Opinion of the Committee of the Regions on the "Communication from the Commission to the European Parliament and the Council on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika"
Date: 2001-06-13
Institutions: European Committee of the Regions
Subjects: indemnification, maritime transport, oil pollution

14.12.2001

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Official Journal of the European Communities

C 357/1

II

(Preparatory Acts)

COMMITTEE OF THE REGIONS

Opinion of the Committee of the Regions on:

— the ‘Communication from the Commission to the European Parliament and the Council on a
second set of Community measures on maritime safety following the sinking of the oil
tanker Erika’,

— the ‘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 357/01)

THE COMMITTEE OF THE REGIONS,

having regard to Communication from the Commission to the European Parliament and the Council on
a second set of Community measures on maritime safety following the sinking of the oil tanker Erika

— Proposal for a Directive of the European Parliament and of the Council Establishing a Community

monitoring, control and information system for maritime traffic

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

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

Maritime Safety Agency [COM(2000) 802 final — 2000/0325-0326-0327 (COD)] (1);

having regard to the decision of the European Council dated 25 January 2001 to consult it, in accordance
with Articles 265.1 and 80 of the Treaty establishing the European Community;

(1) OJ C 120 E, 24.4.2001, p. 67.

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having regard to the decision of its President dated 6 February 2001 to instruct Commission 3 for Trans-
European Networks, Transport and the Information Society to draw up the opinion;

having regard to its opinion of 4 April 2001 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; 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 (COM(2000) 489 final — 2000/0236 and 2000/0237 (COD) — CdR 405/2000 rev.) (1);

having regard to its opinion of 21 September 2000 on the communication from the Commission to the
European Parliament and the Council on the Safety of the seaborne oil trade; Proposal for a Directive of
the European Parliament and of the Council amending Council Directive 95/21/EC 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); Proposal for 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;
Proposal for a Regulation of the European Parliament and of the Council on the accelerated phasing-in of
double hull or equivalent design requirements for single hull oil tankers (COM(2000) 142 final —
2000/0065 (COD) — 2000/0066 (COD) — 2000/0067 (COD) — CdR 165/2000 fin) (2);

having regard to its opinion of 14 February 2001 on the Communication from the European Commission
to the Council and the European Parliament on Integrated Coastal Zone Management: A Strategy for
Europe (COM(2000) 547 final), and European Parliament and Council Recommendation concerning the
implementation of
in Europe (COM(2000) 545 final —
CdR 372/2000 fin);

Integrated Coastal Zone Management

having regard to the Conventions and Codes drafted by the International Maritime Organisation and
International Labour Organisation, for example: International Convention for the Safety of Life at Sea
(SOLAS), 1960 & 1974; Convention on the International Regulations for Preventing Collisions at Sea
(COLREG), 1972; International Convention on Standards of Training, Certification and Watchkeeping
for Seafarers (STCW), 1978; International Convention for the Prevention of Pollution from Ships, 1973,
as modified by the Protocol of 1978 relating thereto (MARPOL 73/78); International Safety Management
Code (ISM), 1993;

having regard to Council Decision of 28 June 1999 laying down the procedures for the exercise of
implementing powers conferred on the Commission 1999/468/EC (3);

having regard to the following international treaties and Conventions: 1982 UNCLOS III International
Law of the sea; 1992 UNCED Rio Earth Summit; Agenda 21 (Chapter 17 on Oceans); the Paris
Memorandum of Understanding on Port State Control, the ongoing work of the International Commission
of Shipping on coastal and port state control procedures as well as the conventions and codes set out
under the IMO and ILO conventions;

having regard to the draft opinion adopted by Commission 3 on 18 april 2001 (CdR 50/2001 rev.)
(rapporteurs: Dr Walsh, UK/ELDR, and Mr Nikos Tabakidis, EL/PSE),

unanimously adopted the following opinion at its 39th plenary session on 13 and 14 June 2001 (meeting
of 13 June).

(1) OJ C 365 E, 19.12.2000, p. 276, 280.
(2) OJ C 212 E, 25.7.2000, p. 102.
(3) OJ L 269, 19.10.1999, p. 45.

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THE COMMITTEE OF THE REGIONS’ VIEWS
AND RECOMMENDATIONS

— conserve the environment, and

— protect property.

1.

Introduction

1.1.

Three separate proposals have been made:

— A proposal for a Directive of the European Parliament
and of the Council establishing a Community monitoring,
control and information system for maritime traffic.

— A 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.

— A proposal for a Regulation of the European Parliament
and of the Council establishing a European Maritime
Safety Agency.

2. General comments from the Committee of

the

Regions on the Erika II proposals

2.1.
The Commission is to be congratulated on following
up the Erika I proposals so speedily and for bringing forward
a generally constructive set of proposals aimed at long-term
reinforcement of the more immediate Erika I measures to
create a safer maritime environment. Particularly welcome is
the focus on liability and the commercial approach to improv-
ing safety which this represents, in addition to the regulatory
measures.

2.2. Whilst the Committee of the Regions (CoR) supports
the Commission’s objective to increase the safety of oil tankers
it is concerned that this understandable focus should not be
allowed to obscure a poorer record of accidents and loss of life
experienced in other shipping sectors. The CoR urges the
Commission and the Member States to broaden its scope with
regard to other ship types and work with the international
maritime community in promoting a ‘safety culture’ in all
sectors.

The issues of maritime safety, marine pollution, and
2.3.
coastal zone management are inextricably linked.
If one
were to prioritise the agenda for improving safety, reducing
pollution and protecting coastal zones it should be as follows:

— protect human lives,

2.4.
The major criticism of the European Commission’s
proposals is that there is an assumption that an ever increasing
level of technical measures and reliance on technology can
replace the science and art of seamanship or sound manage-
ment ashore. There is no mention of the human element and
that if ships were crewed by sufficient numbers of well trained
people, who were not suffering from fatigue, and had adequate
protection from the cruder commercial pressures of maritime
trade, the safety record would undoubtedly be better.

2.5. With current manning levels at such a low level, the
time constraint and pressure on crews is greater now than
ever. The Committee of the Regions urges the Commission to
construct new regulation in a manner, through the use of
proven technologies and management best practice,
that
reduces the regulatory pressure on the crews themselves.
Whatever systems are devised, human factors will always be
part of the safety equation.

2.6.
The Committee of the Regions encourages the Com-
mission to work proactively with the Member States and
the International Maritime Organisation (IMO) to establish
agreements on a consensual basis at International level before
seeking to invoke additional measures at a European level.
This could lead to a more complex legal environment,
difficulties in dealing with third country vessels and no real
reduction in pollution incidents in European waters of concern
to local and regional authorities in coastal regions.

3. Navigation Measures to Improve the Safety of Ship-

ping and Prevent Pollution from Ships

3.1. With regard to the requirement for ships sailing in
Community waters to carry transponder systems so that they
can be automatically identified and constantly monitored by
the coastal authorities, the Committee of the Regions is
concerned that transponders are largely an untried technology
in the marine environment and the regulation will not apply
to all ships. However, the Committee of the Regions recognises
that transponders have a great potential, especially in alleviat-
ing the reporting requirements for ships crews. The Committee
of
the Regions therefore urges the Commission and the
Member States to work in a co-ordinated way through
in order to improve the technical specifications and
IMO,
functioning (e.g. automatic transmission of data) of
the
transponders.

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3.2.
The Committee of the Regions recalls the case of the
ROSE BAY (Devon, United Kingdom) where an oil pollution
incident occurred from a collision between a small fishing
trawler and a moored oil tanker. In this case a significant
pollution incident occurred with a large clean up cost for
the local authorities concerned. The current Commission
proposals would not limit this type of accident.
(i.e. no
provision for fishing vessels below 45 metres).

The Committee of

3.3.
the Regions is concerned that
otherwise valuable technological developments are not seen as
‘simple solve-all solutions’. Voyage Data Recorders or ‘black
boxes’ and Electronic data interchange are over emphasised
when the human element of training, fatigue and competence
play an equally significant role in the reduction of accidents.
The application of these technologies to the shipping industry
is still new and needs to be developed in cooperation with the
proposed European Maritime Safety Agency (EMSA). The
proposed measures make no obligation on the Member States
to use this data.

3.4.
The Committee of the Regions welcomes the European
Commission’s and Member States efforts to continually review
and improve Port State Control systems. These efforts should
be encouraged.

3.5.
The European Commission should work actively with
Member States and the IMO to ensure that a simple, well
publicised and transparent policy on ‘Ports of Refuge’
is
operated in EU waters. A number of incidents have taken
place, as in the case of the CASTOR (Spain), where a port of
refuge has been refused as a result of the doctrine of ‘NIMBY’
(‘Not In My Back Yard’) over-riding common sense allowing
the potential for damage to a vessel to worsen with the
prospect of a serious environmental disaster.

The Committee of

the Regions believes that

the
3.6.
decision to leave port should be left to the competency of the
Master of the vessel and the Port authorities of the Coastal
state concerned, it must be borne in mind that weather can
change radically within a short period of time.

arrangements across the EU for intervention, the Committee
of the Regions would urge the European Commission and
Member States to improve co-ordination procedures between
agencies. A crucial test of this will be to ensure that all EU
coastal states have the courage to allow technical experts to do
the best they can to mitigate against disaster without political
interference. The experience of the SEA EMPRESS (Wales, UK)
exemplifies this challenge. The Committee of the Regions
urges the Commission to work closely with the IMO on the
topic of intervention. The EU Member States are subject to the
provision of International Law relating to the Right of Innocent
Passage. The Committee of the Regions is concerned that
further reporting requirements may be difficult to implement
with third country vessels and burdensome for the ships crews.

3.9.
The Committee of the Regions urges the European
Commission to ensure that all EU waters are covered by
equally effective reporting systems in line with IMO provisions.
Despite the legal and administrative hurdles to be overcome
with the implementation of a common reporting system, it is
important that both the Commission and the Member States
take swift action in preparing measures, for presentation to
IMO, on a common approach to reporting systems in the EU.

4.

Improving the Liability and Damage Compensation
Schemes in Force

4.1.
The Committee of the Regions endorses the ‘Polluter
Pays’ principle with the costs of non-accidental sources of
pollution being recovered from the owners of the vessel.

The Committee of the Regions would wish to see
4.2.
further provision brought forward for pollution incidents
other than oil. The case of the IEVOLI SUN (Channel coast,
France) illustrates this point.

3.7.
On the issue of Black Lists, the Committee of the
Regions questions their use in relation to ‘proactively ident-
ifying dangerous situations sooner’. Under the Paris Memor-
andum of Understanding (MOU) on Port State control, Black
Lists of flags are compiled already on the basis of ships
detained.

3.8.
On the issue of intervention, the Committee of the
Regions understands that different arrangements exist in each
Member State. A number of Member States have nominated a
national contact point which will take charge from a technical
point of view in the event of a disaster. With different

4.3.
The Committee of the Regions welcomes the creation
of a supplementary fund and the proposal for an effective
compensation of claimants over and above the 50 % offered
by the International Oil Pollution Fund (IPOC), but
the
Committee of the Regions would urge the European Com-
mission to develop these proposals effectively with the IMO.
Compensation proposed European supplementary fund from
(the COPE fund) would thus be based on the same principles
and rules as the current international fund system, but subject
to a ceiling which is deemed to be sufficient for any foreseeable
disaster, i.e. EUR 1 000 million. The Committee of the Regions
welcomes the proposal for the COPE Fund to also be used to
speed up the payment of full compensation to the victims in
the EU.

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4.4.
The Committee of the Regions reminds the European
Commission of the size and diversity of the claims that resulted
from the loss of the ERIKA. Some of these claims required
significant assessment to ensure careful and efficient resolution.
The Committee of the Regions is concerned by the resources
that would be required by the European Commission to
achieve this follow up effectively thus avoiding delay.

5. A European Maritime Safety Agency

5.1.
The Committee of the Regions welcomes this proposal
and believes that it has merit for the reasons stated: co-
ordinating the implementation of existing legislation, harmon-
ising the training of surveyors and uniformity of survey
practices, conducting technical tasks for the European Com-
mission, and collating data.

4.5.
The Committee of the Regions reminds the European
Commission that if the COPE fund is to be successful Member
States should provide accurate records of all oil receivers
handling in excess of 150 000 tonnes per annum that will
contribute to the fund.

The Committee of the Regions believes that it is
5.2.
imperative that
the European Maritime Safety Agency is
sufficiently resourced in order that well qualified and experi-
enced staff be employed so that it operates effectively and is
credible in the eyes of the industry.

4.6.
The Committee of the Regions welcomes the thrust of
the proposals, but they do not go to the real heart of trying to
nail irresponsible ship owners who hide behind single ship
companies, switch flags with apparent impunity, and abandon
ships and their crews rather than meet their financial obli-
gations when these vessels become embarrassing to them. A
recent example of this was the stranding of a coaster, the
LAGIK in the river Nean near Boston (Lincolnshire UK), last
December. The vessel swung across the river and broke in two.
The good news is that the bunkers were removed, the cargo
discharged and the ship cut into pieces and removed with no
serious pollution. The bad news is that a citizen of an EU
Member State who, is the true owner of the vessel, has been
able to walk away without meeting any cost of the accident as
the ship was registered offshore and owned by a nominee
company. It is believed that the clean up costs to the local
authorities involved is in the order of £2m. (full details of this
incident are available). Similarly, in the case of the CETA (Isles
of Scilly, United Kingdom) which was grounded on the Isles of
Scilly, the local authorities had to foot the bill of the removal
the
of debris. The crew had been rapidly taken out of
Member State’s (coastal state) jurisdiction and there was no
compensation fund covering this class of vessel. The Com-
mittee of the Regions surges the European Commission and
the Member States to establish better co-ordination of their
activities in establishing a clear ‘chain of responsibility’ so that
liability for environmental clean up, or mitigating against
further damage, can be secured efficiently.

5.3.
The Committee of the Regions would be keen to see
that the terms of reference for the EMSA include other sectors
of shipping than just oil.

International,
5.4. Within a complex legal structure at
European, national and regional level, the Committee of the
Regions urges the European Commission to facilitate and
continue research through the EMSA into the most appropriate
and enforceable procedures. To this end a rationalisation of
the existing regulations and directives is welcomed where it
contributes to an additional added value in the field of
maritime safety.

5.5.
The Committee of the Regions urges the Commission
to differentiate clearly between the terms of reference of the
EMSA and the future proposal on the creation of a Committee
on Safe Seas.

5.6.
The Committee of the Regions has consistently viewed
the issues of maritime safety and marine environmental
protection in an integrated manner and believes that it is
essential
to treat this proposal with a holistic approach.
The benefits to European maritime regions of the sensitive
introduction of technically sound decisions will result in
sustainable coastal zones and an environmentally friendly
shipping industry. For this reason, the Committee of the
Regions would seek involvement in the Board of the EMSA, as
a representative of local and regional authorities engaged in
Integrated Coastal Zone management across the EU.

To ensure the effective operation of the two tier
4.7.
International-EU system, the COPE Fund will only be activated
once an accident occurs that exceeds, or threatens to exceed,
the maximum limit provided by the IOPC Fund. The Com-
mittee of the Regions expects the Commission to establish a
clear framework for its operation in co-operation with the
IMO.

5.7.
Conscious of the international dimension of shipping,
the Committee of the Regions is keen to ensure that the
implications of change within European practice do not force
problems of shipping offshore, creating negative impacts
elsewhere in the world. The European Commission should
ensure that the proposed Agency works proactively with its
Member States and the International Maritime Organisation
on this issue.

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6. Conclusions

These ‘Erika II’ proposals present an opportunity to
6.1.
take a step back, review the whole picture and endeavour to
develop a set of rules which do apply to all classes of ship thus
reducing the risk to crews, vessels and coastal environments.

6.2.
The Committee of the Regions urges new arrangements
to be implemented in such a way that EU action adds value to
the existing arrangements put in place at national and regional
level.

6.3.
It is important to ensure that the EU works proactively
to achieve consensual progress in the IMO to achieve new
measures and that a clear chain of responsibility is identified
for the operation of all shipping in European waters reducing
the final negative impacts on local and regional authorities.

6.4.
The Committee of the Regions would encourage the
European Commission to engage in further research in relation
to the technical measures proposed. In designing these research
programmes due regard should be given to the operational
practices in the shipping industry and the cost/benefit relation-
ships accruing.

Brussels, 13 June 2001.

The President

of the Committee of the Regions

Jos CHABERT

Opinion of the Committee of the Regions on the ‘Proposal for a Council Directive on minimum
standards for giving temporary protection in the event of a mass influx of displaced persons and
on measures promoting a balance of efforts between Member States in receiving such persons
and bearing the consequences thereof’

(2001/C 357/02)

THE COMMITTEE OF THE REGIONS,

having regard to the proposal for a Council Directive on minimum standards for giving temporary
protection in the event of a mass influx of displaced persons and on measures promoting a balance of
efforts between Member States in receiving such persons and bearing the consequences thereof
(COM(2000) 303 final) — 2000/0127 (CNS);

having regard to the decision of the Council on 25 July 2000, under Article 265 first paragraph and
Article 137 of the Treaty establishing the European Community, to consult the Committee of the Regions
on the matter;

having regard to the decision of its President on 19 October 2000, under Rule 39 of the Rules of
Procedure of the CoR, to instruct Commission 5 — Social Policy, Public Health, Consumer Protection,
Research and Tourism — to draw up an opinion on this subject;

having regard to the draft opinion (CdR 420/2000 rev. 2) adopted by Commission 5 on 19 April 2001.
[rapporteur: Mr von Plüskow (D/PSE)],

adopted the following opinion at its 39th plenary session on 13 and 14 June 2001 (meeting of 13 June).