Opinion of the Economic and Social Committee on:the Proposal for a Regulation of the European Parliament and of the Council concerning the Committee on Safe Seas and amending the Regulations on maritime safety and the prevention of pollution from ships, andthe Proposal for a Directive of the European Parliament and of the Council amending the Directives on maritime safety and the prevention of pollution from ships
Date: 2001-02-28
Institutions: European Economic and Social Committee
Subjects: environmental protection, environmental standard, international standard, maritime safety, pollution from ships, prevention of pollution

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Opinion of the Economic and Social Committee on:

— the ‘Proposal for a Regulation of the European Parliament and of the Council concerning the
Committee on Safe Seas and amending the Regulations on maritime safety and the
prevention of pollution from ships’, and

— the ‘Proposal for a Directive of the European Parliament and of the Council amending the

Directives on maritime safety and the prevention of pollution from ships’

(2001/C 139/06)

On 6 October 2000 the Council decided to consult the Economic and Social Committee, under
Article 80(2) of the Treaty establishing the European Community, on the above-mentioned proposals.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 30 January 2001. The rapporteur
was Dr Bredima-Savopoulou and the co-rapporteur was Mr Retureau.

At its 379th plenary session of 28 February and 1 March 2001 (meeting of 28 February 2001) the
Economic and Social Committee adopted the following opinion unanimously.

1.

Introduction

The proposed measures come under the common
1.1.
policy on safe seas. Their objective is to set up a Committee
on Safe Seas and to have it replace the committees referred to
in the Council regulations and directives in force in the field of
maritime safety. In addition, the proposals aim to facilitate the
subsequent updating of the regulations and directives on
maritime safety in the light of developments in international
law. Due to technological developments in the past few years,
there has been a proliferation of maritime safety standards and
the international rules have constantly been updated. Updating
of the EU legislation is to a large extent driven by the adoption
of new rules at the international level.

1.3.
The value of a single committee dealing with maritime
safety issues was already underscored in the Commission
Communication on a common policy on safe seas (24 February
1993), which explicitly mentions setting up a Committee on
Safe Seas in its action programme.

According to the Communication, the establishment of such a
committee would ensure coherent implementation of the
Community measures planned in the field of maritime safety,
as the comitology procedures provided for by the directives
and regulations in this field have a common denominator: they
primarily concern the incorporation into Community law of
amendments and updates to the international conventions
instruments that are an integral part of
and international
Community law.

1.2.
The measure applies in the maritime safety area the
provisions of Article 202 of the Treaty by which the Council
can confer on the Commission the power to take measures
implementing the rules it adopts. It is also designed to facilitate
the implementation of Community policy in an area where
responsibility is shared by the Commission and Member States.

The planned measure corresponds to the Com-
1.2.1.
mission’s commitment to update all Community legislation in
the light of Council Decision 1999/468/EC on committee
procedures. It is intended to make it easier for Member States
to implement amendments to international conventions and
reduce the need for the Commission to amend at frequent
intervals the basic acts in the field of maritime safety.

1.4.
Under a resolution adopted on 8 June 1993, the
Council approved in principle the establishment of a Com-
in accordance with Council Decision
mittee on Safe Seas,
87/373/EEC of 13 July 1987 laying down the procedures
for the exercise of implementing powers conferred on the
Commission, with the purpose of:

a)

b)

centralising the duties of the committees, created by
the implementation of the aforementioned decision in
existing or future Community legislation, concerning
maritime safety matters;

assisting and advising the Commission in all maritime
safety matters and matters of prevention or limitation of
environmental pollution due to maritime activities.

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2.

The Commission’s Proposal

2.1.

Two separate proposals (1) have been made:

— A proposal

for a European Parliament and Council
Regulation, which sets up the Committee on Safe Seas
and lays down procedures governing its operation and its
scope. The proposal also provides for amending existing
regulations in the field of maritime safety, both to take
account of the creation of the Committee on Safe Seas
and to facilitate their subsequent updating.

— A proposal

for a European Parliament and Council
Directive, the aim of which is to amend the existing
directives in the field of maritime safety in order to take
account of the establishment of the Committee on Safe
Seas and to facilitate their subsequent updating.

2.2.
In choosing the legal form for the act setting up the
Committee on Safe Seas and applying the regulatory procedure
to the Community legislation, the Commission has followed
the principle of congruent forms. As the committees were
established by two different types of legal act, namely Council
regulations or directives, this principle implies that the pro-
visions of regulations in force are amended by a regulation,
and those of directives by means of a directive under the co-
decision procedure described in Article 251 of the Treaty.

Moreover, in the proposal amending the directives in force,
the Commission proposes correcting some anomalies of an
editorial nature to be found in Directive 94/57/EC (classifi-
cation societies) and 98/18/EC (safety of passenger ships).

2.3.
The proposal is designed to replace the five existing
committees by the Committee on Safe Seas, a regulatory
committee composed of representatives of the Member States
and chaired by the representative of the Commission. It would
also replace the regulatory procedure applicable to the existing
regulations and directives, based on Decision 87/373/EEC by
the new regulatory procedure adopted recently by Council
laying down the
Decision 1999/468/EC (28 June 1999)
procedures for the exercise of implementing powers conferred
on the Commission to Community legislation in the field of
maritime safety. Decision 1999/468/EC simplifies the above

(1) The proposals are amending Directives 94/57/EC, 93/74/EC,
94/58/EC, 95/21/EC, 96/98/EC, 97/70/EC, 98/18/EC, 98/41/EC,
1999/35/EC and Regulations (EEC) No 613/91, (EC) No 2978/94
and (EC) 3051/95.

procedures and ensures greater involvement and more compre-
hensive information to the European Parliament and the
general public regarding the use of these powers and in
particular the work of the committees. According to the
Commission, the establishment of a Committee on Safe Seas
would have positive practical effects such as a reduction in the
number of meetings and lower costs in organising and running
them.

3. General Comments

It is a long standing policy of the ESC corroborated in
3.1.
a string of past opinions (2)
that given the international
character of shipping, international standards are the most
effective means of improving maritime safety and environmen-
tal protection. Updating of regulations and directives to keep
in step with developments in international standards and
technical progress is an important task for the Commission
and Member States.

In its opinion (3) on the Communication on Safe Seas
3.2.
regarding the proposal to create a Committee on Safe Seas, the
ESC had misgivings about the need to set up a new administrat-
ive layer. In its view it ‘would appear less bureaucratic and
more appropriate given the prime role of Member States, if
the existing Council Working Group machinery were used,
adjusted as necessary’. It was recognised that if the consul-
tation/coordination procedure was to be enhanced a mechan-
ism had to be found whereby such discussions could take
place between Member States. However, the Communication
on Safe Seas did not spell out in any detail the composition
and role of the Committee on Safe Seas and this fact was
pinpointed in the ESC opinion.

(2) Opinion on positive measures for maritime transport, OJ C 56,
7.3.1990; Opinion on the Communication on Safe Seas, OJ C 34,
2.2.1994, p. 47 ; Opinion on Directive 94/57/EC (classification
societies), OJ C 34, 2.2.1994, p. 14; Opinion on Directive
95/21/EC (port state control), OJ C 393, 31.12.1994, p. 50;
Opinion on the new maritime strategy, OJ C 56, 24.2.1997, p. 9;
Opinion on Directive amending Directive 93/75/EEC — Minimum
requirements for vessels carrying dangerous and polluting goods,
OJ C 133, 28.4.1997, p. 7; Opinion on Maritime Safety, Opinion
on Safety of Bulk Carriers.
(3) OJ C 34, 2.2.1994, p. 47.

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3.3.
The situation has evolved over the past seven years
since adoption of the above Communication. Some of the
Member States’ competences in the field of maritime safety
have been transferred to the Community. The EU maritime
safety legislation nowadays covers the key aspects of the
IMO (1) conventions in force, its main objective being to ensure
efficient and informed application of the international safety
rules in the EU.

must be no overlapping between the role and competences of
the proposed unified regulatory Committee on Safe Seas
and the envisaged administrative European Maritime Safety
Agency. Although an Agency institutionally cannot have any
legislative or regulatory powers, there is a need to clearly
define the role and competences of the European Maritime
Safety Agency in order to avoid any risk of confusion or
duplication of work with the Committee on Safe Seas.

3.4.
The ESC appreciates the reasoning of the Commission
that the cost of failure to take action would be a confused legal
situation and cumbersome administrative procedures owing to
the co-existence of several committees operating in accordance
with the rules laid down by Decision 87/373/EEC and
new legislative measures involving a committee governed by
Decision 1999/468/EC.

3.5.
The ESC endorses the purpose of the proposed creation
of a Committee on Safe Seas replacing the existing committees
as well as its proposed tasks regarding the existing EU maritime
safety legislation.
It, however, wonders how the current
proposal relates with the Communication on the Safety of
Seaborne Oil Trade (15 March 2000) and the Communication
on a second set of Community Measures on Maritime Safety
following the sinking of the Oil Tanker ‘Erika’ (2) whereby the
creation of a European Maritime Safety Agency is proposed.
Such a structure would support the Commission’s and the
Member States actions in applying and monitoring EU law and
help in preparing its technical adjustments. More particularly,
it would be entrusted with: evaluations or audit missions
(e.g. of classification societies as per Directive 94/57/EC),
inspections of conditions under which Member States carry
out controls of ships, operation of Commission databases (e.g.
database on inspection of passenger ships under Directive
1999/35/EC). However, application of the same Directives
would also be the task of the proposed Committee on Safe
Seas.

The ESC shares the Commission’s view (3) that ‘these
3.6.
tasks should be performed exclusively by personnel highly
qualified in the area of maritime safety who have both
comprehensive technical knowledge and are fully familiar with
European and international maritime safety and pollution
prevention regulations’. However, the ESC believes that there

(1) International Maritime Organisation (IMO).
(2) COM(2000) 802 final of 6 December 2000.
(3) Communication on the Safety of Seaborne Oil Trade (15 March

2000).

3.6.1.
The ESC acknowledges that the proposal addresses a
thorny legal issue, namely, the relationship between the EU
legal system and international law that arises when Member
States implement regulations or directives in the field of
maritime safety. Amendments to the current international
conventions, resolutions or codes are adopted by the IMO
frequently and rapidly enter into force worldwide.

According to the Commission, given the lengthy
3.6.2.
nature of the internal procedures, the updating of EU legislation
generally takes effect after the entry into force of the amend-
ments at international level. This slippage is even worse in the
case of the time allowed for transposition of directives. There
is, thus, a systematic time lag between entry into force at the
international level and the date on which a provision becomes
applicable in the EU. This creates confusion and legal uncer-
tainty for national authorities and private individuals regarding
the rules that should be applied. It also has adverse reper-
cussions on maritime safety and environmental protection
since the international amendments represent an improvement
in safety standards yet are applied with delay by the Member
States. The EU suffers an image loss as a region applying
outdated or less rigorous standards.

The Commission, therefore, proposes the establishment of a
procedure for advance conformity checking to ensure that an
international amendment in direct conflict with the common
policy on safe seas, or any lower safety standards, cannot be
introduced at Community level. This procedure would involve
calling an emergency meeting of the Committee on Safe Seas
at the initiative of the Commission or a Member State to take
the appropriate action. The emergency meeting will examine
the disputed amendments and will
issue an opinion on
appropriate Community measures. As a precaution, the Com-
mission can also ask Member States to suspend or delay
any plans to accept or apply the international amendment
concerned.

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for

3.6.3.
The ESC shares the Commission’s view that the
current situation is unquestionably unsatisfactory since the
inherent delays in the internal procedures leading to the
adoption of a legislative act by the committee procedure are
the main obstacle
speeding up the updating of
Community legislation. The ESC, however, understands that
the delay caused by the current committee procedure is
insignificant compared to the subsequent time needed for
the detailed examination of the international amendments to
the Community act and
the final entry into force of
thereafter its transposition in national
In any
legislation.
event, in most cases, the time required for the completion
the Community procedure would exceed the time
of
normally required under the IMO tacit procedure for entry
into force of amendments to legally binding instruments, i.e.
18 months from the date of adoption. Therefore, under the
envisaged procedure which starts off after the adoption of
the amendment even with the proposed new structure, there
will be an unavoidable time lag between entry into force at
the international
level and the date on which a provision
becomes applicable in the Community. Consequently, there
is a need to establish a mechanism and procedures which
would ensure legal harmony and order.

jurisprudence of the European Court of Justice (1) a distinction
should be made between matters for which the EU has
exclusive competence and cases of mixed competence of the
EU and Member States. The EU has exclusive competence on
matters that are covered by acts of secondary EU law. In such
cases, Member States are not entitled to take up international
commitments and the EU has to decide how these competences
will be exercised. Where no acts of secondary EU law have
been adopted and in cases of mixed competence of the EU and
Member States, Member States can continue to take up
international commitments while being bound by Article 5 of
the Treaty which imposes the duty of abstaining from any
measure which could jeopardise the attainment of the objec-
tives of the Treaty (2). In essence, therefore, the EU and Member
States have a duty to cooperate (3) with a view to reaching a
common position vis-à-vis a proposed amendment in IMO.
Current practice indicates that the EU and Member States do
cooperate in all instances in the negotiating phase. Moreover,
the ESC does not share the fear of the Commission that the
incorporation of international legislation on maritime safety
in the national legislation of EU Member States may result in
EU law differing from Member State law and to a fall in EU

The ESC notes the originality of

the proposed
3.6.4.
approach compared with the normal practice.
It believes
that power could only be delegated to the Commission
strictly within the framework of Article 202 of the Treaty,
third indent
(former Article 145). According to the
Commission the power conferred to it is ‘strictly limited to
maritime safety where international standards are essentially
technical in nature’. Nevertheless, the ESC observes that the
wording of the defined objectives seems to widen the limited
scope of the proposal and the limited powers to be conferred
to the Committee.

3.6.5.
The ESC observes that a distinction should be made
regarding the negotiating phase of an amendment to an
international Convention in IMO and the phase following its
adoption. Regarding the negotiating phase, according to the

(1) This issue is inevitably linked to the legal problem of the EU’s
external competence. The European Court of Justice has already
given a series of rulings on the subject. Despite these rulings, the
dividing line between exclusive competence of the EU, competence
shared with the Member States and exclusive competence of the
Member States continues to be indistinct. However, there is no
doubt that in all the above cases the Member States and the
Commission should cooperate closely to define their positions.
In Case No 22/70 ERTA (Commission v. Council , 31 March
1971, European Court Reports 1971. p. 263) the ECJ decided
that insofar as the EC lays down common internal rules, it is also
competent in the field of external negotiations which can influence
those common rules.
In Opinion No 1/76 (on the Draft Agreement establishing a
European laying-up fund for inland waterway vessels, European
Court Reports 1977, p. 741), it ruled that if the EC has internal
competence to achieve a specific objective, it consequently has
exclusive external competence for the matter in question, insofar
as such external competence is necessary for achieving that
objective. The ECJ’s opinion 1/94 (Agreement establishing the
WTO 15 November 1994, European Court Reports, p. I-5267)
tends in the same direction, stating that in the event of shared
competence for external negotiations there is an obligation to
cooperate closely with the Member States in order to define their
position. (cf, Judgement of the Court of 9 July 1987, in joint cases
281, 283, 284, 285, 287/85, European Court Reports 1987,
p. 3203). ESC Opinion on relations between EU/ILO (OJ C 102,
24.4.1995).

(2) Doc. 10201/97 MAR 52/29.7.1997.
(3) ESC Opinion for a Council Decision setting up a consultation
procedure on relations between Member States and third countries
in shipping matters and on action relating to such matters in
international organizations (OJ C 355, 21.11.1997, p. 25).

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safety standards. The Commission acknowledges (1) that the
proposed conformity checking procedure will be very rarely
initiated and that the likelihood of a lowering of existing
safety levels (resulting from a change of international safety
standards) is remote in practice. Indeed, whenever international
maritime safety rules have been amended or added to in the
past,
the aim has been to improve safety standards in
international shipping.

Regarding the phase following the adoption of an
3.6.6.
amendment by IMO, under the tacit procedure it is appropriate
that following prior consultation any objections are lodged at
the time of adoption. In this regard it is noted that on very few
occasions have IMO members expressed reservations at the
time of adoption, or subsequent objections after the adoption.
Therefore, it would be inconsistent, untimely and embarrassing
for both IMO and the EU,
if EU Member States were
subsequently forced to lodge formal objections with very
limited practical effect, if any.

3.6.7.
All EU Member States are parties to the relevant IMO
conventions and are bound by their terms. All EU Member
States, and the EU itself, are parties to the United Nations
Convention on the Law of the Sea. Under the terms of the
latter convention (e.g. Article 211) they have the increased
legal obligation to ensure that ships flying the flags of
EU Member States comply with the maritime safety and
environmental protection provisions laid down under the
i.e.
authority of the competent international organisation,
IMO. Therefore,
the proposed measures
should be to ensure timely and full implementation of the
international standards, with the understanding that wherever
these may be deemed to be lower or incompatible with the EU
corresponding standards, proper action at EU level may be
taken.

the objective of

3.6.8. Moreover, the ESC notes that whilst the current
proposal refers to Decisions 1999/468/EC and 87/373/EEC
regarding committee procedures,
there is no mention of
Decision 77/587/EEC (2). This Decision set up a consultation
procedure on relations between Member States and third
countries in shipping matters and an action relating to such
matters in international organizations.
is precisely this
consultation mechanism that the current proposal seems to
amend without making the slightest reference to it. The ESC
also notes that in 1997 a new Decision was proposed (3) to
repeal Decision 77/587/EEC but it was not progressed.

It

(1) Explanatory Memorandum § 19.
(2) OJ L 239, 17.9.1977.
(3) COM(96) 707 final of 14.3.1997, OJ C 355, 21.11.1997, p. 25.

The ESC, in its relevant opinion, whilst endorsing the proposed
ex ante consultation mechanism, stated its preference for a
committee operating as a Council body instead of a Committee
under the authority of the European Commission, in view of
the fact that it would cover a wide range of subjects which do
not come under the exclusive competence of the EU.

3.6.9.
In the light of the above considerations, whilst
acknowledging the purpose of the measures to be applied in
extremely rare cases, the ESC firmly believes that the scope
and the timing of the proposed advance conformity checking
procedure need to be adjusted in order to avoid undesirable
legal conflicts and complications with international law.

4.

Specific Comments

4.1. Article 1 of the proposed Regulation

In order to be more specific in terms of the intent
4.1.1.
and scope it would be appropriate to rephrase in Article 1,
b) the definition of ‘international instruments’ as ‘the inter-
national instruments referred to in the Community maritime
legislation, as defined in Article 2, paragraph 2’.

4.2. Article 4.1 of the proposed Regulation

The Commission acknowledges that

4.2.1.
the delayed
application of amendments to international standards, which
generally represent an improvement in safety standards, has
adverse repercussions on maritime safety and environmental
protection. In contrast, in paragraph 1 of Article 4 it cites as
one of the cases of possible amendments to Community
1egislation the inconceivable manifest risk that the inter-
national amendments will lower the standards of maritime
safety or protection of the environment.

4.3. Article 4.2 and 4.3 of the proposed Regulation

In the opinion of the ESC, the relevant Community
4.3.1.
legislation in force conferring powers to the corresponding
existing Committees does not preclude ex ante consultation.
In any event, the proposed measures provide the opportunity
to expand the role of the Committee on Safe Seas from re-
active to pro-active. The benefits of the necessary change are
obvious. Amendments to IMO international instruments are
normally considered by its Sub-Committees and Committees
long before they are approved and eventually adopted. EU
Member States have ample opportunities individually, or in
consultation and under co-ordination, to influence the out-
come. Therefore, the Committee on Safe Seas should be

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consulted regularly during the various stages of the develop-
ment of the amendments to allow Member States to formulate
a common position or approach, in particular in cases of
amendments adopted by IMO under the tacit procedure. In
such cases, and where warranted, it is appropriate that any
objections are formally lodged at the time of the adoption.

4.3.2.
The ESC believes that in the light of Council Decision
1999/468/EC and for the purpose of expediting the internal
procedures, a parallel consultation mechanism with the Euro-
pean Parliament could be established before an amendment is
adopted in IMO, so as to involve it from the very early stages
in the development of the EU legislation. The added value of
such a mechanism would be that it will minimise the case
of different opinions on specific issues and the need for
conciliation.

5. Conclusions

The ESC endorses the purpose of the proposed creation
5.1.
of a Committee on Safe Seas replacing the existing committees
as well as its proposed tasks regarding the existing EU maritime
safety legislation. However,
these tasks should be clearly
defined in order to avoid overlapping and duplication of work
with the proposed creation of the European Maritime Safety
Agency.

5.2.
Regarding the proposed advance conformity checking
procedure, whilst acknowledging the purpose of the measures
to be applied in extremely rare cases the ESC firmly believes
that its scope and timing need to be adjusted in order to
avoid undesirable legal conflicts and complications with
international law.

Brussels, 28 February 2001.

The President

of the Economic and Social Committee

Göke FRERICHS