Common Position (EC) No 33/2002 of 7 March 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Regulation of the European Parliament and of the Council establishing a European Maritime Safety Agency (Text with EEA relevance)
Date: 2002-03-07
Institutions: Council of the European Union
Subjects: European Maritime Safety Agency, maritime safety, pollution from ships, powers of the institutions (EU), prevention of pollution, regulation (EU)

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C 119 E/27

COMMON POSITION (EC) No 33/2002

adopted by the Council on 7 March 2002

with a view to adopting Regulation (EC) No . . ./2002 of the European Parliament and of the
Council of . . . establishing a European Maritime Safety Agency

(2002/C 119 E/04)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

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

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

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure referred to in Article
251 of the Treaty (4),

Whereas:

(1) A large number of legislative measures have been adopted
in the Community in order to enhance safety and prevent
pollution in maritime transport. In order to be effective,
such legislation must be applied in a proper and uniform
manner throughout the Community. This will ensure a
level playing field, reduce the distortion of competition
resulting from the economic advantages enjoyed by
non-complying
serious
and will
maritime players.

reward the

ships

(2) Certain tasks currently done at Community or national
level could be executed by a specialised expert body.
Indeed,
technical and scientific
support and a high level of stable expertise to properly
apply the Community legislation in the fields of maritime
its
safety and ship pollution prevention,

there is a need for

to monitor

(1) OJ C 120 E, 24.4.2001, p. 83.
(2) OJ C 221, 7.8.2001, p. 54.
(3) OJ C 357, 14.12.2001, p. 1.
(4) Opinion of the European Parliament of 14 June 2001 (OJ C 53 E,
28.2.2002), Council Common Position of 7 March 2002 and
Decision of the European Parliament of . . . (not yet published in
the Official Journal).

implementation and to evaluate the effectiveness of the
measures in place. There is a need therefore, within the
Community's existing institutional structure and balance
to establish a European Maritime Safety
of powers,
Agency (‘the Agency’).

(3) In general

terms,

the Agency should represent

the
technical body providing the Community with the
necessary means to act effectively to enhance overall
maritime safety and ship pollution prevention rules. The
Agency should assist the Commission in the continuous
process of updating and developing Community legis-
lation in the field of maritime safety and prevention of
pollution by ships and should provide the necessary
support to ensure the convergent and effective implemen-
tation of such legislation throughout the Community by
assisting the Commission in performing the tasks assigned
to the latter by existing and future Community legislation
on maritime safety and ship pollution prevention.

the European Parliament and of

(4) For the proper achievement of the purposes for which the
Agency is established, it is appropriate that the Agency
carries out a number of other important tasks aimed at
enhancing maritime safety and ship pollution prevention
in the waters of the Member States. In this respect, the
Agency should work with Member States to organise
appropriate training activities on port State control and
flag State related issues and to provide technical assistance
related to the implementation of Community legislation. It
should facilitate cooperation between the Member States
in Directive
and the Commission as provided for
2002/. . ./EC of
the
Council of . . . establishing a Community vessel traffic
and information system (5), namely by
monitoring
developing
information system
and operating
necessary for the objectives of that Directive, and in the
activities concerning the investigations related to serious
maritime accidents. It should provide the Commission and
the Member States with objective, reliable and comparable
information and data on maritime safety and on ship
pollution prevention to enable
any
necessary initiatives to enhance the measures in place
It should place the
and to evaluate their effectiveness.
Community maritime safety know-how at the disposal
of the States applying for accession. It should be open
to the participation of
these States and to other
non-member countries which have concluded agreements
with the Community whereby they adopt and implement
Community legislation in the field of maritime safety and
prevention of pollution by ships.

them to take

any

(5) OJ L . . .

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(5) The Agency should favour the establishment of better
cooperation between the Member States and should
develop and disseminate best practices in the Community.
This in turn should contribute to enhancing the overall
maritime safety system in the Community as well as
reducing
accidents, marine
of maritime
pollution and the loss of human lives at sea.

risk

the

(6) In order properly to carry out the tasks entrusted to the
Agency, it is appropriate that its officials carry out visits
to the Member States in order to monitor the overall
functioning of the Community maritime safety and ship
pollution prevention system. The visits should be carried
out in accordance with a policy to be established by the
Agency's Administrative Board and should be facilitated
by the authorities of the Member States.

(7) The Agency should apply the relevant Community legis-
lation concerning public access to documents and the
protection of individuals with regard to the processing
It should give the public and any
of personal data.
reliable and easily under-
interested party objective,
standable information with regard to its work.

(8) For the contractual

the

to the

the Agency, which is
liability of
governed by
contracts
law applicable
concluded by the Agency, the Court of Justice should
have jurisdiction to give judgment pursuant to any arbi-
tration clause contained in the contract. The Court of
Justice should also have jurisdiction in disputes relating
to compensation for any damage arising from the
non-contractual liability of the Agency.

the Agency,

(9) In order to ensure effectively the accomplishment of the
functions of
the Member States and the
Commission should be represented on an Administrative
Board entrusted with the necessary powers to establish
the budget, verify its execution, adopt the appropriate
financial rules, establish transparent working procedures
for decision-making by the Agency, approve its work
programme, examine requests for
technical assistance
from Member States, define a policy for visits to the
Member States and appoint the Executive Director.
In
the light of the highly technical and scientific mission
and tasks of the Agency, it is appropriate for the Adminis-
trative Board to consist of one representative of each
Member
the
Commission, being members with a high level of
expertise. In order further to ensure the highest level of
expertise and experience in the Administrative Board and
with a view to involving the sectors most closely
concerned in the tasks of the Agency, the Commission
should nominate independent professionals from these

representatives

State

four

and

of

sectors as Board members without the right to vote, on
the basis of their personal merit and experience in the
field of maritime safety and prevention of pollution by
ships and not as representatives of particular professional
organisations.

(10) The good functioning of the Agency requires that

its
Executive Director be appointed on the grounds of
merit and documented administrative and managerial
skills, as well as competence and experience relevant for
maritime safety and prevention of pollution by ships and
that he/she performs his/her duties with complete inde-
pendence and flexibility as to the organisation of the
internal
the
Executive Director should prepare and take all steps
necessary to ensure the proper accomplishment of the
should prepare
working programme of
each year a draft general report to be submitted to the
Administrative Board, should draw up estimates of the
revenues and expenditure of
the Agency and should
implement the budget.

the Agency. To this end,

functioning of

the Agency,

(11) In order

to guarantee the full autonomy and inde-
pendence of the Agency,
it is considered necessary to
grant it an autonomous budget whose revenue comes
essentially from a contribution from the Community.

(12) Over the past years, as more decentralised agencies have
been created,
the budgetary authority has looked to
improve transparency and control over the management
of the Community funding allocated to them, in particular
concerning the budgetisation of the fees, financial control,
power of discharge, pension scheme contributions and the
In a
internal budgetary procedure (code of conduct).
the
similar way, Regulation (EC) No 1073/1999 of
the Council of 25 May
European Parliament and of
by
1999 concerning
the
should apply
European Anti-fraud Office
without restriction to the Agency, which should accede
to the Interinstitutional Agreement of 25 May 1999
between the European Parliament,
the
European Union and the Commission of the European
Communities concerning internal
investigations by the
European Anti-fraud Office (OLAF) (2).

the Council of

investigations

(OLAF) (1)

conducted

(13) Within five years from the date of the Agency having
taken up its responsibilities,
the Administrative Board
should commission an independent external evaluation
in order to assess the impact of
the
Agency and its working practices on establishing a high
level of maritime safety and prevention of pollution by
ships,

this Regulation,

(1) OJ L 136, 31.5.1999, p. 1.
(2) OJ L 136, 31.5.1999, p. 15.

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HAVE ADOPTED THIS REGULATION:

well as that applicable to the safety, training, certifi-
cation and watchkeeping of ships' crews;

CHAPTER I

OBJECTIVES AND TASKS

Article 1

Objectives

This Regulation establishes a European Maritime Safety
1.
Agency (the ‘Agency’)
for the purpose of ensuring a high,
uniform and effective level of maritime safety and prevention
of pollution by ships within the Community.

technical

The Agency shall provide the Member States and the
2.
assistance
Commission with the
in order to help
needed and with a high level of expertise,
them to apply Community legislation properly in the field of
maritime safety and prevention of pollution by ships,
to
monitor its implementation and to evaluate the effectiveness
of the measures in place.

and scientific

Article 2

Tasks

In order to ensure that the objectives set out in Article 1 are
met in the appropriate manner, the Agency shall perform the
following tasks:

(a)

updating

in the
it shall assist the Commission, where appropriate,
preparatory works
developing
for
Community legislation in the field of maritime safety and
prevention of pollution by ships, in particular in line with
legislation in that field.
the development of international
That task shall
include the analysis of research projects
carried out in the field of maritime safety and prevention
of pollution by ships;

and

(b) it shall assist the Commission in the effective implemen-
tation of Community legislation on maritime safety and
prevention
the
by
pollution
Community. In particular, the Agency shall:

throughout

ships

of

(i) monitor the overall

functioning of

the Community
port State control regime, which may include visits
to the Member States, and suggest to the Commission
any possible improvements in that field;

(ii) provide the Commission with the technical assistance
necessary to take part in the work of the technical
bodies of the Paris Memorandum of Understanding
on port State control;

(iii) assist the Commission in the performance of any task
assigned to the Commission by existing and future
Community legislation on maritime safety and ship
pollution prevention, notably legislation applicable to
classification societies, the safety of passenger ships, as

(c)

it shall work with the Member States:

(i) to organise, where

training
activities in fields which are the responsibility of the
port State and flag State;

appropriate,

relevant

(ii) to develop technical solutions and provide technical
of

implementation

the

to

assistance
Community legislation;

related

(d) it shall facilitate cooperation between the Member States
and the Commission in the field covered by Directive
2002/. . ./EC. In particular the Agency shall:

(e)

(f)

(i) promote cooperation between riparian States in the
shipping areas concerned in the fields covered by that
Directive;

(ii) develop and operate any information system necessary

for attaining the objectives of that Directive;

it shall facilitate cooperation between the Member States
and the Commission in the development, with due regard
to the different legal systems in the Member States, of a
common methodology for investigating maritime accidents
according
in the
to agreed international principles,
provision of the support of the Member States in activities
related to serious maritime
concerning investigations
accidents, and in the carrying out of an analysis of
existing accident investigation reports;

appropriate,

it shall provide the Commission and the Member States
with objective, reliable and comparable information and
data on maritime safety and on pollution by ships to
enable them to take the necessary steps
to improve
maritime safety and prevention of pollution by ships and
to evaluate the effectiveness of existing measures. Such
tasks shall include the collection, recording and evaluation
of
technical data in the fields of maritime safety and
maritime traffic, as well as in the field of marine pollution,
both accidental and deliberate, the systematic exploitation
of existing databases, including their cross-fertilisation, and,
where
additional
databases. On the basis of the data collected, the Agency
shall assist the Commission in the publication, every six
months, of information relating to ships that have been
refused access to Community ports pursuant to Council
Directive 95/21/EC of 19 June 1995 concerning the
enforcement,
in respect of shipping using Community
ports and sailing in the waters under the jurisdiction of
international standards for ship
the Member States, of
safety, pollution prevention and shipboard living and
working conditions (port State control) (1). The Agency
will also assist the Commission and the Member States in
their activities to improve the identification and pursuit of
ships making unlawful discharges;

development

the

of

(1) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive
2001/106/EC of the European Parliament and of the Council (OJ L
19, 22.1.2002, p. 17).

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(g)

in the course of negotiations with States applying for
accession the Agency may provide technical assistance as
regards the implementation of Community legislation in
the field of maritime safety and prevention of pollution
by ships. That task shall be coordinated with the existing
regional cooperation programmes and shall include, where
appropriate, the organisation of relevant training activities.

CHAPTER II

INTERNAL STRUCTURE AND FUNCTIONING

Article 5

Legal status, regional centres

Article 3

Visits to Member States

1.
In order to perform the tasks entrusted to it, the Agency
may carry out visits to the Member States in accordance with
the policy defined by the Administrative Board. The national
authorities of the Member States shall facilitate the work of the
Agency's staff.

2.
The Agency shall inform the Member State concerned of
the planned visit, the names of the delegated officials, and the
date on which the visit starts. The Agency officials delegated to
carry out such visits shall do so on presentation of a decision
from the Executive Director of
the Agency specifying the
purpose and the aims of their mission.

At the end of each visit, the Agency shall draw up a
3.
report and send it to the Commission and to the Member
State concerned.

Article 4

Transparency and protection of information

The Agency shall apply the principles of Regulation (EC)
1.
No 1049/2001 of the European Parliament and of the Council
of 30 May 2001 regarding public access
to European
Parliament, Council and Commission documents (1), when
handling applications for access to documents held by it.

2.
The Agency may communicate on its own initiative in
the fields within its mission. It shall ensure in particular that
the public and any interested party are rapidly given objective,
reliable and easily understandable information with regard to
its work.

The Administrative Board shall lay down the necessary

3.
internal rules for the application of paragraphs 1 and 2.

The information collected in accordance with this Regu-
4.
lation by the Commission and the Agency shall be subject to
Regulation (EC) No 45/2001 of the European Parliament and
of the Council of 18 December 2000 on the protection of
individuals with regard to the processing of personal data by
the Community institutions and bodies and on the free
movement of such data (2).

The Agency shall be a body of the Community. It shall

1.
have legal personality.

2.
In each of the Member States, the Agency shall enjoy the
most extensive legal capacity accorded to legal persons under
their laws. It may in particular, acquire or dispose of movable
and immovable property and may be a party to legal
proceedings.

3.
At the request of the Commission, the Administrative
Board may decide, with the agreement of the Member States
concerned, to establish the regional centres necessary in order
to carry out tasks related to the monitoring of navigation and
maritime traffic, as provided for in Directive 2002/. . ./EC.

The Agency shall be

4.
Director.

represented by its Executive

Article 6

Staff

The Staff Regulations of Officials of

the European
1.
Communities,
the Conditions of Employment of Other
Servants of the European Communities and the rules adopted
jointly by the institutions of the European Communities for the
those Staff Regulations and
purposes of
Conditions of Employment shall apply to the staff of
the
in agreement with the
Agency. The Administrative Board,
Commission,
the necessary detailed rules of
application.

the application of

shall adopt

2. Without prejudice to Article 16, the powers conferred on
the appointing authority by the Staff Regulations and the
Conditions of Employment of Other Servants
shall be
exercised by the Agency in respect of its own staff.

3.
The Agency's staff shall consist of officials assigned or
seconded by the Commission or Member States on a
recruited by the
servants
temporary basis and of other
Agency as necessary to carry out its tasks.

Article 7

Privileges and immunities

(1) OJ L 145, 31.5.2001, p. 43.
(2) OJ L 8, 12.1.2001, p. 1.

The Protocol on the Privileges and Immunities of the European
Communities shall apply to the Agency and to its staff.

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Article 8

Liability

Agency for the coming year and forward it to the Member
States,
the Council and the
Commission.

the European Parliament,

The contractual liability of the Agency shall be governed

1.
by the law applicable to the contract in question.

The Court of

2.
Justice shall have jurisdiction to give
judgment pursuant to any arbitration clause contained in a
contract concluded by the Agency.

3.
In the case of non-contractual liability, the Agency shall,
in accordance with the general principles common to the laws
of the Member States, make good any damage caused by its
departments or by its servants in the performance of their
duties.

The Court of Justice shall have jurisdiction in disputes
4.
relating to the compensation for damage referred to in
paragraph 3.

The personal liability of its servants towards the Agency
5.
shall be governed by the provisions laid down in the Staff
Regulations or Conditions of Employment applicable to them.

Article 9

Languages

1.
The provisions laid down in Regulation No 1 of 15 April
1958 determining the languages to be used in the European
Economic Community (1) shall apply to the Agency.

This work programme shall be adopted without prejudice
If
to the annual Community budgetary procedure.
the
Commission expresses, within 15 days of
the date of
adoption of the work programme its disagreement with
the Administrative Board shall
the
re-examine
it, possibly
adopt
amended, at
second reading either with a two-thirds
majority, including the Commission representatives, or by
unanimity of the representatives of the Member States;

said programme,

the programme

and

the

(e) adopt the final budget of the Agency before the beginning
of
adjusting it, where necessary,
according to the Community contribution and any other
revenue of the Agency;

financial year,

(f) establish procedures for decision-making by the Executive

Director;

(g) define a policy for the visits to be carried out pursuant to

Article 3;

(h) perform its duties in relation to the Agency's budget

pursuant to Articles 18, 19 and 21;

(i) exercise disciplinary authority over the Executive Director

and the Heads of Unit referred to in Article 15(3).

2.
The translation services required for the functioning of
the Agency shall be provided by the Translation Centre for the
bodies of the European Union.

(j) establish its rules of procedure.

Article 10

Article 11

Creation and powers of the Administrative Board

Composition of the Administrative Board

1.

2.

An Administrative Board is hereby set up.

The Administrative Board shall:

(a) appoint the Executive Director pursuant to Article 16;

(b) adopt, by 30 April each year, the general report of the
Agency for
to the
Member States, the European Parliament, the Council and
the Commission;

the previous year and forward it

(c) examine, in the framework of the preparation of the work
programme, requests from Member States for technical
assistance, as referred to in Article 2(c)(ii);

(d) adopt, by 31 October each year, and taking the opinion of
the Commission into account, the work programme of the

1.
The Administrative Board shall be composed of one
representative of each Member State and four representatives
of the Commission, as well as of four professionals from the
sectors most concerned, nominated by the Commission,
without the right to vote.

Board members shall be appointed on the basis of their degree
of relevant experience and expertise in the field of maritime
safety and prevention of pollution by ships.

Each Member State and the Commission shall appoint
2.
the Administrative Board as well as an
their members of
alternate who will represent the member in his/her absence.

The duration of the term of office shall be five years. The

3.
term of office may be renewed once.

(1) OJ 17, 6.10.1958, p. 385/58. Regulation as last amended by the

1994 Act of Accession.

4. When appropriate, the participation of representatives of
non-member countries and the conditions thereof shall be
established in the arrangements referred to in Article 17(2).

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Article 12

Chairmanship of the Administrative Board

1.
The Administrative Board shall elect a chairperson and a
deputy chairperson from among its members. The deputy
chairperson shall automatically take the place of the chair-
person if he/she is prevented from attending to his/her duties.

2.
The terms of office of the chairperson and deputy chair-
person shall be three years and shall expire when they cease to
be members of the Administrative Board. The terms of office
shall be renewable once.

Article 13

Meetings

1.
The meetings of
convened by its chairperson.

the Administrative Board shall be

The Executive Director of the Agency shall take part in

2.
the deliberations.

The Administrative Board shall hold an ordinary meeting
3.
twice a year. In addition, it shall meet on the initiative of the
chairperson or at the request of the Commission or of one
third of the Member States.

4.
On proposal of the chairperson, when there is a matter of
confidentiality or conflict of interest, the Administrative Board
may decide to examine specific items of its agenda without the
the members nominated in their capacity as
presence of
professionals from the sectors most concerned. Detailed rules
for the application of this provision may be laid down in the
rules of procedure.

5.
The Administrative Board may invite any person whose
opinion can be of interest to attend its meetings as an observer.

6.
The members of the Administrative Board may, subject to
the provisions of its rules of procedure, be assisted by advisers
or experts.

7.
The secretariat
provided by the Agency.

for the Administrative Board shall be

Article 14

Voting

The Administrative Board shall take its decisions by a

1.
two-thirds majority of all members with the right to vote.

In the absence of a member, his/her alternate shall be entitled
to exercise his/her right to vote.

The rules of procedure shall establish the more detailed
for a

3.
voting arrangements,
member to act on behalf of another member.

the conditions

in particular,

Article 15

Duties and powers of the Executive Director

1.
The Agency shall be managed by its Executive Director,
who shall be completely independent in the performance of
his/her
respective
competencies of
the Commission and the Administrative
Board,
the Executive Director shall neither seek nor take
instructions from any government nor from any other body.

duties. Without

prejudice

the

to

The Executive Director shall have the following duties

2.
and powers:

(a) he/she shall prepare the work programme and submit it to
the Administrative Board after
the
Commission. He/she shall take the steps necessary for its
implementation. He/she shall respond to any requests for
assistance from the Commission or from a Member State in
accordance with Article 10(2)(c);

consultation of

(b) he/she shall decide to carry out the visits provided for in
Article 3, after consultation of
the Commission and
following the policy established by the Administrative
Board according to Article 10(2)(g);

(c) he/she shall take all necessary steps, including the adoption
of internal administrative instructions and the publication
of notices, to ensure the functioning of the Agency in
accordance with the provisions of this Regulation;

(d) he/she shall organise an effective monitoring system in
order to be able to compare the Agency's achievements
with its operational objectives. On this basis
the
Executive Director shall prepare a draft general report
each year and submit
to the Administrative Board.
He/she shall establish regular evaluation procedures that
meet recognised professional standards;

it

(e) he/she shall exercise in respect of the staff the powers laid

down in Article 6(2);

(f) he/she shall draw up estimates of the Agency's revenue and
in accordance with Article 18, and shall

expenditure,
implement the budget in accordance with Article 19.

Each member shall have one vote. The Executive Director

2.
of the Agency shall not vote.

3.
The Executive Director may be assisted by one or more
heads of unit. If the Executive Director is absent or indisposed,
one of the heads of unit shall take his place.

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Article 16

4.

Revenue and expenditure shall be in balance.

Appointment of the Executive Director

1.
The Executive Director of the Agency shall be appointed
by the Administrative Board on the grounds of merit and
documented administrative and managerial skills, as well as
competence and experience relevant for maritime safety and
prevention of pollution by ships. The Administrative Board
its decision by a four-fifths majority of all
shall
members with the right
to vote. The Commission may
propose a candidate or candidates.

take

Power to dismiss the Executive Director shall
Administrative Board, according to the same procedure.

lie with the

The term of office of the Executive Director shall be five

2.
years. This term of office is renewable once.

Article 17

Participation of non-member countries

1.
The Agency shall be open to the participation of
non-member countries, which have entered into agreements
with the European Community, whereby they have adopted
and are applying Community law in the field of maritime
safety and prevention of pollution by ships.

Under

the relevant provisions of

2.
these agreements,
arrangements will be developed which shall, inter alia, specify
the nature and the extent of the detailed rules for the partici-
pation by these countries in the work of the Agency, including
provisions on financial contributions and staff.

CHAPTER III

FINANCIAL REQUIREMENTS

Article 18

Budget

1.

The Agency's revenues shall consist of:

(a) a contribution from the Community;

The Administrative Board shall each year, by 30 April at
5.
the draft budget, accompanied by the
the latest, adopt
preliminary work programme, and forward them to the
Commission and to the non-member
countries which
participate in the work of the Agency in accordance with
Article 17.

that draft budget,

On the basis of
establish the relevant estimates
general budget of
before the Council pursuant
The
Community for the coming years has to be observed.

the Commission shall
in the preliminary draft
the European Union, which it shall put
the Treaty.
to Article 272 of
the

budget outlook of

scope of

approved

the

the Administrative Board shall adopt

After the adoption of the general budget of the European
6.
Union,
the Agency's
budget and final work programme, adjusting them where
necessary to the Community contribution.
forward
to the budgetary
them without delay to the Commission,
authority and to the non-member countries which participate
in the work of the Agency.

It shall

Article 19

Implementation and control of the budget

The Executive Director shall

1.
budget.

implement

the Agency's

2.
Control of commitment, payment of all expenditure and
control of the existence and recovery of all Agency revenue
shall be carried out by the Financial Controller of
the
Commission.

By 31 March each year at

3.
the Executive
Director shall submit to the Commission, the Administrative
Board and the Court of Auditors the detailed accounts of all
revenue and expenditure from the previous year.

the latest,

(b) possible contributions

from any non-member country
which participates in the work of the Agency in accordance
with Article 17;

(c) charges for publications, training and/or any other services

provided by the Agency.

The Agency's expenditure shall cover staff and adminis-

2.
trative, infrastructure and operational expenses.

3.
The Executive Director shall draw up an estimate of the
Agency's revenues and expenditure for the following financial
year and shall forward it to the Administrative Board together
with an establishment plan.

The Court of Auditors
in
accordance with Article 248 of the Treaty. They shall publish
a report on the Agency's activities each year.

shall examine these accounts

4.
The European Parliament shall, on a recommendation
from the Administrative Board, give a discharge to the
Executive Director of the Agency in respect of the implemen-
tation of the budget.

Article 20

Combating fraud

1.
In order to combat fraud, corruption and other unlawful
activities the provisions of Regulation (EC) No 1073/1999 shall
apply without restriction to the Agency.

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shall

The Agency

Interinstitutional
accede
2.
Agreement of 25 May 1999 concerning internal investigations
by OLAF and shall
the appropriate
provisions applicable to all of its staff.

issue, without delay,

to the

The decisions concerning funding and the implementing
3.
agreements and instruments resulting from them shall explicitly
stipulate that the Court of Auditors and OLAF may carry out, if
necessary, on-the-spot checks of the recipients of the Agency's
funding and the agents responsible for allocating it.

Article 21

Financial provisions

The Administrative Board, having received the agreement of
the Commission and the opinion of the Court of Auditors,
shall adopt the Agency's Financial Regulation. This Financial
Regulation shall
in particular specify the procedure to be
used for drawing up and implementing the Agency's budget,
in accordance with Article 142 of the Financial Regulation of
21 December 1977 applicable to the general budget of the
European Communities (1).

CHAPTER IV

FINAL PROVISIONS

Article 22

Evaluation

1. Within five years of the date of the Agency having taken
shall
up

the Administrative Board

responsibilities,

its

evaluation on the
commission an independent
implementation of
this Regulation. The Commission shall
make available to the Agency any information the latter
considers relevant to that evaluation.

external

The evaluation shall assess the impact of this Regulation,
2.
the Agency and its working practices on establishing a high
level of maritime safety and prevention of pollution by ships.
The Administrative Board shall issue specific terms of reference
in agreement with the Commission, following consultations
with the parties involved.

3.
The Administrative Board shall receive the evaluation and
issue recommendations regarding changes to this Regulation,
the Agency and its working practices to the Commission. Both
the
shall be
forwarded by the Commission to the European Parliament
and the Council and shall be made public.

and recommendations

evaluation findings

Article 23

Start of the Agency's activities

The Agency shall be operational within 12 months of the entry
into force of this Regulation.

Article 24

Entry into force

This Regulation shall enter
into force on the 20th day
following its publication in the Official Journal of the European
Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at . . .

For the European Parliament
The President

For the Council
The President

(1) OJ L 356, 31.12.1977, p. 1. Regulation as last amended by Regu-
lation (EC, ECSC, Euratom) No 762/2001 (OJ L 111, 20.4.2001,
p. 1).

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

Within the framework of the co-decision procedure (Article 251(TEC)), on 7 December 2001, the
Council reached a political agreement on the proposal for the Regulation establishing a European
Maritime Safety Agency on the basis of the Commission proposal (1) and the results of the first
reading by the European Parliament on 14 June 2001 (2). Following legal/linguistic revision, the
Council adopted its Common Position on 7 March 2002.

The Regulation proposed by the Commission is part of the second set of measures presented in the
aftermath of the Erika incident. The objective of the Regulation is to establish a specialised maritime
safety agency that will provide Member States and the Commission with the necessary expertise and
technical and scientific assistance to ensure that Community legislation in the field of maritime safety
and the prevention of pollution by ships is properly implemented.

In taking its position,
Committee (3) and of the Committee of Regions (4).

the Council

took account of

the opinions of

the Economic and Social

II. ANALYSIS OF THE COMMON POSITION

The Council agrees with the general idea of creating a specialised agency that would assist Member
States and the Commission in the implementation of Community legislation on maritime safety and the
prevention of pollution by ships. By supporting the efficient application of Community legislation in
this field, monitoring its implementation and evaluating the effectiveness of the measures adopted, the
Agency would make a valuable contribution to the objective of ensuring high and uniform standards of
maritime safety and prevention of pollution throughout the Community.

For this purpose, the Agency should work with the Commission and with Member States and facilitate
cooperation between both. As regards the Commission, the Agency should assist in preparing the
updating and developing of future Community legislation in the field of maritime safety and the
prevention of pollution by ships, as well as in the effective implementation of existing rules. In its
cooperation with Member States, the Agency should concentrate on the organisation of training
activities and the provision of technical assistance related to the implementation of Community legis-
lation.

The Agency would also have an important role as facilitator in the cooperation between Member States
and the Commission, particularly with regard to the monitoring of vessel traffic and the exchange of
information and the investigation of maritime accidents. Both the Member States and the Commission
should be provided by the Agency with information and data on maritime safety. Finally, the accession
of non-member countries that have adopted relevant Community legislation in the field of maritime
safety and the prevention of pollution by ships should be facilitated in order to allow for technical
assistance as regards the implementation of the legislation.

The Council has attached great importance to the direct involvement of the Member States in the
administration of the Agency and to ensure its support for the Member States in the application of
Community maritime safety legislation. At the same time, in view of the highly technical and scientific
character of the Agency, it is important to guarantee its autonomy and independence. Bearing in mind
these considerations, the Council has introduced some modifications to the Commission proposal,
particularly concerning the composition of the Agency's Administrative Board and the provision of
technical assistance to Member States.

(1) OJ C 120 E, 24.4.2001, p. 83.
(2) 9787/01 CODEC 581 MAR 39 ENV 322 (OJ C 53 E 28.2.2002).

To be noted that, following the first European Parliament reading, the Commission modified its proposal: Doc.
15411/01 MAR 124 CODEC 1376, COM(2001) 676 final (not yet published in the Official Journal).

(3) OJ C 221, 7.8.2001, p. 64.
(4) OJ C 357, 14.12.2001, p. 1.

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III. AMENDMENTS

The Council's Common Position in general follows the European Parliament's approach at first reading,
accepting in whole or in substance most of its amendments. One can highlight, for instance:

— the prevention of pollution by ships has systematically been taken in as one of the Agency's overall

objectives, together with the promotion of maritime safety (various articles),

— reflecting Parliament's concern that visits to Member States shall take place in understanding with
Member States, the Common Position suggests that these will be carried out in accordance with the
policy defined the Administrative Board. The reports that will be drawn up after each visit shall also
be sent
the Council has chosen to follow the
Commission's view as regards unannounced visits (Article 3),

to the Member State concerned. However,

— the adoption of the work programme shall not require the approval of the Commission, although

its opinion shall be taken into account (Article 10),

— a possibility for Member States, and not only the Commission, to request technical assistance from
the Agency has been introduced. The Executive Director should respond to these requests,
in
accordance with the availability of resources and the preparation of
the work programme
(Articles 10 and 15),

— the competences of the Administrative Board in relation to the appointment and dismissal of the
in this

Executive Director are increased, removing the requirement of a Commission proposal
respect (Article 16),

— the inclusion of a provision concerning the fight against fraud (Article 20),

— the importance of a proper evaluation of the activities of the Agency. It is thus provided that the
evaluation should be carried out by an external body, that the Commission should make available
all information relevant for the evaluation and that it shall take place after consultations with all
parties involved. On the other hand, given the time it will take for the Agency to become fully
operational, the Council preferred to maintain the five year deadline set out in the Commission's
proposal for the carrying out of the evaluation (Article 22).

Finally, the Council has introduced some amendments into the text of the Directive in line with the
principles outlined in Part II of this document. These amendments relate mainly to the following points:

— description of the Agency's tasks (Article 2). The Council has introduced some modifications to
improve and clarify the description of the tasks that the Agency will have to perform vis-à-vis the
Commission, the Member States and non-member countries,

— composition of the Administrative Board (Article 11). The Council amended the Commission's
original proposal in order to give each Member State one representative on the Board. Furthermore,
following Parliaments suggestion, the Council has also incorporated the reference to the Board
members' relevant experience and expertise in the field of maritime safety.

the presence of representatives from the professional sectors most
While maintaining that
concerned would help to further ensure the highest level of expertise and experience in the
Board, the Council has wished to stress the independent status of these professionals and give
them consultative status,

— transparency (Article 4). The Council has substantially amended and broadened the proposal's
provisions on the dissemination of information in order to outline a general policy on transparency
and the protection of data. The provisions in the amended proposal now refer to the most recent
Community legislation in this field.