maximum limit provided by the IOPC Fund has occurred in EU waters. If no such
accident occurs, the COPE Fund will not require any contributions to be made.

The proposed regulation, in addition to the provisions on liability set out above, includes an
article introducing financial penalties for grossly negligent behaviour by any person involved
in the transport of oil by sea. This penalty will be imposed by Member States outside the
scope of liability and compensation and will thus not be affected by any limitation of liability.

3)

A European Maritime Safety Agency

implement

In the space of a few years, a large body of legislation on maritime safety has been enacted.
these rules effectively and uniformly, notably by
Member States must
approximating the procedures and practices applying to inspection in ports and technical
checks on the condition of ships; they must also recruit a considerable number of inspectors,
since the number of ships posing a risk actually checked, some 700 in 1999, should increase
to 6 000 when the Commission proposals enter into force.

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The creation of a European Maritime Safety Agency would provide the Commission and
Member States with support in applying and monitoring compliance with Community law and
in assessing the effectiveness of the measures in place. The Agency will have a staff of about
50, mainly with a background in the national maritime administrations and the industry.

In its proposal, the Commission sets out the following tasks for the Agency, the organisation
and role of which are largely based on the Aviation Safety Agency:

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technical assistance in preparing proposals for amendments to the Community
legislative texts, particularly in the light of changes in the international rules;

on-the-spot inspections of the conditions under which port State control is carried out
by Member States;

organisation of appropriate training activities;

collection of data and operation of databases on safety at sea that will, among other
things, enable the Commission to draw up a "black list" of sub-standard shipping. All
the information will be placed at the disposal of Member States' inspectors, who will
thus immediately have at their fingertips all the data relating to a ship and so be able
to detain it if necessary;

tasks relating to the monitoring of shipping and the management of traffic data;

assessment and auditing of the classification societies;

participation in, or coordination of, activities relating to investigations following an
accident at sea;

provision of assistance to the EU candidate countries, in order to assess the manner
in which their maritime administrations meet their obligations as flag States and port
States.

CONCLUSION

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This set of measures supplementing the first package forms a coherent whole that should
significantly enhance maritime safety in European Union waters and ports. The Commission
would urge the European Parliament and the Council to adopt the three legislative proposals
in this communication as soon as possible in order to enable specific action to be taken
quickly.

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EXPLANATORY MEMORANDUM

BACKGROUND, PURPOSE AND CONTENT

General background

Since it began in 1993,1 Community maritime safety policy has resulted in the
1.
adoption of fifteen or so regulations or directives designed to improve the safety of ships, and
their crews and passengers, and to do more to prevent pollution of the seas.

The Erika accident on 13 December 1999 showed that there is still a risk of accidents at sea
along the European coastline, and also demonstrated how serious the consequences can be,
particularly as regards coastal pollution. On 21 March 2000, three months after the accident,
the Commission adopted a communication on the safety of the seaborne oil tanker trade, in
which it set out a general strategy and made a number of proposals for specific measures to
prevent the recurrence of accidents of this kind. The short-term measures proposed by the
Commission in this communication were to be backed up by other measures to improve the
protection of European waters against the risk of accidents and sea pollution in the longer
term. It also set out medium-term measures on the safety of shipping, improving systems of
liability and compensation for damage in the event of accidental pollution, and the
establishment of a European maritime safety agency. These proposed measures were
confirmed at
the Biarritz European Council on 14 October 2000 on the basis of the
Commission’s report of 27 September 2000 on the Community’s strategy for safety at sea.2

2.
In Europe, and particularly along the Atlantic coastline, there have been a number of
disastrous accidents involving oil tankers (Torrey Canyon, Amoco Cadiz, Tanio, Braer and
Aegean Sea). Apart from the direct causes of these accidents, which are many and varied, bad
weather and sea conditions, difficult coastlines and the dense traffic in certain sea areas can
also increase risk considerably. In addition, cases of accidental pollution, and regular
operational pollution, are common (particularly along the Atlantic coast) causing particular
damage to the environment and the local economy, because of the particular abundance along
the European coast of vulnerable biotopes and sea-based resources (fishing and tourism). In
this respect, virtually the whole of Europe’s coastline can be classed as a sensitive area which
should be protected. The economic consequences of an accident caused by a single oil tanker,
even a small one, can be catastrophic, as was shown by the Erika accident, the damage caused
by which involves compensation payments estimated at more than EUR 300 million.

At both international and Community level, there is now a whole body of technical
3.
rules on the construction, stability and equipment of ships, the qualifications of crews and
living and working conditions on board. Without these rules, the number of accidents at sea
would be much higher. However, even the best safety rules in the world will never be able to
reduce the risk of accidents in European waters to zero, especially as these rules are applied
much more thoroughly by some countries than by others. The statistics established by the
Paris Memorandum of Understanding on Port State Control of ships show that there are still
many cases where inspections discover defects sufficiently serious to justify the detention of
hundreds of ships a year. Thus, port State control is not sufficient on its own to solve the
problem of open-registry ships. Moreover, port State control has one major shortcoming:

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2

Communication from the Commission of 24 February 1993: A common policy on safe seas,
COM(93) 66 final of 24.2.1993.
COM (2000) 603 final of 27.9.2000.

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inspections are carried out only when ships put
into ports. Even though increasingly
sophisticated methods of selection are being developed, like targeting coefficients, some ships
still manage to slip through the net for a while at least. As a result, every day there are many
ships plying the coasts of the Member States whose poor condition is an obvious threat to
safety and the environment, while the threat remains undetected, or the riparian State is not
even aware that the ship is passing through its waters.

to protect a State against

Consequently, neither the safety rules which bind flag States, nor port State control are
the risk of accident or pollution of its coastline.
sufficient
Accordingly, it is important for those Member States with a coastline to set up a system for
monitoring and controlling maritime traffic along their coasts in order to protect their citizens,
their economies and their environment against the disastrous effects of an accident at sea.

The international context

In recent years, there have been substantial changes, both legal and technological,

4.
regarding the monitoring and control of maritime traffic.

The United Nations Convention on the law of the sea of 10 December 1982 establishes the
balance between the responsibilities of coastal States, flag States and port States, in a way
which largely upholds the principle of the freedom of the seas, but gives coastal States many
more legal powers than before. It is mainly in order to combat the risks of pollution that
coastal States have been given wide powers regarding both their own territorial waters and
their exclusive economic zone (if they have one).

5.
Since then, there have been several changes to international law, particularly as a
result of the various changes to the SOLAS Convention (International Convention on the
Safety of Life at Sea). Chapter V of SOLAS, on safety of navigation, is currently being
reworked. The new Chapter V will contain detailed provisions on, for example:

- ships’ routing systems (new Regulation 10) designed to improve safety in sensitive
areas where traffic is particularly heavy or difficult; systems may involve traffic
separation schemes, no-go areas, deep water routes, etc;

- ship reporting systems (new Regulation 11) requiring ships transiting particular
areas to notify the coastal authorities responsible and give them certain types of
information;

- vessel traffic services (or VTS as they are usually called, see new Regulation 12),
which provide ships travelling through sea areas where traffic density is high or
where there are serious risks of accidents with shipping and weather information,
and, where appropriate, with traffic assistance and routing services.

The regulations in the SOLAS Convention have been supplemented with resolutions on these
various points describing in detail the principles of these services and systems and operational
arrangements.

6.
The last ten years or so have seen some important developments in the technologies
relating to communications and the positioning and monitoring of ships, particularly with
important
regard to satellite positioning, electronics and telematics. One of the most
innovations is certainly the appearance of automatic ship identification systems or
transponders, which the IMO is expected to make compulsory on board ships of more than
300 tonnes beginning in 2002. One of the advantages of this technology, as used ship-to-land,

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is that it is a passive technology that does not require active intervention on board ships,
which makes the master's job much easier. Moreover, computerisation has considerably
simplified and optimised the monitoring of ships by coastal stations, particularly as a result of
improved processing of radar images, and also makes it much faster to transmit information
electronically.

Developments in the European Community

Because of the volume of traffic and the high risks to shipping in European waters, the
7.
Member States have, for some 20 years now, been introducing ships’ routing systems on the
main routes used by traffic to and from European ports. These systems, which have been
approved by the IMO, have helped to limit the risk of collision or other accidents along
Europe's coastlines.

The development of compulsory reporting systems is more recent. Before the SOLAS
Convention was amended in 1994, systems were based on the voluntary participation of ships
in transit. Now, the IMO has approved a number of voluntary or mandatory reporting
systems, particularly along the Atlantic coast and in the English Channel, areas which are
particularly vulnerable or environmentally sensitive. In addition, the practice of port reporting
is also widespread: ships notify ports of their ETA (generally several days in advance, so as to
reserve a berth) and confirm 24 or 48 hours before they arrive in port.

Ship movements in most European ports and their approaches are controlled by port VTS,
thus helping to improve the efficiency of port management and safety in and around port
areas. The development of coastal VTS is designed to improve the monitoring of transit
traffic in certain areas where justified by traffic density.

It should be stressed that often the various functions described above are performed by the
same land-based authority. So, for example, one VTS may be receiving reports from ships
while monitoring traffic passing through a traffic separation scheme in its area of cover, and
will also be responsible for related services such as search and rescue at sea.

8.

A number of points should be made regarding the situation at Community level.

Firstly, the Community already has a legislative framework:

• Directive 93/75/EEC (known as the "Hazmat Directive") was adopted in September 1993
to allow the national authorities responsible for tackling the consequences of an accident at
sea to have the information they require. Accordingly, the masters or operators of ships
carrying dangerous or polluting goods are required to provide certain information to the
competent authorities designated by the Member States. These authorities must then pass
on this information as required for safety reasons.

• The proposal for the Eurorep Directive was adopted in December 1993. It follows on from
Directive 93/75/EEC, which established a notification system for vessels bound for or
leaving Community ports and carrying dangerous or polluting goods. Its main purpose is to
extend the notification requirements in Directive 93/75/EEC to ships passing through
Community coastal waters. Although the proposal was approved by the European
Parliament, discussions in the Council ran into a number of obstacles; it has been before
the Council since 1994 but a common position has not yet been adopted.

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• The Council Decision of 25 February 1992 on radionavigation systems for Europe makes
provision for the development of navigation aids in European waters by extending the
terrestrial Loran-C navigation systems. This maritime component contributes to European
policy on navigation for all modes of transport, and particularly to the development of the
Galileo satellite navigation network.

• A Council Directive of 21 December 1978 is designed to ensure that ships wishing to use
pilotage services in the North Sea and English Channel can call on adequately qualified
deep-sea pilots.

• Decision No 1692/96/EC of the European Parliament and of the Council of 23 July 1996
on Community guidelines for the development of the trans-European transport network has
as one of its objectives the establishment of a management and information system for
maritime traffic, so as to guarantee a high level of safety and efficiency of shipping and
environmental protection in shipping zones belonging to Community Member States. This
instrument makes it possible to provide Community funding for various maritime traffic
management or information projects (particularly VTS). In addition, other Community
funds can contribute to the development of maritime traffic management and information
infrastructure or installations (ERDF, Cohesion Funds).

initiated

the Commission

As one of a number of measures designed to facilitate the implementation of Community
legislation,
between
Member States on the establishment of an electronic data interchange network between the
authorities in the Member States for the implementation of Directive 93/75/EEC (five
Member States are already party to the agreement and three others should be joining shortly).
The project is being funded out of trans-European transport network resources. One Phare
project (Early Warning System - EWS - for the Baltic Sea), which was concluded in 1999,
should result in a similar scheme involving several of the Baltic Sea States.

a memorandum of understanding

Results of implementation of Directive 93/75/EEC

9. The Hazmat Directive, Directive 93/75/EEC, has been in force since 1995. The Commission
now has a fairly comprehensive view of its application from several sources of information:
scrutinising national transposing legislation, information obtained directly from Member States,
contact with the industry, and the results of specially commissioned studies.

The main conclusions are:

• The system established by the Directive is not very clear to the rest of the world and is
often not fully understood by masters and shipowners, particularly those from outside the
European Union;

• The requirement that the operator of a ship coming from a port

located outside the
Community must give notification of departure is not correctly applied, in many cases
notification being given after the ship's departure and in some cases being addressed
simply to the port of destination according to the local rules of that port (e.g. 48 or
24 hours in advance); similarly,
is often the case that notification from a port of
departure inside the Community is given late;

it

• There are sometimes problems in transmitting information on the cargo, notably because
the means of communication are inappropriate, e.g. fax machines for the transmission of
large quantities of information;

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• Since the Directive lays down no procedures or standard format for the transmission and
exchange of data, this can prevent the proper and efficient working of the whole system;

• There is no clear definition of competent authorities, and as a result responsibilities are not
clearly established; the problem applies particularly to ports, which are not mentioned in
the Directive;

• The list of competent authorities is not updated regularly and is not easily available;

• In most cases, information notified under the Directive is merely stored by the recipients
for use in the event of an accident, but otherwise remains unused; thus the information
collected is not put to any good use.

The purpose of a new Community initiative

10.
For the reasons mentioned above, the Commission considers that the instruments put in
place to cope with accidents or pollution caused by substandard shipping in European waters are
still inadequate.

the main aim of Directive 93/75/EEC is to reduce the possible environmental
In fact,
consequences of an accident at sea. Existing instruments for monitoring and managing traffic are
of limited geographical scope and concentrate on the main areas of traffic convergence without
properly covering events which could occur outside radar or radio range. The only really
effective way the Community has of preventing a substandard ship (flying the flag of a
non-member country) from sailing in European waters seems to be port State control. However,
by definition this is an unreliable instrument (since it only covers part of the traffic) and does not
reduce the potential hazard of (as yet) uninspected ships plying the coasts of Europe.

Another limitation is that there is not enough contact between the parties which have information
on maritime traffic. Frequently, VTS, coastguards, port authorities, etc. have very detailed
information on traffic, but this information is not usable because it has not been pooled or
circulated efficiently.

In its report to the Biarritz European Summit, the Commission outlined the main principles of
its new proposals on safety of shipping in European waters:

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"introducing a wider obligation to declare before entry into European waters,

improving the procedures regarding the transmission and use of data
concerning dangerous cargoes, more particularly by making systematic use of
electronic data interchange (EDI),

requiring ships sailing in Community waters to carry on board automatic
identification systems (or transponders) in accordance with the timescale laid
down by the IMO in order to ease their identification and monitoring by the
relevant coastal authorities,

boosting the development of common databases and the networking of centres
responsible for managing the information received under the Directive in order
to provide a more complete picture of the traffic, especially transit traffic, in
European waters,

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ensuring closer monitoring of the ships presenting a particularly serious threat
to safety at sea and the environment,

enhancing the powers of intervention of the Member States, as coastal States,
if there is an accident hazard or threats of pollution off their coasts."

11. These aims are too broad to be covered by a simple amendment to Directive 93/75/EEC.
Accordingly, the Commission proposes a new instrument which incorporates the objectives of
Directive 93/75/EEC but also covers much broader objectives: preventing accidental and
operational pollution at sea, management and monitoring of maritime traffic, closer
surveillance of ships deemed to pose a risk, wider scope for intervention at sea where there
are threats to the environment and shipping safety, and facilitating search and rescue
operations at sea.

Adoption of measures to improve the monitoring and safety of shipping in European
waters

12.
The Commission proposes to provide a Community legal basis for a number of
practices or requirements applied by Member States in order to improve their efficiency and,
where appropriate, to allow further application of a system of appropriate sanctions by the
Member States in cases of infringements. In particular, it will be made compulsory:

- to give prior notification before entering European ports;

- to report to the mandatory reporting systems set up by Member States and approved by the
IMO;

- to use the vessel traffic services and ships’ routing systems approved by the IMO.

These measures should ensure that, whether or not they carry dangerous or polluting goods,
all ships covered by the Directive which enter European waters or use European ports will be
identified, will observe the traffic rules in force and will provide the coastal authorities with
information that will be important in the event of an emergency at sea.

13.
The content of information is based on minimal harmonisation: only certain essential
items of information are included (identification of ship, position, destination, etc.), on the
grounds that certain information (type of ship, tonnage, etc.) can easily be obtained from other
sources like the EQUASIS database on Quality Shipping. Moreover, these minimum items of
information are those generally required by the mandatory reporting systems already in place,
with the exception of the following information which is included in the proposal.

- The number of persons on board. Directive 93/75/EEC required notification of the
this information proved to be
number of crew members on board. However,
inappropriate and inadequate because: (a) it
took no account of any non-crew
members on board, (b) it applied only to ships carrying dangerous or polluting goods,
and (c) being part of a cargo information management system it did not have any
direct operational usefulness for the land-based authorities concerned (particularly
the centres which coordinate sea search and rescue operations). In future,
this
information will be transmitted en route to the coastal stations which can make the
best use of it.

- An address. This allows the operational authorities to contact those persons who
have detailed knowledge of the cargo, which can be vital in the case of an accident

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involving ships carrying dangerous or polluting goods, especially, for example, in the
case of a ship in transit which is not heading for a Community port (in such cases no
authority in any Member State has information on the cargo).

- Details of the type and quantity of bunker fuel. This is because the fuel carried in
ship bunkers is a major potential source of pollution (some ships carry thousands of
tonnes of fuel). If spilled, oil is particularly difficult to recover and can have serious
toxic effects. Accordingly,
is important for coastal authorities to have this
information so that they are in a better position to evaluate the possible consequences
of an accident at sea.

it

14.
The proposal is designed to improve efforts to prevent and understand the reasons for
accidents at sea. In fact, in order to establish an effective policy for preventing accidents at
sea, it is essential to have better knowledge of traffic flows and to be able to identify and
monitor ships which constitute a safety or environmental hazard. This aim can be achieved
more easily by introducing automatic identification systems, known as transponders, which
make it possible to keep coastal shipping under continuous surveillance. Moreover, accurate
analysis of the reasons for accidents at sea is essential in order to understand the factors which
cause an accident and as a result to introduce further safety measures. In the past, enquiries
have often been lengthy, complex and expensive. This situation should be greatly facilitated
by the use of black boxes, based on those used in aircraft. These should also play a role in
preventing accidents (particularly those due to human error) in that crews will know there is a
black box on board and will be encouraged to exercise greater vigilance and a greater sense of
responsibility when operating the ship. These various technological developments are
currently being considered by the IMO, particularly in the context of changes to Chapter V of
the SOLAS Convention, but the Commission takes the view that they should be introduced
more rapidly and more extensively in the European Union, particularly for categories of ships
not subject to international regulations.

First of all, the new SOLAS provisions on transponders must be made mandatory. In
particular, they will be extended or applied more rapidly to ships not covered by the new
SOLAS Regulation, i.e. basically ships of more than 300 gross tonnage not engaged in
international voyages. This is in line with the approach already adopted by the Commission in
other areas of maritime safety: the need to require that ships engaged in cabotage inside the
Community comply with rules which are at least as strict as those which apply to ships on
international voyages in order to ensure a uniform level of safety in European waters.

Secondly, the proposal makes it compulsory for ships to be fitted with black boxes (voyage
data recorders - VDR), similar to those used in aircraft. Though these are not strictly
navigation equipment, being designed to help with enquiries after accidents, their inclusion in
Chapter V of the SOLAS Convention, currently being reworked, proves their importance in
terms of general shipping safety. Directive 1999/35 made black boxes compulsory on board
ro-ro ferries and high-speed passenger craft providing scheduled services to and from a port in
a Member State. Given their importance in analysing the causes of accidents and improving
shipping safety, the Commission considers it essential to make the new Regulation 20 on
black boxes in Chapter V of the SOLAS Convention compulsory, even at this early stage, for
all passenger ships and all other categories of ships, whether or not engaged in international
voyages.

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Introduction of a notification system for ships carrying dangerous or polluting goods

15. The proposal includes the basic provisions of Directive 93/75/EEC, but changes them to
take account of experience with the Directive, and in the light of legal and technological
developments at international level.

One of the basic difficulties of Directive 93/75/EEC is that of managing what may be huge
amounts of information on cargoes efficiently and cheaply. One significant way of improving
the present situation should therefore be first to improve procedures for circulating this
information.

To this end, the new provisions are designed to keep information on cargoes as close as
possible to the source of that information (the concept of the “dormant” system), so that the
information is used only in exceptional circumstances. The Commission proposes to make the
procedure for notifying this information more flexible so that, depending on the Member
State’s preference, it could be notified either to a designated competent authority, as under the
current Directive 93/75/EEC (i.e. for those Member States wishing to maintain the existing
system), or to the port authority, which would be responsible for keeping the information
available to the competent national authorities on a 24-hour basis in case it
is needed.
However, national authorities would only contact ports to obtain this information in the event
of an accident. This procedure would allow those Member States which so wished to operate
the system more efficiently and cheaply.

The proposal for a directive should also harmonise methods of transmitting information.
Currently, operators may use any means at all to give notification. Cargo information is often
transmitted by fax, particularly to smaller ports, which obliges the authorities concerned to
store large volumes of paper documents on their premises.

Many of Europe’s major ports, realising the economic disadvantages of these outdated
procedures, have tackled the problem by requiring ships to notify data electronically,
specifically by EDI. The Commission is proposing that all cargo data now be transmitted
electronically (i.e. by computer and not by fax), thus ending the current practice of using
paper, which undermines the efficiency of the system. It also proposes that, when EDI
formats are used for electronic data transmission, use be made only of the appropriate
EDIFACT formats listed in the annex to the directive, in order to avoid having divergent
standards throughout the Community.

Moreover, the system of exemption laid down in Directive 93/75/EEC for scheduled services
of a certain duration should be made more flexible. The requirement concerning the journey
duration is not needed if the company concerned has put in place a system guaranteeing the
rapid transmission of data on dangerous cargoes to the competent authority when necessary.

Finally,

16.
obligations of pilots has not been included in the new directive because:

it should be pointed out

that Article 8 of Directive 93/75/EEC on the

- in the light of experience of the application of the Directive, very few masters complete the
check list for the pilot, partly because it is unreasonable to expect the master himself to list the
defects of his own ship; moreover, stricter port State controls introduced by Directive
95/21/EC make this check list redundant;

- paragraph 2 of Article 8 is
Directive 95/21/EC.

redundant because it

is

included in Article 13 of

13

Action and monitoring in respect of dangerous ships

17.
Directive 93/75/EEC contains provisions on the reporting by ships of accidents or
incidents at sea and the subsequent measures to be taken by Member States. However,
because of the definition of “ship” given in the Directive, these measures apply only to ships
bound for or leaving a Community port and carrying dangerous or polluting goods.

The first objective of the Commission’s proposal therefore is to extend these provisions to all
ships, whether or not they are carrying dangerous or polluting goods and whether or not they
call at a Community port.

The proposal defines the circumstances under which the master of a ship will be required to
report an incident to the coastal authorities. These are the situations described in IMO
Resolution A.851(20) on ship reporting, and the reporting of pollution or the discharge of
packaged goods (by other ships) observed at sea. These reports will enable the coastal
authorities rapidly to launch operations to combat pollution or to recover floating packages,
which in practice are unfortunately frequently not discovered until they reach the shore.

18.
In addition to the measures available to a Member State under international law to take
action to reduce hazards to its shoreline or to related interests, other examples of possible
measures are listed in an annex to the Directive (which is not a restrictive list):

–

–

–

–

give official notice to the master of the ship to put an end to the threat to the
environment or maritime safety,

send an evaluation team aboard the ship to assess the degree of risk, help the
master to remedy the situation and keep the competent coastal station informed
thereof,

instruct the master to put in at a port of refuge on the coast in the event of
imminent peril, or

cause the ship to be piloted or towed.

The United Nations Convention on the Law of the Sea as well as the 1969 Brussels
Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties and
its 1973 Protocol on Pollution by Substances other than Oil enable Member States whose
coastlines or interests are threatened to take such measures in their territorial waters, their
exclusive economic zone and in respect of incidents arising on the high seas.

19. Whatever the cause of an accident at sea (human error or technical failure), experience
shows that bad weather and rough seas in a particular area seriously increase the risks. Maritime
ports are therefore natural places of refuge. Accordingly, the proposal aims to make it easier to
seek a port of refuge in the event of trouble at sea, and also to prevent the risk of accident by
prohibiting ships from leaving ports of call in the Community if particularly bad weather and sea
conditions increase the risk of an accident.

Most of the pollution disasters off Europe’s coasts have occurred during severe storms at sea.
The Commission considers that where weather and sea conditions are particularly bad (wind
speed of more than 48 knots, i.e. force 10 on the Beaufort scale), the need to protect the
environment against serious pollution hazards is a justifiable reason for not leaving the decision
as to whether to leave port solely in the hands of the master of the ship. Ships carrying dangerous

14

or polluting goods should not be allowed to put to sea until weather and sea conditions improve
to the point where they can leave port safely.

The decision to require a ship to seek a port of refuge is always difficult. It requires a realistic
assessment of the risks involved, either in refusing port access in order to keep the danger of
pollution or explosion away from the coast or in requiring a ship in a precarious condition to
head for a port in order to keep the ship and its crew safe and to avoid sea pollution. Indeed, a
port may be putting itself at considerable risk by accepting a ship in distress, endangering local
inhabitants and the environment, especially as the areas concerned, particularly estuaries, are
often areas which are environmentally very vulnerable. However, the present situation leaves
transport operators in considerable doubt, and this should be rectified. Moreover, there is
obviously a Community dimension to the problem, since ships refused access to one port may
have an accident and pollute the coastline of a neighbouring State.

So there has to be a legal framework to accommodate ships in distress. The decision whether or
not to accept a ship in distress must be taken on an ad hoc basis. However it must also be based
on objective criteria, such as the capacity of the port, and must take account of special constraints
and hazards connected with the configuration of the port area and the environmental sensitivity
of the area. Accordingly, Member States should draw up plans for accommodating ships in
distress, listing all the relevant information and providing those responsible for port operations
with reliable information on which to base their decisions.

High-risk ships

20.
Some ships can pose a particular hazard for the States along whose coastlines they
travel, either because they are known to be in poor condition following an inspection under
the port State control system, or because they are presumed to be in a bad condition, or
because of dubious behaviour, or because of infringement of international or European law.

At present, international law severely limits the potential for interference by Member States
with ships which are potentially hazardous (e.g. ships prohibited under Directive 95/21/EC or
ships which have infringed a reporting obligation), but which nevertheless do not necessarily
constitute a serious and immediate accident or coastal pollution hazard. International law does
not authorise extreme measures such as the rerouting of the potentially hazardous ships
referred to in the Directive, except in the event of an incident or accident at sea.

Despite the limitations of international law, it is nevertheless possible to take preventive
measures with regard to these ships. They should be subject
to closer surveillance in
European waters, which implies better exchange of information between Member States along
the shipping route. Closer monitoring would, for example, make it possible to detect more
swiftly manoeuvres which were risky or which threatened the safety of shipping and to take
the precautionary measures required, and to inform ports of call or the authorities of other
Member States of the arrival of these ships. With this information, the Member States
concerned could, before accepting high-risk ships into their ports, ask for additional
information in order to check that international conventions were being complied with by the
ship (copy of safety certificates), or, if necessary, to carry out on-board inspections under
Directive 95/21/EC.

Improving implementation of the Directive

21.
The shortcomings already mentioned regarding the implementation of Directive
93/75/EEC are because there are no proper means of enforcement. The only sanction

15

mentioned in the Directive is refusal of access as referred to in Article 5 for failure to provide
notification after leaving the port of departure outside the Community. This sanction is not
applied by the Member States, despite many instances of infringement of this Article,
probably partly because of the severity of the penalty compared with the nature of the
infringement. What is needed, then, is a system of financial penalties which would allow the
ship to have access to the port and to conduct its commercial operations there, but at the same
time would strongly deter the operator or master from committing the same offence again.

Furthermore, it is essential that Member States should, through random operational tests or
simulation exercises, check that information systems put in place for the requirements of the
Directive operate satisfactorily. This is particularly true for that part of the system which
concerns the processing of information on dangerous cargoes. This information is supposed to
be used only in exceptional circumstances in the event of an accident and it is obviously
essential that data transmission procedures and tools function perfectly when this happens.

the Commission’s proposal

includes provisions designed to ensure that

the
Finally,
international safety management (ISM) code has been correctly applied when there is an
incident or accident at sea. In fact, the ISM code is critical for preventing accidents and
pollution at sea, provided that it is seen by companies - and applied - as something more than
a simple bureaucratic exercise designed merely to give formal recognition to an international
requirement. Indeed, it is when an accident at sea occurs that it is possible to check whether
the ISM code was anything other than a bureaucratic exercise for the company operating the
ship, since the ISM code includes the obligation to establish procedures which can cope with
emergency situations. One essential aspect is that, when an emergency occurs, it is possible at
all times to maintain proper contact between the ship and the company, on the one hand, and
between the company and operational authorities, on the other,
in particular so that
operational decisions can be taken under the best possible conditions both by the master and
by the land-based authorities. The proposal for a directive includes this obligation for
communication between the parties concerned and provides for follow up measures where it
is established that the company’s management system did not operate during an accident at
sea. These follow up measures consist first of all of informing the State (or States) which
issued the ISM certificate so that they can take the necessary steps. Moreover, in the case of a
ship which was certified by a Member State, and if the fault is considered particularly serious,
the Member State which issued the certificate must suspend certification until a thorough
check has been made of the company’s safety management system.

Further development of the Community monitoring, control and information system for
maritime traffic

22.
The ultimate aim of the Community information and monitoring system for maritime
traffic is not to increase the number of various reporting requirements but rather to try to
simplify and standardise procedures further, while giving the greatest added value to the
information collected.

This proposal is only a preliminary stage in the establishment of the system. It will be
necessary gradually to complete the geographical cover of the shipping management network
and put in place exchanges of information between the various authorities and operators
concerned. The Commission and the Member States will have to cooperate closely to identify
and implement objectives.

23.

The Commission has identified the main objectives for this second phase:

16

To give added value to the information collected on shipping movements by means
of appropriate computer links between coastal stations (mainly VTS) and the port
authorities in Member States. Indeed, various bodies or authorities have information
which could be exchanged to the mutual benefit of all concerned. To give one
example, an essential item of information required by port managers is a precise
ETA: the more accurate this information is, the better the ship's port of call can be
organised and the more efficiently the various port services can be planned (pilotage,
boatage, maintenance or repair services, administrative services, etc.). At present, the
information given is often vague (if it is given at all), despite the fact that the local
authorities need to be informed in advance. A computer link between the port of
destination and a traffic monitoring service along the ship's route would allow the
port to keep updating the ETA and to organise the ship’s call with maximum
the traffic monitoring centre would have more accurate
efficiency (in return,
information on which to base predictions of ships passing through its area since it
will know the exact time the ship leaves port). In some cases, these links already
exist on a local level but they should be made universal in order to improve traffic
safety and port management. Similarly, within the context of the trans-European
transport network, it is important to develop computer links between the coastal
authorities in order to transmit the information notified by ships to the stations
located along the shipping routes used by these ships. If they meet the eligibility
criteria, these projects could benefit from funding from the resources available for
trans-European transport networks.

To complete the geographical cover of the European chain of mandatory reporting
systems. Currently the main shipping routes used by ships heading for Europe, or in
transit, are covered by ship reporting systems and VTS in the Channel-Atlantic area.
However, some areas are still not properly covered: the Mediterranean (in particular
eastern access to the Mediterranean), and northern access to the North Sea and the
Baltic for ships from riparian States which are not members of the EU. It is important
therefore for the Commission and the Member States concerned to take swift action
to deal with this matter and to begin preparing measures to cover ships in transit
through these areas, so that the IMO can be informed as soon as possible.

to Community legislation,

To put
in place a permanent framework for extending the information system
introduced by this directive and facilitating the management of information on
maritime traffic. The proposal for a Regulation 2000/../EC on the establishment of a
European Maritime Safety Agency includes specifically among the duties to be
performed by the Agency the accomplishment of tasks related to the monitoring of
shipping and maritime traffic, pursuant
in order to
facilitate cooperation between the Member States and the Commission in this area. In
order to meet this objective, the Agency could have the support of one or more
to establish a
European maritime information management centres. The project
centralised system of information on maritime traffic in Jobourg in France, covering
the Atlantic from Gibraltar to the entrance to the North Sea, and the precedent of
the concept of systems which combine various items of
EQUASIS, show that
information and make them accessible to all the users concerned have a number of
advantages (particularly economies of scale) over a decentralised system based on
the regular exchange of information between the authorities concerned. These
centres, which could operate within the context of centres already in place (VTS,
MRCC, etc.) in the major sea areas of Europe (Mediterranean, Channel-Atlantic-
North Sea, Baltic) would have the role of compiling certain information of common

17

interest (updated list of competent authorities, list of ships constituting a special
hazard, etc.) in a public database and making it available. A framework for
cooperation would have to be established between the Member States in order to
define exactly what the centre's tasks and responsibilities might be.

SPECIAL CONSIDERATIONS

Article 1

This article specifies that the proposal establishes a Community monitoring and information
system for maritime traffic with view to enhancing maritime safety, improving the efficiency of
maritime traffic and preventing accidental and operational pollution by ships.

Article 2

This article specifies the scope of the proposal. All ships above a threshold of 300 gross
tonnage are covered, whether or not they carry dangerous goods. A number of exclusions are
provided for, these being for warships and ships providing a non-commercial public service,
(as defined in Regulation 1 of Chapter V of the SOLAS Convention, currently undergoing
revision), recreational craft (irrespective of their characteristics and whether or not used for
commercial purposes) and fishing vessels. However, the largest fishing vessels, measuring
more than 45m in length, are likely to pose a hazard to shipping, and so their inclusion within
the scope of the proposal is justified. Ships' stores and equipment for use on board ships are
excluded (as under Directive 93/75/EEC). However, bunker fuels must be notified under the
Directive.

Article 3

This article sets out the definitions applicable for the purposes of the Directive.

Article 4

This article requires all ships covered by the Directive to give advance notification before
entering port. The present arrival notification practices are therefore made mandatory
throughout the European Union, which should help make them more effective.

Article 5

This article lays down the principle that ships entering the area of competence of an authority
operating a reporting system must send that authority the minimum information required for
them to be effectively monitored, as set out in Annex I-1. The article takes account of the
present state of international law, in particular the SOLAS Convention, which provides that
only IMO-approved reporting systems may be made mandatory for ships which are purely in
transit (i.e. which are neither bound for nor sailing from Community ports).

Article 6

This article is intended to increase traffic safety by requiring ships to comply with the existing
IMO-approved instruments for the routing of shipping, which cover sensitive areas, areas with
a high traffic density and areas which are dangerous for shipping, and to use vessel traffic
services (VTS). Ships must comply with any instructions they may be given by the authorities
responsible for the systems on grounds of safety. Member States must ensure that these

18

authorities have the human and technical resources to carry out their tasks, and in particular
that they comply with the IMO guidelines on the subject.

Article 7

This article specifies that any ship leaving or bound for Community ports must be equipped
with transponders (or automatic identification systems) to enable them to be identified and
monitored along the European coasts. This requirement takes over, anticipates and extends the
introduced by the revised Chapter V of the
requirements on the carrying of equipment
SOLAS Convention (new Regulation 19-2) by including ships on domestic voyages which are
not covered by SOLAS Regulation 19 (between 300 and 500 gross tonnage) or which are
covered only from 1 July 2008. In order to enable ships fitted with automatic identification
systems to be monitored in their waters, the Member States must provide their coastal stations
with equipment to receive and process the data from the transponders.

Article 8

To facilitate enquiries into the causes of disasters at sea, the fitting of voyage data recorders
(“black boxes”) on board ships will make it possible to recover essential data about the
movements and operation of the main installations on board. Article 8 supplements the
requirements already laid down by Directive 1999/35/EC on regular
ro-ro ferry and
high-speed passenger craft services by adding the categories of passenger ships referred to in
the new Regulation 20 in Chapter V of SOLAS, as well as other categories which are not
covered by SOLAS (existing cargo ships, ships on domestic voyages). As far as the timetable
is concerned, new ships built after 1 July 2002 will be subject
to this requirement
immediately, and existing passenger ships will have to be adapted by 1 January 2004 at the
latest. As regards other ships (cargo ships), for which the proposed revision of the SOLAS
Convention at the time of drafting this text provides for black boxes to be carried only by new
ships, the Commission also proposes requiring existing ships to be adapted as from 2007 or
2008, depending on the ship’s tonnage.

Article 9

This article, which is similar to a provision in Directive 93/75/EEC, details the obligations on
the shipper so as to be able to guarantee that accurate information about the cargo is sent to
the ship’s master or operator, and that
the information does indeed correspond to the
dangerous or polluting goods which have been loaded.

Article 10

This article concerns the notification of information about the ship and its cargo to the
competent authorities in the Community port of departure, or the Community port of
destination in the case of ships arriving from ports outside the Community. It includes the
requirements set out in Article 5 of Directive 93/75/EEC, but makes several amendments
aimed at providing greater flexibility and further harmonisation:

- notification must no longer be given by the operator alone, but may also be given directly by
the agent or by the ship’s master in order to take account of the variety of situations
encountered in practice;

- for ships arriving from ports located outside the Community, notification to the competent
authorities of the port of destination in the Community is no longer regarded as a prior

19

condition for access to the port. However, failure to provide notification is subject to a system
of financial penalties (in Article 22);

- ships which do not know their destination at the time of leaving a Community port are
authorised to notify the information requested as soon as they learn exactly where they are
bound for;

- in order to limit the information in circulation, in particular as regards the cargo, the
Member States may authorise the port authorities to receive and to retain the information
transmitted by the ship, provided the procedures laid down allow immediate and continuous
access to the data by the competent authority;

- the mode of transmission must be by computer-to-computer link and, if EDI formats are
used, they must comply with the EDIFACT standards listed in an Annex to the Directive;

- lastly, it
is specified that ships which are purely in transit and which do not call at
Community ports must nevertheless communicate information about the cargo they are
carrying via the ship reporting systems set up along the European coasts.

Article 11

This article concerns exchanges of data between the Member States to enable information
about the ship and its cargo to be transmitted and used for safety purposes. Member States
must cooperate to ensure that their national information systems are interconnected and
interoperable so that the information required can be exchanged electronically at any time.
The Memorandum of Understanding which has been concluded between several Member
States for the purpose of implementing the Hazmat Directive provides a framework of
cooperation for achieving that objective.

Article 12

This article lays down the conditions under which Member States may allow exemptions from
the normal notification procedures for scheduled services operating within the Community.
The system of exemptions laid down by Directive 93/75/EEC has been made more flexible as
the requirements concerning the length of the voyage have been deleted; however, the system
set up by the company must guarantee that the information requested can be transmitted
immediately, and Member States must check that the system operates satisfactorily.

Article 13

This article is intended to enable the Member States to take certain measures where ships
which pose a potential hazard to shipping are in transit off their coasts. The article first of all
defines which ships may be regarded as posing a risk and provides for an exchange of
information between the Member States located along the route to be followed by the ship.
The Member State concerned can then consider taking any action it sees fit, though this must
be consistent with international law.

Article 14

This article extends the scope of similar provisions already existing in Directive 93/75/EEC to
cover other categories of ship (which do not carry dangerous goods or are in transit).
Furthermore, it sets out in detail the measures which a Member State can take to prevent
incidents or accidents occurring at sea and the action which can be taken if they do occur.

20

Masters are therefore required to notify any problem relating to the safety of the ship and the
safety of shipping or concerning the preventing of pollution, and will also be obliged to notify
the coastal authorities of any slicks of pollutant materials or goods containers drifting at sea
which would pose a hazard to the environment or to other ships.

Article 15

This article states that, when the weather is so bad as to pose a serious threat to their coasts, or
the coasts of their neighbours within the Union, the Member States must take the necessary
steps to prohibit ships from leaving port.

Article 16

This article requires Member States to take all necessary measures permitted under
international law to tackle the risk of accident or pollution at sea off their coasts, and obliges
the parties concerned (operator, cargo owner, master) to cooperate fully in order to minimise
the consequences of the accident. Furthermore, as soon as such an incident or accident occurs,
the master must contact the company, which must place itself at the disposal of the competent
authorities.

Article 17

This article stipulates that the Member States must draw up emergency plans to simplify
decision-making with regard to the provision of a port of refuge for ships in distress, and to
make these plans available to interested parties. The Commission must also be kept informed
about the action taken by the Member States with regard to drawing up such plans.

Article 18

Article 18 extends to all ships the provisions in Articles 9 and 10 of Directive 93/75/EEC
(concerning the broadcasting of warnings to shipping and providing information to other
these provisions applied only to ships carrying
initially,
Member States concerned);
dangerous or polluting goods and bound for or leaving Community ports.

Article 19

This article states that the Member States must designate the competent authorities, port
authorities and coastal stations responsible for the application of this Directive and must
inform the shipping industry and the Commission in an appropriate manner.

Article 20

This article deals with the creation of a framework for cooperation between the Commission
and the Member States for the future development of the Community monitoring and
information system for maritime traffic. It
therefore provides for the development of
computer links between coastal stations and the port authorities, and between coastal stations
themselves, in order to optimise the management of information on the movement of ships in
Community waters. It also recapitulates the need to extend the cover provided by the system,
which is still not comprehensive, so that any ship entering Community waters can be
identified and monitored as fully as possible. To this end, it will be necessary for the Member
States to cooperate on the submission of appropriate proposals to IMO. Lastly, efforts should
be made to improve the management of information about shipping, which is one of the tasks
of the European Maritime Safety Agency, in order to provide easier access to information of

21

common interest for States in the area concerned and to develop the necessary instruments for
better traffic management in the area concerned.

Article 21

This article recalls that the principle of the confidentiality of commercial transactions must be
observed when collecting and using the information notified under the Directive and that the
information must be used for purposes of maritime safety and protection of the environment.

Article 22

This article sets out the measures required for satisfactory implementation of the Directive.
Member States are thus required to carry out regular checks on the operation of the
information systems set up for the purposes of the Directive and to provide in their national
laws for financial penalties to act as a deterrent against
infringement of the Directive’s
requirements regarding notification or the carrying of equipment. Particular emphasis is also
placed on checking, where an incident at sea occurs, that the company’s safety management
system was in compliance with the requirements of the ISM Code. If any major instance of
non-compliance is found, the ISM certificate should be withdrawn immediately.

Articles 23 and 24

These articles concern the establishment of a regulatory committee for the purposes of the
Directive and define its scope.

Article 25

No comment.

Article 26

This article specifies that Directive 93/75/EEC, some of whose provisions are included in the
present Directive, is to be repealed twenty-four months after the adoption of the Directive.

ANNEXES

Annex I

The first part of Annex I gives details of the operational
information which must be
transmitted to the competent coastal station. In accordance with IMO Resolution A.851(20),
the information concerns the identification of the ship, its movements, the cargo and the
number of people on board. The harmonisation is minimal since the Member States have the
to demand other information for the purposes of safety or the protection of the
right
environment. However, the aim is also to minimise the amount of information which the
master is required to give as the operational centres are able to obtain a host of information by
consulting the EQUASIS database.

The second part of Annex I sets out the information which, in accordance with the new
SOLAS Regulation 19, may be transmitted by automatic identification systems.

Lastly, it is recalled that any changes to the information notified, in particular any change to
the ship’s planned voyage, must be notified to the coastal authority.

22

Annex II

Annex II sets out the timetable according to which ships must carry automatic identification
systems (AIS) and voyage data recorders (VDR) on the basis of the provisions of Chapter V
of SOLAS, which is being revised and extended to cover other categories of ships and
voyages which are not covered by the corresponding SOLAS Regulations.

Annex III

Annex III lists the information to be notified by the operator, agent or master of a ship bound
for a Community port. This list corresponds to Annex I to Directive 93/75/EEC, except as
regards certain items of information which have been deleted:

- Since the essential aim is the management of information about cargo, information such as
the nationality of the ship and the length and draught is no longer necessary; such information
can in any case be obtained from EQUASIS.

- Similarly, information relating to shipping (intended route) is already demanded for all ships
under Title I. This information is of no use in the context of a cargo information management
system and is not included in the formats for EDIFACT messages which are used for
notifications to port.

- Indication of the number of crew members has been deleted for similar reasons, but also
because there is no reason to require this information only in the case of ships carrying
dangerous or polluting goods. This requirement is nevertheless included in the notification
requirements set out in Title I of the Directive concerning the number of people on board.

- The information to be notified with regard to ships' times of arrival and departure has been
made clearer. Directive 93/75/EEC was creating confusion: the estimated time of departure,
required by point 6 in Annex I to Directive 93/75/EEC, was on some occasions being
understood as either the time of departure from the Community port of departure or the time
of departure from a port of departure outside the Community. The information required by the
competent authority is the time of departure from a Community port or, for ships bound for a
port in the Community but coming from a port outside the Community, the estimated times of
arrival and departure in order to enable the intended length of stay to be determined.

Annex IV

Annex IV contains a list of the EDIFACT electronic messages which must be used for the
transmission of information where the transmission is based on EDI protocols.

Annex V

Annex V sets out a (non-restrictive) list of measures available to Member States depending on
their assessment of the local situation and in accordance with international law, to prevent or
reduce the risks or consequences of an incident at sea. As with Directive 93/75/EEC, these are
measures to restrict the movements of a ship or require it to adopt a specific itinerary, but also
to oblige the master to take steps to put an end to the risks, to instruct him to put in at a port of
refuge or agree to have his ship piloted or towed, or even to have an evaluation team placed
on the ship if the facilities on board are from all evidence insufficient to remedy the situation.

23

2000/0325 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a Community monitoring, control and information system
for maritime traffic

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,3

Having regard to the opinion of the Economic and Social Committee,4

Having regard to the opinion of the Committee of the Regions,5

Acting in accordance with the procedure indicated in Article 251 of the Treaty,6

Whereas:

In its communication of 24 February 1993 on a common policy on safe seas, the
Commission indicated that one objective at Community level was the introduction of a
mandatory information system to give Member States rapid access to all important
information relating to the movements of ships carrying dangerous or polluting
materials and to the precise nature of their cargo.

Directive 93/75/EEC(4) of 13 September 1993 introduced a system whereby the
competent authorities receive information regarding ships bound for or leaving a
Community port and carrying dangerous or polluting goods, and regarding incidents at
sea. Article 13 of the Directive requires the Commission to produce new proposals for
the introduction of a fuller reporting system for the Community, possibly covering
ships transiting along the coasts of Member States.

The Council Resolution of 8 June 1993(5) on a common policy on safe seas agreed that
the main objectives of Community action included the adoption of a fuller information
system.

(1)

(2)

(3)

3

4

5

OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ C , , p. .

6
(4) OJ L 247, 05.10.1993, p.19.

(5) OJ C 271, 07.10.1993, p.1.

24

(4)

(5)

(6)

(7)

(8)

(9)

Setting up a Community monitoring, control and information system for maritime
traffic will help to prevent accidents and pollution at sea and to minimise their impact
on the environment, the economy and the health of local communities. The efficiency
of maritime traffic, and in particular of the management of ships’ calls into ports, also
depends on ships giving sufficient advance notice of their arrival.

Several mandatory ship reporting systems have been set up along Europe’s coasts, in
accordance with the relevant rules adopted by the International Maritime Organisation
transiting ships comply with the reporting
(IMO). It ought
requirements in force under these systems. Reporting by these ships must at least
include certain information advising the coastal authorities of the number of persons
aboard, the cargo, and bunker fuels which might pose a serious risk of pollution in
excess of a certain volume.

to be ensured that

Vessel traffic services and ships’ routing systems have also been introduced and are
playing an important part in the prevention of accidents and pollution in certain
shipping areas which are congested or hazardous for shipping. It is necessary that
ships use the services offered by vessel traffic services and that they follow the rules
applicable to ships’ routing systems approved by the IMO.

Key technological progress has been made in the area of on-board equipment allowing
automatic identification of ships (AIS systems) for enhanced ship monitoring, as well
as voyage data recording (VDR systems or “black boxes”) to facilitate investigations
following accidents. Given its importance in the formulation of a policy to prevent
shipping accidents, such equipment ought to be made compulsory on board ships
making national or international voyages which call at Community ports.

Accurate knowledge of dangerous or polluting goods being carried on board ships is
essential to the preparation and effectiveness of operations to tackle pollution or the
risk of pollution at sea. Ships leaving or bound for Member States must notify this
information to the competent authorities or port authorities of those Member States.
Ships not calling at a port located in the Community must provide the reporting
systems operated by the coastal authorities of the Member States with information on
the quantity and type of dangerous goods they are carrying.

To streamline and accelerate the transmission and utilisation of what may be huge
amounts of information on cargo, such information ought to be sent electronically to
the competent authority or port authority concerned. Where EDI protocols are used,
only those formats mentioned in the Directive should be employed so as to avoid an
undesirable proliferation of incompatible standards. For the same reasons, exchanges
of information between the competent authorities of the Member States should take
place electronically.

(10) Where the companies concerned have, to the satisfaction of the Member States,
introduced internal procedures to ensure that information required by the Directive is
sent to the competent authority without delay, it must be possible to exempt scheduled
services between the ports of one or more Member States from the reporting
requirement for each voyage.

(11) Where a Member State considers that exceptionally poor weather and sea conditions
are creating a serious threat for the environment, it stops all ships carrying dangerous
or polluting goods from leaving port until the situation returns to normal. Within the

25

framework of its power of discretion, the Member State must consider such conditions
to have been reached if a force of 10 or more on the Beaufort scale, and corresponding
sea conditions, have been noted in the area concerned.

(12) Because of their behaviour or condition, some ships pose potential risks to the safety
of shipping and the environment. Member States should pay particular attention to the
monitoring of such ships, take the appropriate measures, consistent with international
law, to prevent any worsening of the risk they pose, and send any relevant information
they possess on these ships to the other Member States concerned.

(13) Member States need to guard against the threats to maritime safety, local communities
and the environment created by certain situations at sea and by the presence of
polluting slicks or packages floating at sea. To this end, masters of ships must report
such occurrences to the coastal authorities, supplying all appropriate information.

(14)

In the event of an incident or accident at sea, full and complete cooperation by the
parties involved in the carriage contributes significantly to the effectiveness of
operations by the competent authorities.

(15) Non-availability of a port of refuge may have serious consequences in the event of an
accident at sea. Member States ought therefore to draw up plans whereby ships in
distress may, if the situation so requires, be given refuge in their ports in the best
conditions possible.

(16)

The effectiveness of the Directive depends greatly on the Member States enforcing its
implementation strictly. To this end, Member States must carry out appropriate checks
to ensure that the communication links established to meet the requirements of the
Directive are operating satisfactorily. Deterrent penalties must also be introduced to
ensure that the parties concerned comply with the reporting and equipment carrying
requirements laid down by the Directive.

(17) A framework for cooperation between the Member States and the Commission needs
to be established to enhance the implementation of the monitoring, control and
information system for maritime traffic, with proper communication links being
established between the authorities and ports of the Member States. Moreover, the
coverage of the ship identification and monitoring system needs to be supplemented in
those shipping areas of
In addition,
information management centres ought to be set up in the Community’s maritime
regions so as to facilitate the exchange or sharing of useful data in relation to traffic
monitoring and the implementation of the Directive. The creation of the European
Maritime Safety Agency by Regulation ../../EC will help achieve these objectives.

the Community where it

is insufficient.

(18) With a view to the effective application of this Directive, the Commission needs to be
assisted by a committee composed of representatives of the Member States. Since the
measures needed to implement this Directive are measures of general scope within the
meaning of Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down
the procedures
implementing powers conferred on the
Commission,7 they ought to be adopted in accordance with the regulatory procedure
laid down in Article 5 of that Decision.

the exercise of

for

7

OJ L 184, 17.7.1999, p. 23.

26

(19) Certain provisions of this Directive may be amended by that procedure so as to take
instruments and of experience gained in

account of changes to international
implementing this Directive.

(20)

The provisions of Directive 93/75/EEC are significantly reinforced, extended and
amended by the current Directive. Accordingly, Directive 93/75/EEC ought to be
repealed.

(21) Given the principle of subsidiarity, a Directive of the European Parliament and of the
Council is the appropriate legal instrument as it establishes a framework for the
compulsory and uniform application by the Member States of the requirements and
procedures laid down in this Directive, while leaving each of them free to choose the
detailed implementing rules best suited to their national system,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

The purpose of this Directive is to establish in the Community a monitoring, control and
information system for maritime traffic with a view to enhancing the safety and efficiency of
such traffic and preventing pollution by ships.

Article 2

Scope

This Directive applies to ships of 300 gross tonnage and upwards, except for:

a)

b)

c)

warships, naval auxiliaries and other ships owned or operated by a Member
State and used for non-commercial public service;

fishing vessels with a length of less than 45 metres and recreational craft;

ships’ stores and equipment for use on board ships.

Article 3

Definitions

For the purpose of this Directive:

a)

b)

c)

“operators” means the owners or managers of a ship;

“agent” means any person mandated or authorised to supply information on behalf of
the operator of the ship;

“shipper” means any person by whom or in whose name or on whose behalf a
contract of carriage of goods has been concluded with a carrier;

27

d)

e)

f)

“company” means a company within the meaning of Regulation 1(2) of Chapter IX
of the SOLAS Convention;

“ship” means any sea-going vessel or craft;

“dangerous goods” means:

–

–

–

–

goods classified in the IMDG Code,

dangerous liquid substances listed in Chapter 17 of the IBC Code,

liquefied gases listed in Chapter 19 of the IGC Code,

solids referred to in Appendix B of the BC Code.

Also included are goods for the carriage of which appropriate preconditions have
the IBC Code or
been laid down in accordance with paragraph 1.1.3 of
paragraph 1.1.6 of the IGC Code;

g)

“polluting goods” means:

–

–

–

oils as defined in Annex 1 to the Marpol Convention,

noxious liquid substances as defined in Annex 2 to the Marpol Convention,

harmful substances as defined in Annex 3 to the Marpol Convention;

h)

i)

“haulage unit” means a vehicle for the road haulage of goods, a wagon for the
carriage of goods by rail, a container, a road tank-vehicle, a rail tanker or a movable
tank;

“relevant international instruments” means the following instruments, in the version
in force at the time of adoption of this Directive:

–

–

–

–

–

–

–

“Marpol” means the International Convention for the prevention of pollution
from ships, 1973 and its 1978 Protocol;

“SOLAS” means the International Convention for the Safety of Life at Sea,
together with the protocols and amendments thereto;

the International Convention on Tonnage Measurement of Ships, 1969;

the International Convention relating to Intervention on the High Seas in Cases
of Oil Pollution Casualties, 1969 and its 1973 Protocol relating to Intervention
on the High Seas in Cases of Pollution by Substances other than Oil;

“ISM Code” means the International Safety Management Code;

“IMDG Code” means the International Maritime Dangerous Goods Code;

“IBC Code” means the IMO International Code for the construction and
equipment of ships carrying dangerous chemicals in bulk;

28

–

–

–

–

“IGC Code” means the IMO International Code for the construction and
equipment of ships carrying liquefied gases in bulk;

“BC Code” means the IMO Code of Safe Practice for Solid Bulk Cargoes;

"INF Code” means the IMO Code for the Safe Carriage of Irradiated Nuclear
Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on board Ships;

“IMO Resolution A.851(20)” means International Maritime Organisation
Resolution 851(20) entitled “General principles for ship reporting systems and
ship reporting requirements,
reporting incidents
involving dangerous goods, harmful substances and/or marine pollutants;

including guidelines for

“address” means the name and the communication links whereby contact may, where
necessary, be made with the operator, agent, port authority, competent authority or
any other authorised person or body in possession of detailed information regarding
the ship’s cargo;

“competent authorities” means the authorities and organisations authorised by
Member States to receive and pass on information reported pursuant
to this
Directive;

“port authorities” means the competent port authorities authorised by Member States
to receive and pass on information reported pursuant to this Directive;

j)

k)

l)

“coastal station” means any of the following, designated by Member States pursuant
m)
to this Directive: a vessel
traffic service, a shore-based installation responsible for a
mandatory reporting system approved by the IMO, or a body responsible for coordinating
search and rescue operations or operations to tackle pollution at sea.

TITLE I – SHIP REPORTING AND MONITORING IN EUROPEAN WATERS

Article 4
Notification prior to entry into Community ports

Member States shall take the necessary measures to ensure that any ship bound for a port
located in the Community announces its arrival to the port authority:

a)

b)

c)

at least forty-eight hours before its arrival, if the port of call is known, or

as soon as the port of call is known, if this information is available less than
forty-eight hours before its arrival, or

at the latest, at the time the ship leaves the previous port, if the journey time is
less than forty-eight hours.

29

Article 5
Participation in mandatory reporting systems

1.
Ships entering the area of competence of a coastal station operating a mandatory
reporting system approved by the International Maritime Organisation must participate in the
system in accordance with the applicable rules and procedures.

2.
Ship reports shall include at least the information referred to in Annex I-1, without
prejudice to additional information required by a Member State in accordance with IMO
Resolution A.851(20).

Article 6
Ship routing in areas of high traffic density or which are dangerous for shipping

1.
Ships entering the area of competence of a vessel traffic service, or ships’ routing
system approved by the IMO, placed under the responsibility of a Member State, must, in
accordance with the applicable rules and procedures, use the services provided, where such
exist, and comply with the measures applicable in the area and with any instructions they
receive. Only in maritime areas located within the territorial waters of the Member State
concerned may participation in a vessel traffic service be made compulsory for ships flying
the flag of a third country.

Member States shall ensure that the vessel traffic services and ships’ routing systems
2.
placed under their responsibility dispose of sufficient properly qualified staff and appropriate
means of communication and ship monitoring and that they are operated in accordance with
the relevant IMO guidelines.

Article 7
Automatic identification systems

1.

2.

Any ship calling at a Community port must, in accordance with the timetable set out
in Annex II-1, be fitted with an automatic identification system which meets the
performance standards drawn up by the IMO and is capable of transmitting the
information referred to in Annex I-2.

Member States shall see that they furnish themselves, on a timescale compatible with
the timetable set out in Annex II-1, with appropriate equipment and shore-based
installations for receiving and utilising the information referred to in paragraph 1.

Article 8
Voyage data recorders (black boxes)

Ships calling at a port located in the Community must be fitted with a voyage data recorder
(black box) in accordance with the detailed rules laid down in Annex II-2. Any exemptions
granted to ro-ro ferries or high-speed passenger craft under Article 4(1)(d) of Council
Directive 1999/35/EC8 shall terminate on the date on which this Directive enters into force.

8

OJ L 138, 1.6.1999, p. 1.

30

The voyage data recorder must be able to store, in a secure and retrievable form, and make
available to the Member State involved in an enquiry following a maritime accident, relevant
information concerning the position, movement, physical status, and command and control of
the ship concerned.

TITLE II – NOTIFICATION OF DANGEROUS OR POLLUTING GOODS ON BOARD SHIPS

(HAZMAT)

Article 9
Obligations on the shipper

No dangerous or polluting goods may be offered for carriage or taken on board any ship in a
port of a Member State unless a declaration has been delivered to the master or operator
containing the correct technical names of the dangerous or polluting goods, the United
Nations (UN) numbers where they exist, the hazard classes and the quantities of such goods
and, if they are being carried in haulage units other than tanks, the identification numbers
thereof.

It shall be the duty of the shipper to deliver to the master or operator the declaration required
by this Directive and to ensure that the shipment offered for carriage is indeed the one
declared in compliance with the first paragraph.

1.

2

3.

Article 10

Notification by ships carrying dangerous or polluting goods

The operator, agent or master of a ship carrying dangerous or polluting goods and
leaving a port in a Member State shall, at the latest at the moment of departure,
notify the information indicated in Annex III to the competent authority designated
by that Member State.

The operator, agent or master of a ship carrying dangerous or polluting goods
coming from a port located outside the Community and bound for a port located in
the Community or an anchorage located in a Member State’s territorial waters shall,
at the latest upon departure from the loading port or as soon as the port of destination
is known, if this information is unavailable at the moment of departure, notify the
information indicated in Annex III to the competent authority of the Member State in
which the first port of destination or anchorage is located.

Member States may put in place a procedure authorising the operator, agent or
master of a ship referred to in the above paragraphs to notify the information listed in
Annex III to the port authority of the port of departure or destination in the
Community, as appropriate.

The procedure put in place must ensure that the competent authority has access to the
information indicated in Annex III at all times should it be needed. To this end, the
competent port authority shall retain the information listed in Annex III long enough
for it to be usable in the event of an accident or incident at sea. The port authority
shall take the necessary measures to provide this information electronically and
without delay to the competent authority, 24 hours a day upon request.

31

4.

5.

The operator, agent, or master of the ship must communicate the cargo information
indicated in point 5 of Annex III to the port authority or the competent authority
electronically. Where EDI messages are used to transmit data,
the EDIFACT
message formats indicated in Annex IV must be used.

Ships carrying dangerous or polluting goods in transit through the territorial waters
or exclusive economic zones of Member States and neither leaving nor bound for a
Community port shall notify coastal stations operating a mandatory reporting system
as referred to in Article 5(1) of the quantity and IMO class of dangerous goods they
are carrying.

Article 11
Computerised exchange of data between Member States

Member States shall cooperate to ensure the interconnection and interoperability of the
national systems used to manage the information indicated in Annex III.

Communication systems set up in application of the above paragraph must display the
following features:

–

–

–

data exchange must be electronic and enable messages notified in accordance
with Article 10 to be received and processed;

the system must allow information to be transmitted 24 hours a day;

each Member State must be able, upon request, to send information on the ship
and the dangerous or polluting cargo on board without delay to the competent
authority of another Member State.

Article 12
Exemptions

1.

Member States may exempt national scheduled services performed between ports
located on their territory from the requirement laid down in Article 10 where the
following conditions are met:

–

–

the company operating the scheduled services referred to above keeps and
updates a list of the ships concerned and sends it to the competent authority
concerned,

the information listed in Annex III is kept
for each journey performed,
available for the competent authority upon request. The company must
establish an internal system to ensure that, upon request 24 hours a day and
without delay, the said information can be sent to the competent authority
electronically, in accordance with Article 10(2).

2.

Member States shall periodically check that the conditions laid down in paragraph 1
are being met. Where at least one of these conditions is no longer being met, Member
States shall immediately withdraw enjoyment of the exemption from the company
concerned.

32

3.

4.

1.

2.

3.

Member States shall communicate to the Commission a list of companies and ships
granted exemption under this Article, as well as any updating of that list.

Where two or more Member States are concerned in an international scheduled
service operated by a single company, they may collaborate in granting an exemption
to the company concerned in accordance with the requirements laid down by this
Article.

TITLE III - MONITORING OF HAZARDOUS SHIPS AND INTERVENTION IN THE EVENT OF

INCIDENTS AND ACCIDENTS AT SEA

Article 13
Ships posing a potential hazard to shipping

Ships meeting the criteria set out below shall be considered to be ships posing a
potential hazard to shipping or a threat to the environment within the meaning of this
Directive:

–

–

–

–

–

ships which have been involved in accidents or incidents at sea as referred to in
Article 14;

ships which have failed to comply with the reporting requirements imposed by
this Directive;

ships which have failed to comply with the applicable rules in ships’ routing
systems and vessel traffic services placed under the responsibility of a Member
State;

ships in respect of which there is proof or strong presumptive evidence of
deliberate discharges of oil or other infringements of the Marpol Convention in
waters under the jurisdiction of a Member State;

ships which have been refused access to Community ports or which have been
the subject of a report or notification by a Member State in accordance with
Annex I-1 to Directive 95/21/EC.

Coastal stations holding relevant information on the ships referred to in paragraph 1
shall communicate it to the coastal stations concerned in the other Member States
located along the planned route of the ship.

shall,

in compliance with
Without prejudice to Article 15, Member States
international law, take the appropriate measures regarding the ships referred to in
paragraph 1 which they have identified or which have been reported to them by other
Member States, with a view to preventing or reducing the risk to safety or the
environment at sea. They shall carry out any checks or action they deem appropriate,
in conditions compatible with Directive 95/21/EC, with a view to establishing any
infringements of the provisions of this Directive or of the relevant
rules of
international conventions in force. Where appropriate, they shall inform the Member
State which sent them the information pursuant to paragraph 2 of the results of the
action they take.

33

1.

2.

Article 14
Reporting of incidents and accidents at sea

With a view to preventing or mitigating any significant threat to maritime safety, the
safety of individuals or the environment, the master of any ship sailing in the
territorial sea or exclusive economic zone of a Member State or the high seas off the
coast of a Member State must immediately report to the coastal station responsible
for that geographical area:

–

–

–

any incident or accident affecting the safety of the ship, such as collision,
running aground, damage, malfunction or breakdown, flooding or shifting of
cargo, any defects in the hull or structural failure,

any incident or accident which compromises shipping safety, such as failures
likely to affect the ship’s manoeuvrability or seaworthiness, or any defects
affecting the propulsion system or steering gear,
the power generation
equipment, navigation equipment or communications equipment,

any situation liable to lead to pollution of the waters or shore of a Member
State, such as the discharge or threat of discharge of polluting products into the
sea, as well as any slicks of polluting materials and containers or packages seen
drifting at sea.

The report message sent in application of paragraph 1 must include at least the ship’s
identity, its position, the port of departure, the port of destination, the address from
which information may be obtained on the cargo where appropriate, the number of
persons aboard, details of the incident and any relevant information referred to in
IMO Resolution A.851(20).

Article 15
Measures in the event of exceptionally bad weather

Where a Member State considers,
in the event of exceptionally bad weather and sea
conditions, that there is a serious threat of pollution of its shipping areas or coastal zones, or
of the shipping areas or coastal zones of other Member States, it must, using any appropriate
administrative measures, prohibit ships liable to create such a threat from leaving ports
located in the area or zone in question.

The ban on departure shall be lifted once it has been established that the ship may leave the
port without posing a serious threat within the meaning of paragraph 1.

Article 16
Measures relating to incidents or accidents at sea

1.

In the event of incidents or accidents at sea as referred to in Article 14, Member
States shall take all appropriate measures, consistent with international law, to ensure
the safety of shipping and of persons and to protect the marine environment.

Annex V sets out a non-exhaustive list of measures available to Member States in
application of this Article.

34

2.

3.

The operator, the master of the ship and, where appropriate, the owner of the cargo
must cooperate fully with the competent national authorities, at the latter’s request,
with a view to minimising the consequences of an incident or accident at sea.

The master of a ship to which the provisions of the ISM Code are applicable shall
inform the company of any accident or incident which occurs at sea. As soon as it
has been informed of such a situation, the company must contact the competent
coastal station and place itself at its disposal as necessary.

Article 17
Ports of refuge

Member States shall make the necessary arrangements to ensure that ports are available on
their territory which are capable of accommodating ships in distress. To this end, having
consulted the parties concerned, they shall draw up plans specifying, for each port concerned,
the operational and environmental
the features of the area,
constraints and the procedures linked to their possible use to accommodate ships in distress.

the installations available,

Plans for accommodating ships in distress shall be made available upon demand. Member
States shall inform the Commission of the measures taken in application of the preceding
paragraph.

Article 18
Informing the parties concerned

1.

2

3.

The competent coastal authority of the Member State concerned shall, as necessary,
broadcast within the relevant areas any incident notified under Article 14(1) and
information with regard to any ship which poses a threat to other shipping.

Competent authorities holding information notified in accordance with Articles 10
and 14 shall make adequate arrangements to provide such information at any time
upon request for safety reasons by the competent authority of another Member State.

Any Member State whose competent authorities have been informed, pursuant to this
Directive or in some other way, of facts which involve or increase the risk for
another Member State of a hazard being posed to certain shipping areas and coastal
zones, shall take whatever measures are appropriate to inform any interested State
thereof as soon as possible and consult it regarding the action being envisaged.
Where appropriate, Member States shall cooperate with a view to pooling the
arrangements for joint action.

Each Member State shall make the necessary arrangements to use fully the reports
which ships are required to transmit to them pursuant to Article 14.

35

1.

2.

3.

1.

a)

b)

c)

2.

TITLE IV - ACCOMPANYING MEASURES

Article 19
Designation and publication of a list of competent bodies

Each Member State shall designate the competent authorities, port authorities and
coastal stations to which the notifications required by this Directive must be made.

Each Member State shall ensure that the shipping industry is properly informed and
regularly updated, notably via nautical publications, regarding the authorities and
stations designated pursuant
including where appropriate the
geographical area for which they are competent, and the procedures laid down for
notifying the information required by the Directive.

to paragraph 1,

Member States shall send the Commission a list of the bodies they designate
pursuant to paragraph 1, as well as any updatings thereof.

Article 20
Cooperation between the Member States and the Commission

The Member States and the Commission shall cooperate on attaining the following
objectives:

making optimum use of the information notified pursuant to this Directive, notably
by developing appropriate telematic links between coastal stations and port
authorities with a view to exchanging data relating to ships’ movements, their
estimated times of arrival in ports and their cargo;

developing and enhancing the effectiveness of telematic links between the coastal
stations of the Member States with a view to obtaining a clearer picture of traffic,
improving the monitoring of ships in transit along European coasts, and harmonising
and, as far as possible, streamlining the reports required from ships en route;

extending the cover of the European monitoring, control and information system for
maritime traffic with a view to enhanced identification and monitoring of ships
sailing in European waters. To this end, the Member States and the Commission shall
work together to put in place mandatory reporting systems, mandatory vessel traffic
services and, where necessary, appropriate ships’ routing systems, with a view to
submitting them to the IMO for approval.

The European Maritime Safety Agency created by Regulation ../../EC shall help
attain the following objectives:

–

–

–

facilitating cooperation between the Member States and the Commission to
attain the objectives set out in paragraph 1;

promoting cooperation between riparian States in the shipping areas concerned
in the fields covered by this Directive;

seeing that the shipping industry is better informed of the requirements and
procedures stipulated by this Directive;

36

–

–

–

collecting and making available to the interested parties the list of competent
bodies designated pursuant to Article 19, the relevant data regarding companies
granted an exemption under Article 12 and ships posing a potential hazard to
shipping referred to in Article 13 and any appropriate information for
implementing this Directive;

developing and operating any information system necessary for attaining the
objectives referred to in the indents above;

with a view inter alia to ensuring optimum traffic conditions in areas of high
traffic density or which are hazardous for shipping, establishing regional
centres to manage the information gathered and utilised pursuant
to this
Directive.

Article 21
Confidentiality of information

Member States shall take the necessary measures to ensure the confidentiality of information
sent to them pursuant to this Directive, and must use such information only for the purposes
of maritime safety and preventing pollution by ships.

1.

2.

3.

Article 22
Monitoring the implementation of the Directive and penalties

Member States shall, by means of regular checks and unannounced checks, check the
functioning of the telematic systems set up to meet the requirements of the Directive,
and in particular their capacity to meet the requirements of receiving or sending
without delay, 24 hours a day, information notified pursuant to Articles 10 and 12.

Member States shall provide in their national law for financial penalties to be
imposed on operators, agents, shippers, owners of cargo and masters of ships in the
event of infringements of the provisions of this Directive.

The financial penalties referred to in the subparagraph above must be set at a level
high enough to deter the person from committing or persisting in an infringement.

Without prejudice to the other measures needed to apply the Directive, the financial
penalty arrangements introduced by Member States must apply inter alia to the
following infringements of the Directive:

–

–

–

–

failure to make prior announcement of entry into port as required by Article 4;

failure to report to a mandatory reporting system as required by Article 5;

violation of the applicable rules in a ships’ routing system or failure to comply
with instructions given by a vessel traffic service designated by a Member
State as required by Article 6;

absence or malfunction of the shipborne automatic identification system or of
the voyage data recorder referred to in Articles 7 and 8 respectively;

37

–

–

–

–

–

failure to declare or incorrect declaration by the shipper under Article 9;

violation of the notification requirements laid down in Articles 10 and 12;

failure to report an incident, accident or situation at sea as required by
Article 14;

departure from a port in violation of Article 15;

failure to cooperate with the national authorities to minimise the consequences
of an accident at sea in accordance with Article 16.

4.

5.

inform the flag State and any other State
Member States shall, without delay,
concerned of measures taken in respect of ships not flying their flag pursuant to
Articles 13 and 16 and to paragraph 2 of this Article.

Where a Member State finds, on the occasion of an accident or incident at sea
referred to in Article 16, that the company has not been able to establish and
maintain a link with the ship or with the operational authorities concerned, it shall so
inform the State which issued the ISM certification, or on whose behalf it was issued.

Where the seriousness of the failure shows the existence of a major incidence of non-
compliance in the functioning of the company’s safety management system, the
Member State which issued the certificate of compliance or safety management
certificate to the ship shall immediately withdraw the ISM certification from the
company concerned.

FINAL PROVISIONS

Article 23
Amendment procedure

The procedure laid down in Article 24 may be implemented in order:

–

–

for the purposes of this Directive, to apply subsequent amendments which have
entered into force in respect of the relevant international instruments referred to
in Article 2(i),

to amend the requirements and procedures laid down in the annexes in the light
of experience gained with this Directive.

Article 24
Regulatory committee

1.

2.

The Commission shall be assisted by a committee composed of representatives of the
Member States and chaired by a representative of the Commission.

Where reference is made to this paragraph, the regulatory procedure laid down in
Article 5 of Decision 1999/468/EC shall apply, in compliance with Article 8 thereof.

38

3.

The period provided for in Article 5(6) of Decision 1999/468/EC is set at three
months.

Article 25

Member States shall adopt the laws, regulations and administrative provisions necessary to
comply with this Directive by 1 July 2002 at the latest. They 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.

Council Directive 93/75/EEC is hereby repealed twenty-four months after the adoption of this
Directive.

Article 26

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

Article 27

Article 28

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

39

ANNEX I

Information notified by the ships referred to in Title I

1.

Information referred to in Article 5

–

–

–

–

–

A - Ship identification (name, call sign, IMO identification number or MMSI
number)

C or D: Position

G - Port of departure

I - Port of destination and estimated time of arrival

P – Cargo and, if dangerous goods present on board, quantity and IMO class

– W - Total number of persons on board

–

X - Various information:

- Address for the communication of cargo information,

- Characteristics and estimated volume of bunker fuel, for ships carrying more than
5 000 tonnes of bunker fuel.

2.

Information referred to in Article 7

–

–

–

–

–

–

Ship identification (name, call sign, IMO identification number or MMSI
number)

Ship type

Position, course, speed and navigational status

Port of departure, port of destination and estimated time of arrival

Presence on board of dangerous goods: yes/no

If yes, address for the communication of cargo information

3.

In the event of a change to the information notified pursuant to this Annex, the
master of the ship must forthwith inform the coastal authority concerned thereof.

40

ANNEX II

Prescriptions applicable to on-board equipment

I - Automatic identification systems (AIS)

1.

Ships built on or after 1 July 2002

Passenger ships, irrespective of size, and all ships of 300 gross tonnage and upwards built on
or after 1 July 2002 which call at a port located in the Community are subject to the carrying
requirement laid down in Article 7.

2.

Ships built prior to 1 July 2002

Ships built prior to 1 July 2002 which call at a port located in the Community are subject to
the carrying requirement laid down in Article 7 according to the following timetable:

–

–

–

–

–

–

passenger ships: not later than 1 July 2003;

tankers: not later than the first survey for safety equipment after 1 July 2003;

ships, other than passenger ships and tankers, of 50 000 gross tonnage and
upwards: not later than 1 July 2004;

ships, other than passenger ships and tankers, of 10 000 gross tonnage and
upwards but less than 50 000 gross tonnage: not later than 1 July 2005;

ships, other than passenger ships and tankers, of 3 000 gross tonnage and
upwards but less than 10 000 gross tonnage: not later than 1 July 2006;

ships, other than passenger ships and tankers, of 300 gross tonnage and
upwards but less than 3 000 gross tonnage: not later than 1 July 2007.

II – Voyage data recorder (“black box”)

Ships in the following classes must, inasmuch as they call at a port located in the Community,
be fitted with a voyage data recorder (black box) meeting the performance standards of IMO
Resolution A.861(20) and the testing standards set by Standard No 61996 of the International
Electronics Commission (IEC):

–

–

–

–

passenger ships built on or after 1 July 2002, not later than the date on which
this Directive enters into force,

ships, other than passenger ships, of 3 000 gross tonnage and upwards, built on
or after 1 July 2002, not later than the date on which this Directive enters into
force

passenger ships built before 1 July 2002, not later than 1 January 2004,

cargo ships of 20 000 gross tonnage and upwards, not later than 1 January
2007,

41

–

cargo ships of between 3 000 and 20 000 gross tonnage, not
1 January 2008.

later than

42

ANNEX III

Information to be notified pursuant to Article 10

Ship identification (name, call sign and, where appropriate, IMO identification

1
number)

2

3

Port of destination

Time of departure of a ship leaving a port in a Member State (Article 10(1))

4
Estimated time of arrival at the port of destination or pilot station, as required
by the competent authority, and estimated time of departure from that port
(Article 10(2))

5
The correct technical names of the dangerous or polluting goods, the United
Nations (UN) numbers where they exist, the IMO hazard classes in accordance with
the IMDG, IBC and IGC Codes and, where appropriate, the class of the ship as
defined by the INF Code, the quantities of such goods and their location on board
and, if they are being carried in haulage units other than tanks, the identification
numbers thereof

6
Confirmation that a list or manifest or appropriate loading plan giving details
of the dangerous or polluting goods carried and of their location on the ship is on
board

7

Address from which details of the cargo may be obtained

43

ANNEX IV
EDIFACT electronic messages

The EDIFACT messages referred to in Article 10(4) are as follows:

–

–

–

–

–

MOTREQ (“Vessel Data Request”): message sent where information is
required concerning both a specific ship and the dangerous or polluting goods
on board;

APERAK (“Application Acknowledgement”): message indicating that data
relating to the ship concerned are available and will be sent, or that they are not
available;

VESDEP (“Vessel Movement Data”): message giving detailed information
regarding the voyage of the ship concerned;

IFTDGN (“Hazardous Cargo Data”): message specifying the nature of the
dangerous or polluting cargo being carried;

BAPLIE (“Bayplan”): message supplying information on the location of goods
on board the ship.

44

ANNEX V

Measures available to Member States in the event of a threat to maritime safety and the
protection of the environment
(pursuant to Article 16(1))

Where, following an incident or circumstance of the type described in Article 14 affecting a
ship falling within the scope of this Directive, the competent authority of the Member State
concerned deems, within the framework of international law, that it is necessary to avert,
lessen or remove a serious and imminent threat to its coastline or related interests, the safety
of other ships and their crews and passengers or of persons on shore or to protect the marine
environment, that authority may, inter alia:

–

–

–

–

restrict the movements of the ship or direct it to follow a specific course. This
requirement does not affect the master’s responsibility for the safe handling of
his ship,

give official notice to the master of the ship to put an end to the threat to the
environment or maritime safety,

send an evaluation team aboard the ship to assess the degree of risk, help the
master to remedy the situation and keep the competent coastal station informed
thereof,

instruct the master to put in at a port of refuge in the event of imminent peril, or
cause the ship to be piloted or towed.

45

FINANCIAL STATEMENT

1.

TITLE OF OPERATION

Proposal for a Directive of the European Parliament and of the Council establishing a
Community monitoring, control and information system for maritime traffic

2.

BUDGET HEADING INVOLVED

Part A (see paragraph 10)

Part B (see paragraph 7) - Article B2-702: Preparation, evaluation and promotion of
transport safety

3.

LEGAL BASIS

Safety of maritime transport: Article 80(2) of the Treaty

4.

4.1

DESCRIPTION OF OPERATION

General objective

To set up a monitoring, control and information system for maritime traffic in order
to improve both prevention and intervention in the event of an accident or the threat
of pollution to the coasts of the Member States

4.2

Period covered and arrangements for renewal or extension

Indefinite

5.

5.1

5.2

5.3

CLASSIFICATION OF EXPENDITURE OR REVENUE

Non-compulsory expenditure

Differentiated appropriations

Type of revenue involved: none

6.

TYPE OF EXPENDITURE OR REVENUE

Operating and administrative expenditure on monitoring and enforcing the
application of the Directive.

The proposed measure’s impact on the Community budget will be minor, basically involving
the organisation of meetings with shipping experts from the Member States. In addition, in
accordance with the objectives set out in Article 20(2), the European Maritime Safety Agency
ought in principle to take on, and finance, a number of tasks relating to the implementation of
the Directive. To ascertain the financial impact of setting up this structure, reference should

46

therefore be made to the Financial Statement annexed to the proposal for a Regulation of the
European Parliament and of the Council establishing a European Maritime Safety Agency. In
this context, the bulk of the expenditure should pass through the budget of the European
Maritime Safety Agency.

In addition,
the meetings with shipping industry experts may entail some operational
expenditure. The appropriations provided for such expenditure are specified in Table 7.2 and
will be covered by budget line B2-702.

7.

7.1

FINANCIAL IMPACT

Method of calculating total cost of operation (relationship between individual
and total costs)

The total cost is calculated by adding together the individual costs on a yearly basis,
starting with the year “n” in which the proposed Regulation will enter into force (see
Table 7.2).

These individual costs consist of an annual sum of EUR 5 000 for organising a one-
day meeting of shipping industry experts once a year. Expenditure is also envisaged
for publishing information and promoting the European system, notably to make the
shipping industry aware of the requirements and procedures laid down by the
Directive. EUR 10 000 could thus be committed in the first year of implementation,
with an updating possibly being considered after five years (EUR 5 000).

7.2

Operational expenditure on studies, experts, etc., included in Part B of the
Budget

CA in EUR million (current prices)

Year n

n+1

n+2

n+3

n+4

Total

n+5
and
subs.
yrs

– Expert meetings9

– Information and
publications

0.005

0.005

0.005

0.005

0.005

0.025

0.010

0.005

0.015

Total

0.015

0.005

0.005

0.005

0.010

0.040

9

Expenditure meeting the criteria referred to in the Commission’s communication of 22.4.1992
(SEC(92) 769).

47

7.3

Indicative schedule of commitment/payment appropriations

Year n

n+1

n+2

n+3

n+4

EUR million

Total

n+5
and
subs.
yrs

Commitment appropriations

0.015

0.005

0.005

0.005

0.010

0.40

Payment appropriations

Year n
n+1
n+2
n+3
n+4
n+5
and subsequent years

0.015

0.005

0.005

0.015
0.005
0.005
0.005
0.010

0.005

0.005

Total

0.015

0.005

0.005

0.005

0.005

0.040

8.

FRAUD PREVENTION MEASURES

Monitoring compliance with the procedures for inviting Member State experts to
meetings of the committee.

9.

9.1

ELEMENTS OF COST-EFFECTIVENESS ANALYSIS

Specific and quantified objectives; target population

- Specific objectives: links with general objective

Setting up a framework for cooperation between the Member States and the
Commission, involving organisation of meetings with shipping experts, inter
alia to prepare for extending the coverage of the European monitoring, control
and information system for maritime traffic.

- Target population: distinguish as applicable for each objective; indicate the end-
beneficiaries of the Community’s financial contribution and the intermediaries
involved.

Not applicable.

9.2

Grounds for the operation

- Need for Community financial contribution, with particular reference to the
principle of subsidiarity.

There is no provision for financial aid from the Community. However, it may
be that some Member States, in pursuit of the Directive’s objectives, put
forward projects relating to infrastructure or equipment to manage maritime
traffic, with a view to obtaining financial support from the Community. For the
record, various projects of this type have already received Community funding

48

via the funds set up for implementation of the trans-European transport
networks, the Cohesion Funds and the ERDF.

- Choice of ways and means

* advantages over possible alternatives (comparative advantages)

Not applicable.

* explanatory reference to similar Community or national operations

Not applicable.

* spin-off and multiplier effects expected

Not applicable.

- Main factors of uncertainty which could affect the specific results of the operation

No appreciable factors of uncertainty.

9.3

Monitoring and evaluation of the operation

- Performance indicators selected

* output indicators (measuring activities used)

The main resources required will be provided by the Commission and the
European Maritime Safety Agency.

* impact indicators (measuring performance against objectives)

The main impact
indicators are the proposals drawn up jointly by the
Commission and the Member States to supplement and extend the information
and monitoring system. In accordance with the international rules in force,
these proposals should be submitted for approval to the International Maritime
Organisation.

One function of the European Maritime Safety Agency will also be to monitor
and evaluate the effectiveness of the Directive’s implementation.

- Details and frequency of planned evaluations

The frequency of evaluation depends on the European Maritime Safety
Agency’s activities.

- Assessment of the results obtained (where an existing operation is continued or
renewed)

Information gained from contacts between the Commission and experts from
the Member States, and from the Agency’s activity reports, will be used to
assess the need to update and amend the Directive.

49

10.

ADMINISTRATIVE EXPENDITURE (PART A OF SECTION III OF THE BUDGET)

10.1

Effect on the number of posts

The proposal’s impact on Part A of the Budget
is generally limited. Regular
monitoring of the Directive’s implementation will be required, including preparation
of and participation in various meetings and coordination activities with the Member
States. Aside from that, a large proportion of the management tasks should be taken
on by the European Maritime Safety Agency.

Type of post

Staff to be assigned to managing
the operation

of which

Duration

permanent
posts

temporary
posts

using existing
resources in
the DG or
service
concerned

with recourse to
additional
resources

0.5
-
-

-

0.5

0.5
-
-

-

0.5

1.0
-
-

-

1.0

-
-
-

-

-

Indefinite
-

-

Indefinite

Officials or
temporary agents

A
B
C

Other resources

Total

10.3

Increase in other administrative expenditure as a result of the operation, in
particular expenditure on meetings of committees and groups of experts

EUR

Budget line
(No and heading)

A 7031 (compulsory
committees)

Total

Amounts

Method of calculation

€

€

9 750

9 750

The regulatory committee set up for the purposes of this Directive
should on average meet for one day once a year to discuss particular
issues relating to implementation of the Directive’s provisions.
Reimbursement of the travel costs of Government experts required
to attend this meeting is estimated at an average of EUR 650 per
expert (to be multiplied by 15).

THE AFOREMENTIONED EXPENDITURE UNDER TITLE A7 OF THE BUDGET WILL BE COVERED

BY APPROPRIATIONS FROM THE OVERALL ALLOCATION FOR DG TREN.

50

EXPLANATORY MEMORANDUM

GENERAL INTRODUCTION

1

Present situation and problems

The compensation of victims of an accidental oil spill caused by oil tankers forms an
important aspect of the overall regulatory framework for marine oil pollution and is
consequently an issue of major importance for the European Commission. As was pointed out
in its Communication on the safety of seaborne oil trade of 21 March 2000 (COM(2000) 142
final), the Commission considers that the existing international liability and compensation
regime, while having served its purpose relatively well over the last decades, entails a number
of shortcomings. The most pressing one is the inadequacy of the current limits for liability
and compensation. Some recent accidents, most notably the sinking and consequential oil spill
of the Erika in December 1999, have clearly shown the insufficiency of the existing limits,
having the consequence that victims of an oil spill may not be fully compensated and also
contributing to significant delays in the payment of compensation. For this reason, the
Commission has decided to act particularly quickly in order to create a mechanism for raising
the limits of compensation in order to ensure that future oil spills in Europe will be adequately
compensated. The other shortcomings need to be rectified as well, but it is considered that
they could be addressed over a slightly longer period of time. Outside the scope of liability
and compensation, the Commission also proposes to introduce a sanction of a penal nature for
established grossly negligent behaviour on behalf of any person involved in the transport of
oil at sea.

2

Background

The transport of oil by sea is an intrinsically hazardous activity, which entails considerable
risks for the marine environment. The full scale of the environmental threats posed by the
rapid growth in tanker traffic and ship size became apparent in March 1967 when the 120 000
tonne deadweight Liberian-flagged tanker Torrey Canyon ran aground on the Seven Stones’
reef off Land’s End, UK. This resulted in 119 000 tonnes of crude oil being spilled causing
severe pollution along the coasts of southwest England and northern France.

This disaster prompted the international community to elaborate, through the International
Maritime Organization, a number of instruments aimed at improved safety of oil tankers and
increased protection of the marine environment, including two conventions laying down
detailed rules of liability and compensation for pollution damage caused by oil tankers.

The 1969 International Convention on Civil Liability for Oil Pollution (CLC) and the 1971
International Convention setting up the Oil Pollution Compensation Fund (Fund Convention)
entered into force in 1975 and 1978 respectively. The two conventions established a two-tier
liability system, which builds upon a strict but limited liability for the registered shipowner
and a Fund, financed by oil receivers, which provides supplementary compensation to victims
of oil pollution damage who cannot obtain full compensation for the damage from the
shipowner.

This regime has been revised in substance only once, in the early 1980’s. That revision
resulted in the 1984 Protocols to the two conventions which never entered into force, due to
lack of sufficient ratification by oil receiving States. In the early 1990’s, a new effort was
made to bring the modifications into force. The resulting 1992 Protocols retained the

51

substance of the 1984 amendments, but modified the entry into force requirements. These
Protocols to the CLC and Fund Conventions entered into force in 1996. All EU Member
States with a coastline are now parties to the two 1992 Protocols, except Portugal which is
still in the process of finalising the ratification procedures.

The USA does not participate in this international liability and compensation regime. The
Exxon Valdez accident in Alaska in 1989 brought discussions of a potential US accession to
the system to an end. Instead, the US decided to create, within the framework of the 1990 Oil
Pollution Act, a separate federal liability regime, with the possibility for individual states to
introduce more stringent legislation.

3

Summary of the 1992 international liability and compensation system

The 1992 regime covers pollution damage caused by spills of persistent oil from tankers in
the coastal waters (up to 200 miles from the coastline) of the participating States. The loss and
damage covered by the regime includes property and, to some extent, economic losses and
costs of environmental restoration as well as preventive measures, including clean-up costs.

The first liability tier, the liability of the registered shipowner, is governed by the CLC. The
shipowner’s liability is strict and thus not depending on fault or negligence on his part. The
owner is normally allowed to limit his liability to an amount which is linked to the tonnage of
the ship, presently maximum EUR 90 million for the biggest ships, in the case of the Erika
only around EUR 13 million. The shipowner loses the right to limit his liability only if it is
proved that the pollution damage “resulted from his personal act or omission, committed with
the intent to cause damage, or recklessly and with knowledge that such damage would
probably result”. The CLC also requires shipowners to maintain liability insurance and gives
claimants the right of direct action against the insurer up to the limits of the shipowner’s
liability. Through the ‘channelling’ of the liability to the registered shipowner only, many
other parties, including notably the ship’s manager, operator and the charterer, are explicitly
protected from liability claims, unless their negligence amounts to the same as that of
shipowners’ loss of right to limit their liability, quoted above.

The CLC regime is supplemented by the International Oil Pollution Compensation Fund (the
IOPC Fund), which was established through the Fund Convention in order to compensate
victims when the shipowner’s liability is insufficient to cover the damage. Recourse to the
IOPC Fund may take place in three cases. The most common is where the damage exceeds
the shipowner’s maximum liability. The second case is where the shipowner can invoke any
of the defences allowed in the CLC10. The last case is where the shipowner (and his insurer)
are financially incapable of meeting their obligations. The maximum compensation by the
IOPC Fund is around EUR 200 million. The IOPC Fund is financed by contributions from
companies or other entities receiving oil carried by sea. In the event of an oil spill, thus, all oil
receivers world-wide which are established in the States parties to the Fund Convention will
contribute to the compensation as well as to the administrative expenses of the Fund,
wherever the pollution damage has occurred. The IOPC Fund will not pay compensation if

10

According to Article III.2 of the CLC the shipowner is exempted from liability if he proves that the
damage:
(a) resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an
exceptional, inevitable and irresistible character, or
(b) was wholly caused by an act or omission done with intent to cause damage by a third party, or
(c) was wholly caused by the negligence or other wrongful act of any Government or other authority
responsible for the maintenance of lights or other navigational aids in the exercise of that function.

52

the pollution damage resulted from an act of war or was caused by a spill from a warship. It
also has to be proved that the oil originated from a tanker.

Victims of oil spills may present their claims directly against the IOPC Fund and, to the
extent claims are justified and meet the relevant criteria, the Fund will compensate the
claimant directly. If the total of approved claims exceeds the maximum limit of the IOPC
Fund all claims will be reduced proportionately. Claimants may also decide to pursue their
claims before the courts of the State where the damage occurred. Since it was first established
in 1978, the IOPC Fund has dealt with some 100 cases, most of which have been within the
limits of compensation and thus fully compensated according to the Fund’s own assessment
as to the validity of claims.

4

4.1

Assessment of the international liability and compensation regime

Assessment criteria

In its Communication on the safety of the seaborne oil trade, the Commission established
three criteria against which the adequacy of a compensation system needs to be assessed.

(1)

(2)

(3)

It should provide prompt compensation to victims without having to rely on
extensive and lengthy judicial procedures.

The maximum compensation limit should be set at a sufficiently high level to cover
claims from any foreseeable disaster occurring as a result of an oil tanker accident.

The regime should contribute to discouraging tanker operators and cargo interests
from transporting oil in anything other than tankers of an impeccable quality.

Following the Erika accident,
the Commission was bound to examine the existing
international system, provided by the CLC and Fund conventions, in the light of these criteria.
The Commission’s assessment is that the international system satisfies some of these concerns
but not all of them.

4.2

Procedures of compensation

Regarding the promptness of compensation and the general functionality of the system, the
Commission recognises that the existing international oil pollution liability and compensation
system provides some important benefits, some of which are instrumental in ensuring the
prompt compensation for incidents potentially involving a number of parties under different
legal jurisdictions. The way the system is built, claimants generally have no difficulty in
identifying the liable party nor need they prove fault or negligence on behalf of the shipowner
in order to obtain compensation. Questions relating to the nationality of the ship or its owner
and the owner’s financial situation are similarly unconnected to the availability of
compensation within the limits, thanks to the requirements of compulsory insurance and the
right of direct action against the insurer. Such features contribute to a more expeditious
settlement of claims and to facilitating the general administration of the system.

As regards the financing of the Fund too, a relatively straightforward mechanism for the
contribution of cargo interests has been laid down. The expenses of the IOPC Fund are
collectively shared between the main receivers of crude oil and/or heavy fuel oil in the
participating States in a proportion corresponding to the quantities of oil received by each
receiving company. The quantities of received oil are reported by the Governments of the
States parties to the IOPC Fund, which invoices the oil receivers directly, based upon an

53

estimate of the expenses for the forthcoming year. Governments are not responsible for these
payments, unless they have voluntarily accepted such responsibility. In general, this system
has worked satisfactorily and it has normally been possible to collect the required means
within a reasonable period of time. There is, however, still a problem with some States which
fail to notify the quantities of received oil, leading to difficulties for the IOPC Fund to collect
the contributions from oil receivers in those States.

Bearing in mind the considerable inventiveness involved in the development of the
international liability and compensation regime for oil spills, it has, generally speaking,
proved to be workable. The vast majority of some 100 cases of oil spill compensation cases
which have been dealt with by the IOPC Fund have been satisfactorily resolved in the sense
that the procedures of assessing and paying the claims have been relatively smooth. Claimants
have normally chosen to settle their claims directly with the Fund, outside courts, which
indicates that there is a considerable degree of acceptance as regards the assessment of claims
made by the IOPC Fund.

By no means all cases have been swift and straightforward, however. Most, if not all, oil spills
that threaten to exceed the maximum compensation limit have encountered significant delays
in the payment of compensation, because of uncertainty as to the final cost of the oil spill. If it
appears that the total of valid claims may exceed the maximum amount of compensation
available, it will result in a ‘prorating’ of approved claims, that is, claimants will receive only
a certain percentage of their compensation until all potential claims emanating from the
incident have been submitted and assessed, which normally will take several years. In
addition, major oil spills and subsequent dissatisfaction with the compensation procedures
tend to increase the role of national courts in the settlement process, which often lead to
further complexities and delays. Consequently, compensation procedures in major oil spills
have normally been both complex and slow. A number of high-profile European oil spills in
the 1990’s, such as Aegean Sea (Spain, 1992), Braer (UK 1993), Sea Empress (UK, 1996)
have encountered such problems and claimants who have suffered damage from those spills
still do not know if and when they will receive full compensation. There are no indications
that the Erika oil spill will be different in this respect.

The Commission considers that such long delays in the payment of compensation are
unacceptable. It does, however, acknowledge the strong correlation between the length of
proceedings and the risk of reaching the limit for the maximum available compensation
amount. Given the consequences of nearing the maximum limit outlined above,
the
Commission takes the view that the unacceptably long delays in payment of compensation are
primarily due to insufficient limits of compensation rather than deficiencies inherent in the
compensation procedures as such. Some other elements in the system, which may contribute
to delayed payments or otherwise complicate the compensation of victims, are currently being
examined by a working group within the IOPC Fund11. The Commission takes part in this
work and hopes that it will produce some additional measures improving the prospects of fair
and prompt compensation of victims. In conclusion, therefore, the Commission considers that
the existing international compensation system, notwithstanding some important exceptions,
satisfies the first criterion relating to the adequacy of the procedures for compensating victims
of an oil spill.

11

The items which have been taken up for discussion in this respect include the question of priority
treatment of certain claims and a more general review of the procedures on submission and handling of
claims.

54

4.3

Adequacy of limits

The inadequacy of compensation limits is, in the view of the Commission, the most important
shortcoming of the international system. Inadequate limits have the consequence that victims
of an expensive oil spill may not receive full compensation even if the validity of their claims
has been established. This is questionable from a point of view of principle. In addition, as
explained above, inadequate limits almost inevitably contribute to uncertainty and delays in
the settlement of claims. In effect, therefore, insufficient limits have the consequence that a
victim of a major oil spill is likely to be compensated later and less than a person having
suffered similar damage from a smaller oil spill. The Commission considers this to be
difficult to justify.

Out of some 100 oil spills dealt with by the IOPC Fund so far, some ten have raised more
serious doubts as to the sufficiency of the limits and/or the promptness of settling claims. This
may not seem much, in particular when bearing in mind that a large proportion of the world’s
tanker oil spills do not trigger IOPC Fund action at all, as they are settled with the shipowner
under the CLC Convention if the totality of claims does not exceed the limit of the
shipowner’s liability. It is also true that most of the problematic cases have occurred under the
‘old’ regime before the entry into force of the 1992 Protocols which more than doubled the
available maximum amount of compensation.

Such statistics are largely irrelevant, however, if one, like the Commission, takes the view that
all oil spills shall be adequately and promptly compensated. It is not acceptable that citizens
and other victims who have suffered at times dramatic consequences of a major oil spill are
not fully compensated. The maximum limits should therefore cover any foreseeable disaster.
The distance between that goal and the present situation is evidenced by the fact that both
major oil spills (Nakhodka, Japan, 1997 and Erika, France, 1999) that have occurred since the
1992 regime took effect have cast serious doubts as to the sufficiency of the new limits,
despite rather limited amounts of fuel oil released at both occasions12. Claims of the Erika
accident are likely to exceed that amount considerably, meaning that its victims will have to
rely on voluntary undertakings by the Government and the oil company concerned in order to
obtain even the most essential compensation. The Commission finds it difficult to see how
such compensation limits could meet the criteria of being satisfactory.

The insufficiency of the existing limits may not be surprising when one considers that those
limits were developed in the early 1980’s and thus took effect in Europe some 12-20 years
later, depending on the time of ratification by the Member States. Following the Erika
accident, the process has already started whereby the existing limits of the CLC and Fund
Conventions will be increased, according to a specific simplified amendment procedure
envisaged in the Conventions. The maximum increase under this procedure depends on a
number of factors and will not at present facilitate an increase of more than some 50% of the
current limits. The first decisions to approve this increase were taken in October 2000 and the
amendments will, if finally adopted, be applicable at the earliest on 1 November 2003.

The Commission considers that a 50% increase of the existing limits, providing a total of
some EUR 300 million, which will come into effect in three years’ time, is insufficient to
guarantee adequate protection for victims of a potential major oil spill in Europe. As already
stated, it considers that any foreseeable pollution disaster should be fully covered by the

12

The Nakhodka incident resulted in the release of some 6,200 tonnes of medium fuel oil while the spill
of the Erika is estimated to be around 19,000 tonnes of heavy fuel oil.

55

compensation system, not only for today but also for some time in the future. The proposed
increase would seemingly not even cover the total claims of the Erika accident.

The sufficiency of the limit also needs to be evaluated in the context of the type of damage
that is covered by the regime. If the range of damage to be covered is extended, the amounts
will obviously have to be raised accordingly. Since, as explained below, it is the view of the
Commission that compensation of environmental damage should be extended, it follows that
a significant rise in the overall limits is further justified.

It is considered that an overall ceiling of EUR 1,000 million would provide the necessary
safeguard of coverage for any foreseeable disaster. This limit is more consistent with the
ceiling of the Oil Spill Liability Trust Fund established under federal laws in the United States
and with existing insurance practices as regards shipowners’ third party liability cover for oil
pollution, which may come into play if the limitation under the CLC is not applicable.

To conclude, the existing maximum limits of the CLC and Fund Conventions fall well short
of being adequate. In order to ensure decent compensation for European citizens following an
oil spill, and greater correspondence to the compensation of the US Oil Spill Liability Trust
Fund, the maximum amount should be set at EUR 1,000 million. The argument that such
accidents are likely to happen rarely cannot, in the view of the Commission, provide a
justification for setting limits under the costs of entirely conceivable oil pollution incidents
and thereby seriously compromising the adequate compensation of victims.

4.4

Responsibilities and liabilities

4.4.1

General

For any liability and compensation system to be considered adequate, it needs not only to
provide adequate compensation, but should also reflect a fair balance between the
responsibilities of the players concerned and their exposure to liability. In addition, a liability
system should, where possible, contribute to discouraging the stakeholders from deliberately
taking risks which could be devastating for the protection of lives and the environment.

The Commission considers that the international regime for liability and compensation of oil
pollution damage entails a number of shortcomings in this regard. The way the liability
system is construed it produces few incentives for the players to ensure that oil is only carried
on board tankers of an impeccable quality. As illustrated by the fact that ships in an appalling
condition continue to be employed for transportation of oil in Europe and elsewhere, neither
carriers nor cargo interests have sufficient disincentives to give up their intolerable practice of
deliberately providing and using low-quality tonnage for transport of oil at sea.

More particularly, those shortcomings include the following features, all of which are at odds
with more recent environmental liability developments at international and Community level:

4.4.2

The threshold for losing limitation right

The right of shipowners to limit their liability is practically unbreakable. As already indicated,
the owner of a ship does not lose the right to limit, unless it is proven that the damage
“resulted from his personal act or omission, committed with the intent to cause damage, or
recklessly and with knowledge that such damage would probably result”. Negligence or even
gross negligence on behalf of the owner does not meet these criteria and it is evident that in

56

most circumstances it would be very difficult to breach this threshold. While it is true that the
the
quoted phrase has its equivalents in some other maritime liability conventions,
Commission fails to see the justification for copying such an unassailable test for the loss of
the limitation right into the oil pollution liability regime. It considers that the extraordinary
risks involved in the transport of oil by sea need to be reflected in a greater exposure of the
shipowner to unlimited liability.

The problems of nearly unbreakable rights are further aggravated by the methods by which
the shipowner’s liability is established. It is solely calculated on the basis of the size of the
ship, ignoring factors such as the nature of cargo carried and the amount of oil spilled. The
owner of the Erika, for instance, could thus count on a right to limit his liability to some EUR
13 million, with a very limited risk of losing this right due to any potential conduct on his
part, whether before or during the incident.

In many environmental liability regimes developed in the 1990’s the trend has been to abolish
limitations of liability. This is equally true for the evolving Community environmental
liability regime, as outlined in the Commission’s White Paper on Environmental Liability
(COM(2000) 66 final). Normally, however, such unlimited liability rules are not coupled with
compulsory insurance requirements. That may not be a problem for land-based sources of
pollution, as the identification of and jurisdiction over the liable person normally will not
generate difficulties. In the case of maritime pollution the situation is different, as the polluter
may be of any nationality and otherwise difficult to trace. Compulsory insurance and a right
of direct action against the insurer are therefore instrumental if the protection of victims is to
be ensured. However, a potentially unlimited liability does not necessarily mean that the
whole liability needs to be covered by insurance. It is perfectly possible to envisage a system,
in which the insurance requirement is restricted to the limits of the strict liability, whereas the
fault-based unlimited liability is borne by the owner himself. A case in point in this regard is
the newly adopted Liability Protocol
to the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal13. It is further worth
noting that even within the international oil spill compensation system itself, a significantly
lower threshold for loss of right to limitation, that of ‘actual fault or privity’ on behalf of the
owner, was applied until 1996 through the 1969 CLC Convention. As far as is known, this
wording did not cause any major complications in the international oil pollution liability
regime throughout its 25 years of operation.

The Commission therefore considers that the current threshold for loss of limitation rights
should be lowered in order to bring it into line with other comparable regimes. At least proof
of gross negligence on behalf of the shipowner should trigger unlimited liability. Such a
measure would relate the exposure to liability more closely to the conduct of the shipowner
and would thus produce both preventive and punitive effects.

13

The 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary
Movements of Hazardous Wastes and their Disposal provides for strict liability up to certain minimum
limits, which shall be covered by insurance. Article 5 of the Protocol provides that without prejudice to
the strict liability “any person shall be liable for damage caused or contributed to by his lack of
compliance with the provisions implementing the Convention or by his wrongful intentional, reckless or
negligent acts or omissions.” Article 12(2) goes on by providing that “there shall be no financial limit
on liability under Article 5”.

57

4.4.3 Protection of other parties than the registered shipowner

The liability for oil pollution damage is channelled to the registered shipowner only. The
channelling of liability to one specified person has some advantages in providing clarity as to
thus facilitating the identification of the person to whom claims for
the liable party,
compensation should be made. Channelling of liability is also a device for avoiding multiple
insurance and hence contributes to higher theoretical levels of the liability to be insured.
However, the type of channelling which is provided under the CLC goes some steps further
by explicitly prohibiting claims against a number of other players (including notably,
operators, managers, charterers), who may well exercise as much control over the transport as
the registered owner of the ship. These persons are protected from any compensation claims
unless the damage “resulted from their personal act or omission, committed with the intent to
cause damage, or recklessly and with knowledge that such damage would probably result”
(which is the same test as that relating to the shipowner’s loss of the right to limit his
liability). Such protection of a number of key players implies that those persons can act within
an almost assured protection from compensation claims following an oil pollution incident.

The Commission considers that such protection of key players is counterproductive with
regard to its efforts of creating a sense of responsibility in all parts of the maritime industry.
Therefore, it is of the opinion that the prohibition of claiming compensation from a number of
key players involved in the transport of oil at sea should be removed from the CLC
Convention and that, to the extent protection of certain players is considered to be necessary
for the functioning of the system, the threshold should at least be lowered to the same as that
advocated for the shipowner above. As to the practicalities of such a measure, it can be noted
that here, too, the regime that applied until 1996, when the 1992 protocols entered into force,
provided for a much less rigorous channelling by only excluding the servants or agents of the
shipowner, and even for them only insofar as the damage was not due to their own fault or
privity.

4.4.4 Environmental damage

The type of damage covered by the existing CLC/IOPC Fund regime is mostly centred on
damage to or loss of property and economic losses. As regards environmental damage, it
covers preventive measures, which includes clean-up costs, and “reasonable measures of
reinstatement undertaken or to be undertaken”. The loss to the environment as such is thus not
subject to compensation, the principal reason being the difficulty involved in assessing and
quantifying this type of damage.

The Commission acknowledges that there are problems involved in covering damage to the
environment per se and considers that the assessment of such damage should be quantifiable,
verifiable and predictable in order to avoid a wide variety of interpretations between the
various parties to the regime. However, consistency with compensation of environmental
damage from other sources of pollution is equally important. From a Community perspective
it is not justifiable that compensation of environmental damage varies widely depending on
whether the pollutant was an oil tanker, another ship or a factory on shore14. In the context of
the forthcoming proposal for a Directive on environmental liability, the Commission is
presently undertaking a study on the evaluation of environmental damage, which could

14

In the Commission’s White Paper on environmental liability, the Commission indicated its intention to
cover ‘damage to biodiversity’ in a future instrument. This type of damage would relate to significant
damage in EC-protected natural resources in the Natura 2000 areas. In this context a system for valuing
natural resources is considered necessary (paragraph 4.5.1 of COM (2000) 66 final).

58

provide useful input for the assessment of damage in that Directive. Without prejudice to any
future proposal to be made in the context of a general Community-wide environmental
liability regime, the Commission considers that the existing coverage of reinstatement costs
could be expanded to include at least costs for assessing the environmental damage of the
incident as well as costs for the introduction of components of the environment equivalent to
those that have been damaged, as an alternative in case reinstatement of the polluted
environment is not considered feasible15. The Commission’s position will be reconsidered in
light of the forthcoming proposal concerning a Community-wide environmental liability
regime.

4.5 Conclusion

The assessment above leads the Commission to conclude that the international liability and
compensation regime satisfies the first assessment criterion while entailing important
shortcomings as to the two others. The importance of the shortcomings is further heightened
by the fact that the international regime explicitly prohibits any additional compensation
claims to be made outside the convention regime. This means that it would be very difficult
for the Community to impose additional individual liabilities on shipowners or any of the
protected parties without being in conflict with the international conventions. In case such
individual liabilities were introduced at Community level, Member States would thus have to
denounce the conventions before being in a position to implement any such Community rules.

The Commission recognises that an international liability and compensation regime provides
important benefits, both in terms of uniformity and straightforwardness and in terms of
sharing the costs for oil spills, wherever they occur, among oil receivers world-wide. It
therefore concludes that introducing measures that would necessitate the denunciation of the
international regime by the Member States would be counterproductive at this stage. As
outlined in its Report for the Biarritz European Council (COM (2000) 603 final),
the
Commission takes the view that considerable efforts need to be put
in amending the
conventions along the lines outlined above, while addressing the insufficiency of the existing
limits as an immediate priority at Community level.

5.

Proposed action

A series of measures are needed in order to improve the existing liability and
compensation regime. Some of them require Community measures, while others may
be addressed within the international framework.

5.1 Creating a supplementary compensation fund in Europe

Raising the compensation limits of the existing system is the most pressing concern,
as it is the one most directly concerned with the adequate compensation of victims of
an oil spill. In order to remedy this, the Commission proposes to complement the
regime through the creation of a European
existing international
fund, which would compensate internationally valid
supplementary ‘third-tier’

two-tier

15

Along these lines, Article 2.8 of the 1993 Council of Europe Convention on Civil Liability for Damage
Resulting from Activities Dangerous to the Environment defines ‘measures of reinstatement’ in the
following way: “any reasonable measures aiming to reinstate or restore damaged or destroyed
components of the environment, or to introduce, where reasonable, the equivalent of these components
into the environment. Internal law may indicate who will be entitled to take such measures.”

59

claims relating to oil spills in European waters which exceed the limit of the IOPC
Fund.

The Fund for Compensation for Oil Pollution in European waters (the COPE Fund) will thus
‘top up’ the financial means of the IOPC Fund in cases where claims that are deemed to be
valid under the latter regime cannot be fully compensated due to insufficient resources.
Compensation by the COPE fund would be based on the same principles and rules as the
current IOPC Fund system, but subject to a ceiling which is deemed to be sufficient for any
foreseeable disaster, i.e. EUR 1,000 million.

The COPE fund will be financed by European oil receivers according to procedures similar to
the combined financial means of the
those of contributions to the IOPC Fund. Thus,
contributions by European oil receivers will be available to cover pollution damage in any
Member State. The COPE Fund is intended to provide a guarantee for European citizens that
they will be adequately compensated, until the levels of the international regime are set at a
sufficiently high level. Apart from providing a five-fold increase of available compensation,
the funds of the COPE Fund may also be used for accelerating the full compensation of
victims of a European oil spill. With the help of these means claims may be compensated in
full as soon as their eligibility has been confirmed, without awaiting the outcome of the time-
consuming process of establishing the final costs of the accident and the resulting prorating
problem in the international regime, described in section 4.2. In this way victims may receive
their full compensation at an earlier stage, while the financial settlement at the end of the case,
once the total costs are known, would be settled bilaterally between the IOPC Fund and the
COPE Fund. By its nature the COPE Fund would only be activated once a spill that exceeds,
or threatens to exceed, the international maximum limits has occurred in EU waters.

5.2 Addressing the other shortcomings in the international system through the IMO

In order to achieve a closer link between exposure to liability and the conduct of the various
parties concerned, the Commission considers that a thorough overhaul of the existing regime
should be undertaken in parallel.

The rectification of the shortcomings described in section 4 can, in the judgement of the
Commission, be addressed within the international community and, indeed, the first steps in
this direction have already been taken. The Commission considers that this work should
ultimately result in amendments to the existing legal instruments introducing significantly
higher limitation amounts as well as advancement regarding the shortcomings indicated in
section 4.4 above, while still safeguarding the ‘user-friendliness’ of the system with regard to
claimants seeking compensation.

The Commission therefore requests the Council to advance this matter as soon as possible
with a view to achieving a thorough review of the international liability and compensation
regime. More particularly,
to the International
Maritime Organization or the IOPC Fund, as appropriate, with a view to achieving the
following amendments to the Liability Convention:

the Community shall submit a request

–

The liability of the shipowner shall be unlimited if it
pollution damage resulted from gross negligence on his part;

is proved that the

60

–

–

The prohibition of compensation claims for pollution damage against
the
charterer, manager and operator of the ship shall be removed from Article
III.4(c) of the Liability Convention;

Compensation of damage caused to the environment should be reviewed and
widened in light of comparable compensation regimes established under
Community law.

Apart from the measures to improve the existing international oil pollution liability regime, an
advancement regarding the regime for liability and compensation for hazardous and noxious
substances is necessary. An international convention on this subject was adopted in 1996 but
has not been ratified by any Member State and is not in force16. The sinking of the chemical
tanker Ievoli Sun off the Channel Islands on 31 October 2000, was the latest incident to
highlight
the highly unsatisfactory regulatory situation regarding the liability and
compensation of hazardous substances other than oil. This issue needs to be addressed as a
matter of priority at international and European level.

If efforts to achieve the appropriate improvements to the international
liability and
compensation rules fail, the Commission will make a proposal for adopting Community
legislation introducing a Europe-wide maritime pollution liability and compensation regime.

5.3 Ensuring, through the Member States legislation that grossly negligent conduct is subject

to penalties

The Commission recognises that liability rules as such have limits as regards their effects on
the individual responsibility of the players involved in oil pollution incidents. This is
particularly so if the liabilities are insurable, which is normally the case.

To complement the measures in the area of liability and compensation described above, the
Commission therefore proposes, as announced in paragraph 5.b.iv) in its Communication on
the safety of the seaborne oil trade (COM(2000) 142 final), to include in this Regulation an
article on financial penalties or sanctions for established grossly negligent behaviour on
behalf of any person involved in the transport of oil at sea. This measure is of a penal nature
and hence not related to the compensation of damage. Rather it is intended to ensure a
Community-wide application of a deterrent sanction for those involved in the transport of oil
by sea.

16

The following States have signed the 1996 International Convention on Liability and Compensation for
Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea: Canada,
Denmark, Finland, Germany, the Netherlands, Norway, Sweden and the United Kingdom. Only the
Russian Federation has ratified it.

61

JUSTIFICATION FOR A REGULATION

The Treaty provides for the establishment of a common transport policy and the measures
envisaged to implement such a policy include measures to improve safety and environmental
protection in maritime transport. The adequate compensation of victims of maritime oil spills
and the introduction of sanctions for gross negligence in the transport of oil at sea form an
integral part of such measures.

While there are international conventions regulating liability and compensation of oil spills, to
which all relevant Member States are parties, or will be parties in the near future, recent
accidents, most notably the sinking of the Erika in 1999, have highlighted the insufficiency of
those mechanisms to ensure that the victims are adequately compensated.

The Regulation involves the setting up of a Fund for Compensation of Oil Pollution in
European waters (the COPE Fund). Only Member States which have a maritime coastline and
ports will be directly concerned by the fund. Austria and Luxembourg would only be
indirectly and remotely concerned by this part of the proposal.

Given that a relatively well-functioning international system for compensating oil spills
already exists, the most efficient solution to raise the compensation limits is to build upon and
complement the international system, thereby avoiding duplication of work and excessive
administration. The COPE Fund is therefore largely based upon procedures and assessment
carried out within the international system. It
is inferred that a certain exchange of
information between the proposed European Fund and the existing International Oil Pollution
Compensation Fund, either on a more permanent or on a case by case basis, will be necessary
for the effective functioning of the system.

An oil spill can cause potentially enormous damage. In accidents where the international
compensation limits are exceeded, victims will not, as far as the existing international regime
is concerned, be fully compensated. Community-wide action in this field will greatly improve
the possibilities to fully compensate victims of a European oil spill by creating a Fund to
which oil receivers in all Member States concerned contribute. The available amount of
maximum compensation will be raised from the current EUR 200 million to EUR 1,000
million. In addition, the costs of oil spills in European Union waters would be spread among
all EU coastal States.

The concrete added value of the proposed measure is thus a five-fold increase of the
compensation amount available for compensation compared to existing amounts, a much
stronger guarantee that adequate compensation actually will be available and a sharing of the
risk of oil spills between all coastal Member States. Another benefit is that the additional
funding can be used for expediting the compensation of victims of European oil spills in the
International Oil Pollution Compensation Fund, by providing advance payments as soon as
the claims have been assessed and approved by the IOPC Fund.

The creation of a compensation fund for oil spills requires a regulatory measure. The parties
liable to contribute to the fund, i.e. European oil receivers, are unlikely to contribute with
potentially large sums unless they are legally required to do so. In addition, requirements on
contribution to, and compensation payments of, the fund are not enforceable in a unified and
harmonised way unless they are identical for each Member State and each entity involved.
Harmonised rules are therefore instrumental for ensuring uniform implementation of the
obligations. Hence it is necessary to ensure uniform application of these provisions in the
form of a Regulation.

62

CONTENT OF THE REGULATION

The proposed Regulation complements the existing international two-tier regime on liability
and compensation for oil pollution damage by tankers, provided by the CLC and Fund
Conventions, by creating a European supplementary fund, the COPE Fund, to compensate
victims of oil spills in European waters. The COPE Fund will only compensate victims whose
claims have been considered justified, but who still have been unable to obtain full
compensation by the international regime, due to insufficient limits of compensation.

Compensation from the COPE fund would thus be based on the same principles and rules as
the current international fund system, but subject to a ceiling which is deemed to be sufficient
for any foreseeable disaster, i.e. EUR 1,000 million.

The COPE fund will be financed by European oil receivers. Any person in a Member State
who receives more than 150.000 tonnes of crude oil and/or heavy fuel oil per year will have to
pay its contribution to the COPE Fund, in a proportion which corresponds to the amounts of
oil received. In this way, the oil industry, and indirectly perhaps the consumers of oil
products, rather than the taxpayers, would bear the costs of expensive oil spills in Europe.

The COPE Fund will only be activated once an accident that exceeds, or threatens to exceed,
the maximum limit provided by the IOPC Fund has occurred in EU waters. If no such
accident occurs, the COPE Fund will not require any contributions to be made.

The Commission will represent the COPE Fund. Any major decision relating to the operation
of the COPE Fund will be taken by the Commission, assisted by a COPE Fund Committee,
which is a management committee under Article 4 of Council Decision 1999/468/EC.

The proposed Regulation finally includes an article introducing financial penalties for grossly
negligent behaviour on behalf of any person involved in the transport of oil at sea.

63

SPECIAL CONSIDERATIONS

Article 1

The purpose of the Regulation is to ensure adequate compensation of pollution damage in EU
waters resulting from the incidents involving oil
tankers. The bulk of the Regulation
consequently addresses what the Commission considers to be the most immediate concern in
the current international oil pollution liability and compensation regime, i.e. the insufficiency
of the compensation limits. Other shortcomings of the system will be addressed through other
means, at least
initially, within the international framework. A separate purpose of the
Regulation is the establishment of a financial penalty for intentional or grossly negligent acts
or omissions leading to oil pollution incidents, as laid down in Article 10.

Article 2

This article defines the geographical scope of application of the Regulation. It covers
pollution damage in an area of up to 200 nautical miles from the coastline. The scope
corresponds to that applicable in the international regime, which is essential given the very
close link between the Regulation and that regime.

Article 3

Article 3 contains the definitions of the key concepts of the Regulation, which in essence
duplicate the most relevant definitions of the International Convention on Civil Liability for
Oil Pollution Damage, 1992 and the International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, 1971 as amended by the 1992
Protocol thereto.

Some of these definitions are arguably unnecessary, given that the close link between the
proposed measure and the international compensation system is laid down elsewhere in the
Regulation. For reasons of legal clarity, however, the international definitions relating to the
responsibilities of the main involved parties have been replicated in Article 3.

Article 4

Article 4 establishes the COPE Fund and sets out its main responsibilities.

Article 5

This article regulates the circumstances as to when and how the COPE Fund shall pay
compensation and is thus one of the key articles of the Regulation.

In paragraph 1 and 2 the close link to the International Oil Pollution Compensation (IOPC)
Fund is established. In essence this link means that compensation by the COPE Fund will
only come into question once victims of a tanker spill in European waters have had their
claims approved by the IOPC Fund, but have been unable to recover their full compensation
because the totality of valid claims exceed the amount of compensation available under the
Fund Convention.

64

Paragraph 3 ensures that any decision to pay compensation through the COPE Fund is
approved by the Commission, assisted by the COPE Fund Committee. If the Commission is
unable to approve claims, no compensation will be paid.

Normally, however, it is envisaged that claimants who meet the criteria of paragraphs 1 and 2
will be compensated by the COPE Fund. The main exception is provided by paragraph 4,
which allows the Commission a certain discretion as to the extent to which expenses by those
most directly involved in the accident will be compensated. This is a mechanism to ensure
that a link between the actual conduct of those involved and their right to compensation is
established. On the other hand, it is considered important to preserve the possibility to
compensate claims by the persons most involved in the incident. Otherwise shipowners, cargo
owners and other crucial parties, who normally are well placed to act immediately after an
incident, would be discouraged from contributing to the mitigation of damage.

Paragraph 5 sets the maximum compensation limit of the COPE Fund at EUR 1,000 million,
including the share paid through the CLC and Fund Conventions. This is deemed sufficient to
cover the full compensation of any foreseeable accident
involving an oil tanker and it
corresponds to the current maximum level of compensation provided by the Oil Spill Liability
Trust Fund in the USA.

Paragraph 6 provides that in the – highly unlikely – event that this maximum of EUR 1,000
million is exceeded, compensation shall be ‘pro-rated’. In practice this would mean that each
claimant would receive only a given percentage of its established claims. The percentage
would be the same for all claimants.

Article 6

Article 6 deals with the income side of the COPE Fund. Contributions to the COPE Fund will
only be collected following an incident in EU waters, which is so grave that it exceeds or
threatens to exceed the maximum compensation limits of the IOPC Fund.

Confirming existing practices for contribution to the IOPC Fund, which have proved to be
workable, the Regulation establishes a symmetry between the persons liable to contribute to
the IOPC Fund and those liable to contribute to the COPE Fund. The contribution system is
based on the amount of oil received by each receiver and the contribution to the COPE Funds
is thus proportionate to the quantities of oil received. Contributions are paid directly by the oil
receivers to the Commission.

There is a relatively short time limit as to the collection of contributions, which is justified in
view of the importance to have the necessary funding available as soon as possible after the
accident has occurred and the assessment of claims for that accident has been undertaken by
the IOPC Fund.

In order to ensure that money is not illegitimately collected by the COPE Fund, paragraph 9
provides that any potential surplus which has been levied for a particular incident and has not
been used for the compensation for damage in relation to that incident or any immediately
related purpose, shall be returned to the contributors.

Paragraph 10 provides that Member States which do not fulfil their obligations as regards the
COPE Fund shall be liable to compensate the COPE Fund for any loss caused thereby.

65

Article 7

The right of subrogation by the COPE Fund is laid down in Article 7. This provision provides
for the possibility of the COPE Fund recovering at least parts of its expenses through recourse
action against various parties involved in the incident, to the extent such action is not
prohibited in the international conventions.

Article 8

Article 8 provides that the representation of the COPE Fund will be taken on by the
Commission. It imposes a number of specific tasks for the Commission in this respect which
are necessary for carrying out the functions of the Fund.

Article 9

The COPE Fund Committee will assist the Commission in operating the Fund, in the sense
that the main decisions relating to the operation of the COPE Fund will be made by the
Commission in accordance with established comitology procedures. The COPE Fund
Committee is a management committee under Article 4 of Council Decision 1999/468/EC17.
The article fixes the period for the Council to act to one month, given the need for urgent
decisions by the COPE Fund Committee.

Article 10

Article 10 provides for financial penalties or sanctions for established grossly negligent
conduct on behalf of any person involved in the transport of oil at sea. This measure is of a
penal nature and hence not related to the compensation of damage. By covering any incident
involving oil pollution at sea, this article, unlike the rest of the Regulation, covers oil
pollution from any ship, whether or not an oil tanker. The exact nature of the sanctions to be
employed for
is left
unspecified in order to allow Member States to apply the type of sanctions which best fits
their legal system.

this purpose (criminal, administrative,

‘punitive damages’ etc.)

Article 11

No comments.

17

Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers
conferred on the Commission, OJ L 184, 17.07.1999, p. 23.

66

2000/0326 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the establishment of a fund for the compensation of oil pollution damage in European
waters and related measures

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles
80(2) and 175(1) thereof,

Having regard to the proposal from the Commission18,

Having regard to the opinion of the Economic and Social Committee19,

Having regard to the opinion of the Committee of the Regions20,

Acting in accordance with the procedure laid down in Article 251 of the Treaty21,

Whereas:

(1)

(2)

(3)

(4)

There is a need to ensure that adequate compensation is available to persons who
suffer damage caused by pollution resulting from the escape or discharge of oil from
tankers in European waters.

The international regime for liability and compensation of oil pollution damage from
ships, as established by the International Convention on Civil Liability for Oil
Pollution Damage, 1992 and the International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution Damage, 1971 as amended by
the 1992 Protocol thereto, provide some important guarantees in this respect.

The maximum compensation afforded by the international
insufficient to fully cover the costs of foreseeable oil tanker incidents in Europe.

regime is deemed

A first step to improve the protection of victims in case of an oil spill in Europe is to
considerably raise the maximum amount of compensation available for such spills.
regime through the
This can be done by complementing the international
establishment of a European Fund which compensates claimants who have been
unable to obtain full compensation under the international compensation regime,
because the totality of valid claims exceed the amount of compensation available
under the Fund Convention.

18

19

20

21

OJ C , , p. .
OJ C , , p. .
OJ C , , p. .
OJ C , , p. .

67

(5)

(6)

(7)

(8)

(9)

(10)

(11)

A European oil pollution compensation fund needs to be based on the same rules,
principles and procedures as those of the IOPC Fund in order to avoid uncertainty for
victims seeking compensation and in order to avoid ineffectiveness or duplication of
work carried out within the IOPC Fund.

In view of the principle that the polluter should pay, the costs of oil spills should be
borne by the industry involved in the carriage of oil by sea.

Harmonised Community measures to provide additional compensation for European
oil spills will share the costs of such oil spills between all coastal Member States.

A Community-wide compensation Fund (COPE Fund) which builds upon the existing
international regime is the most efficient way to attain these objectives.

The COPE Fund shall have the possibility to reclaim its expenses from parties
involved in the oil pollution incidents, to the extent that this is permissible under
international law.

Since the measures necessary for
this Regulation are
management measures within the meaning of Article 2 of Council Decision
1999/468/EC of 28 June 1999 laying down the procedures for the exercise of
implementing powers conferred on the Commission22, they should be adopted by use
of the management procedure provided for under Article 4 of that Decision.

the implementation of

Since the adequate compensation of victims of oil spills does not necessarily provide
sufficient disincentives for individual operators in the seaborne oil
trade to act
diligently, a separate provision is needed providing for financial penalties to be
imposed on any person who has contributed to an incident by his wrongful intentional
or grossly negligent acts or omissions.

(12) A Regulation of the European Parliament and the Council

in view of the
subsidiarity principle, the most appropriate legal instrument as it is binding in its
entirety and directly applicable in all Member States and therefore minimises the risk
of divergent application of this instrument in Member States.

is,

(13) A revision of the existing international oil pollution liability and compensation regime
should be undertaken in parallel to the measures contained in this Regulation in order
to achieve a closer link between the responsibilities and actions of the players involved
in the transport of oil by sea and their exposure to liability. More particularly, the
liability of the shipowner should be unlimited if it is proved that the pollution damage
resulted from gross negligence on his part, the liability regime should not explicitly
protect a number of other key players involved in the transport of oil at sea and the
compensation of damage caused to the environment as such should be reviewed and
widened in light of comparable compensation regimes established under Community
law.

22

OJ L 184, 17.7.1999, p. 23.

68

HAVE ADOPTED THIS REGULATION:

Article 1
Objective

The purpose of this regulation is to ensure adequate compensation of pollution damage in EU
waters resulting from the transport of oil by sea, by complementing the existing international
liability and compensation regime at Community level, and to introduce a financial penalty to
be imposed on any person who has been found to have contributed to an oil pollution incident
by his wrongful intentional or grossly negligent acts or omissions.

Article 2
Scope

This Regulation shall apply:

1.

to pollution damage caused:

(a)

in the territory, including the territorial sea, of a Member State, and

(b)

in the exclusive economic zone of a Member State, established in accordance
with international law, or, if a Member State has not established such a zone, in
an area beyond and adjacent to the territorial sea of that State determined by
that State in accordance with international law and extending not more than
200 nautical miles from the baselines from which the breadth of its territorial
sea is measured;

2.

to preventive measures, wherever taken, to prevent or minimize such damage.

Article 3
Definitions

For the purpose of this Regulation, the following definitions shall apply:

1.

2.

3.

4.

"Liability Convention" shall mean the International Convention on Civil Liability for
Oil Pollution Damage, 1992.

"Fund Convention" shall mean the International Convention on the Establishment of
an International Fund for Compensation for Oil Pollution Damage, 1971 as amended
by the 1992 Protocol thereto.

“Oil” shall mean means any persistent hydrocarbon mineral oil such as crude oil, fuel
oil, heavy diesel oil and lubricating oil, whether carried on board a ship as cargo or in
the bunkers of such a ship.

"Contributing Oil" shall mean crude oil and fuel oil as defined in points (a) and (b)
below:

(a)

"Crude Oil" shall mean any liquid hydrocarbon mixture occurring naturally in
the earth whether or not treated to render it suitable for transportation. It also
includes crude oils from which certain distillate fractions have been removed

69

(sometimes referred to as "topped crudes") or to which certain distillate
fractions have been added (sometimes referred to as "spiked" or "reconstituted"
crudes).

(b)

"Fuel Oil" shall mean heavy distillates or residues from crude oil or blends of
such materials intended for use as a fuel for the production of heat or power of
a quality equivalent
to the "American Society for Testing and Materials'
Specification for Number Four Fuel Oil (Designation D 396-69)", or heavier.

"Ton", in relation to oil, shall mean a metric ton.

"Terminal installation" shall mean any site for the storage of oil in bulk which is
including any facility
capable of receiving oil from waterborne transportation,
situated off-shore and linked to such site.

"Incident" shall mean any occurrence, or series of occurrences having the same
origin, which causes pollution damage or creates a grave and imminent threat of
causing such damage. Where an incident consists of a series of occurrences, it shall
be treated as having occurred on the date of the first such occurrence.

"Person" shall mean any individual or partnership or any public or private body,
whether corporate or not, including a State or any of its constituent subdivisions.

“IOPC Fund” shall mean the fund established by the Fund Convention.

5.

6.

7.

8.

9.

Article 4
Establishment of a Fund for Compensation for Oil Pollution in European waters

A fund for Compensation for Oil Pollution in European waters (hereinafter ‘the COPE Fund’)
is hereby established with the following aims:

(a)

to provide compensation for pollution damage to the extent that the protection
afforded by the Liability Convention and the Fund Convention is inadequate; and

(b)

to give effect to the related tasks set out in this Regulation.

Article 5
Compensation

1.

2.

The COPE Fund shall pay compensation to any person who is entitled to
compensation for pollution damage under the Fund Convention but who has been
unable to obtain full and adequate compensation under that Convention, because the
totality of valid claims exceed the amount of compensation available under the Fund
Convention.

The assessment as to whether a person is entitled to compensation under the Fund
Convention shall be determined under the terms of the Fund Convention and carried
out in accordance with the procedures foreseen therein.

70

3.

4.

5.

6.

1.

2.

3.

4.

5.

No compensation shall be paid by the COPE Fund until the relevant assessment
referred to in paragraph 2 is approved by the Commission, acting in accordance with
Article 9 paragraph 2.

the Commission may decide not

to pay
Notwithstanding paragraphs 1 and 2,
compensation to the shipowner, manager or operator of the ship involved in the
incident or to their representatives. Similarly, the Commission may decide not to
compensate any person in a contractual relationship with the carrier in respect of the
carriage during which the incident occurred or any other person directly or indirectly
involved in that carriage. The Commission, acting in accordance with Article 9
paragraph 2, shall establish which claimants, if any, fall under these categories and
shall decide accordingly.

The aggregate amount of compensation payable by the COPE Fund shall in respect
of any one incident be limited, so that the total sum of that amount and the amount of
compensation actually paid under the Liability Convention and the Fund Convention
for pollution damage within the scope of application of this regulation shall not
exceed EUR 1,000 million.

Where the amount of established claims exceeds the aggregate amount of
compensation payable under paragraph 5, the amount available shall be distributed in
such a manner that the proportion between any established claim and the amount of
compensation actually recovered by the claimant under this regulation shall be the
same for all claimants.

Article 6
Contributions by oil receivers

Any person who receives contributing oil
in total annual quantities exceeding
150,000 tons carried by sea to ports or terminal installations in the territory of a
Member State and is liable to contribute to the IOPC Fund shall be liable to
contribute to the COPE Fund.

Contributions shall only be collected following an incident falling under the scope of
this regulation which exceeds or threatens to exceed the maximum compensation
limits of the IOPC Fund. The total amount of contributions to be levied for each such
incident shall be decided by the Commission in accordance with Article 9, paragraph
2. On the basis of that decision, the Commission shall calculate for each person
referred to in paragraph 1 the amount of his contribution, on the basis of a fixed sum
for each ton of contributing oil received by such persons.

The sums referred to in paragraph 2 shall be arrived at by dividing the relevant total
amount of contributions required by the total amount of contributing oil received in
all Member States in the relevant year.

Member States shall ensure that any person who receives contributing oil within its
territory in such quantities that he is liable to contribute to the COPE Fund appears
on a list to be established and kept up to date by the Commission in accordance with
the subsequent provisions of this article.

Each Member State shall communicate to the Commission the name and address of
any person who in respect of that State is liable to contribute to the COPE Fund

71

6.

7.

8.

9.

pursuant to this article, as well as data on the relevant quantities of contributing oil
received by any such person during the preceding calendar year.

For the purposes of ascertaining who are, at any given time, the persons liable to
contribute to the COPE Fund and of establishing, where applicable, the quantities of
oil to be taken into account for any such person when determining the amount of his
contribution, the list shall be prima facie evidence of the facts stated therein.

The contributions shall be made to the Commission and the collection shall be fully
completed no later than one year after the decision to levy the contributions has been
made by the Commission.

The contributions referred to in this article shall be used solely for the purpose of
compensating pollution damage as referred to in Article 5.

Any potential surplus of contributions which have been levied for a particular
incident and have not been used for the compensation for damage in relation to that
incident or any immediately related purpose, shall be returned to the person who
made the contribution, no later
the
compensation proceedings of that incident.

than 6 months after

the completion of

10.

Where a Member State does not fulfil its obligations relating to the COPE Fund and
this results in a financial loss for the COPE Fund, that Member State shall be liable
to compensate the COPE Fund for such loss.

Article 7
Subrogation

The COPE Fund shall, in respect of any amount of compensation paid by it in accordance
with Article 5, acquire by subrogation the rights that the person so compensated may enjoy
under the Liability Convention or the Fund Convention.

Article 8
Representation and management of the COPE Fund

1.

2.

The Commission shall be the representative of the COPE Fund. In this respect, it
shall perform the tasks presented by this Regulation or otherwise necessary for the
proper operation and functioning of the COPE Fund.

The following decisions relating to the operation of the COPE Fund shall be made by
the Commission, acting in accordance with the procedure in Article 9 paragraph 2:

a.

b.

c.

fixing the contributions to be levied in accordance with Article 6;

approving the settlement of claims in accordance with Article 5.3 and taking
decisions in respect of the distribution among claimants of the available
amount of compensation in accordance with Article 5.6;

taking decisions in respect of payment to claimants referred to in Article 5.4;
and

72

d.

determining the terms and conditions according to which provisional payments
in respect of claims shall be made with a view to ensuring that victims are
compensated as promptly as possible.

Article 9
Committee

The Commission shall be assisted by a COPE Fund Committee composed of
representatives of the Member States and chaired by the representative of the
Commission.

Where reference is made to this paragraph, the management procedure laid down in
Article 4 of Decision 1999/468/EC shall apply, in compliance with Articles 7 and 8
thereof.

The period provided for in Article 4 paragraph 3 shall be one month.

Article 10
Penalties

Member States shall lay down a system for financial penalties to be imposed on any
person who has been found by a court of law to have contributed by his wrongful
intentional or grossly negligent acts or omissions to an incident causing or
threatening to cause oil pollution in an area referred to in Article 2, paragraph 1.

The penalties awarded in accordance with paragraph 1 shall not affect the civil
liabilities of the parties concerned as referred to in this Regulation or elsewhere and
shall be unrelated to the damage caused by the incident. They shall be set at a level
high enough to dissuade the person from committing or persisting in an infringement.

Penalties referred to in paragraph 1 shall not be insurable.

There shall be a right for the defendant to appeal against penalties referred to in
paragraph 1.

1.

2.

1.

2.

3.

4.

Article 11
Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Communities. It shall be applicable on [12 months after
its entry into force date].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

73

FINANCIAL STATEMENT

1.

TITLE OF OPERATION

Proposal for a Regulation of the European Parliament and of the Council on the establishment
of a fund for the compensation of oil pollution in European waters and related measures

2.

BUDGET HEADING(S) INVOLVED

B2-702: Preparation, evaluation and promotion of transport safety

3.

LEGAL BASIS

Safety in maritime transport and environmental protection: Article 80(2) and 175(1)
of the Treaty.

4.

4.1

DESCRIPTION OF OPERATION

General objective

Providing adequate compensation for victims of pollution damage caused by oil
tankers in European waters and creating a deterrent financial penalty for persons
involved in the provision and use of substandard ships.

4.2

Period covered and arrangements for renewal

Indefinite

5.

5.1

5.2

5.3

CLASSIFICATION OF EXPENDITURE OR REVENUE

Non-compulsory expenditure

Differentiated appropriations

Type of revenue involved: Earmarked revenue (contributions to the COPE Fund)

6.

TYPE OF EXPENDITURE OR REVENUE

Operational and administrative expenses for the follow-up and monitoring of the
implementation of the Regulation.

The main part of the operational expenditure (payment of compensation to victims of
European oil spills) and revenue (contributions by oil receivers) of the COPE Fund,
will pass through the budget as earmarked revenue. The operation of the COPE Fund
is designed in such a way that the revenues will be equal to the expenditure.

74

In addition, some expenses may follow from meetings with experts of the industry
involved and the carrying out a study on the impact, implementation and design of a
potential European oil pollution liability and compensation regime.

7.

7.1

FINANCIAL IMPACT

Method of calculating total cost of operation (relation between individual and
total costs)

The individual costs consist of a yearly returning amount of 5.000
for organising,
on average, once a year a 1-day meeting with experts of the industry involved. In
the Commission services intend to contract a study on the impact,
addition,
implementation and design of a potential European oil pollution liability and
compensation regime. The cost for such a study is estimated to be 100.000

€
.

€

7.2

Operational expenditure for studies, experts etc. included in Part B of the
budget

Commitment appropriations EUR million (at current prices)

Year n

n+1

n+2

n+3

n+4

– Studies

0,1

n+5
and
subs.
Years

Total

0,1

– Meetings of experts23

0,005

0,005

0,005

0,005

0,005

0,025

– Information and
publications

Total

0,105

0,005

0,005

0,005

0,005

0,125

23

Costs satisfying the criteria in the Commission communication of 22.4.1992 (SEC(92) 769).

75

7.3

Schedule of commitment and payment appropriations

year n

N+1

n+2

n+3

n+4

EUR million

Total

n+5
and
subs.
years

Commitment appropriations

0,105

0,005

0,005

0,005

0,005

0,125

Payment appropriations

year n
n+1
n+2
n+3
n+4
n+5
and subs. Years

Total

0,105

0,005

0,005

0,105
0,005
0,005
0,005
0,005

0,005

0,005

0,105

0,005

0,005

0,005

0,005

0,125

8.

FRAUD PREVENTION MEASURES

Control of adherence to the procedures for inviting Member States’ experts to
the COPE Fund Committee meetings.

9.

9.1

ELEMENTS OF COST-EFFECTIVENESS ANALYSIS

Specific and quantified objectives; target population

Establishment of a Fund for Compensation for Oil Pollution in European
waters (the COPE Fund) to ensure adequate compensation for victims of
pollution damage caused by oil tankers in European waters.

Establishment of a system for financial penalties to be imposed on any person
who has been found by a court of law to have contributed by his wrongful
intentional or grossly negligent acts or omissions to an incident causing or
threatening to cause oil pollution in European waters.

No Community financial contribution is provided for in this proposal.

The COPE Fund will be financed by oil receivers in Europe. The beneficiaries
of this Fund are victims who have suffered damage following a European oil
spill, but have been unable to obtain full compensation by the international
liability and compensation regime, due to insufficient limits of compensation.
Any contributions which have been collected and have not been used for this
purpose will be returned to the oil receivers.

9.2

Grounds for the operation

The advantage of establishing an oil pollution compensation fund at
Community level is a five-fold increase of the compensation amount available
for compensation compared to existing amounts, a strong guarantee that

76

adequate compensation actually will be available and a sharing of the risk of
oil spills between all coastal Member States.

The advantage of building upon procedures and practices of the existing
international compensation regime is that a parallel organisation duplicating
the work of the international bodies can be avoided.

The spin-off and multiplier effects expected are that
the Community
framework could be recognised world-wide and serve as a trigger for action at
to increase the levels of compensation within the
international
international liability and compensation regime for oil pollution established by
the International Maritime Organization.

level

in which the costs of

The main factor of uncertainty is the rate at which accidents that will trigger
compensation by the COPE Fund will occur (i.e. accidents causing damage in
EU waters,
total claims exceed the maximum
compensation available under the international system, i.e. EUR 200 million).
Such accidents are not likely to happen frequently, as only few accident have
threatened to exceed the maximum limits have occurred during the 22 years of
operation of the IOPC Fund. In addition, the maximum limits were more than
doubled in 1996 when the 1992 Protocols to the CLC and Fund Conventions
took effect. Furthermore, recent steps have been taken to increase the available
maximum international compensation by another 50% from EUR 200 million
to EUR 300 million. In light of experience, only one tanker incident so far, the
Erika in December 1999, would have triggered the COPE Fund, had it been in
place. On the other hand, the type and quantity of oil released in the Erika were
not exceptional and the repetition of a similar accident is entirely conceivable.

9.3

Monitoring and evaluation of the operation

The key impact indicator as regards the COPE Fund, is the frequency by which
it is activated and the extent to which it can provide adequate compensation to
victims of oil spill. Reporting by Member States will be considered when
measuring the performance of Member States in employing penalties for gross
negligence on behalf of any person involved in the transport of oil by sea.

The frequency at which evaluations are needed depends on the activities of the
COPE Fund. Only after an accident triggering COPE Fund action has been
settled will there be a need for evaluation.

As regards the penalties for persons involved in accidents in European waters,
however, more frequent evaluations are needed. They will consist of regular
reporting by Member States of the implementation of Article 10 of the
Regulation.

10.

ADMINISTRATIVE EXPENDITURE (SECTION III, PART A OF THE BUDGET)

10.1

Effect on the number of posts

The impact of this proposal on Part A of the budget is generally speaking limited.
Once an oil spill triggering the COPE Fund occurs, however, even the Commission
staff will be considerably affected, through various tasks involved in representing the
Fund, preparing meetings of the COPE Fund Committee, fact-finding, co-ordination
with the IOPC Fund etc. Given that such peaks in activity are likely to occur

77

relatively rarely, the overall impact on the number of post, nevertheless, remains
limited.

Type of post

Staff to be assigned to managing
the operation

Source

Duration

Permanent
posts

Temporary
posts

Additional
resources

Existing
resources in
the DG or
department
concerned

A
B
C

Officials or
temporary staff

Other resources

Total

0,5
-
-

-

0,5

0,5
-
-

-

0,5

1,0
-
-

-

1,0

-
-
-

-

-

10.2

Overall financial impact of additional human resources

EUR 108.000 per year

10.3

Increase in other administrative expenditure as a result of the operation

Indefinite
-
-

-

Indefinite

EUR

Budget heading

Amounts

Method of calculation

A 7031 (obligatory

committees)

Total

€
9.750

€
9.750

The combined management and regulatory Committee established
for the purpose of this Regulation (the COPE Fund Committee) is
expected to meet on average once in a year for 1 day to discuss
particular issues related to the implementation of its provisions.
Reimbursement of travel expenses for governmental experts to
€
attend this meeting is estimated at an average of 650

/expert x 15.

The above expenditure set out under heading A 7 will be covered by credits within DG TREN
global envelope.

78

IMPACT ASSESSMENT FORM
THE IMPACT OF THE PROPOSAL ON BUSINESS WITH SPECIAL REFERENCE
TO SMALL AND MEDIUM-SIZED ENTERPRISES (SMEs)

TITLE OF PROPOSAL

Proposal for a Regulation of the European Parliament and of the Council on the establishment
of a fund for the compensation of oil pollution in European waters and related measures

DOCUMENT REFERENCE NUMBER

COM(….)……final of

THE PROPOSAL

1.

Taking account of the principle of subsidiarity, why is Community legislation
necessary in this area and what are its main aims?

The Treaty provides for the establishment of a common transport policy and the measures
envisaged to implement such a policy include measures to improve safety and environmental
protection in maritime transport. The adequate compensation of victims of maritime oil spills
and the introduction of financial penalties for gross negligence in the transport of oil at sea
form an integral part of such measures.

While there are international conventions regulating liability and compensation of oil spills, to
which all relevant Member States are parties, or will be parties in the near future, recent
accidents, most notably the sinking of the Erika in 1999, have highlighted the insufficiency of
those mechanisms to ensure that the victims are adequately compensated.

The Regulation involves the setting up of a Fund for Compensation for Oil Pollution in
European waters (the COPE Fund). Given that a relatively well-functioning international
system for compensating oil spills already exists, the most efficient solution to raise the
compensation limits is to build upon and complement
the international system, thereby
avoiding duplication of work and excessive administration. The COPE Fund is therefore
largely based upon procedures and assessment carried out within the international system.

An oil spill can cause potentially enormous damage. In accidents where the international
compensation limits are exceeded, victims will not, as far as the existing international regime
is concerned, be fully compensated. Community-wide action in this field will greatly improve
the possibilities to fully compensate victims of a European oil spill by creating a Fund to
which oil receivers in all Member States concerned contribute. The available amount of
maximum compensation will be raised from the current EUR 200 million to EUR 1,000
million. In addition, the costs of oil spills in European Union waters would be spread among
all EU coastal States. The concrete added value of the proposed measure is thus a five-fold
increase of the compensation amount available for compensation compared to existing
amounts, a much stronger guarantee that adequate compensation actually will be available and
a sharing of the risk of oil spills between all coastal Member States. A more indirect benefit is
that the guarantee of available additional funding is likely to expedite the compensation of

79

European oil spills in the International Oil Pollution Compensation Fund, even for spills that
do not reach the overall maximum compensation provided by that fund.

The creation of a compensation fund for oil spills requires regulation. The parties liable to
contribute to the fund, i.e. European oil receivers, are unlikely to contribute with potentially
large sums unless they are legally required to do so. In addition, requirements on contribution
to, and compensation payments of, the fund are not enforceable in a unified and harmonised
way unless they are identical for each Member State and each entity involved. Harmonised
rules are therefore instrumental for ensuring uniform implementation of the obligations.
Hence it is necessary to ensure uniform application of these provisions in the form of a
Regulation.

Finally, the proposal includes an article stipulating that Member States shall impose financial
penalties for grossly negligent behaviour on behalf of any person involved in the transport of
oil at sea. Such a measure by its nature requires regulation and a Community-wide provision
is the best way to achieve the harmonised use of such penalties throughout the Community.

THE IMPACT ON BUSINESS

2.

Who will be affected by the proposal?

–

–

–

which sectors of business

which sizes of business (what is the concentration of small and medium-sized
firms)

are there particular geographical areas of
businesses are found

the Community where these

The business sectors most affected by this proposal are companies which are established in
the Community and receive more than 150.000 tonnes of heavy fuel oil and/or crude oil by
sea transport. Building upon procedures which already exist at an international level, these
receivers will pay the contributions to the COPE Fund.

the nature of the contributions to the COPE Fund implies that

the effects are
Thus,
concentrated on large oil importers and traders while small and medium-sized enterprises
would be concerned only to the extent
they exceed these thresholds. Similarly, only
businesses established in Member States with oil ports and terminals would be directly
concerned.

The other objective of the proposal, the establishment of a Community-based financial
penalties for grossly negligent conduct on behalf of any person involved in the transport of oil
at sea may involve a wider spectrum of players in the maritime world. Shipowners, cargo
owners, charterers, classification societies, managers and operators may all be liable to pay
such penalties, but only once their gross negligence has been established by a court of law.

3.

What will business have to do to comply with the proposal?

The proposal will have no impact on business unless a major oil disaster happens in European
waters, or unless businesses are found by a court to have engaged in grossly negligent
behaviour.

80

If a major oil spill occurs, oil receivers will have to pay their contributions to the COPE Fund.
The level of the contributions will be set by the Commission, assisted by the COPE Fund
Committee, and the oil receivers will be invoiced directly by the COPE Fund on the basis of
information on contributing oil provided by Member States.

4.

What economic effects is the proposal likely to have?

–

–

–

on employment

on investment and the creation of new businesses

on the competitiveness of businesses

Given that the contributions to the COPE Fund are based on annual quantities of heavy fuel
oil and/or crude oil received, the amount of contribution required will vary greatly between
Member States and individual companies. The largest receivers will make the largest
contributions while smaller companies will pay less according to their share of the overall
quantity of oil received in the Member State concerned.

A worst case scenario would be the occurrence of an oil spill accident in European waters,
which would cause damage for EUR 1,000 million or more. If such an accident happened
before the current maximum limits of the IOPC Fund are raised from EUR 200 million to
EUR 300 million, the share to be borne by the COPE Fund would be the maximum of EUR
800 million.

The economic impact of such an accident on the oil receivers may be outlined in the
following way. The total amount required by the COPE Fund (EUR 800 million) is to be
shared among importers of 623 million tonnes of contributing oil (see table below). This
would involve an additional cost of EUR 1,28 per ton received oil (which corresponds EUR
0.18 per barrel). As far as the oil price is concerned, it would signify a temporary 0,5%
increase to current oil prices (if calculated at EUR 35 per barrel). Considering the number of
factors involved in the determination of fuel prices, this is unlikely to have any effect as far as
fuel price is concerned.

That said, the financial effect on individual receivers may be more substantial. Figures on the
amount of oil received by individual companies are not available. However, general figures
on contributing oil received in the EU/EEA Member States provide an indication of the
proportion of the total contributions to the COPE Fund that have to be made by companies
established in those Member States. The following figures for 1999 are based on the most
recent information on the (corresponding) provisions of contributing oil to the IOPC Fund.

State

Member
(incl. EEA)
Italy
The Netherlands
France
United Kingdom
Spain
Germany
Norway
Sweden
Greece
Portugal

Tonnes
of
Contributing Oil
138 million
101 million
95 million
74 million
61 million
37 million
34 million
20 million
18 million
17 million

% of Total

22.15%
16.21%
15.25%
11.88%
9.79%
5.94%
5.46%
3.21%
2.89%
2.73%

81

Finland
Belgium
Denmark
Ireland
Iceland
Total

11 million
7 million
5 million
5 million
0
623 million

1.77%
1.12%
0.80%
0.80%
0.00%
100%

The likelihood of the worst-case scenario accident, outlined above, is not great, however, in
light of the costs of oil spills so far. Out of some 100 oil spills dealt with by the IOPC during
its 25 years of operation, only one, the Erika, has seriously exceeded the current maximum
compensation limit of EUR 200 million, and even the total costs of Erika will probably be
below EUR 400 million. In addition, the Regulation provides for the possibility for the COPE
Fund, and the contributors, recovering at least part of the compensation paid.

The COPE Fund will have no financial impact on oil receivers until an oil spill that exceeds
the international compensation limits occurs in European waters. Given the limited
probability of accidents triggering the COPE Fund in combination with the potentially very
costly consequences of such accidents, it is conceivable that European oil receivers will
decide to allocate their risk by means of insurance. In that case, the proposal would also have
some effects on the European insurance sector.

Apart from the effects described above, the proposal is unlikely to have significant effects on
employment or investment, given that the proposal builds upon structures and procedures that
already exist within the framework of the international oil pollution compensation regime.

5.

Does the proposal contain measures to take account of the specific situation of small
and medium-sized firms (reduced or different requirements etc)?

Since, as explained above, the contributions to the COPE Fund is depending on the quantities
of received oil, the result will automatically be that larger receivers contribute more while
smaller oil receivers have a more limited financial burden. Companies which receive less than
150.000 tonnes of contributing oil per year will not pay any contribution at all.

CONSULTATION

6.

List the organisations which have been consulted about the proposal and outline their
main views.

–

–

–

–

–

–

–

–

–

–

European Shippers' Council (ESC)

Federation of European Private Port Operators (FEPORT)

European Sea Ports Organisation (ESPO)

European Community Shipowners’ Association (ECSA)

European Transport Workers’ Federation (ETF)

Comité européen des assurances (CEA)

International Association of Classification Societies (IACS)

International Group of Protection & Indemnity Clubs

International Association of Independent Tanker Owners (Intertanko)

Oil Companies International Marine Forum (OCIMF)

82

–

–

–

–

International Chamber of Shipping (ICS)

International Underwriters Association (IUA)

International Union of Marine Insurers (IUMI)

International Tanker Owners’ Pollution Federation Limited (ITOPF)

Industry and professional organisations have been consulted on the main objectives and
principles of the proposal. In general the industry and professional organisations, whilst
appreciating the need for taking measures to improve the compensation of victims of oil
spills, question the need for a regional measure in this area. Most of these organisations,
however, support the approach to build upon the existing international system instead of
building a completely new system, which would imply European denunciation of the CLC
and Fund Conventions.

In particular, shipowners (ICS, Intertanko & ECSA), the P&I Clubs and oil companies
(OCIMF) have a clear preference for placing the debate concerning the improvement of the
liability and compensation regime for oil spill victims in the IMO. They refer to the good
record of the existing regime and its balance between shipowners and cargo interests and, in
light of this, question the need for Community measures in this area.

The European Shippers’ Council agrees with the Commission’s analysis of the shortcomings
of the international system, but considers that the creation of a third tier Fund fails to respond
to this analysis. The European Transport Workers’ Federation supports the Commission’s
approach.

More specifically, on the creation of the COPE Fund, there seems to be agreement that this is
one of the few measures which can be done at EU level while still building on and preserving
the existing international liability and compensation system.

OCIMF and ESC, however, object against placing the whole burden of the ‘guarantee’ Fund
solely on oil receivers, which in their view are not responsible for accidents.

83

EXPLANATORY MEMORANDUM

1.

INTRODUCTION

The EU maritime safety and pollution prevention policy consists of a large number
of legal measures which cover the key aspects of the IMO Conventions in force. The
main objective is to ensure the efficient and uniform application of the international
rules within the European Union. The policy embraces a wide variety of fields, from
classification societies to Port State Control,
from passenger ships to marine
equipment and port reception facilities. With the establishment of an EU maritime
safety and pollution prevention policy, some of the Member States’ national
competencies in these fields have been transferred to the Community level.

In order to be effective, such legislation must be applied in a proper and uniform
manner throughout the Community. It is indeed the rigorous implementation of the
existing rules which may enhance safety at sea and pollution prevention in the
Community waters, and its harmonised application which may ensure a level playing
field, reduce the distortion of competition resulting from the economic advantages
enjoyed by non-complying ships and reward the serious maritime players.

In the Community, the task of ensuring the proper and convergent implementation of
existing legislation is rendered more difficult by the fact that, unlike certain countries
such as the USA which have a unitary structure and thus the ability to impose
uniform procedures and to verify compliance, the European Union has to work with
the diverse administrative traditions of its Member States. The administrative
structures involved in maritime safety differ considerably from one Member State to
another: some are civil, others are military and they perform very different tasks,
from ship inspection as port State or flag State to fisheries protection, customs,
combating drug trafficking or immigration controls.

It is for the reasons mentioned above that the Commission started to reflect on the
different possibilities to enhance the current system. In its Communication of 21
March 2000 on the safety of the seaborne oil trade24, the Commission has already
tackled this problem and suggested the possibility of creating a European Maritime
Safety Agency. The Commission also explained that, in its opinion, it would be
somewhat unrealistic, or at least very premature, to envisage setting up an integrated
European operational structure or coastguard that would take over the role of the
national maritime administrations. On the contrary, the Agency should support the
actions of Member States and the Commission in applying Community legislation,
monitoring its implementation and evaluating the effectiveness of the measures in
force. The Agency should not be empowered to take decisions since it would be up
to the Member States, and in particular the Commission in its capacity as executor or
guardian of Community legislation, to perform the necessary follow-up.

The Commission reiterated this principle in its report for the Biarritz European
Council on the Community’s strategy for safety at sea25. In this document it is stated
the efficient, harmonious
that,

in order to help the Commission ensure that

24

25

COM(2000) 142 final of 21.3.2000
COM(2000) 603 final of 27.9.2000

84

implementation of the existing rules is monitored and checked within the European
Union, the Commission is contemplating the creation of a specific structure which
might take the form of a European Agency for Maritime Safety.

By means of the present Regulation, the Commission proposes the establishment of a
European Maritime Safety Agency. The text of the proposal is the result of a long
period of analysis and consultation during which the Commission had the possibility
to clarify better what the role of the Agency might be. In addition to the primary
the
objective of ensuring the proper
Commission considers that the Agency should play a major role in organising
appropriate training activities on port and flag State related issues.
Indeed,
harmonising the training of the Member States’ surveyors will help to ensure a
uniform EU maritime safety system.

implementation of existing legislation,

Furthermore, the Commission considers that the Agency can assist the Commission’s
services in carrying out the large number of time-consuming technical tasks imposed
on it by the existing legislation. This will permit the Commission’s services to
concentrate on policy matters. Finally, another fundamental area of activity for the
Agency is that related to the collection, recording and assessment of statistical data in
the
the maritime safety field and on accidental or deliberate pollution at sea,
systematic
the
appropriate,
existing databases
development of supplementary databases. The data provided by the Agency will
enable the Commission and the Member States to take the necessary measures to
enhance safety at sea and to evaluate the effectiveness of the measures in place.

exploitation of

and, where

It is expected that the Agency will create a solid partnership with and between the
Member States in so far as questions of general interest are concerned, that it will
take full advantage of the Union’s best scientific capabilities and that it will facilitate
a quicker Community response and decision-making capacity. The structure of the
proposed Agency respects the prerogatives of the Community institutions having the
legislative power: the Agency will not interfere in this field. The Commission’s
prerogatives in terms of budgetary implementation and right of initiative are also
respected. In addition to the work already undertaken in order to demonstrate the
need for and decide in favour of creating the EMSA, the Commission will carry out,
in parallel with the Institutions' discussions on this proposal, further work regarding a
cost-benefit analysis.

2.

THE COMMUNITY EMSA

2.1.

The objective

The objective of the Regulation is to establish a European Maritime Safety Agency,
with a view to ensuring a high, uniform and effective level of maritime safety and
pollution prevention in the Community. The achievement of these objectives requires
the creation of a specialised agency: the EU maritime community needs an efficient
body that
is able to provide the Member States and the Commission with the
necessary technical and scientific support and a high level of expertise to properly
apply the Community legislation in the field of maritime safety, monitor its
implementation and evaluate the effectiveness of the measures in place. The existing
legislation has a highly technical content. Its implementation, as well as its practical
monitoring, should be performed by personnel that are highly qualified in the area of

85

maritime safety, having both a comprehensive technical knowledge and being fully
familiar with European and international maritime safety and pollution prevention
regulations.

2.2.

The Agency

2.2.1.

The tasks

The Agency will be established as part of the Community system. It will represent
the technical body providing the Community with the necessary means to act
effectively to enhance overall maritime safety and pollution prevention standards.
The Agency shall assist the Commission in the continuous process of updating
Community legislation in the field of maritime safety and shall provide the necessary
support to ensure the convergent and effective implementation of such legislation
throughout the Community. In particular, the Agency shall be active in helping to
strengthen the overall Community Port State Control regime and in helping to
monitor those classification societies recognised at Community level. A wider
description of the Agency’s tasks is contained in the “Comments on articles” section
below.

2.2.2.

Functioning

a) Management bodies

The good functioning of the Agency requires that its Executive Director be left with
a high degree of independence and flexibility as to the organisation of the internal
functioning of the Agency. Therefore, the Executive Director is entrusted to take all
necessary steps to ensure the proper accomplishment of the working programme of
the Agency and, in particular, to decide on the implementation of the inspections of
the classification societies as well as on the visits to the Member States. Furthermore,
the Executive Director will also be responsible for the preparation and execution of
the budget and the work programme of the Agency, and for all questions related to
personnel.

is
In order to provide the Executive Director with the necessary legitimacy,
preferred that he is appointed by the Administrative Board on a proposal from the
Commission.

it

representatives nominated by the
An Administrative Board consisting of
Commission,
the Council and the European Parliament as well as industry
representatives, will be in charge of all administrative issues. It will adopt the work
programme of the Agency, after approval from the Commission, and its budget at the
beginning of the financial year and adapt it to the contributions and fees received.
The Administrative Board will also establish procedures on how the Executive
Director may take decisions and will exercise disciplinary authority over the high
officials of the Agency. Decisions, other than those related to staff issues, which are
made by the Executive Director and by the Administrative Board will be subject to
appeal by the Commission.

b)

Personnel

For carrying out the tasks described above, the Agency needs to have a sufficient
the Commission in
number of high-quality staff. The agency staff is to assist

86

ensuring that the Community legislation in the field of maritime safety and pollution
prevention is kept up to date, as well as to ensure that it is applied in a uniform and
effective manner. Qualified personnel shall also participate in the organisation of
appropriate training activities for the Member States and for those States applying for
accession. The number of staff the Agency might require is estimated at around 55
persons.

The personnel of the Agency will be subject to the Staff Regulations applicable to
Officials of the European Communities and the Conditions of Employment of Other
Servants. It is envisaged that only a small number of these will be seconded from the
Community institutions on a temporary basis. The other personnel will be recruited
on the basis of experience and merit. Without prejudice to the need to ensure a stable
qualified staff in sufficient number, they will be hired on the basis of temporary
renewable contracts so as to ensure a continuous renewal of personnel that are
abreast of technological developments.

c)

Budget

The Agency needs a budget allocation large enough to hire its personnel as described
above, to carry out its tasks and to ensure its smooth and efficient functioning. For
the first year this annual budget can be estimated at approximately
2,625,000,
€
increasing to approximately circa

7,600,000 when the Agency is fully operational.

€

The Agency’s budget will be mainly financed by a subsidy from the Community.
The Agency may charge some fees for its publications or for the training activities.
However, the amount of these fees will remain minor in respect of the total budget of
the Agency.

The Agency must put
in place an appropriate set of rules and controls. The
Administrative Board will be entitled to adopt the necessary measures, but the
Agency will ultimately be subject to the supervision of the Court of Auditors.

d) Language

The language regime should allow the Agency to work in an efficient and swift
manner. The Administrative Board of the Agency is entrusted to take a decision on
the language regime of the Agency.

e) Location

The Agency will need to be located in a convenient location that will also enable it to
develop working relations with the appropriate Community institutions. Taking into
account such requirements and after an evaluation of applications received, the
Commission will propose to the competent authorities one or several locations. On
the basis of such proposal, the competent authorities will have to define a location at
the latest six months after the adoption of this Regulation.

f) Transparency

The Agency will adopt its rules regarding transparency and access to documents in
compliance with the decisions of the European Parliament and the Council, in the
context of Article 255 of the EC Treaty.

87

3.

THE CHOICE OF THE LEGAL BASIS

The legal basis of the proposed Regulation is Article 80 paragraph 2, which is
consistent with the objective of the proposal and with all the legislation adopted so
far in the maritime field, particularly where safety and environmental protection are
concerned.

4.

JUSTIFICATION OF THE PROPOSED MEASURE

What are the objectives of the planned action in relation to the obligations of the
Community and what is the Community dimension of the problem (for instance how
many Member States are involved and what solution has been adopted until now)?

The Treaty provides for the establishment of a common transport policy. The
measures envisaged to implement such a policy include measures to improve safety
in maritime transport as foreseen in Article 80 (2).

To this end, the main objective of the planned action is to establish a European
Maritime Safety Agency. At present, a large number of maritime safety legislative
measures are in place in the Community. In order to ensure that this legislation is
effective and that safety at sea and marine pollution prevention are enhanced
throughout the Community, it is necessary to ensure that such legislation is applied
in a uniform manner. The Agency is designed to assist in achieving this objective.

All Member States, both the coastal States and the land-locked ones, are concerned
by the enhancement of maritime safety and pollution prevention standards. Indeed
higher standards do not exclusively mean cleaner seas and coasts, but also safer
navigation and a reduced risk of the loss of ships, cargo and human lives.

So far, all Member States have acted independently in applying the existing
Community legislation, with the Commission monitoring the proper transposition of
Community legislation into the national legal systems. The Community dimension of
the problem requires a more uniform approach from a practical point of view.

Is the envisaged action solely the responsibility of
responsibility shared with the Member States?

the Community or is the

The Agency will deal with matters of Community competence since it will assist in
the implementation of Community legislation.

is the most efficient solution taking into account

What
Community and the Member States?

the resources of

the

Taking into consideration the features of the Community maritime safety policy and
the need to ensure its uniform application, an action at Community level is the only
possible way to guarantee the same level of safety and marine pollution prevention
throughout the Union.

What is the concrete added value of the action envisaged by the Community and
what would be the cost of inaction?

88

The Agency will greatly contribute to the proper application of Community
legislation across the Union, to developing and disseminating “best practices” among
the Member States and to enhancing the overall Community maritime safety and
pollution prevention system. This in turn will reduce the risk of maritime accidents,
of marine pollution and of the loss of human lives at sea.

Furthermore, a proper and uniform implementation of the existing legislation will
ensure a level playing field, reduce the distortion of competition resulting from the
economic advantages enjoyed by non-complying ships and will reward the serious
maritime players.

It is very difficult to quantify the cost of inaction. Quantifying it would mean, first of
all, providing an answer to the question of how many accidents the Agency will
prevent. However, it can be stated that if the Agency succeeded in preventing even
one major accident - such as the sinking of the ERIKA which caused damages valued
at 400 million euros - it will have more than merited its cost.

What forms of actions are available to the Community? (recommendation, financial
assistance, regulation, mutual recognition).

Given the objective of the measure, a Regulation is the only possible tool to achieve
it. Uniformity and efficiency in the application of Community maritime safety and
pollution prevention legislation would not be achieved by a less constraining
legislative instrument. A Regulation is the legislative instrument generally used to
establish an Agency in the Community.

Is uniform legislation necessary or would a Directive, setting the general objectives
and leaving the execution to the Member States, suffice?

As stated in the previous point, the choice of type of legislation is dictated by the
very objective of the measure.

5.

COMMENTS ON ARTICLES

Chapter I – Objectives and tasks

Article 1

This article specifies that the need to establish a European Maritime Safety Agency is
due to the fact that it is necessary to ensure a high, uniform and effective level of
maritime safety and pollution prevention in the Community. Furthermore, this article
clarifies that the Agency must represent a technical and scientific support for the
Member States and for the Commission to properly apply Community legislation in
the field of maritime safety, monitor
implementation and evaluate the
effectiveness of the measures in place.

its

Article 2

This is the core article defining the tasks which the Agency has to carry out in

1.
order to fully achieve the objectives set out in the previous article.

89

The tasks of

a)
the Agency shall consist of monitoring the continuous
development of international maritime safety legislation and of carrying out an in-
depth analysis of research projects carried out in the field of maritime safety and
protection of the marine environment. On the basis of these two activities, or on the
basis of its own expertise, the Agency shall draw the attention of the Commission to
the possibility of updating Community legislation, - taking into account the need to
ensure that such legislation remains effective.

In order to monitor the overall functioning of the Community Port State
b)
Control regime, the Agency shall carry out visits to the Member States aimed at
examining the way in which Member States implement their PSC obligations. These
visits will be extremely useful to develop “best practices” and later on to disseminate
them throughout the Community. On the basis of the experience gained, both by the
visits to the Member States and through the overall monitoring of the Community
PSC regime, the Agency will suggest to the Commission possible improvements to
the disposal of the
the regime. The Agency will also put
Commission and participate in the workings of the technical bodies of the Paris
Memorandum of Understanding on Port State Control.

its experience at

Ensuring a high level of performance of the classification societies recognised at
Community level implies two tasks: carrying out inspections of such organisations,
to monitor their fulfilment of the provisions of Council Directive 94/57/EC, and
helping to continuously monitor their safety and pollution prevention performance.
to the Commission and the
With both tasks, the Agency shall provide support
Member States.

The Agency shall assist the Commission and the Member States in ensuring the
proper implementation of all the remaining Community maritime safety legislation,
particularly in the fields of safety of passenger ships and marine equipment, and
including Community legislation applicable to crews.

c)
The availability of objective, reliable and comparable information and data on
maritime safety and pollution is the key element enabling the Commission and the
Member States to take the necessary steps to enhance the existing measures and to
evaluate their effectiveness. A number of databases already exist in this field, others
will have to be developed. The Agency shall organise a coherent work programme,
including the cross fertilisation of existing databases,
in order to provide the
Community with the information and data mentioned above, whilst avoiding any
duplication of existing activities. On the basis of the data collected, the Agency will
assist the Commission in the publication, every six months, of information relating to
ships that have been refused access to Community ports in application of the
provisions of the Directive on Port State Control. On that basis, the Agency will also
assist the Commission and the Member States in their activities to improve the
identification and pursuit of ships which make unlawful discharges.

The Agency shall assist the Commission and the Member States in the field of
d)
the surveillance of navigation and maritime traffic. In this respect the Agency shall
facilitate co-operation between the Member States and the Commission as provided
for in the Community legislation on the European maritime traffic reporting system.

e)
The Council of Transport Ministers of 26 June 2000 requested the Commission
to consider developing, when appropriate, a European database on accidents and

90

incidents at sea, as an important tool to prevent future accidents and for devising new
initiatives based on formal safety assessments. The Agency is entrusted with this
task, as well as designing a common methodology for investigating maritime
accidents within the Community. On the basis of the experience gained, the Agency
to the Member States in the activities concerning the
will offer
investigations related to serious maritime casualties in EU waters. Another important
activity of the Agency in this field shall be that of analysing existing accident
investigation reports in order to learn how to avoid similar events in the future and to
disseminate the results of its analysis.

its support

The Agency has an active role in the convergent and effective implementation
f)
of Community maritime safety legislation throughout
the Community. It shall
organise appropriate training activities on port and flag State related issues, since
training is considered to be the first element towards a harmonised Community
system.

g)
The Agency shall provide technical assistance for those States applying for
accession with respect to their implementation of Community legislation in the field
of maritime safety. In this context, the Agency shall contribute to explaining the
systems in place in the Community for the implementation of the maritime safety
legislation and disseminate the Community’s “best practices”. However, the Agency
is not supposed to carry out practical activities in the States applying for accession,
such as providing personnel to carry out tasks aimed at restructuring the existing
maritime administrations of these countries, but shall simply provide theoretical
support. Finally, the Agency shall organise appropriate training activities for these
States.

2.
In order to ensure that the technical and scientific knowledge of the Agency is
put at the disposal of the Community, for the control of the implementation of
Community legislation by Member States and whenever it is needed for activities not
specifically foreseen in its work programme, the Agency is requested to carry out
any specific task only at the request of the Commission. The Agency cannot be
entrusted with any tasks at the request of a Member State.

Article 3

In order to achieve the objectives of the Regulation and to accomplish its tasks in the
best possible way, the Agency shall carry out visits to the Member States. These
visits will focus on the implementation of the Member State’s Port State Control
obligations but also on other aspects linked to the implementation of the Community
maritime safety and pollution prevention legislation. These visits will help the
Agency to understand the functioning of the maritime administrations of the Member
States, to highlight possible shortcomings of the Community system as well as “best
practices” implemented by the Member States. On the basis of the experience gained,
the Agency will be able to suggest possible improvements to the overall system and,
in a second stage, to disseminate the “best practices”. The Commission will analyse
the reports produced by the Agency following each visit in order to decide whether
any follow-up measures are necessary.

Article 4

91

Since the Agency is entrusted to develop and exploit databases and since certain data
may be of a personal nature, it is important to specify that the information collected
within the framework of the application of this Regulation by the Commission and
the Agency shall be subject to Directive 95/46/EC of the Parliament and of the
Council on the protection of individuals with regard to the processing of personal
data and on the free movement of such data26.

Chapter II: Internal structure and functioning

Article 5

This article specifies that the Agency is an independent body of the Community. The
competent authorities will have to decide its location at the latest six months after the
adoption of the Regulation, on the basis of a proposal from the Commission.
Furthermore, it is specified that the Agency, following a specific request from the
Commission, may decide to establish regional centres in some Member States in
order to carry out tasks linked to the surveillance of navigation and maritime traffic,
and particularly to ensure the best traffic conditions in sensitive zones, as foreseen in
the Community legislation on the European maritime traffic reporting system.

Article 6

The Staff Regulations of the Community institutions will also apply to the staff of
the Agency. It is envisaged that only a small number of these will be seconded from
the Community institutions on a temporary basis. The other personnel will be
recruited on the basis of experience and merit from national administrations or from
industry on a temporary basis.

Article 7

This provision stipulates that, like the European Communities, the Agency should
also benefit from the same privileges and immunities as set out in the Protocol on the
Privileges and Immunities of the European Communities.

Article 8

The regime of contractual and non-contractual liability of the Agency corresponds to
the regime applicable to the Community by virtue of Article 288 of the Treaty.

Article 9

The Administrative Board of the Agency is entrusted to take a decision on the
language regime of the Agency. The language regime should allow the Agency to
work in an efficient and swift manner.

Article 10

This article lays down the powers of the Administrative Board, which forms part of
the management bodies of the Agency. It has a supervisory function in appointing
the Executive Director, in adopting the annual report, the work programme – after

26

OJ L 281, 23.11.1995.

92

approval by the Commission - and in taking budgetary decisions. Moreover, it shall
ensure that the Agency works with the necessary transparency and neutrality and
shall adopt, therefore, procedures on how the Executive Director may take decisions.

Article 11

This provision specifies that the Administrative Board will be composed of four
representatives of the Commission,
four
four
representatives nominated by the European Parliament and four representatives from
the industry nominated by the Commission.

representatives of

the Council,

Article 12

This article specifies that the Administrative Board will elect its Chairman and
Deputy Chairman from among its members.

Article 13

This article provides for ordinary, as well as extraordinary, meetings of the
Administrative Board, which must be attended by the Executive Director, and may
be attended by outside observers. The Executive Director shall not have the right to
vote.

Article 14

A two third majority will be required for decisions of the Administrative Board, with
each member having one vote.

Article 15

This provision sets out the functions and powers of the Executive Director, who shall
not accept any instructions from any government or any other organisation.
However, he will have to follow up any instruction or request for assistance
formulated by the Commission in relation to the tasks set out in Article 2. The
Executive Director is also the manager of the Agency and is therefore responsible for
the preparation and execution of the budget and of the working programme, as well
as for all questions related to personnel.

Article 16

The Executive Director, together with one or more Heads of Unit, are appointed by
the Administrative Board which exercises disciplinary authority on them. The
appointment of the Executive Director is made for a limited, renewable period.

Article 17

Member States and natural or legal persons shall have the possibility to appeal
against any act of the Agency which is of direct and individual concern to them.
Therefore any act carried out by the Executive Director and by the Administrative
Board may be referred to the Commission in order to examine the legality of that act.

Article 18

93

This article stipulates that the Agency shall be open to the participation of European
countries, which have entered into agreements with the European Community
whereby they have adopted and are applying the Community law in the field covered
by this regulation.

Chapter III - Financial Requirements

Article 19

The Agency’s budget will be mainly financed by a subsidy from the Community.
Services that it provides (such as publications, training or others) may be paid for in
the form of fees.

The Agency requires a sufficient budget allocation to hire its personnel, as described
above, to carry out its tasks and to ensure it functions smoothly and efficiently.

The Executive–Director will establish a preliminary draft budget to be adopted by
the Board and then forwarded to the Commission, which will in turn process it in
accordance with standard budgetary procedures. Article 279 of the EC Treaty
applies.

Article 20

the Executive Director will be responsible for the
This article specifies that
implementation of the budget. Financial control will be ensured by the Financial
Controller of the Commission. The Court of Auditors will examine the Agency
accounts and publish an annual report. The discharge of the Agency budget will be
given by the Administrative Board to the Executive Director on the recommendation
of the European Parliament.

Article 21

This article provides that within five years from the date the Agency has taken up its
responsibilities, the Agency in collaboration with the Commission shall carry out an
independent evaluation on the implementation of this Regulation. On the basis of the
findings of this evaluation, the Administrative Board will issue recommendations
regarding changes to this regulation, the Agency and its working practices to the
Commission.

Article 22

This article specifies that, for the purpose of guiding the Agency in preparing and
regulation will be adopted by the
implementing the budget, a Financial
Administrative Board following the agreement of the Commission and the opinion of
the Court of Auditors.

Chapter IV - Final Provisions

Article 23

This article specifies that, while the Regulation enters into force according to Article
24, the Agency will only be operational 12 months later. This will provide sufficient
time for its establishment.

94

Article 24

This article lays down the date when the Regulation enters into force.

6.

FINAL CONSIDERATIONS

A financial statement is attached to this proposal. An impact assessment form has not
been attached since the proposal does not affect businesses.

95

2000/0327 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

establishing a European Maritime Safety Agency

(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
80(2) thereof,

Having regard to the proposal from the Commission27,

Having regard to the opinion of the Economic and Social Committee28,

Having regard to the opinion of the Committee of the Regions29,

Acting in accordance with the procedure referred to in Article 251 of the Treaty30,

Whereas:

(1)

(2)

(3)

A large number of legislative measures have been adopted in the Community in order
to enhance safety and prevent pollution in maritime transport. In order to be effective,
such legislation must be applied in a proper and uniform manner throughout the
Community. This will ensure a level playing field, reduce the distortion of competition
resulting from the economic advantages enjoyed by non-complying ships and will
reward the serious maritime players.

Certain tasks currently done at Community or national level could be executed by a
specialised expert body. Indeed, there is a need for technical and scientific support and
a high level of stable expertise to properly apply the Community legislation in the
fields of maritime safety and pollution prevention, to monitor its implementation and
to evaluate the effectiveness of the measures in place; there is a need therefore, within
the Community's existing institutional structure and balance of powers, to establish a
European Maritime Safety Agency.

terms,

the Agency shall represent

In general
the technical body providing the
Community with the necessary means to act effectively to enhance overall maritime
safety and pollution prevention -rules. The Agency shall assist the Commission in the
continuous process of updating Community legislation in the field of maritime safety
to ensure the convergent and effective
and shall provide the necessary support

27

28

29

30

OJ C ,
OJ C ,
OJ C ,
OJ C ,

, p. .
, p. .
, p. .
, p. .

96

(4)

(5)

(6)

(7)

(8)

(9)

implementation of such legislation throughout the Community. In particular,
the
Agency shall be active in helping to strengthen the overall Community Port State
Control regime and in helping to monitor those classification societies recognised at
Community level.

For the proper achievement of the purposes for which the Agency is established, it is
appropriate that the Agency carries out a number of other important tasks aimed at
enhancing maritime safety and pollution prevention in the Community waters. The
Agency shall organise appropriate training activities on Port State Control and Flag
State related issues. It shall provide the Commission and the Member States with
objective, reliable and comparable information and data on maritime safety and on
pollution prevention to enable them to take any necessary initiatives to enhance the
measures in place and to evaluate their effectiveness. It shall facilitate co-operation
between the Member States and the Commission as provided for in the Community
legislation on the European maritime traffic reporting system. It shall co-operate with
the Commission and the Member States in the activities concerning the investigations
related to serious maritime accidents in EU waters. It shall put
the Community
maritime safety know-how at the disposal of the States applying for accession and will
be open to their participation.

The Agency will favour the establishment of better co-operation between the Member
States and will develop and disseminate best practices in the Community. This in turn
will contribute to enhancing the overall maritime safety system in the Community as
well as reducing the risk of maritime accidents, marine pollution and the loss of
human lives at sea.

In order to properly carry out the tasks entrusted to the Agency, it is appropriate that
its officials carry out visits to the Member States in order to monitor the overall
functioning of the Community maritime safety and pollution prevention system.

For the contractual liability of the Agency, which is governed by the law applicable to
the contract concluded by the Agency,
the Court of Justice of the European
Communities shall have jurisdiction to give judgement pursuant to any arbitration
clause contained in the contract. The Court of Justice shall also have jurisdiction in
disputes relating to compensation for any damage arising from the non-contractual
liability of the Agency.

In order to effectively control the functions of the Agency, the Member States, the
Commission and the European Parliament shall be represented on an Administrative
Board entrusted with the necessary powers to establish the budget, verify its execution,
adopt the appropriate financial rules, establish transparent working procedures for
decision making by the Agency, approve its work programme and to appoint the
Executive Director.

The good functioning of the Agency requires that its Executive Director be left with a
high degree of independence and flexibility as to the organisation of the internal
functioning of the Agency; to this end, the Executive Director shall take all necessary
steps to ensure the proper accomplishment of the working programme of the Agency,
shall prepare each year a draft general report to be submitted to the Administrative
Board, shall draw up estimates of the revenues and expenditure of the Agency and
shall implement the budget.

97

(10)

In order to guarantee the full autonomy and independence of the Agency,
considered necessary to grant
essentially from a contribution from the Community.

is
it an autonomous budget whose revenue comes

it

HAVE ADOPTED THIS REGULATION:

CHAPTER I: OBJECTIVES AND TASKS

1.

2.

1.

a)

b)

Article 1
Aims

This Regulation establishes a European Maritime Safety Agency (the "Agency") for
the purpose of ensuring a high, uniform and effective level of maritime safety and
pollution prevention within the Community.

The Agency shall provide the Member States and the Commission with the technical
and scientific assistance needed and with a high level of expertise in order to help
them to apply Community legislation in the field of maritime safety properly, to
monitor its implementation and to evaluate the effectiveness of the measures in
place.

Article 2
Tasks

In order to ensure that the objectives set out in Article 1 are met in the appropriate
manner, the Agency shall perform the following tasks:

It shall assist the Commission in the process of updating Community legislation in
in line with the development of
the field of maritime safety,
international legislation in that field. That task shall include the analysis of research
projects carried out in the field of maritime safety and the protection of the marine
environment.

in particular

It shall assist
the Commission in the effective implementation of Community
legislation on maritime safety throughout the Community. In particular, the Agency
shall:

1) monitor the overall functioning of the Community port State control regime,
including visits to the Member States, and suggest to the Commission any
possible improvements in that field;

2)

provide the Commission with the technical assistance necessary to take part in
the work of the technical bodies of the Paris Memorandum of Understanding
on Port State Control;

3)

assist the Commission in the following areas:

-

the performance of inspections of the classification societies which are
recognised, or are due to be recognised, at Community level on the basis
of Council Directive 94/57/EC;

98

-

-

-

-

without prejudice to Directive 94/57/EC, the continuous monitoring of
safety and pollution prevention performance by the classification
societies which are recognised, or are due to be recognised, on the basis
of Council Directive 94/57/EC;

the continuous monitoring of the proper implementation of Community
legislation on the safety of passenger ships,
in particular Council
Directives 98/18/EC and 99/35/EC;

the continuous monitoring of the proper implementation of Council
Directive 96/98/EC on marine equipment;

the performance of any other task assigned to the Commission by
Community legislation on maritime safety,
including Community
legislation applicable to ships' crews.

It shall provide the Commission and the Member States with objective, reliable and
comparable information and data on maritime safety to enable them to take the
necessary steps to improve maritime safety and to evaluate the effectiveness of
existing measures. Such tasks shall include the collection, recording and evaluation
of technical data in the fields of maritime safety and maritime traffic, as well as in
the field of marine pollution, both accidental and deliberate,
the systematic
exploitation of existing databases,
including their cross-fertilisation, and, where
appropriate, the development of additional databases. On the basis of the data
collected, the Agency shall assist the Commission in the publication, every six
months, of information relating to ships that have been refused access to Community
ports pursuant to the Directive on port State control. On that basis, the Agency will
also assist the Commission and the Member States in their activities to improve the
identification and pursuit of ships making unlawful discharges.

It shall carry out tasks relating to the surveillance of navigation and maritime traffic,
as laid down in Directive 2001/xx/EC on the introduction of a Community
monitoring and information system for maritime traffic,
in order to facilitate
cooperation between the Member States and the Commission in this field.

It shall develop, in cooperation with the Commission and the Member States, a
common methodology for investigating maritime accidents within the Community,
support the Member States in activities concerning investigations related to serious
maritime accidents in waters under the sovereignty of the Member States, and carry
out an analysis of existing accident investigation reports.

It shall organise appropriate training activities in fields which are the responsibility
of the port State and flag State.

It shall provide technical assistance to States applying for accession as regards the
implementation of Community legislation in the field of maritime safety. That task
shall include the organisation of appropriate training activities.

With regard to performance of the tasks referred to in paragraphs (a), (b), (d) and (g),
the Agency shall only act at the request of the Commission. The Agency may
perform other specific tasks if circumstances so demand, but exclusively at the
request of the Commission.

99

c)

d)

e)

f)

g)

2.

1.

2.

3.

1.

2.

Article 3
Visits to the Member States

In order to perform the tasks entrusted to it, the Agency shall carry out visits to the
Member States. The national authorities of the Member States shall facilitate the
work of the Agency's staff in order to ensure that such visits proceed smoothly. The
Agency's officials are entitled:

a)

b)

c)

d)

to examine files, data, reports and any other relevant documents concerning the
implementation of safety at sea and the prevention of pollution at sea;

to make copies of all or part of such files, data, reports and other documents;

to ask for oral explanations on the spot;

to have access to any premises, land or means of transport.

The Agency shall inform the Member State concerned of the planned visit, the names
of the delegated officials, and the date on which the visit starts. The Agency officials
delegated to carry out such visits shall exercise their powers on presentation of a
decision from the Executive Director of the Agency specifying the purpose and the
aims of their mission.

At the end of each visit, the Agency shall draw up a report and send it to the
Commission.

Article 4
Dissemination and protection of information

The information collected in the framework of the application of this Regulation by
the Commission and the Agency shall be subject to Directive 95/46/EC of the
Parliament and of the Council on the protection of individuals with regard to the
processing of personal data and on the free movement of such data31.

The officials and other servants of the Agency shall be required, even after their
duties have ceased, not to disclose any information of the kind covered by the
obligation of professional secrecy, in particular information about undertakings, their
business relations or their cost components.

CHAPTER II: INTERNAL STRUCTURE AND FUNCTIONING

Article 5
Legal status, location, regional centres

1.

The Agency shall be a body of the Community. It shall have legal personality.

31

OJ L 281, 23.11.1995.

100

2.

3.

The location of the Agency shall be decided by the competent authorities, at the
latest six months after the adoption of this Regulation, on a proposal from the
Commission.

In each of the Member States, the Agency shall enjoy the most extensive legal
capacity accorded to legal persons under
the
Commission, the Agency may decide, with the agreement of the Member States
concerned, to establish the regional centres necessary in order to carry out tasks
related to the monitoring of navigation and maritime traffic, as provided for in
Directive 2001/xx/EC on the introduction of a Community monitoring and
information system for maritime traffic.

the request of

laws. At

their

4.

The Agency shall be represented by its Executive Director.

Article 6
Staff

1.

2.

3.

The Agency's staff shall be subject to the rules and regulations applicable to officials
and other servants of the European Communities. The Administrative Board, in
the necessary detailed rules of
agreement with the Commission, shall adopt
application.

Without prejudice to Article 16, the powers conferred on the appointing authority by
the Staff Regulations and the Conditions of Employment of Other Servants shall be
exercised by the Agency in respect of its own staff.

The Agency's staff shall consist of Community officials seconded by the institutions
and assigned to the Agency as temporary staff and other servants recruited by the
Agency.

Article 7
Privileges and immunities

The Protocol on the Privileges and Immunities of the European Communities shall apply to
the Agency and to its staff.

Article 8
Liability

1.

2.

3.

The contractual liability of the Agency shall be governed by the law applicable to the
contract in question.

The Court of Justice of the European Communities shall have jurisdiction to give
judgement pursuant to any arbitration clause contained in a contract concluded by the
Agency.

In the case of non-contractual liability, the Agency shall, in accordance with the
general principles common to the laws of the Member States, make good any
damage caused by its departments or by its servants in the performance of their
duties.

101

4.

5.

1.

2.

1.

2.

The Court of Justice shall have jurisdiction in disputes relating to the compensation
for damage referred to in paragraph 3.

The personal liability of its servants towards the Agency shall be governed by the
provisions laid down in the Staff Regulations or Conditions of Employment
applicable to them.

Article 9
Languages

The Agency's language regime shall be agreed by the Administrative Board.

The translation services required for the functioning of the Agency shall be provided
by the Translation Centre of the Bodies of the Union.

Article 10
Creation and powers of the Administrative Board

The Agency shall have an Administrative Board.

The Administrative Board shall:

a)

b)

c)

d)

e)

f)

g)

appoint the Executive Director in application of Article 16;

adopt, before 31 March each year, the general report of the Agency for the
previous year and forward it to the Commission, the Council and the European
Parliament;

adopt, before 30 October each year, and after approval by the Commission, the
work programme of the Agency for the coming year and forward it to the
Commission, the Council and the European Parliament;

adopt the final budget of the Agency before the beginning of the financial year,
adjusting it, where necessary, according to the Community contribution and
any other revenue of the Agency;

establish procedures for decision-making by the Executive Director;

perform its duties in relation to the Agency's budget pursuant to Articles 19, 20
and 22;

exercise disciplinary authority over the Executive Director and the Heads of
Unit referred to in Article 15(3).

Article 11
Composition of the Administrative Board

The Administrative Board shall be composed of four representatives of the Commission, four
representatives of the Council, four representatives of the European Parliament and four
representatives of the professional sectors most concerned nominated by the Commission, and

102

their alternates. The duration of the term of office shall be five years. The term of office may
be renewed once.

1.

2.

1.

2.

3.

4.

1.

2.

1.

Article 12
Chairmanship of the Administrative Board

The Administrative Board shall elect a Chairman and a Deputy Chairman from
among its members. The Deputy Chairman shall automatically take the place of the
Chairman if he is prevented from attending to his duties.

The terms of office of the Chairman and Deputy Chairman shall be three years and
shall expire when they cease to be members of the Administrative Board. The terms
of office shall be renewable once.

Article 13
Meetings

The meetings of the Administrative Board shall be convened by its Chairman.

The Executive Director of the Agency shall take part in the deliberations. He shall
not have the right to vote.

The Administrative Board shall hold an ordinary meeting once a year. In addition, it
shall meet on the initiative of the Chairman or at the request of the Commission or of
one-third of the Member States.

The Administrative Board may invite observers to attend its meetings.

Article 14
Voting

The Administrative Board shall take its decisions by a two-thirds majority.

Each member shall have one vote.

Article 15
Duties and powers of the Executive Director

The Agency shall be managed by its Executive Director, who shall neither seek nor
take instructions from any Government or from any other body. However, he must
carry out any instruction or request for assistance from the Commission relating to
the tasks set out in Article 2.

2.

The Executive Director shall have the following duties and powers:

a)

The Executive Director shall prepare the work programme and submit it to the
Administrative Board after having received the approval of the Commission.
He shall take the necessary steps for its implementation. He shall respond to
any requests for assistance from the Commission.

103

b)

c)

d)

e)

f)

The Executive Director shall decide to carry out the visits provided for in
Article 3, following the prior agreement of the Commission.

The Executive Director shall take all necessary steps, including the adoption of
internal administrative instructions and the publication of notices, to ensure the
functioning of the Agency in accordance with the provisions of this Regulation.

The Executive Director shall organise an effective monitoring system in order
to be able to compare the Agency's achievements with its operational
objectives. On this basis the Executive Director shall prepare a draft general
report each year and submit it to the Administrative Board. He shall establish
regular evaluation procedures that meet recognised professional standards.

The Executive Director shall exercise in respect of the staff the powers laid
down in Article 6(2).

The Executive Director shall draw up estimates of the Agency's revenue and
expenditure, in accordance with Article 19, and shall implement the budget
pursuant to Article 20.

The Executive Director may be assisted by one or more Heads of Unit. If the
Executive Director is absent or indisposed, one of the Heads of Unit shall take his
place.

Article 16
Internal appointment

The Executive Director of the Agency shall be appointed by the Administrative
Board on a proposal from the Commission. Power to dismiss the Executive Director
shall lie with the Administrative Board, acting on a proposal from the Commission.

The term of office of the Executive Director shall be five years. This term of office is
renewable once.

Article 17
Verification of lawfulness

Any Member State, any member of the Administrative Board and any third party
directly and individually concerned may refer any act undertaken by the Agency to
the Commission in order to have its lawfulness verified. Referral to the Commission
shall be made within a period of fifteen days starting on the day on which the
contested act came to the knowledge of the person concerned. The Commission shall
take a decision within a period of one month. The failure of the Commission to take a
decision within that period shall mean that the appeal has been turned down.

3.

1.

2.

1.

2.

The provisions of paragraph 1 above shall not apply to staff matters.

Article 18
Participation of third countries

104

1.

2.

The Agency shall be open to the participation of European countries, which have
entered into agreements with the European Community whereby they have adopted
and are applying the Community law in the field covered by this Regulation.

Under the relevant provisions of these agreements, arrangements will be developed
which shall, inter alia, specify the nature and the extent of the detailed rules for the
participation by these countries in the work of the Agency including provisions on
financial contributions and staff.

CHAPTER III: FINANCIAL REQUIREMENTS

1.

The Agency's revenues shall consist of:

Article 19
Budget

2.

3.

4.

5.

6.

1.

2.

3.

-

-

a contribution from the Community;

charges for publications, training and/or any other services provided by the
Agency.

The Agency’s expenditure shall
operational expenses.

include staff, administrative,

infrastructure and

The Executive Director shall draw up an estimate of the Agency's revenues and
to the
expenditure for
Administrative Board together with an establishment plan.

the following financial year and shall

forward it

Revenue and expenditure shall be in balance.

The Administrative Board shall, by 31 March at the latest, adopt the draft budget and
forward it to the Commission, which on that basis shall enter the relevant estimates
in the preliminary draft general budget of the European Communities which it puts
before the Council and the European Parliament in accordance with Article 272 of
the Treaty.

The Administrative Board shall adopt
necessary to the Community subsidy.

the Agency’s budget, adjusting it where

Article 20
Implementation and control of the budget

The Executive Director shall implement the Agency’s budget.

Control of commitment, payment of all expenditure and control of the existence and
recovery of all Agency revenue shall be carried out by the Financial Controller of the
Commission.

By 31 March each year at the latest, the Executive Director shall submit to the
Commission,
the Administrative Board and the Court of Auditors the detailed
accounts of all revenue and expenditure from the previous year.

105

4.

1.

2.

3.

The Court of Auditors shall examine these accounts in accordance with Article 248
of the Treaty. They shall publish a report on the Agency’s activities each year.

The European Parliament shall, on a recommendation from the Administrative
Board, give a discharge to the Executive Director of the Agency in respect of the
implementation of the budget.

Article 21
Evaluation

Within five years from the date of the Agency having taken up its responsibilities,
the Agency in collaboration with the Commission shall carry out an independent
evaluation on the implementation of this Regulation.

The evaluation will assess the impact this Regulation, the Agency and its working
practices will have had in establishing a high level of maritime safety. The
Administrative Board issues specific terms of reference in agreement with the
Commission.

receive the evaluation findings and issue
The Administrative Board shall
recommendations regarding changes to this Regulation, the Agency and its working
practices to the Commission. Both the evaluation findings and recommendations
shall be made public.

Article 22
Financial provisions

The Administrative Board, after receiving the agreement of the Commission and the opinion
of the Court of Auditors, shall adopt the Agency’s Financial Regulation, which shall in
particular specify the procedure to be used for drawing up and implementing the Agency’s
budget, in accordance with Article 142 of the Financial Regulation applicable to the general
budget of the European Union.

CHAPTER IV: FINAL PROVISIONS

Article 23
Start of the Agency's activities

The Agency shall be operational within twelve months of the entry into force of this
Regulation.

Article 24
Entry into force

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

106

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

107

FINANCIAL STATEMENT

1.

TITLE OF OPERATION

Proposal for a Regulation of the European Parliament and of the Council establishing
a European Maritime Safety Agency.

2.

BUDGET HEADINGS(S) INVOLVED

A new budget heading B2- will be created under Title B2-7 “Transport”.

3.

LEGAL BASIS

EC Treaty: Article 80(2).

4.

4.1

DESCRIPTION OF OPERATION

General objective

The European Maritime Safety Agency will be created in order to establish a high,
uniform and effective level of maritime safety within the Community.

4.2

Period covered and arrangements for renewal

The action will have an unlimited duration (annual contribution).

5.

5.1

5.2

CLASSIFICATION OF EXPENDITURE OR REVENUE

Non-compulsory expenditure

Differentiated appropriations

6.

TYPE OF EXPENDITURE OR REVENUE

Community contribution to balance the expenditure and revenues of the Agency (see
below).

7.

7.1

FINANCIAL IMPACT

Method of calculating total cost of operation (relationship between individual
and total costs)

1)

Development of the Agency

The structure and organisation, as presented in the draft Regulation, are based on the
request of all stakeholders for the rapid establishment of an efficient organisation to
deal with the aspects of maritime safety provided for in this Regulation.

108

The Agency will be set up in three stages

The first six months of the first year will be the first phase and will be a transitional
period during which the Agency will perform only administrative tasks, such as the
renting of offices, the recruitment of the first group of qualified staff, and the
installation of the equipment needed. On the initiative of the Executive Director, it
will also draw up appropriate Rules of Procedure to enable it to fulfil its tasks.

During the second year, which will be the second phase, the Agency will be required
to be able to start to meet the aims and fulfil the tasks provided for in this Regulation.

During the third year, which will be the third phase, the Agency will be required to
be able to meet all its aims and fulfil all its tasks.

The Agency will therefore have to be fully operational in thirty months and be
performing all its tasks in 2005.

Estimate of costs (the presentation below applies to the Agency when it is fully

2)
operational in 2005):

a)

i)

Human resources

Full-time staff

The Agency's staff will be made up of Community officials seconded by the
institutions and assigned to the Agency as temporary staff and other servants
recruited by the Agency.

Without prejudice to the need to provide the Agency with the services of qualified
staff in sufficient numbers and on a durable basis, staff will be hired on temporary
renewable contracts so as to ensure a continuous replenishment with staff who are
abreast of the latest regulatory, legal and technological developments in the field of
maritime safety.

(It is envisaged that a small number of staff will be seconded to the Agency by the
Commission in order to ensure close ties between the two organisations).

The necessary number of staff is estimated at 5532 (see table below). This evaluation
is based on a comparison with other similar organisations, the proposal for the
Aviation Safety Agency and the specific tasks which will be entrusted to the
Maritime Safety Agency.

The total annual expenditure for full-time staff is evaluated at EUR 5.9 million,
including
based on an average Commission staff cost of EUR 0.108 million,
buildings
charges,
and
telecommunications, IT, etc.)

administrative

expenditure

(postal

related

32

Most of the staff will be recruited as temporary staff in accordance with the rules of the Staff
Regulations applicable to the Commission.

109

TABLE: Estimate of human resources - Breakdown by areas of activity
and category

2OO4

Administration33

- Management
secretaries).

TOTAL

14

(this item includes the Director and 2

3

- Human and financial resources

- Information

The Agency's tasks:

8

3

4134

- Updating of Community legislation in the field of maritime
safety,
international
legislation. Analysis of progress in research on maritime
safety.

in line with the development of

7

- Tasks relating to port State control and training activities
in this field.

7

- Tasks relating to the inspection of classification societies. 5

- Assisting the Commission in the performance of its tasks
relating to legislation on maritime safety.

9

- Collection of information in the field of maritime safety and
exploitation of databases.

5

- Development of a common methodology for investigations
into accidents at sea and the coordination of investigations.

4

- Assistance to candidate countries for accession.

research on the maritime
- Environment: Analysis of
environment,
technical assistance from the Commission
concerning Community and international legislation in this
field.

2

2

A

3

1

1

1

24

4

4

3

6

2

2

1

2

D

2

2

B

4

0

3

1

10

2

2

1

2

2

1

C

5

2

2

1

7

1

1

1

1

1

1

1

TOTAL

55

27

14

12

2

b)

Equipment costs35

The amount of moveable property to be acquired and the associated costs will be
high during the setting up of the Agency (the first year), but will progressively
decrease. The sum of EUR 260 000 is provided for the first year and EUR 100 000
for the following two years, i.e. a total of EUR 360 000. In 2005 and thereafter, the
equipment costs will be EUR 80 000.

33

34

35

Including the Director of the Agency and 2 secretaries.
Including 2 Heads of Unit.
The estimates given are based on those in the EASA proposal and calculated with reference to the
human resources and specific tasks of the Maritime Safety Agency.

110

c)

Operational costs

These costs cover conferences, studies, translations and publications. The operational
costs can be broken down as follows:

Translation: The annual costs are estimated at EUR 50 000, at a unit cost of
-
EUR 79 per page, i.e. an approximate volume of 600 pages (annual report, possible
studies, records of meetings, information brochures).

Publication: The Agency will publish its general

-
information
documents and technical dossiers in paper form and on the Internet. Production costs
are evaluated at EUR 120 000.

report,

-
Development of databases: The Agency will have to set up databases to
compile a certain amount of data on maritime safety. Apart from purchases of PCs,
which are covered by the equipment costs, it will be necessary, at a first estimate, to
develop three databases which will require the creation of a computer infrastructure
and the development of applications. The cost of a server and a database
management system can be estimated at EUR 100 000. The cost of developing an
is at present between
application can vary considerably, but
EUR 100 000 and 200 000. Against
the budget needed for the
development of databases is initially estimated at EUR 500 000.

in DG TREN it

this backdrop,

Studies: The monitoring and evaluation of research in the field of maritime
-
safety are among the Agency's tasks. These tasks will require technical studies in
some cases. A sum of EUR 500 000 seems to be a reasonable estimate in view of the
tasks to be performed and the high technical level involved.

Workshops and conferences: The development of regulations in the field of
-
maritime safety and the setting up of
training workshops may require the
organisation of seminars and conferences. The total expenditure which will be
incurred for these meetings is estimated at EUR 150 000.

Total expenditure on operational costs amounts to EUR 1 300 00036.

d) Mission expenses

The tasks performed by the Agency, in particular the visits to the port States, the
the adjustment of the legislation of third
inspection of classification societies,
countries which are candidates for accession and the contacts between the Agency
and the Commission will necessitate travel both within and beyond the EU (travel
and accommodation expenses). The budget for mission expenses is estimated at
EUR 250 00037.

3)

Revenues

36

37

In the table "Itemised breakdown of costs" below, the total operational costs and equipment costs are
broken down according to the number of persons involved in each type of activity.
These estimates have been made on the basis of real average mission expenses (travel and
accommodation) recorded by DG TREN, both within the EU and beyond, and the estimated number of
missions for each of the Agency's tasks. The above estimates do not take account of the effects of the
future location of the Agency.

111

The Agency's revenues consist of the contribution from the Community budget and
the fees as provided for in Article 17 of the Regulation establishing a European
Maritime Safety Agency.

Community contribution:

The Community contribution will cover the aims and tasks assigned to the Agency
by the Community, as set out in Articles 1 and 2 of the Regulation establishing a
European Maritime Safety Agency.

7.2

Itemised breakdown of costs

a)

by type of activity (in euros)

Activity

Full-time
staff

Equipment
costs

Travel
costs

Operational
costs

Total

Administration

1 510 000

20 364

70 000

330 904

1 932 000

(14 persons)

Updating of Community
legislation, analysis of
progress on research in
maritime safety.

(7 persons)

Tasks relating to port
State control and
training activities in this
field.

(7 persons)

Tasks relating to the
monitoring of
classification societies.

(5 persons)

Commission assistance
for tasks relating to
maritime safety.

(9 persons)

Collection of information
on maritime safety and
maritime traffic,
exploitation of databases.

(5 persons)

756 000

10 180

12 500

165 000

943 680

756 000

10 180

45 000

165 000

976 180

540 000

7272

60 000

120 000

728 000

972 000

13 100

12 500

212 000

1 209 600

540 000

7272

12 500

120 000

680 000

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Common methodology
and coordination of
investigations into
maritime accidents.

(4 persons)

Assistance for candidate
countries (2 persons)

432 000

5820

12 500

95 000

545 320

216 000

2300

25 000

48 000

292 000

Environment
(2 persons)

216 000

2300

12 500

48 000

278 800

Total

5 940 000

80 000

250 000

1 300 000

7 584 780
(rounded
off to
7 600 000)

b)

by type of expenditure

Commitment appropriations in EUR (at current prices)

Item

2002

2003 / 2004

2005 and beyond

Staff costs

Equipment

Operational costs

1 980 000

4 000 000

5 940 000

260 000

325 000

100 000

800 000

80 000

1 300 000

Travel expenses

60 000

180 000

250 000

Total costs

Contribution
budget38

2 625 000

from EU

2 625 000

5 080 000

5 080 000

7 600 000

7 600 000

7.4

Schedule of commitment and payment appropriations

The Community contribution will be paid annually in one instalment.

38

Any revenues the Agency receives from training activities and publications must be taken into account
as regards the contribution from the EU budget. However, these revenues will be a very small amount
compared with the Agency's total budget and at this stage they cannot be estimated accurately.

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8.

FRAUD PREVENTION MEASURES

Specific control measures envisaged:

8.1

For the Agency

The Executive Directive will implement the Agency's budget. He will each year
submit to the Commission, the Administration Board and the Court of Auditors the
detailed accounts of all revenue and expenditure from the previous financial year. In
addition, the Commission's Internal Audit Service will assist in the management of
the Agency's financial operations by controlling risks, monitoring compliance by
providing an independent opinion on the quality of management and control systems
to improve the efficiency and the
and making recommendations
effectiveness of operations and to ensure economy in the use of the Agency's
resources.

in order

The Agency will adopt its Financial Regulation, after having received the agreement
of the Commission and the Court of Auditors. The Agency will put in place an
internal audit system similar to that introduced by the Commission in the framework
of its own restructuring.

8.2 Cooperation with OLAF

The staff subject to the Commission's Staff Regulations will cooperate with OLAF to
combat fraud.

8.3

For the Court of Auditors

The Court of Auditors will examine the accounts in accordance with Article 248 of
the Treaty and publish an annual report on the Agency's activities.

9.

9.1

ELEMENTS OF COST-EFFECTIVENESS ANALYSIS

Specific quantifiable objectives; target population

The specific objectives of the Agency, as described in the draft Regulation, are to
ensure a high, uniform and effective level of maritime safety and pollution
prevention in the Community. Furthermore,
the Agency will provide the
Member States and the Commission with technical and scientific support and with a
high level of expertise in order
to ensure the convergent and effective
implementation of Community legislation in the field of maritime safety, to monitor
its implementation and to evaluate the effectiveness of the measures in place.

The tasks to be performed by the Agency will impact on the safety of people and
goods moving by means of maritime transport in EU waters, and their environment.

They will also impact on the staff and organisations involved in maritime safety by
reducing distortion of competition due to the economic advantages enjoyed by ships
which fail to comply with current regulations and will reward the serious maritime
players.

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9.2

Grounds for the operation

For several years, the Commission has been adopting a large number of legislative
measures to increase safety and prevent pollution in maritime transport.

The sinking of the oil tanker Erika in December 1999, which polluted about 400 km
of coastline, considerably stirred up public opinion in Europe. From all evidence, the
string of such accidents, their effects on the environment and the apparent inability to
stop them have considerably reduced the public's willingness to tolerate them.

The European Parliament and the General Affairs Council have asked the
Commission to tighten up maritime safety rules sharply at the Community level.

With a view to a global maritime safety strategy, the Commission, at the request of
the European Parliament, is proposing the setting up of a Maritime Safety Agency to
underpin the Commission's and the Member States' action in applying and
monitoring Community legislation and evaluating the effectiveness of the measures
in place.

The Agency will assist the Commission in the updating of Community legislation on
maritime safety, in particular in line with the development of international legislation
in this field.

The Agency will monitor the overall functioning of the Community system of port
State control and will help the Commission to carry out
inspections of the
classification societies recognised at Community level. It will also organise training
activities in the field of port and flag state control.

It will provide the Commission and the Member States with reliable, objective and
comparable information and data on maritime safety to enable them to take the
necessary steps to improve safety at sea and to evaluate the effectiveness of the
measures in force.

In cooperation with the Commission and the Member States, it will design a common
methodology for investigating maritime accidents within the Community, support the
Member States in activities relating to investigations of serious maritime accidents
occurring in Community waters and analyse existing investigation reports on
accidents.

Lastly,
the creation of a European Maritime Safety Agency will promote the
establishment of a partnership between the Member States and help to encourage the
use of best practices within the Community.

These objectives will help to strengthen the overall maritime safety regime in the
Community by reducing the risks of accidents at sea, marine pollution and the loss of
human life at sea.

9.3

Monitoring and evaluation of the operation

The monitoring and evaluation of the Agency will be carried out on the basis of the
annual report adopted by the Administrative Board of the Agency for the previous
year and the work programme for the coming year, which will both be forwarded to
the Council and the European Parliament
the Member States, the Commission,

115

(Article 10 of the draft Regulation). The Agency's performance will be subject to
regular in-depth evaluations in accordance with Community practices and standards.

10.

ADMINISTRATIVE EXPENDITURE (SECTION III, PART A, OF THE
BUDGET)

The setting up of the Agency should not create any additional costs for the
Commission. The work currently done by the Commission will be replaced by
monitoring and follow-up of the Agency's activities.

10.1

Effect on the number of posts

Not applicable.

10.2

Overall financial impact of additional human resources

Not applicable.

10.3

Increase in other administrative expenditure as a result of the operation, in
particular expenditure on meetings of committees and groups of experts

Not applicable.

116