Opinion of the Economic and Social Committee on:the Proposal for a Directive of the European Parliament and of the Council establishing a Community monitoring, control and information system for maritime traffic,the 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, andthe Proposal for a Regulation of the European Parliament and of the Council establishing a European Maritime Safety Agency
Date: 2001-05-30
Institutions: European Economic and Social Committee
Subjects: European Maritime Safety Agency, maritime transport, oil pollution, pollution control measures, transport of dangerous goods, transport safety

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Opinion of the Economic and Social Committee on:

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

Community monitoring, control and information system for maritime traffic’,

— the ‘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’, and

— the ‘Proposal for a Regulation of the European Parliament and of the Council establishing a

European Maritime Safety Agency’

(2001/C 221/07)

On 25 January 2001 the Council decided to consult the Economic and Social Committee, under
Article 80(2) of the Treaty establishing the European Economic 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 8 May 2001. The rapporteur was
Mr Retureau and the co-rapporteur Mrs Bredima-Savopoulou.

As its 382nd plenary session held on 30 and 31 May 2001 (meeting of 30 May) the Economic and Social
Committee adopted the following opinion by 111 votes for, with three abstentions.

1.

Introduction

1.1.
In line with its commitment to present a series of
legislative proposals on maritime safety, the Commission is
proposing three new Council and European Parliament texts
on which it is asking the Committee for its views.

1.2.
The Commission’s ‘second set of Community measures
on maritime safety following the sinking of the oil tanker
Erika’ (hereafter ‘Erika II package’ for simplicity’s sake) contains
three proposals: one directive and two regulations.

1.3.
These proposals were announced in the Erika I package
on which the Committee has already commented (1). In that
opinion the Committee made some eneral comments to which
we would refer here before analysing the new proposals and
commenting on them in detail.

1.4.
The Committee is sorry to see that the Council has not
followed in full the Commission’s proposal for an amendment
to the directive aimed at stepping up inspections in ports,
which was part of the first package. As the Committee pointed
out,
this proposal would have significantly increased the
number of qualified inspectors; the Council’s present position
could severely restrict the number of vessels posing a risk
inspected in ports, which the Committee deeply regrets. It
hopes that this situation may change so as to ensure full
respect of the objectives of the Paris Memorandum and the
targeting coefficients proposed by the Commission.

The Committee, which called for an agreement on the
1.5.
introduction of double-hull tankers to be sought first, as far as
possible, in the IMO, is pleased to note that a revision of the
IMO’s present withdrawal timetable, as called for jointly by the
EU Member States, was decided at the IMO session on 24 and
27 April 2001.

1.6.
In view of the importance of the human factor for
safety, there is an urgent need for the ILO’s maritime conven-
tions to be incorporated in Community law through their
ratification by the Member States and for another revision of
the texts on crew safety. The member countries should press
the other members of the IMO and ILO, and the Community
should for its part help to promote the universal ratification of
these conventions and the most recent protocols so as to raise
and align the general level of protection for seafarers and their
safety training. For its part the Committee will draw up an
own-initiative opinion on this subject, covering all modes of
transport.

2.

The legislative proposals of the Erika 2 package

2.1. The directive establishing a Community monitoring, control

and information system for maritime traffic

(1) OJ C 14, 16.1.2001, p. 22.

2.1.1.
The risk of accidents due to the concentration of
maritime traffic in straits is particularly high; more generally,

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the consequences of certain accidents may be catastrophic for
the economy and environment of regions along the coasts of
European seaways. Hence the need to monitor and organise
traffic to minimise these risks. This is the purpose of the
proposed directive.

financed by European oil receivers of EU coastal Member
States receiving more than 150 000 tons per annum of crude
oil or heavy fuel oil and in proportion to the quantities
received. The Fund will only be activated once an accident that
exceeds, or threatens to exceed, the ceiling provided by the
IOPC Fund has occurred in EU waters.

2.1.2.
The Commission suggests that Directive 93/75/EEC
laying down notification requirements for vessels carrying
dangerous or polluting goods, as it stands,
is inadequate
because it does not cover ships in transit off Europe’s coasts.
Therefore, and in order to monitor and control more effectively
the traffic off the European Union’s coasts, the proposed
directive provides for:

requiring vessels sailing in EU waters to carry automatic
identification transponders;

2.2.2.
Further, the Commission intends to address through
the IMO the shortcomings in the international liability and
compensation system, with a view to achieving the following
amendments in the Civil Liability Convention 1992:

— the liability of the shipowner should be unlimited if it is
proved that the pollution damage resulted from gross
negligence on his part;

extending the
reporting requirements of Directive
93/75/EEC to other dangerous or polluting goods and, in
particular, to bunker fuels;

— the prohibition of compensation claims for pollution
damage against the charterer, manager and operator of
the ship should be removed from the Civil Liability
Convention; and

systematic use of electronic data interchange (EDI) for
reporting data on dangerous or polluting goods carried
by ships;

requiring ships to carry voyage data recorders (black
boxes);

boosting the development of common databases and
interconnection of centres in order to obtain a more
complete picture of traffic in European waters;

closer monitoring of vessels presenting a particularly
serious threat to safety at sea and to the environment;

enhancing the powers of intervention of coastal Member
States to avert serious accident hazards (re-routing of
ships, mandatory pilotage or towage);

h)

designation of ports of refuge; and

i)

banning of vessels from leaving ports in exceptional
weather conditions.

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

2.2.3.
To complement the measures in the area of liability
and compensation, the Commission proposes to make pro-
vision for financial penalties or sanctions for established
grossly negligent behaviour on behalf of any person involved
in the transport of oil at sea.

2.2.4.
Finally, should 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 and compensation regime.

a)

b)

c)

d)

e)

f)

g)

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

2.3. Regulation establishing a European Maritime Safety Agency

2.2.1.
The Commission’s proposed regulation for improv-
ing the liability and damage compensation schemes in force
complements the existing international two-tier regime by
creating a European supplementary fund, the COPE Fund, to
compensate victims of oil spills in European waters. The COPE
Fund will have a ceiling of EUR 1 000 million and will be

2.3.1.
The Commission asserts that the task of ensuring the
proper and convergent implementation of existing rules related
to the EU maritime safety and pollution prevention legislation,
is difficult due to the diverse administrative tradition of the EU
Member States. Consequently, and in order to help the
Commission ensure an efficient application of existing Com-
munity legislation the creation of a European Maritime Agency
is proposed under a draft Regulation.

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2.3.2.
The Commission thinks that it would be somewhat
unrealistic, or at least premature, to envisage setting up an
integrated European operational structure or coastguard that
would take over the role of national maritime administrations.
On the contrary, the Agency should support the action of
Member States and the Commission in applying Community
legislation, monitoring its implementation and evaluating the
effectiveness of the measures in force.

2.3.3.
The Agency will not be empowered to take decisions
since it would be up to the Member States and in particular
the Commission, in its capacity as custodian of the application
of Community legislation, to perform the necessary follow up
to the Agency’s work and suggestions.

2.3.4.
The Agency will have legal personality and will need
to be located in a convenient location that will also enable it
to develop working relations with appropriate EU institutions.

2.3.5.
The Agency will be controlled by an Administrative
Board consisting of four representatives of the Commission,
four representatives of the Council, four representatives nomi-
nated by the European Parliament and four representatives
from the industry (including users) nominated by the Com-
mission.
Its Executive Director will be appointed by the
Administrative Board on a proposal by the Commission. The
term of office of the Executive Director and the members of
the Administrative Board will be five years, renewable only
once.

2.3.6.
A small number of the Agency personnel will be
seconded from the EU institutions on a temporary basis. The
other personnel will be recruited on the basis of experience
and merit and will be hired on the basis of temporary
renewable contracts.

2.3.7.
The tasks which the Agency has to carry out in order
to fulfil the defined objectives include, inter alia, the provision
of technical assistance in preparing amendments to Com-
munity legislation, strengthening of the port State control
regime, and monitoring of classification societies. The Agency
may decide to establish regional centres in some Member States
where better surveillance of maritime traffic is warranted. In
order to perform the tasks entrusted to it, the Agency will carry
out visits to the Member States to verify their performance in
the implementation of the legislation.

3. General comments

3.1. Ship reporting

3.1.2.
The ESC notes that to a large extent, the specific
proposals reiterate obligations already imposed upon ships
by various IMO Conventions. The UNCLOS Convention
recognises IMO as the competent organisation for matters
related to maritime safety and pollution prevention affecting
international shipping.

3.1.3.
The envisaged reporting system covers the wider area
of European waters and encompasses operational mandatory
reporting systems established through IMO. The Commission
suggests that transiting ships will have to participate in IMO
systems covering EU waters and progressively in new systems.
In the first place, the Member States and the Commission
should endeavour to establish the proposed system through
IMO, as envisaged by Article 20 of the proposed directive, and
implement it independently if IMO fails to establish such a
system at international level in a reasonable period.

3.1.4.
The ECS recalls that in its opinion on the Erika I
package (1) it endorsed the calls for the introduction of a
coastal State scheme which would pinpoint zones and ports
of refuge that must have the necessary equipment and
capability to deal with accidents, which would enable the
authorities to provide pro-active assistance to vessels in
distress.

In view of the interaction between ships and coastal
3.1.5.
stations,
that
the ESC considers it particularly important
Member States fulfil their corresponding obligations stemming
from the directive in a timely manner.

3.2. COPE Fund

Liability and compensation for damage to the
3.2.1.
environment resulting from spills of persistent oil from tankers
is governed by the 1969/1992 Civil Liability Conventions
(CLC) and the 1971/1992 International Oil Pollution Compen-
sation Fund Conventions (IOPCF).

3.2.2.
The Conventions establish a two-tier system whereby
the shipowner is liable under CLC and cargo interests are
responsible under IOPCF. Under CLC, the shipowner is strictly
liable for pollution damage and is obliged to have insurance to
meet his liabilities up to a limit established by the Convention.
When claims following an oil spill incident exceed the ceiling,
additional compensation is available from the IOPC Fund,
which is financed by oil importers.

3.1.1.
The ESC supports the creation of a comprehensive
and centralised system for ship reporting, surveillance and
control, encompassing Search and Rescue and Vessel Traffic
Information Services.

(1) OJ C 14, 16.1.2001, p. 22.

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3.2.2.1.
It is generally accepted that the system has attempt-
ed to strike an appropriate balance between the interest of
claimants in receiving certain, rapid and adequate compen-
sation, the ability of the shipowner to obtain insurance cover
and the need to involve cargo interests in payment
for
pollution damage.

sation Fund should not be a reason not to improve compen-
sations under the existing conventions and the priority of the
Member States in IMO should be to work together for these
essential improvements.

Up to now, 57 countries are parties to the 1992 CLC
3.2.3.
and 55 countries are parties to the 1992 IOPC Fund, and more
are expected to join. It is noteworthy that every important
maritime nation, except the US and China, has joined the IOPC
Fund. However, some countries have remained a party to the
original CLC (1969) which has a weaker compensation regime
than the 1992 protocol, but provides for unlimited liability of
the shipowner if the accident and pollution occurred as a result
of the owner’s fault. The 1992 protocol (CLC 1992) also
provides for unlimited liability, but this is virtually impossible
to implement because it is subject to exceptionally restrictive
conditions under the liability regime: there must be a very
serious fault, personally attributable to the shipowner and
deliberate; actual personal intent to cause the disaster must be
proved, which is practically impossible for the victims.

3.2.4.
In the opinion of the Committee, the balance should
be maintained between the interests at stake, but it is clear that
the compensations under the present system do not cover the
real amount of the direct and indirect damages caused by oil
spills and that the present ceilings need to be raised substan-
tially under CLC as well as under IOPCF. The Erika case shows
that the compensations, not yet paid, fail largely to compensate
the real damage. The contributing parties to both systems of
compensation have no other choice, if they wish to keep their
contributions to these Funds within reasonable limits, but to
pursue the most effective possible policy of safety and
prevention of accidents.

A significant improvement in the international
3.2.5.2.
system would in fact proportionately reduce the financing
requirements of a complementary European system, in the
interests of all parties, and spread the cost over all operators
from countries party to the conventions and not just European
operators.

3.2.6.
The Commission proposes to address other short-
comings in the international system through the IMO. The
ESC notes that work is underway in IMO in the IOPC Fund
which has set up a working group to this effect. The findings
of two sessions of this working group in March and June 2001
will be submitted to its Assembly in autumn 2001. The ESC
also acknowledges that the IMO adopted a 50 % increase of
the CLC/Fund limits in November 2000 which will enter into
force in November 2003.

Despite the above increase, even the new levels
3.2.7.
would still be inadequate to meet certain claims, like the Erika
case, which would far exceed the current level of 200 m SDR.
Moreover, experience with past incidents indicates that large
oil spills may occur from relatively small tankers, e.g., in the
case of Erika. In such instances under the CLC regime the
maximum amount payable according to that vessel’s tonnage
was USD 12 m, with the IOPCF providing complementary
compensation up to the present ceiling of 200 m SDR.

3.2.8.
In the light of the above considerations, the ESC
believes that the ongoing discussions in IMO should also
consider a possible readjustment of CLC compensation levels
between categories of vessels without disturbing the overall
balance between ship and cargo.

3.2.5.
The introduction of an additional European frame-
work (third tier), intended to work in parallel and in comp-
lement with the international system,
is justified for the
Committee if the international system does not rapidly fix new
appropriate ceilings. The amount of EUR 1 000 million is to
some extent comparable to the unilateral US ceiling of USD
1 000 million.

3.2.9.
The Commission proposes that under a revision of
the CLC the pecuniary liability of the shipowner shall be
unlimited, if it is proved that the pollution damage resulted
from gross negligence in his part.

3.2.5.1.
The ESC has maintained in a regular chain of
opinions that, in view of the international nature of maritime
transport, measures should be taken preferably at international
level. The setting-up of a European complementary compen-

3.2.10.
However, the ESC notes that limitation of liability
of the shipowner is the cornerstone of the 1992 Civil Liability
Convention. The limitation of liability is coupled with strict
liability of shipowners and the provision of insurance of the
relevant sums by the insurers of oil pollution claims, the P&I

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Clubs. Under the current regime, there is provision for direct
access of claimants against the P&I Clubs and quick settlement
of claims without the need to prove any fault on behalf of the
shipowner, thus, avoiding protracted litigation and possible
frustration of the victims of pollution incidents.

opinion,
‘the ESC strongly urges the Commission and the
Member States to coordinate their efforts within the IMO on
tightening safety standards and providing fuller compensation
for victims of pollution caused by ships, which should also
include damage to the environment and to biodiversity’.

3.2.11.
In light of the above, the ESC therefore believes
that the current system of shipowner liability — which as
mentioned above is to be raised 50 % in 2003 — could be
maintained in IMO. However, the Committee thinks that a
fault-based regime with potentially unlimited liability for the
shipowner and possibly the owner of the cargo — who like
the shipowner should be obliged to ensure the safety of
potentially polluting cargoes — in the case of serious fault or
negligence attributable to them, merits serious consideration
with a view to adjusting the present regime so that at all events
it operates forthwith in favour of the victims of pollution.

3.2.12.
Therefore the Committee considers that with regard
to the Commission’s proposal on unlimited liability further
study is needed so that its implementation does not lead to
delays in compensation or entail legal fees to the extent that
initiating such proceedings brings no benefit to the plaintiff or
may even be more detrimental than the present system. It
must be remembered, for instance, that in the case of the
pollution of the northern coast of Brittany by the Torrey
Canyon the substantial compensation obtained by the victims
was in fact largely eaten up by their expenses after ten years of
proceedings, evaluations and counter-evaluations. However,
the competent courts should be able, in the case of serious or
intentional fault, to impose appropriate penalties, for instance
within the framework of the proposed implementation of an
environmental penal law.

3.2.16. Moreover, the recent sinking of the chemical tanker
Ievoli Sun (31 October 2000, off the French coast) highlighted
the most unsatisfactory legal regime regarding the liability and
compensation of hazardous and noxious substances other
than oil.

3.2.17.
The ESC recalls its opinion on Erika I in which it
addressed this point and reiterates that the EU Member States
should urgently ratify the Hazardous and Noxious Substances
Convention (HNS) of IMO with a view to precipitating its
international entry into force.

3.2.18.
The complementary European fund would there-
fore only be called upon in cases which the Committee hopes
are as rare as possible. Nevertheless, the damage eligible for
compensation is the same as that defined under the existing
conventions. In the Committee’s view, however, compensation
should also cover — besides damage to the environment and
biodiversity, including the cost of restoring the environment
and rescuing animals affected by the pollution — the indirect
damage suffered by individuals, certain financial losses suffered
by firms, in particular SMEs, in certain sectors such as tourism,
and the lasting effect on the image of a coastal region
discouraging the establishment of new businesses and tourism
for a long period.

3.2.13.
Over the last ten years, out of 360 tanker accidents,
in virtually all cases the damage has been covered by the
shipowners’ insurance, with a complementary call being made
on the Fund in only five cases. The Erika was the only case in
which the amounts granted from the Fund were, according to
estimates, far below the damage as determined under the
present system for identifying damage eligible for compen-
sation, which the Committee regards as too restrictive.

3.2.19.
To facilitate the access of individuals and SMEs-
SMIs to compensation, the Committee thinks that — within
the framework of national judicial systems and with regard to
the use of the COPE Fund — consideration should be given to
recognising the right of professional organisations and local
associations whose members are directly affected, including ad
hoc associations founded in the wake of an accident and who
can show proof of legal competence or a mandate to represent
victims’ groups, to act at law on behalf of their members.

3.2.14.
The Commission proposes that the compensation
of damage caused to the environment should be reviewed
and widened in light of comparable compensation regimes
established under Community law to cover the claims concern-
ing damages to biodiversity.

3.3. The European Maritime Safety Agency

3.2.15.
The ESC recalls that in its opinion on the Erika I
package it has already favoured this idea. According to that

The ESC, whilst endorsing the purpose of the pro-
3.3.1.
posed creation of a Committee on Safe Seas replacing the
existing committees referred to in the Council regulations and

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directives in force in the field of maritime safety, wonders how
that proposal relates to the proposal to create the European
Maritime Safety Agency.

3.3.2.
The ESC believes that there must be no overlapping
between the role and competences of the regulatory Com-
mittee on Safe Seas and the administrative European Maritime
Agency.

supplemented by Directive 1999/95 (4) which extends the rules
on crew working hours to third country ships calling at
Community ports. Article 12 of Directive 95/21 (5) on port
State control sets out the professional profile of inspectors.
Article 4(1) of Directive 94/57 (6) in conjunction with Annex B
No 6 expressly stipulates that classification society inspectors
are to be subject to internal quality audits and continuous
training.

3.3.3.
Although the 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. The
need is particularly evident in view of one of the important
tasks assigned to the Agency, namely to assist the Commission
in the process of updating Community legislation in the field
of maritime safety.

4.

Specific comments

4.1. Comments on the content of the proposed instruments

4.1.1.
The Committee notes that the Erika I and II packages
basically comprise technical and financial provisions and that
in spite of concerns about the key role of the ‘human factor’ in
accident prevention and crisis management — concerns raised,
moreover, by the Commission and entirely shared by the ESC
— this fundamental dimension is missing from the second
package.

4.1.1.1.
The ‘human factor’ is no less important in accident
prevention and crisis management since 80 % of maritime
accidents are attributed to it. The EU has issued several
directives aimed at achieving a high quality in respect of port
State inspections, classification societies and crew. Directive
94/58/EC (1) in the version Directive 98/35/EC (2)lays down
the minimum level of training for seafarers through the
adoption of
IMO’s STCW Convention. Directive
1999/63/EC (3) lays down EU — wide rules for working time
on Member State vessels, thus contributing to ship safety. It is

the

4.1.1.2. Without underestimating the abovementioned pro-
visions, some of which are shortly to be amended,
the
Committee still thinks that, along with the legal and technical
measures, consideration should be given to specific new
measures on the number, basic and ongoing training, and
general working conditions of inspectors, traffic controllers,
rescuers and ships’ crews. It also notes with concern the
increasing number of incidents of fraudulent certification of
seafarers which eventually affects safety as well as the alarming
increase of piracy attacks on ships in some parts of the world
needing an international reaction. The Committee therefore
calls on the Commission to draw up appropriate proposals,
for example in a new ‘Erika III’ package on the human
dimension, thus making for a comprehensive and integrated
approach to maritime safety.

4.1.2.
The ILO plays and must continue to play, in close
cooperation with the IMO, a key role in respect of crew
training, living and working conditions and safety. Thus new
international labour conventions for seafarers were adopted
by the maritime session of the ILO Conference in 1966, the
application of the ILO’s maritime conventions being closely
linked to that of IMO conventions. Furthermore, on 26 January
2001 in Geneva, the 29th session of the ILO’s Joint Maritime
Commission adopted several safety-related resolutions and a
social declaration highlighting the need for an integrated
approach including the human dimension. The Commission
and the Member States have a major joint responsibility for
the ratification, effective implementation and follow-up of the
ILO’s maritime conventions and recommendations. The ESC
notes with regret that a delay has built up in implementing
this joint responsibility and urges the Commission and Member
States to make up this delay as soon as possible.

(1) OJ L 319, 12.12.1994, p. 28-58, ESC Opinion OJ C 34, 2.2.1994,

(4) OJ L 14, 20.1.2000, p. 29, ESC Opinion OJ C 138, 18.5.1999,

p. 10.

(2) OJ L 172, 17.6.1998, p. 1-26, ESC Opinion OJ C 206, 7.7.1997,

p. 29.

(3) OJ L 167, 2.7.1999, p. 33-37.

p. 33.

(5) OJ L 157, 7.7.1995, p. 1-19.
(6) OJ L 319, 12.12.1994, p. 20-27, ESC Opinion OJ C 34, 2.2.1994,

p. 14.

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4.1.3.
The failure to recruit sufficient qualified inspectors
for State port inspection duties was why the Council watered
down the Erika I proposals, which both the Commission and
ESC expressly regretted. All land-based safety personnel, and
pilots, marine rescuers, anti-pollution specialists, etc. must be
taken into account in terms of recruitment, training and
appropriate working conditions.

ments, Article 7 should require ships to be fitted with AIS in
accordance with the schedule in the SOLAS Regulation
V/19.2.4. Conversely, Member States should furnish them-
selves with the required shore radio reception equipment as
early as 1 July 2003 in order to be able to utilise the data from
the transponders.

The ESC reiterates its concern (1)

that economic
4.1.4.
pressure on masters and crews who continue to serve on
board substandard ships may have an impact on ship safety.
Therefore, crew members must be encouraged to report
anomalies on board likely to cause accidents and subsequently
must be given proper protection. In the Committee’s view the
human dimension of safety must be taken into consideration
as a matter of urgency if the proposed technical measures are
to be applied effectively under favourable conditions.

Article 8 should be changed so that it requires ships
4.2.4.
to be fitted with a voyage data recorder (VDR) when required
to be so fitted by SOLAS Regulation V/20, which will enter
into force on 1 July 2002. IMO concluded that at this stage it
should not be a requirement that existing cargo ships be fitted
with VDRs. By utilising the procedure of Article 23, it will be
possible in future to harmonise the requirement for existing
cargo ships with that of IMO, in terms of timing and variation
of standards (simpler VDR equipment).

4.2. Directive establishing a Community monitoring, control and

information system for maritime traffic

The information on ships’ bunker and fuel tank
4.2.1.
capacity should be integrated into the EQUASIS databank. To
determine the quantity and nature of potentially polluting
products actually transported by a ship, and to make it possible
to take appropriate measures in the event of an accident or to
apply certain rules of navigation, the Committee thinks that
the declaration should cover the nature and quantities of the
ship’s cargo and fuel.

4.2.2.
The ESC notes that Chapter V of the International
Convention on the Safety of Life at Sea (SOLAS Convention)
contains detailed provisions on ships’ routing, ship reporting
systems and vessel traffic services, supplemented with resol-
utions describing in detail the principles of these services
and systems and operational arrangements. Therefore, the
requirement of Article 5 seems to be redundant for vessels
covered by the SOLAS regime, as the obligation of ships to
participate in IMO-adopted reporting systems and to comply
with the applicable procedures already stems from the SOLAS
Convention.

4.2.3.
The ESC acknowledges the usefulness of automatic
identification systems (AIS) known as transponders. However,
and in order to be consistent with the international require-

(1) OJ C 14, 16.1.2001, p. 22.

The Committee also hopes that the final agreement
4.2.5.
for the deployment of the Galileo system will be operational
soon as it enables the position of ships to be determined very
precisely and, once integrated into the navigation surveillance
system, would make a considerable contribution to safety, to
monitoring the route of ships and to pinpointing the location
of accidental and intentional spills.

4.2.6.
To the extent that the purpose of Article 13 is to
identify ships posing a potential hazard and to pass the
relevant information to another party, the article has a clear
scope. However, the actions specified in paragraph 3 that seem
to fall under the scope of port State control may be confusing.

The ESC supports any effort whereby mariners and
4.2.7.
coastal States are informed of navigational dangers. Any
obligations placed upon a master for reporting incidents and
accidents at sea in accordance with Article 14 should be
consistent with international
law, and in principle with
Article 8 and Protocol I of the MARPOL Convention and
Regulation V/31 of the SOLAS Convention. However, the
1982 UN Convention on the Law of the Sea, which recently
came into force, opens up new possibilities for action by the
coastal State to protect the economic resources and safety of
its waters and coastline for the whole length of its exclusive
economic zone, which may extend to 200 nautical miles from
its coast and even further if necessary. These new powers are
not defined exhaustively by the Convention. The relevant
information to be communicated by the master in the event of
one of the risks specified in Article 15 occurring is consistent
with IMO Resolution A.851(20).

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4.2.7.1.
The Committee recognises that under present
maritime transport conditions and because of the high number
of flags and sub-standard ships, bearing in mind the nature of
their cargo, the quantities transported and the density of the
traffic off the coast of Europe, it has become necessary to
extend significantly the powers of port States and coastal
States, not least to make up for the laxity of some States under
whose flag a huge tonnage is registered. This requires the
preparation, on the legal basis of the UN Convention, of
maritime legislation more appropriate to our times and the
major risks which exist, as illustrated by recent major accidents.
Civil society supports these trends and calls for stricter and
more effective standards on navigation safety and pollution
prevention.

4.2.8.
Exceptionally adverse weather and sea conditions
may affect all ships at sea, but the general state of the vessel or
the nature of the cargo should encourage extra prudence.
Under Regulation V/34 of the SOLAS Convention the master
has the obligation to ensure that the intended voyage has been
planned so as to ensure safe navigation and avoidance of
including anticipation of all known
dangerous situations,
navigational hazards and adverse weather conditions. Simi-
larly, the company, or any other person, shall not prevent or
restrict the master from exercising his professional judgement
with respect to safe navigation and protection of the marine
environment. However, masters are too often forced to act
against their better judgement. The ESC therefore understands
the reason for the proposal in Article 15, and the desire to
intervene in exceptional cases where masters appear to be
lacking in prudent seamanship or even reckless in opting to
proceed to sea in exceptionally bad weather. However, the
article does not offer sufficiently elaborated objective criteria
to help port authorities to act in a consistent and uniform
manner. The ESC believes that Article 15 should be more
specific in this regard, setting out clearly the general principles.
At the same time the Commission and Member States should
contribute to relevant developments in IMO in developing
detailed guidelines for practical implementation.

The ESC welcomes the acknowledgement of the need
4.2.9.
to establish a legal framework to accommodate ships in
distress. The ESC also shares the view that there is obviously a
Community and an international dimension to this problem,
since ships refused access to one port or to a safe haven may,
while searching for another safe haven, create demands on
other nations’ search and rescue facilities or cause pollution to
other nations’ coastline.

avert or minimise the consequences of the incident and not
necessarily the protection of a port as such. Therefore, under
certain circumstances and under certain conditions that should
be clearly set out in Article 17, the ESC suggests that the
concept of ‘places of refuge’ or sheltered waters should also be
taken into consideration, possibly with appropriate equipment,
so that vessels in distress can be directed there in lieu of a port,
when appropriate. The ESC maintains that the overriding
consideration should always be the safeguarding of life.

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

4.3.1. A r t i c l e 1 0 — P e n a l t i e s

Under Article 10 Member States shall lay down
4.3.1.1.
financial penalties on any person found by a court of law to
have contributed by his wrongful,
intentional, or grossly
negligent acts or omissions to an incident causing or threaten-
ing to cause oil pollution. According to § 3 such penalties
shall not be insurable and they would be of a penal nature.
Moreover, such penalties would apply to any ship and not
only to tankers to which the rest of the directive applies.

4.3.1.2.
The ESC notes that according to the terms of this
article, the criminal legislation would have to be adopted by
the Member States and not by the EU. Nevertheless, the ESC
wonders whether it is compatible with the EU legal order to
introduce legislation of a criminal nature at the present stage
of development of Community law. Moreover,
in several
Member States national legislation provides criminal penalties
of a financial nature for cases of maritime pollution. The
Commission is invited to produce an inventory of relevant
national legislation in EU Member States before proceeding to
adoption of Article 10. Furthermore, the term ‘grossly negli-
gent acts or omissions’ may not be sufficiently precise for
inclusion in a Community legal instrument and may jeopardize
already well established and workable legal regimes. Pending
developments regarding the Communitisation of the third
pillar, it should be ensured that under national legislation of
Member States there is no impunity for such offences.

4.2.10.
The ESC, while in agreement with the proposal,
realises the sensitive nature of the notion of ‘port of refuge’
and the conflicting interests. However, it feels that in most
cases ships in distress are in need of sheltered waters to

4.4.1.
The ESC notes that the diverse administrative struc-
tures and traditions of the Member States are not limited only

4.4. Regulation establishing a European Maritime Safety Agency

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in the area of maritime safety and the prevention of marine
pollution. In the view of the ESC, the proper and convergent
implementation of existing legislation can be ensured by a
number of important and well-known factors, such as clear
policies,
firm commitments and adequate resources. The
proposed Regulation does not address the roots of divergent
implementation, nor does it attempt to establish a model
administrative structure to redress the situation. Instead, it
establishes an administrative body empowered to audit (and
overrule?) the powers and prerogatives of national adminis-
trations.

4.4.2.
The ESC is of the view that the desirable aim can be
better achieved with a wider and more balanced representation
of interested parties (including users) and professional sectors
in the Administrative Board. It also considers that it would be
advisable to ensure that a significant part of the staff of the
Agency is seconded from national administrations, for obvious
reasons. National experts as staff members for a fixed term can
facilitate the necessary linking of the Agency with national
administrations and can acquire knowledge and experience in
the pursuance of EU policy for the benefit of their adminis-
tration after the expiration of their term.

The ESC notes the wide range of the defined tasks of
4.4.3.
the Agency and the task of performing any other task assigned
to the Commission by Community legislation on maritime
safety, including legislation applicable to ships’ crews. While
some of the tasks seem to be of a purely administrative
character, others may create the risk of confusion or dupli-
cation of work required by Community legislation to be
performed by other bodies, namely the Committee on Safe
Seas and the Committee established under Directive 94/57/EC
as amended.

4.4.4.
The powers of the Agency to carry out visits to the
Member States and to have access to all files, data and reports
and to make copies, to ask oral explanations from any staff
member and to have access to any premises, land or means of
transport may appear excessive and reaching far beyond the

Brussels, 30 May 2001.

aims of
the regulation. A proper and effective working
relationship and a full cooperation between Member States
and Community institutions are necessary and have to be
established and developed, while they might be affected if
there were an excessive imbalance in the status, competences
and the prerogatives of the respective entities.

5. Conclusions

5.1.1.
The Committee, subject to the comments and sugges-
tions set out above, considers that in general the Erika II
package is a step in the right direction towards establishing
safe navigation conditions and avoiding accidental pollution,
and for ensuring, in the event of an accident, sufficient and fair
compensation for all the damage caused to individuals and the
environment.

5.1.2.
However, there is still a long way to go before the
legislative proposals on maritime safety are fine-tuned and
completed, bearing in mind at all times the international
character of maritime transport and the powers and role of the
current regulatory and standards institutions, in particular the
IMO and ILO and their conventions and recommendations,
and more generally the whole international convention system
encompassed by the United Nations Convention on the Law
of the Sea (Montego Bay Convention, to which the Community
itself is party) which lays down the rights and obligations of
flag, coastal and port States, all institutions and conventions
which play a key role and need to be strengthened.

5.1.3.
Even more important is the need to create the
conditions for effectively implementing European and inter-
national maritime law. This requires long-term political com-
mitment, increased material resources, genuine and effective
cooperation between the Commission and the Agency, mari-
time committees and competent Member State authorities. It
further requires the human factor to be taken into account —
in the Committee’s view the most essential element in the
safety of maritime transport, a strategic sector of activity for
the internal and external trade of the EU.

The President

of the Economic and Social Committee

Göke FRERICHS