Common Position (EC) No 14/2001 of 26 February 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (Text with EEA relevance.)
Date: 2001-02-26
Institutions: Council of the European Union
Subjects: international standard, maritime transport, prevention of pollution, roadworthiness tests, supervisory body, vessel

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 14/2001

adopted by the Council on 26 February 2001

with a view to adopting Directive 2001/.../EC of the European Parliament and of the Council of ...
amending Council Directive 94/57/EC on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime administrations

(Text with EEA relevance)

(2001/C 101/01)

THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN UNION,

States of the existing relevant conventions in force at
international level.

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

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

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

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in
Article 251 of the Treaty (4),

(2)

(3)

Whereas:

(1)

Safety and pollution prevention at sea may be enhanced
by a proper and compulsory implementation by flag

(4)

Council Directive 94/57/EC (5) established a system of
Community-wide recognition of organisations that, in
compliance with the international conventions, may be
authorised to a various extent to inspect ships and issue
the relevant safety certificates on behalf of the Member
States.

The practical implementation of that Directive showed
that some adjustments to the Community-wide recog-
nition of organisations might have contributed greatly
towards the strengthening of such a system while
simplifying the monitoring and reporting obligations
imposed on Member States.

Since the adoption of Directive 94/57/EC some develop-
ments have occurred in the relevant
legislation at
Community and international level requiring that further
adjustments to that Directive be made.

(1) OJ C 212 E, 25.7.2000, p. 114.
(2) OJ C 14, 16.1.2001, p. 22.
(3) OJ C 22, 24.1.2001, p. 19.
(4) Opinion of the European Parliament of 30 November 2000 (not
yet published in the Official Journal), Council Common Position
of 26 February 2001 and decision of the European Parliament
of ... (not yet published in the Official Journal).

(5) OJ L 319, 12.12.1994, p. 20. Directive as amended by Com-

mission Directive 97/58/EC (OJ L 274, 7.10.1997, p. 8).

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(5)

In particular, for the purposes of Directive 94/57/EC,
it
is appropriate to apply the amendments to the
international conventions together with the protocols
and related codes of mandatory status, referred to in
Article 2(d) of Directive 94/57/EC, which entered into
force after the adoption of the Directive as well as
the relevant International Maritime Organisation (IMO)
resolutions.

(12) Similarly, the continuous a posteriori monitoring of the
recognised organisations to assess their compliance with
the provisions of Directive 94/57/EC can be carried out
more effectively in a harmonised and centralised manner.
Therefore it is appropriate that the Commission, together
with the Member State requesting the recognition,
be entrusted with this task on behalf of the whole
Community.

(6) With a view to promoting the effective implementation
of the obligations of the flag States laid down in the
international conventions, the IMO Assembly adopted
on 27 November 1997 Resolution A.847 (20) on
guidelines to assist flag States in the implementation of
IMO instruments.

(7)

IMO adopted the international safety management (ISM)
code through Assembly Resolution A.741 (18) of 4 Nov-
ember 1993 which was made mandatory through the
new Chapter IX of the International Convention for the
Safety of Life at Sea (SOLAS) Convention.

(8) With a view to ensuring a uniform implementation of
the ISM code, guidelines on the implementation of the
ISM code by maritime administrations were adopted
on 23 November 1995 by IMO through Resolution
A.788 (19).

(9) With a view to harmonising the statutory surveys and
inspections to be carried out by the flag administrations
pursuant to the international conventions, IMO adopted
Resolution A.746 (18) of 4 November 1993 on survey
guidelines under the harmonised system of survey and
certification.

(10) A good record of safety and pollution prevention
performance — measured in respect of all ships classed
by an organisation, irrespective of the flag they fly — is
an important
the performance of an
organisation and is therefore essential for granting the
initial recognition and maintaining it.

indication of

(11)

In order to grant the initial recognition to the organis-
ations wishing to be authorised to work on behalf of the
Member States, compliance with the provisions of
Directive 94/57/EC can be assessed more effectively in a
harmonised and centralised manner by the Commission
together with the Member States requesting the recog-
nition.

(13)

In addition to the authority of Member States to suspend
the authorisation of an organisation working on their
behalf, a similar authority should apply at Community
level, the Commission being allowed, on the basis of the
committee procedure, to suspend the recognition of an
organisation for a limited period of time where the
safety and pollution prevention performance of the
organisation is worsening and it
fails to take the
appropriate corrective measures.

(14)

In accordance with the Community-wide approach, the
decision to withdraw the recognition of an organisation
which fails to fulfil the provisions set out in the Directive,
including cases where safety and pollution prevention
performance becomes unsatisfactory, has to be taken at
Community level, and therefore by the Commission, on
the basis of the committee procedure.

(15) Since Directive 94/57/EC ensures freedom to provide
services in the Community, the Community should be
entitled to negotiate with those third countries where
some of the recognised organisations are located equal
treatment for the recognised organisations located in the
Community.

(16) The divergence in the financial liability regimes of the
organisations working on behalf of the Member States
represented a difficulty in the proper implementation of
Directive 94/57/EC. In order to contribute to solving
this problem it is appropriate to bring about a degree of
harmonisation at Community level of the liability arising
out of any incident caused by a recognised organisation,
as decided by a court of law, including settlement of a
dispute through arbitration procedures.

(17) The measures necessary for the implementation of
Directive 94/57/EC should be adopted in accordance
with Council Decision 1999/468/EC of 28 June 1999
the exercise of
laying down the procedures
implementing powers conferred on the Commission (1).

for

(1) OJ L 184, 17.7.1999, p. 23.

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(18) Since

transparency and exchange of

information
between interested parties, as well as public right
of access to information, are fundamental tools for
preventing accidents at sea, the recognised organisations
should provide all relevant statutory information con-
cerning the conditions of the ships in their class to the
port State control authorities and make it available to
the general public.

(19)

In an attempt to prevent ships from changing class in
order to avoid carrying out necessary repairs,
the
recognised organisations should exchange all relevant
information among themselves concerning the con-
ditions of ships changing class.

(20) A recognised organisation should not carry out statutory
work if it is identical with or has business, personal
or family links to the shipowner or operator. This
incompatibility should also apply to surveyors employed
by recognised organisations.

(21) The qualitative criteria to be met by the technical
organisations in order to be recognised at Community
level and to maintain such recognition should include
provisions to ensure that only exclusive surveyors can
carry out
the inspections and surveys required by
international conventions i.e. statutory tasks related to
the issue of relevant safety certificates. Those organis-
ations must have tight control over all their personnel
and offices, including all branches and offices within and
outside the Community and they must establish their
own safety and pollution prevention performance targets
and indicators. Those organisations must put in place a
system to measure the quality of their services.

(22) Directive 94/57/EC should be amended accordingly,

‘(b)

(c)

(d)

(i)

(j)

“ship flying the flag of a Member State” means a ship
registered in and flying the flag of a Member State in
accordance with its legislation. Ships not cor-
responding to this definition are assimilated to ships
flying the flag of a third country;

“inspections and surveys” means inspections and
surveys that it is mandatory to carry out under the
international conventions;

“international conventions” means the 1974 Inter-
national Convention for the Safety of Life at Sea
(SOLAS), the 1966 International Convention on
Load Lines and the 1973/1978 International Con-
vention for the Prevention of Pollution from Ships,
together with the Protocols and amendments there-
to, and related codes of mandatory status in all
Member States, in force on ... (*);

“class certificate” means a document issued by a
classification society certifying the structural and
mechanical fitness of a ship for a particular use or
service in accordance with the rules and regulations
laid down and made public by that society;

“cargo ship safety radio certificate” means the certifi-
cate introduced by the amended SOLAS 1974/1978
radio regulations, adopted by the IMO;

(*) Date of adoption of this Directive.’;

2.

in Article 3, the following sentence shall be added at the
end of paragraph 1:

‘Member States shall act in accordance with the relevant
provisions of the Annex and the Appendix to IMO
Resolution A.847 (20) on guidelines to assist flag States
in the implementation of IMO instruments.’;

HAVE ADOPTED THIS DIRECTIVE:

3. Article 4 shall be replaced by the following:

Article 1

Council Directive 94/57/EC is hereby amended as follows:

1.

in Article 2, points (b), (c), (d), (i) and (j) shall be replaced
by the following:

‘Article 4

1. Member States which wish to grant an authorisation
to any organisation which is not yet recognised, shall
submit a request for recognition to the Commission
together with complete information on, and evidence of,
compliance with the criteria set out in the Annex and on
the requirement and undertaking that it will comply
with the provisions of Article 15(2),(4) and (5). The
Commission, together with the respective Member States
submitting the request, shall carry out assessments of the
organisations for which the request for recognition was

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received in order to verify that the organisations meet
and undertake to comply with the abovementioned
requirements. A decision on recognition shall take into
account the safety and pollution prevention performance
records of the organisation, referred to in Article 9.
Recognition shall be granted by the Commission in
accordance with the procedure referred to in Article 7(2).

2. Member States may submit to the Commission special
requests for a limited recognition of three years for
organisations which meet all the criteria of the Annex
other than those set out under paragraphs 2 and 3 of
Section A. The same procedure as that referred to in
paragraph 1 will apply to these special requests with the
exception that
the Annex for which
compliance has to be assessed during the assessment
carried out by the Commission, together with the Member
State, shall be all the criteria other than those set out
under paragraphs 2 and 3 of Section A. The effects of
these limited recognitions shall be limited exclusively to
the Member State or States which have submitted a
request for such recognition.

the criteria of

3. All the organisations which are granted recognition
shall be closely monitored by the committee set up under
Article 7, particularly those referred to in paragraph 2
above with a view to possible decisions concerning
whether or not to extend the limited recognition. With
regard to these latter organisations, a decision on the
extension of such recognition shall not take into account
the criteria set out under paragraphs 2 and 3 of Section A
of the Annex but shall take into account the safety
and pollution prevention performance records of the
organisation, referred to in Article 9(2). Any decision on
the extension of the limited recognition shall specify
under which conditions, if any, such extension is granted.

4. The Commission shall draw up and update a list
of
the organisations recognised in compliance with
paragraphs 1, 2 and 3. The list shall be published in the
Official Journal of the European Communities.

5. The organisations which on ... (*) are already recog-
nised on the basis of this Directive shall continue to be
recognised. Nevertheless, those organisations shall be
required to comply with the new provisions laid down in
this Directive and their compliance shall be assessed
during the first assessments referred to in Article 11.

(*) Date of the entry into force of this Directive.’;

4. Article 5 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1. In applying Article 3(2), Member States shall in
principle not refuse to authorise any of the recog-

nised organisations to undertake such functions,
to the provisions of paragraph 3 and
subject
they may restrict
Articles 6 and 11. However,
the number of organisations they authorise in
accordance with their needs, provided there are
transparent and objective grounds for so doing. At
the request of a Member State, the Commission
shall, in accordance with the procedure laid down
in Article 7, adopt appropriate measures.’;

(b) paragraph 2 shall be deleted;

(c)

paragraph 3 shall be replaced by the following:

‘3. In order for a Member State to accept that a
recognised organisation located in a third State is to
carry out the duties mentioned in Article 3 or part
of them it may request the third State in question to
grant reciprocal
for those recognised
organisations which are located in the Community.
In addition, the Community may request the third
State where a recognised organisation is located to
grant reciprocal
for those recognised
organisations which are located in the Community.’;

treatment

treatment

5. Article 6 shall be amended as follows:

(a)

paragraph 2 shall be replaced by the following:

‘2. The working relationship shall be regulated by a
formalised written and non-discriminatory agree-
ment or equivalent legal arrangements setting out
the specific duties and functions assumed by the
organisations and including at least:

(a) The provisions set out in Appendix II of IMO
Resolution A.739(18) on guidelines for the
authorisation of organisations acting on behalf
of the administration, while drawing inspir-
ation from the Annex, Appendixes
and
Attachment to IMO MSC/Circular 710 and
MEPC/Circular 307 on model agreement for
the authorisation of recognised organisations
acting on behalf of the administration;

(b)

the following provisions concerning financial
liability:

(i)

if liability arising out of any incident is
finally and definitely imposed by a court
of law on the administration, together
with a requirement to compensate the
injured parties for loss or damage to
property or personal
injury or death,
which is proved in that court of law to
have been caused by a wilful act or
omission or gross negligence of the recog-
nised organisation, its bodies, employees,

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agents or others who act on behalf of the
recognised organisation,
the adminis-
tration shall be entitled to financial com-
pensation from the recognised organis-
ation to the extent that the said loss,
damage,
injury or death is, as decided
by that court, caused by the recognised
organisation;

(ii)

(iii)

if liability arising out of any incident is
finally and definitely imposed by a court
of law on the administration, together
with a requirement to compensate the
injury or
injured parties for personal
death, which is proved in that court of
law to have been caused by any negligent
or reckless act or omission of the recog-
nised organisation, its employees, agents
or others who act on behalf of the recog-
nised organisation,
the administration
shall be entitled to financial compensation
from the recognised organisation to the
extent that the said personal
injury or
death is, as decided by that court, caused
by the recognised organisation; the Mem-
ber States may limit
the maximum
amount payable by the recognised organ-
isation, which must, however, be at least
equal to EUR 5 million;

if liability arising out of any incident is
finally and definitely imposed by a court
of law on the administration, together
with a requirement to compensate the
injured parties for loss or damage to
property, which is proved in that court of
law to have been caused by any negligent
or reckless act or omission of the recog-
nised organisation, its employees, agents
or others who act on behalf of the recog-
nised organisation,
the administration
shall be entitled to financial compensation
from the recognised organisation, to the
extent that the said loss or damage is, as
decided by that court, caused by the
recognised organisation;
the Member
States may limit the maximum amount
payable by the recognised organisation,
which must, however, be at least equal to
EUR 2,5 million;

(c)

(d)

(e)

provisions for a periodical audit by the adminis-
tration or by an impartial external body
appointed by the administration into the duties
the organisations are undertaking on its behalf,
as referred to in Article 11(1);

the possibility for random and detailed inspec-
tions of ships;

provisions for reporting essential information
about their classed fleet, changes, suspensions
and withdrawals of class, as referred to in
Article 15(3).’;

(b)

the following paragraph 5 shall be added:

‘5. The Commission shall, not later than ... (*) submit
a report to the European Parliament and to the
Council evaluating the economic impact of the
liability regime provided for in this Article on
the parties concerned and, more particularly,
its
consequences for the financial equilibrium of recog-
nised organisations.

This report shall be drawn up in cooperation with
the competent authorities of the Member States
and the parties concerned, in particular recognised
organisations. The Commission shall, if necessary in
the light of
this evaluation, submit a proposal
amending this Directive with more specific reference
to the principle of minimum liability.

(*)

Three years after
Article 2.’;

the date referred to in

6. Article 7 shall be replaced by the following:

‘Article 7

1. The Commission shall be assisted by a committee.

2. Where reference is made to this paragraph, Articles 5
and 7 of Decision 1999/468/EC shall apply, having
regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision
1999/468/EC shall be set at three months.

3. The committee shall adopt its rules of procedure.’;

7. Article 8(1) shall be replaced by the following:

‘1. This Directive may, without broadening its scope, be
amended in accordance with the procedure laid down in
Article 7(2), in order to:

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— apply, for the purposes of this Directive, subsequent
amendments to the international conventions, pro-
tocols, codes and resolutions related thereto men-
tioned in Articles 2(d), 3(1) and 6(2) , which have
entered into force,

— update the criteria in the Annex taking into account,
in particular, the relevant decisions of the IMO,

— increase the amounts specified in points (ii) and (iii)

of Article 6(2)(b).’;

8. Article 9 shall be replaced by the following:

‘Article 9

1. The recognition of organisations
referred to in
Article 4 which no longer fulfil the criteria set out in the
Annex or which fail to meet the safety and pollution
prevention performance records mentioned in para-
graph 2 shall be withdrawn. The withdrawal of recog-
nition shall be decided by the Commission in accordance
with the procedure referred to in Article 7(2), after the
organisation concerned has been given the opportunity
to submit its observations.

2. In preparing drafts for a decision relating to the
withdrawal of recognition as referred to in paragraph 1,
the Commission shall take into account the outcome of
the assessments of the recognised organisations referred
to in Article 11 as well as the safety and pollution
prevention performance records of the organisations,
measured for all the ships they have in class irrespective
of the flag the ships fly.

The safety and pollution prevention performance records
of the organisations shall be derived from the data
produced by the Paris Memorandum of Understanding
on port State control and/or by similar schemes. Other
indications may be derived from an analysis of the
casualties involving ships classed by the recognised
organisations.

Reports produced by Member States on the basis of
Article 12 shall also be taken into consideration to assess
the safety and pollution prevention performance records
of the organisations.

The Committee set up under Article 7 shall determine the
criteria to be followed in order to decide, on the basis of
the information referred to in this paragraph, when the
performance of an organisation acting on behalf of a flag
State can be considered an unacceptable threat to safety
and the environment.

9. Article 10 shall be replaced by the following:

‘Article 10

1. Notwithstanding the criteria specified in the Annex,
where a Member State considers that a recognised
organisation can no longer be authorised to carry out on
its behalf the tasks specified in Article 3 it may suspend
such authorisation on the basis of the following pro-
cedure:

(a)

(b)

(c)

the Member State shall inform the Commission and
the other Member States of its decision without
delay, giving substantiated reasons therefor;

the Commission shall examine whether the suspen-
sion is justified for reasons of serious danger to
safety or the environment;

acting in accordance with the procedure laid down
in Article 7(2), the Commission shall inform the
Member State whether or not its decision to suspend
the authorisation is justified for reasons of serious
danger to safety or the environment and, if it is not
justified, request the Member State to withdraw the
suspension.

2. Whenever the Commission considers that the safety
and pollution prevention performance records of a
recognised organisation worsen, without however justify-
ing the withdrawal of its recognition on the basis of the
criteria referred to in Article 9(2), it may decide to inform
the recognised organisation accordingly and request it to
take appropriate measures to improve its safety and
pollution prevention performance records, and inform
the Member States thereof. Should the recognised organis-
ation fail to provide the Commission with an appropriate
answer or should the Commission consider that the
measures taken by the recognised organisation have
failed to improve its safety and pollution prevention
performance records, the Commission may decide to
suspend recognition of the organisation for a period of
one year in accordance with the procedure referred to in
Article 7(2) after the organisation concerned has been
given the opportunity to submit its observations. During
that period,
the recognised organisation will not be
allowed to issue or renew any certificate to ships flying
the flag of the Member States while the certificates issued
or renewed in the past by the organisation remain valid.

Draft decisions relating to the withdrawal of recognition
as referred to in paragraph 1 shall be submitted to the
committee by the Commission upon its own initiative or
at the request of a Member State.’;

3. The procedure referred to in paragraph 2 shall also
apply where the Commission has evidence that a recog-
nised organisation has failed to comply with the pro-
visions of Article 15(3), (4) or (5).

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4. One year after the adoption of the decision of the
Commission to suspend recognition of an organisation,
the Commission shall assess whether the shortcomings
referred to in paragraphs 2 and 3 which led to the
suspension have been removed. Where such short-
comings are still present, recognition shall be withdrawn
in accordance with the procedure referred to in
Article 7(2).’;

carrying a valid class certificate and relating to items
covered by that certificate. Only cases of ships rep-
resenting a serious threat to safety and the environment
or showing evidence of particularly negligent behaviour
of the organisations shall be reported for the purposes of
this Article. The recognised organisation concerned shall
be advised of the case at the time of the initial inspection
so that it can take appropriate follow-up action immedi-
ately.’;

10. Article 11 shall be replaced by the following:

‘Article 11

12. Article 13 shall be deleted;

1. Each Member State must satisfy itself that the recog-
nised organisations acting on its behalf for the purpose
of Article 3(2), effectively carry out the functions referred
to in that Article to the satisfaction of its competent
administration.

2. Each Member State shall carry out this task at least on
a biennial basis and shall provide the other Member States
and the Commission with a report of the results of this
monitoring at the latest by 31 March of each year
following the years for which compliance has been
assessed.

3. All the recognised organisations shall be assessed by
the Commission, together with the Member State which
submitted the relevant request for recognition, on a
regular basis and at least every two years to verify that
they fulfil the criteria of the Annex. In selecting the
organisations for assessment, the Commission shall pay
particular attention to the safety and pollution prevention
performance records of the organisation, to the casualty
records and to the reports produced by Member States in
accordance with Article 12. The assessment may include
a visit to regional branches of the organisation as well as
random inspection of ships for the purpose of auditing
the organisation’s performance. In this case the Com-
mission shall, where appropriate, inform the Member
States where the regional branch is located. The Com-
mission shall provide the Member States with a report of
the results of the assessment.

4. Each recognised organisation shall make available the
results of its quality system management review to the
committee set up under Article 7, on an annual basis.’;

11. Article 12 shall be replaced by the following:

13. at the end of Article 14(2) the reference to ‘Article 13’

shall be replaced by ‘Article 7(2)’;

14. Article 15 shall be amended as follows:

(a)

paragraphs 3 and 4 shall be replaced by the fol-
lowing:

fly.

‘3. The recognised organisations shall provide to all
Member States administrations which have granted
any of the authorisations provided for in Article 3
and to the Commission all relevant information
about their classed fleet, transfers, changes, suspen-
sions and withdrawals of class, irrespective of the
Information on transfers,
flag the vessels
changes, suspensions, and withdrawals of class,
including information on all overdue surveys, over-
due recommendations, conditions of class, operating
conditions or operating restrictions issued against
their classed vessels — irrespective of the flag the
vessels fly — shall also be communicated to the
Sirenac information system for port State control
inspections and shall be published on the website, if
any, of these recognised organisations.

4. The recognised organisations shall not
issue
certificates to a ship, irrespective of its flag, which
has been declassed or is changing class for safety
reasons before giving the opportunity to the com-
petent administration of
the flag State to give
its opinion within a reasonable time in order to
determine whether a full inspection is necessary.’;

‘Article 12

(b)

the following paragraph shall be added:

In exercising their inspection rights and obligations as
port States, Member States shall report to the Commission
and to other Member States, and inform the flag State
concerned, the discovery of the issue of valid certificates
by organisations acting on behalf of a flag State to a ship
which does not fulfil the relevant requirements of the
international conventions, or of any failure of a ship

‘5. In cases of transfer of class from one recognised
organisation to another,
the losing organisation
shall inform the gaining organisation of all overdue
surveys, overdue recommendations, conditions of
class, operating conditions or operating restrictions
issued against the vessel. On transfer, the losing

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organisation shall provide the gaining organisation
with the complete history file of the vessel. The
certificates of the ship can be issued by the gaining
organisation only after all overdue surveys have
been satisfactorily completed and all overdue rec-
ommendations or conditions of class previously
issued against the vessel have been completed as
specified by the losing organisation. Prior to the
issuance of the certificates, the gaining organisation
must advise the losing organisation of the date of
issue of the certificates and confirm the date, location
and action taken to satisfy each overdue survey,
overdue recommendation and overdue condition of
class. The recognised organisations shall cooperate
with each other in properly implementing the
provisions of this paragraph.’;

15.

in Article 16, the following paragraph 4 shall be added:

‘4. In addition, the Commission shall inform the Euro-
pean Parliament and the Council, on a regular basis, of
progress in the implementation of the Directive within
the Member States.’;

6.

7.

The organisation must not be controlled by
shipowners or
shipbuilders, or by others
engaged commercially in the manufacture,
equipping, repair or operation of ships. The
organisation must not be substantially depen-
dent on a single commercial enterprise for its
revenue. The recognised organisation must not
carry out statutory work if it is identical with
or have business, personal or family links to
the shipowner or operator. This incompatibility
shall also apply to surveyors employed by the
recognised organisation.

The organisation must operate in accordance
with the provisions set out in the Annex to
IMO Resolution A.789(19) on specifications
on the survey and certification functions of
recognised organisations acting on behalf of
the administration,
in so far as they cover
matters falling within the scope of this Direc-
tive.’

(b)

in Section B:

16.

the Annex to the Directive shall be amended as follows:

(i)

the title shall be replaced by the following:

(a)

Section A shall be replaced by the following:

‘B.

SPECIFIC MINIMUM CRITERIA’;

‘A. GENERAL MINIMUM CRITERIA

(ii) paragraphs 4, 5, 6, 7 and 9 shall be replaced

by the following:

1.

2.

3.

4.

5.

The recognised organisation must be able to
document extensive experience in assessing the
design and construction of merchant ships.

The organisation must have in its class a fleet
of at least 1 000 ocean-going vessels (over
100 grt) totalling no less than 5 million grt.

The organisation must employ a technical staff
commensurate with the number of vessels
classed. As a minimum, 100 exclusive sur-
veyors are needed to meet the requirements in
paragraph 2.

The organisation must have comprehensive
rules and regulations for the design, construc-
tion and periodic survey of merchant ships,
published and continually upgraded and
improved through research and development
programmes.

The organisation must have its register of
vessels published on an annual basis or main-
tained in an electronic base accessible to the
public.

‘4.

5.

6.

The organisation is prepared to provide
relevant
information to the adminis-
tration, to the Commission and to the
interested parties.

The organisation’s management has
defined and documented its policy and
objectives for, and commitment to, qual-
ity and has ensured that this policy is
understood, implemented and maintained
at all levels in the organisation. The organ-
isation’s policy must refer to safety and
pollution prevention performance targets
and indicators.

has

organisation

The
developed,
implemented and maintains an effective
internal quality system based on appropri-
internationally recognised
ate parts of
quality standards and in compliance with
EN 45004 (inspection bodies) and with
EN 29001, as interpreted by the IACS
Quality System Certification Scheme
Requirements,
alia,
ensures that:

and which,

inter

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(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

the organisation’s rules and regu-
lations are established and maintai-
ned in a systematic manner;

the organisation’s rules and regu-
lations are complied with and an
internal system to measure the qual-
ity of service in relation to these rules
and regulations is put in place;

the statutory
the requirements of
work for which the organisation
is authorised are satisfied and an
internal system to measure the qual-
ity of service in relation to the com-
pliance with the international con-
ventions is put in place;

the responsibilities, authorities and
interrelation of personnel whose
work affects the quality of the organ-
isation’s services are defined and
documented;

all work is carried out under con-
trolled conditions;

a supervisory system is in place
which monitors
the actions and
work carried out by surveyors and
technical and administrative staff
employed directly by the organis-
ation;

the statutory
the requirements of
work for which the organisation is
authorised are only carried out by its
exclusive surveyors or by exclusive
surveyors of other recognised organ-
in all cases, the exclusive
isations;
surveyors must have an extensive
knowledge of the particular type of
ship on which they carry out the
statutory work as relevant to the
particular survey to be carried out
and of
applicable
the
requirements;

relevant

a system for qualification of sur-
veyors and continuous updating of
their knowledge is implemented;

records are maintained, demonstrat-
ing achievement of the required stan-
dards in the items covered by the
services performed, as well as the
effective operation of
the quality
system;

(j)

(k)

a comprehensive system of planned
and documented internal audits of
the quality related activities is main-
tained in all locations;

the statutory surveys and inspections
required by the harmonised system
of survey and certification for which
the organisation is authorised are
carried out in accordance with the
provision set out in the Annex and
Appendix
IMO Resolution
A.746(18) on survey guidelines
under the harmonised system of sur-
vey and certification;

to

(l)

clear and direct lines of responsibility
and control are established between
the central and the regional offices
of the society and between the recog-
nised organisations and their sur-
veyors.

7.

organisation must

The
ability:

demonstrate

(a)

(b)

to develop and keep updated a full
and adequate set of own rules and
regulations on hull, machinery and
electrical and control equipment
having the quality of internationally
recognised technical standards on
the basis of which SOLAS conven-
tion and passenger ship safety certifi-
cates (as regards adequacy of ship
structure and essential
shipboard
machinery systems) and load line
certificates (as regards adequacy of
ship strength) can be issued;

to carry out all inspections and sur-
veys required by the international
conventions for the issue of certifi-
cates, including the necessary means
of assessing — through the use of
qualified professional staff and in
accordance with the provisions set
out in the Annex to IMO Resolution
A.788(19)
on
implementation of the international

guidelines

on

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safety management (ISM) code by
administrations — the application
and maintenance of the safety man-
agement system, both shore-based
and on board ships, intended to be
covered in the certification.

9.

The organisation must allow participation
in the development of its rules and/or
regulations by representatives of
the
administration and other parties con-
cerned.’

2. When Member States adopt those provisions, they shall
contain a reference to this Directive or be accompanied by
such a reference on the occasion of their official publication.
Member States shall determine how such reference is to be
made.

3. Member States shall communicate to the Commission
the text of the provisions of national law which they have
adopted in the field covered by this Directive.

Article 3

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

Article 4

Article 2

This Directive is addressed to the Member States.

Done at ...

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than ... (*). They shall forthwith inform the
Commission thereof.

For the European Parliament

For the Council

The President

The President

(*) Eighteen months after the entry into force of this Directive.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

Within the framework of the codecision procedure (Article 251 EC) and following the first reading
by the European Parliament on 30 November 2000 (1), the Council agreed on 20 December 2000
on the contents of its Common Position with a view to the adoption of a European Parliament and
Council Directive amending Council Directive 94/57/EC on common rules and standards for ship
inspection and survey organisations and for the relevant activities of maritime administrations (2).
After legal and linguistic revision, the Common Position was adopted on 26 February 2001.

The proposal is a part of a package concerning the safety of the seaborne oil trade presented by the
Commission after the sinking of the Erika in December 1999. The package includes a communication
by the Commission accompanied by three legislative proposals concerning port State control,
accelerated phasing-out of single hull oil tankers, as well as the present proposal concerning
classification societies.

The objective of the draft directive under consideration is to improve the safety of maritime transport
and the protection of marine environment by strengthening and harmonising the regime concerning
the quality of the ship inspection and survey organisations undertaking tasks for the Member States.

In taking its position, the Council took account of the first reading by the European Parliament as
well as the opinion of the Economic and Social Committee (3), that of the Committee of the
Regions (4) and the Commission’s modified proposal (5).

II. ANALYSIS OF THE COMMON POSITION

The Council agreed with the general thrust of the Commission proposal for the strengthening and
harmonisation of the Community regime concerning recognised organisations. The Council sought
in particular to maintain and strengthen this thrust of the proposal while adhering to the scope of
the directive and taking into account the principle of subsidiarity, to facilitate its application in
practice, to respect the international obligations of the Community and to enhance transparency.

The Common Position contains the following key elements:

(a)

the task of recognising, monitoring and suspending the organisations is transferred from the
Member States to the Community, while Member States retain the power for appointing the
recognised organisations responsible for surveying their fleet. At the same time the monitoring
and control of these organisations is strengthened;

(1) Doc. 14079/00 CODEC 952 MAR 66, not yet published in the Official Journal.
(2) Commission proposal: OJ C 212 E, 25.7.2000, p. 114-120.
(3) OJ C 14, 16.1.2001, p. 22.
(4) OJ C 22, 24.1.2001, p. 19.
(5) Doc. 14723/00 MAR 85 CODEC 1054, COM(2000) 849 final, not yet published in the Official Journal.

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(b)

(c)

certain common rules are established for the liability regime of the recognised organisations:
for gross negligence and wilful acts or omissions, their liability is unlimited; for less severe
negligence, the Member States may agree to set a ceiling for the liability of the recognised
organisations, but such ceiling must be no less than a level defined in the directive;

the diffusion of information among the players concerned is improved in particular by extended
the obligation of the recognised organisations to provide information to other recognised
organisations, to Member States, to the Commission, to interested parties and the general
public.

In the spirit described above, the Council made the following adjustments to the Commission
proposal, which essentially concern the provisions on financial liability:

(i)

the Council agreed with the Commission proposal that for gross negligence and wilful act or
omission the liability of the recognised organisations should be unlimited. However, the
Council strengthened the liability regime concerning negligent or reckless act or omission. The
Council agreed that in such cases of less severe negligence the Member States could limit the
liability of the organisations. Nevertheless, in the spirit of making the parties involved in
maritime transport better accountable, the Council found it appropriate to establish at
Community level a minimum level for such a possible ceiling, i.e. EUR 5 million for death or
personal injury and EUR 2,5 million for damage to property (1). The possibility, existing today,
is thereby maintained for the Member States to negotiate a higher level of compensation in the
contracts with the organisations;

(ii)

concerning the liability for special, indirect or consequential losses or damages and the defences
for the personnel of the recognised organisations, the Council felt that it would be premature
to legislate in such detail at Community level. It considered it preferable to leave these issues
for the existing national rules on liability, subject however to possible future proposals by the
Commission in the framework of the overall evaluation of the functioning of the liability
regime;

(iii)

recognising that this Directive would for the first time introduce Community rules for the
liability of recognised organisations, the Common Position includes two elements for a possible
revision of these rules, which build upon the amendments by the European Parliament:

— the Committee procedure may be used to increase the minimum limits of financial

liability, if said amounts were to be found too low,

— the Commission will monitor the functioning of the liability regime, submit a report to

the European Parliament and the Council and propose amendments where necessary (2).

The Council also made certain technical amendments aimed at increasing the technical and legal
clarity of the text, facilitating the application, improving transparency and taking account of the
principle of subsidiarity:

— for the authorisation of recognised organisations, the Council preferred to leave a higher degree

of flexibility to Member States concerning the format of these agreements (Article 6),

(1) The compensation is determined by a Court and the ceiling would only apply in cases where the damage is higher

than the applicable ceiling.

(2) See also similar arrangements in Article 8 of Directive 2000/59/EC of the European Parliament and of the Council
of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (OJ L 332,
28.12.2000, p. 81).

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— the drafting concerning the Committee procedure was brought in line with established practices

(Articles 7 and 8) (1),

— in order to improve transparency, the dissemination of relevant information was improved to

Member States and to flag States (Articles 10.2, 11.3 and 12),

— concerning the possible inspections of ships by the Commission as part of the assessment of
the recognised organisation, it was made more explicit that the purpose of such inspections is
to audit the performance of the organisation, so as to make a distinction from the inspections
of ships by port States under Council Directive 95/21/EC (2) (Article 11.3),

— for the benefit of more rationalised dissemination of information on the implementation of the
Directive, the Council maintained those provisions of Directive 94/57/EC in their existing form
where the Commission requested to provide such information received from Member States to
all other Member States (Articles 6.4 and 15.3).

III. AMENDMENTS BY THE EUROPEAN PARLIAMENT

In the spirit of the abovementioned guiding principles, the Council followed, fully or partly, 14 of
the 18 amendments suggested by the European Parliament. In this context, it may be noted that:

— concerning the unacceptable links between the recognised organisation and the shipowner or
operator, the Council — following the opinion of the Commission and in order to adhere to
the scope of the Directive — made reference to statutory tasks, noting that the classification
societies may have other business relations with ship owners and operators not falling under
the scope of the Directive (recital 16; Annex A, point 6),

— as to the consultation of the flag State by the recognised organisation in cases of declassing or
changing of class for safety reasons, the Council preferred, for practical reasons, to allow the
flag State to respond within a reasonable time, so as to better take into account the possible
individual situations (Article 15(4)).

The Council departed from the opinion of Parliament on certain amendments, thereby following the
Commission. The reasons therefore were reasons of preserving legal clarity and, in the substance:

— reasons of not widening the scope of the Directive:

— while it is evident that the shipowners’ responsibility is to maintain the seaworthiness of
their ships, it is to be noted that the Directive does not address shipowners but aims at
strengthening the regime for recognised organisations,

(1) OJ L 184, 17.7.1999, p. 23. See also, e.g. Article 14 of Directive 2000/59/EC of 27 November 2000 on port

reception facilities for ship-generated waste and cargo residues (OJ L 332, 28.12.2000, p. 81).

(2) Council Directive 95/21/EC of 19 June 1995 concerning the enforcement,

in respect of shipping using
Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards
for ship safety, pollution prevention and shipboard living and working conditions (port State control) (OJ L 157,
7.7.1995, p. 1).

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— the Council agreed that stringent procedures must be followed in ship inspections, but
considered that it would not be feasible to request that the Commission specify these
highly technical rules. Instead, the Directive does provide, in its Annexes, more general
criteria for the quality of the organisations which suppose that they follow appropriate
procedures in their inspections. It should also be noted that the inspections of ships by
port States are regulated under Directive 95/21/EC,

— reasons of avoiding a weakening of the Directive:

— it was suggested to make it mandatory for the committee to consult with the parties
concerned,
including the organisations to be monitored by the committee. Such
mandatory consultation procedure was not found appropriate in the context of the
committee procedure. However, in general, it is to be noted that the committee will draw
up its own rules of procedure, whereby it may take into account the circumstances specific
to this Directive,

— the Council could not accept to remove the obligation of Member States to assess the
organisations authorised by them (paragraph 2 of Article 11). While the Common Position
does provide for an extensive assessment, by the Community, of the general quality of the
organisations in order to maintain their recognition, the Council found it important to
maintain the complementing monitoring task of the Member States, in their capacity as
flag States, to regularly satisfy themselves that the recognised organisations acting on their
behalf are effectively carrying out the particular functions entrusted to them,

— the Council considered it unjustified to limit the scope of safety and pollution prevention
targets and indicators to those under the direct control of the recognised organisation, as
these targets and indicators should give a precise and comprehensive picture of safety and
pollution prevention performance.

— reasons of respecting the Community’s commitments within the framework of international

trade forums:

— Member States should accept certification of the quality system of an organisation carried

out in a third country, if it is consistent with agreed rules.