Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the 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) - amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty
Date: 2001-06-14
Institutions: European Commission
Subjects: European standard, harbour installation, maritime safety, measuring equipment, prevention of pollution, supervisory body, vessel

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.6.2001
COM(2001) 339 final

2000/0065 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
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)

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250(2) of the EC Treaty

2000/00065(COD)

OPINION OF THE COMMISSION

pursuant to Article 251(2) , third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
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)

Article 251(2)(c) of the EC Treaty lays down that the Commission shall deliver an opinion on
the amendments proposed by the European Parliament at second reading.

The Commission sets out its opinion below on the amendments proposed by Parliament.

1.

a)

b)

c)

d)

e)

f)

1

2

3

4

5

6

BACKGROUND

On 22 March 2000, the Commission forwarded to the Council and to the European
Parliament its proposal for a Directive (COM (2000) 142 final - COD 2000/0065 of
21 March 2000).1

The Economic and Social Committee delivered its opinion on 19 October 20002.

The Committee of the Regions delivered its opinion on 21 September 20003.

On 30 November 2000, the Parliament adopted at first reading its opinion4 including
certain amendments to the Commission proposal.

On 12 December 2000, the Commission adopted, pursuant to Article 250(2) of the
Treaty, the amended proposal COM (2000) 850 final incorporating wholly or in part
the amendments adopted by Parliament5.

The Council adopted its common position on 26 February 2001.6

OJ C 212E, 25.7.2000, p. 102.
OJ C 14, 16.1.2001, p.22
OJ C 22, 24.1.2001, p.19
Opinion of the European Parliament of 30 November 2000 not yet published in the Official Journal
COM(2000) 850 final, 12.12.2000 - OJ C 154E, 29.5.2001, p.67
OJ C 101, 30.3.2001, p. 15

2

g)

h)

2.

The Council common position and the related Commission opinion were transmitted
to Parliament on 27 February 2001.7

European Parliament voted on 16 May 2001 (second reading), approving the
common position with two amendments.

OBJECTIVE OF THE PROPOSED DIRECTIVE

The Commission proposal aims at amending Directive 95/21/EC on port state control.

This proposal is part of the so-called ERIKA I package and aims at tightening up the existing
regime for the inspection of ships using Community ports.

The proposal contains the following essential elements:

– the creation of a mandatory inspection regime for certain categories of ships presenting
higher risks for the environment or safety (in particular elderly tankers, bulk carriers,
passenger ships, etc);

– the refusal of access in the Community ports of the ships, belonging to the categories

above, that proved to be manifestly sub-standard;

– the increase transparency of the information on the ships inspected and detained;

– an enhanced system for monitoring the implementation of the Directive and assessing the

performance of Member States.

3.

OPINION OF THE COMMISSION ON THE AMENDMENTS BY THE EUROPEAN
PARLIAMENT

Parliament adopted (second reading) two amendments to the Council common position.

The Commission accepted amendment 2 subject to redrafting and amendment 1 in part.

3.1

Amendment 2

Amendment 2 aims at
introducing certain obligations in order to assure an in depth
assessment of the Port State Control performance by Member states. While the Commission
agrees with the principle, it does not agree with the need to introduce new article 2a. For the
sake of consistency, the content of the proposed article is better placed in the text of Article
17 of the directive. The issue proposed in the amendment can be incorporated in article 17
adding the following two paragraphs:

"The Commission shall review the implementation of this Directive no later than 36 months
after its date of application and propose any appropriate measure. The Commission shall
communicate the findings of the review to the Parliament and the Council and will use the
review to determine whether it is necessary to propose an amending Directive or further
legislation in this area.

7

SEC (2001) 344 final, 27.2.2001 not yet published.

3

The review referred to in the previous paragraph will
include an assessment of the
performance of each Member State on the basis, inter alia, of the number of qualified port
state control inspectors, on the number of inspections carried out, including the mandatory
inspections, and on the number of ships that entered the ports of the State."

3.2

Amendment 1

Amendment 1 consists of two parts. The first part seeks to introduce, under article 7b, the
in compliance with the
obligation to refuse access to Community ports for ships not
international and community requirements concerning the voyage data recorder (VDR)
equipment. The second part establishes that, 5 years after the entry into force of the directive,
the above measure is applied to all ships over 300 GT.

As regards the first part of the amendment, the Commission can accept the idea to reinforce
the principle of the importance of the VDR, by introducing the refusal of access order for
those vessels not equipped with the VDR as required by international instruments. However
the proposed wording is compatible neither with the spirit nor with the operational procedures
of article 7b. The Commission is therefore prepared to incorporate the suggested new refusal
of access measure in a separate article. This will assure a proper co-ordination with the other
provisions of the directive where, for the lack of VDR, the PSC authorities are requested to
detain the ship. The wording of this new article should be as follows:

"[Article 9(b)]

Procedures applicable in the absence of Voyage Data Recorders (VDR).

1. Where the inspection reveals that the VDR, as required by the relevant community or
international law as applicable, is missing, the competent authority shall ensure that the
vessel is detained.

2. Notwithstanding the absence of the equipment referred to in paragraph 1, if the inspection
finds no other deficiencies warranting detention, the competent authority may lift the
detention for operational reasons. Wherever such a decision is taken, the competent
authority shall immediately inform the competent authorities of the other Member States
thereof.

3. Member States shall take the measure necessary to ensure that all ships authorised to leave
a port in a Member State under the circumstances referred to in paragraph 2 shall be
refused access to all ports in the Community, except in the situation referred to in article
11(6), until the owner or operator of the vessel has demonstrated to the satisfaction of the
competent authority of the member State in which the detention was imposed, that the
ship is now fitted with a VDR in accordance with the international or community
requirements as appropriate."

The second part of the amendment extends the refusal of access measure to categories of ships
for which the carriage of the VDR is not mandatory under the international requirements. This
part of the amendment cannot be accepted by the Commission for the following reasons:

It represents a distortion of the scope of the directive, which is solely intended to verify
whether the ship complies with the international requirements and not to indirectly impose
additional equipment requirements.

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Its implementation has no legal basis since it would imply to detain and ban ships for non-
international
compliance with requirements, which are not
instruments.

included in community or

It is not coherent with the European legislative initiatives that are expected to create the above
requirements. The provision making mandatory the carriage of VDR on board existing cargo
vessels has already been taken up by a proposed directive included in the so-called ERIKA II
package, but the applicability of this provision is not extended to ships below 3000 GT.

4.

CONCLUSION

In accordance with Article 250(2) of the Treaty, the Commission is altering its proposal in
line with the outcome of the Parliament's second reading as indicated above.

It hopes that the Council and Parliament will be able to find common ground so that this
Directive, which can provide an essential contribution to maritime safety, can be adopted
without further delay.

5