Opinion of the European Economic and Social Committee on the "Proposal for a Regulation of the European Parliament and of the Council on the Prohibition of Organotin Compounds on Ships" (COM(2002) 396 final — 2002/0149 (COD))
Date: 2002-12-11
Institutions: European Economic and Social Committee
Subjects: chemical product, environmental protection, environmental standard, health policy, paints and varnishes, pollution control, prevention of pollution, vessel

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4.3.
To achieve the targets set by the directive, the Com-
mittee calls on the Commission to take more account of the
proposals and suggestions presented in its opinion of 28 April
1999 (1) and in this opinion, in particular:

— amendment of the scope of the exclusions by stating
explicitly that the directive applies to documents held by
public museums and public and university libraries,
Europe’s common cultural heritage;

( 1) See ESC opinion on Public sector information: a key resource for
Europe — Green Paper on public sector information in the
information society, OJ C 169, 16.6.1999.

Brussels, 11 December 2002.

— liability of all public bodies or institutions where deliber-
ately false or incomplete information is provided;

— charging principle which should lead to the general

adoption of the ‘low-cost method’;

— making available free of charge the ‘essential information’
held by the public administrations of the Member States,
with the ambition of extending this measure to all the
public bodies of the Member States.

4.4.
Finally the Committee calls on the Commission to
involve the Committee in the review provided for in Article 12,
when it should be possible to assess actual response times and
to supplement the directive with a view to further harmonising
practices and charging methods.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of
the European Parliament and of the Council on the Prohibition of Organotin Compounds on
Ships’

(COM(2002) 396 final — 2002/0149 (COD))

(2003/C 85/07)

On 30 July 2002 the Council decided to consult the European Economic and Social Committee under
Article 80 (2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Specialised 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 31 October 2002.
The rapporteur was Dr Bredima-Savopoulou.

At its 395th plenary session (meeting of 11 December 2002) the European Economic and Social
Committee adopted the following opinion with 98 votes in favour and three abstentions.

1. Background

1.1.
For many decades, organotins have been used in anti-
fouling paints on ships. Tributyltin (TBT) has been used as a
paint additive since the 1970s to prevent the fouling (e.g.
growth of tubeworms, algae, barnacles) of ship hulls and
in nets for fish farming. Their detrimental effects on the

environment were first noticed in oyster farms on the Atlantic
coast of France in the late 1970s. Since then,
increased
levels of organotins have been found world-wide in marine
organisms further up the food chain, such as fish, seabirds and
marine mammals. These chemicals have been shown to have
hormone-disrupting properties in some species, and humans
could also face health risks if they consume contaminated fish.

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1.2.
Environmental concerns over the potential impact of
TBT-based antifouling paints in the past have led to regulatory
measures in the United States and around the world. Some
countries put in place more stringent TBT regulations than
others (e.g. Japan has banned the use of TBT-based paints
altogether).

1.8.
The Convention will be open for signature since
1 February 2002. It will enter into force 12 months after
25 States representing 25 % of the world’s merchant shipping
tonnage have ratified it.

1.3.
TBT-Self Policing Copolymer (SPC) based paints are
the world standard in commercial marine antifoulant coatings,
representing over 70 % (by volume) of the antifouling paints
used by the world fleet (1). At present, no proven bottom-paint
alternatives minimize fouling as effectively as TBT-SPC based
paints; only TBT-SPC based paints are guaranteed effective for
up to five years. The alternative TBT-free paints protect ship
bottoms for at most three years, requiring more frequent dry-
docking and re-painting and they may not offer protection
equivalent
to TBT-SPC based paints and have unknown
environmental effects.

Although alternatives to TBT-based paints are sold on
1.4.
the world market, they have received insufficient examination.
The toxicity of these compounds has been evaluated only on a
short-term basis, not on the long-term basis that is applicable
to the continuous exposure to antifouling paints.

Resolution 1 of the International Conference on the
1.9.
Control of Harmful Anti-Fouling Systems on Ships recognized
that the time remaining until 1 January 2003, may not be
sufficient to enable entry into force of the Convention by that
date. Desiring that organotin compounds will effectively cease
to be applied in shipping as from January 2003, the Conference
requested the IMO Member States to accept the provisions of
the Convention as a matter of urgency. In parallel, the industry
has been urged to refrain from the marketing, sale and
application of organotin compounds by that date.

Immediately after the AFS Conference, the Inter-
1.10.
national Chamber of Shipping (ICS) stressed that ‘whether or
not the Convention enters into force by January 2003 is
perhaps somewhat academic as the fixed dates of January 2003
and 1 January 2008 should be regarded as firm for any ship
operating in international trade’. Despite the willingness to
ratify the AFS Convention before 1 January 2003, few States
will be able to do so.

1.5.
The EU decided already in December 1989 to ban on
its territory the marketing of organostannic compounds used
as biocides to prevent fouling of hulls of ships of less than
25 metres in length.

1.6.
In 1990 the International Maritime Organization (IMO)
adopted a resolution that recommended governments to adopt
measures restricting the use of TBT-based antifouling paints.
In 1999 the IMO called for a global prohibition of
the
application of organotin compounds which act as biocides in
anti-fouling systems on ships by 1 January 2003 and a
the presence of these organotin
complete prohibition of
compounds on ships by 1 January 2008.

1.7.
On 5 October 2001 the IMO adopted the Convention
on the control of harmful anti-fouling systems on ships (AFS-
Convention). The Convention will prohibit the use of harmful
organotins in anti-fouling paints used on ships and will
establish a mechanism to prevent the potential future use of
other harmful substances in anti-fouling systems.

2. The Commission’s proposal

2.1.
The proposed Regulation is based on the basic require-
ments of the AFS Convention and refrains from duplicating
the implementation provisions which the Member States have
to adopt under their obligations as contracting parties to
the AFS Convention. Furthermore, as opposed to the AFS
Convention which has been drafted as a framework convention
based on the precautionary principle, the Regulation is restric-
ted to organotin compounds only.

2.2.
The objective of the proposed Regulation is to reduce
or eliminate adverse effects on the marine environment and
human health caused by organotin compounds, which act as
biocides in anti-fouling systems used on ships. The European
Commission proposes to adopt, before the end of 2002, the
Regulation prohibiting the application of such organotins on
ships flying the flag of an EU Member Sate as from 1 January
2003 and a general prohibition of active organotin on ships
sailing to or from Community ports on 1 January 2008,
irrespective of the entry into force of the Convention.

( 1) CEFIC 1996.

Before the entry into force of the AFS Convention the
2.3.
prohibition will be suspended for ships not flying the flag of a
Member State. The European Commission asserts that the

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most appropriate regime for the control of implementation of
the prohibition of TBT on ships is laid down in Directive 95/
21/EC on Port State Control (1). However, this Directive can
only be applied with respect to third-flag ships once the AFS
Convention has entered into force.

— to amend Directive 76/769/EEC; and

— to propose the Regulation based on the AFS Convention

principles.

2.4.
Consistent with the AFS Convention, the Regulation
prescribes survey and certification requirements for ships
depending on their size.

Against this background the EESC fully supports the principle
of the proposal to restrict the scope to EU-flag vessels and not
to seek extraterritorial jurisdiction over third-country vessels.

2.5.
The European Commission acknowledges that in the
interim period from 1 January 2003 until the date of entry
into force of the AFS Convention there will be competitive
It
disadvantages for both the EU shipowners and yards.
expects such disadvantages to be avoided through voluntary
compliance of third-flag ships. Furthermore, it is proposing a
procedure by which, and depending on the extent of their
voluntary compliance, third-flag ships will also be covered by
the Regulation.

3. General comments

As a matter of principle the EESC maintains the view
3.1.
that shipping, as a global industry should be regulated by global
standards, primarily developed and agreed at international level
through the IMO. The EU’s role should be to encourage the
development of high international standards and to ensure
their effective enforcement within the EU.

3.2.
The EESC recalls past intentions to extend the scope of
Directive 76/769/EEC (2) and the subsequent agreement to
await developments in IMO and welcomes the approach of
the Commission regarding the implementation of the AFS
Convention, namely:

— to recommend to Member States signature and ratifi-
cation of the AFS Convention at the earliest possible
opportunity;

( 1) 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 the Member States,
of international standards for ship safety, pollution prevention
and shipboard living and working conditions (port State control)
(OJ L 157, 7.7.1995, p. 1) — EESC Opinion: OJ C 393,
31.12.1994, p. 50.

( 2) Commission Directive 2002/62/EC of 9 July 2002 adapting to
technical progress for the ninth time Annex I to Council Directive
76/769/EEC on the approximation of
the laws, regulations
and administrative provisions of the Member States relating to
restrictions on the marketing and use of certain dangerous
(OJ
substances and preparations (organostannic compounds)
L 183, 12.7.2002, p. 58) — EESC Opinion on Council Directive
76/769/EEC: OJ C 16, 23.1.1975, p. 25.

3.3.
However, the EESC notes with concern the potential
commercial disadvantages for EU flag ships and yards during
the interim period. The EESC stresses that higher priority
should be given to ensure rapid ratifications of the AFS
Convention by the EU Member States, Norway and Iceland
and the 13 applicant countries which together represent
30 countries with not less than 30,9 % of the world tonnage,
well beyond the conditions for entry into force of the AFS
Convention. It is noteworthy that in the 13 applicant countries
important maritime nations (Malta, Cyprus) as well as countries
with considerable tonnage (Poland, Romania, Bulgaria) are
included.

For States which would not be able to ratify the
3.4.
the retroactive
AFS Convention before 1 January 2003,
implementation of the ‘1 January 2003’ requirement,
laid
down in the Convention and in the Regulation, might create
an impediment for the ratification process according to their
national legislation. Conversely, for new buildings scheduled
to be delivered in 2003 and contracted to be painted with TBT
paints and for ships scheduled to be dry-docked and re-painted
in 2003 with TBT paints, the retroactive requirement will have
considerable financial implications. In order to minimize the
impact to EU shipping, the Regulation should exempt such
ships, and provide for more flexible deadlines of its application.

4. Specific comments

4.1. Article 3

requirement

The EESC proposes to amend points (a) and (b) in
4.1.1.
Article 3 paragraph 1 by adding the words ‘that enter a port
or offshore terminal of a Member State’. By not imposing a
general
for EU ships and excluding those
operating outside EU waters, the impact will be lesser. A
considerable percentage of the EU fleet operates in non-EU
trades and would be able to take advantage of this temporary
exemption.

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4.1.2.
The EESC proposes to include in paragraph 2 of
Article 3 of the proposed Regulation, the requirement of
Article 3 paragraph 2 (second sentence) of the AFS Convention,
namely:

‘However, each Member State shall ensure, by the adoption
of appropriate measures not
impairing operations or
operational capabilities of such ships owned or operated
by them, that such ships act in a manner consistent, so far
as reasonable and practicable, with this Regulation.’

4.2. Article 5

The EESC supports the option in Article 5 paragraph 1 of
coating the hull to prevent leaching from the underlying TBT
paint. This provision reflects the identical provision of the AFS
Convention. Coating should be preferred to the removal of
TBT paints and sandblasting due to the environmental impact
of the residues of the removed TBT paint.

4.3. Article 6

Paragraph 3 seems to be pessimistic, contrary to the expec-
tation for rapid entry into force of the AFS Convention, and
therefore,
it should be deleted. In any case, the notion is
covered by Article 10.

4.4. Article 7

4.5. Article 11

The EESC proposes to provide for entry into force in 1 January
2004, thus allowing for the smoother phasing out of the TBT
paints in terms of ship compliance and market availability of
new paints. The one year period will also allow for the
evaluation of the State of compliance under Article 10 without
undue burdening of the EU shipping.

5. Conclusions

5.1.
The EESC shares the common desire to reduce the
negative environmental impact of harmful anti-fouling paints
used on ships and believes that the EU action should be
consistent with the principles of the AFS Convention of
IMO with due regard to legal constraints and commercial
considerations.

5.2.
Governments negotiating and adopting international
instruments should set realistic targets and fulfil their commit-
ments so as to avoid unwarranted implications. The Member
States should urgently ratify the AFS Convention, assess the
extent of compliance and the market prospects and define a
realistic scope for the complementary action.

5.3.
Early and total ban of TBT paints should be based on
the firm belief that the new paints will not be equally or more
harmful. Presently there is no evidence either way. The need
for more experience justifies a conservative approach and a
degree of flexibility.

With respect to the second paragraph same comment as under
Article 6.

5.4.
A gradual application of the TBT paints phase out in
the interim reconciles the environmental concerns with the
need to preserve the competitiveness of the EU fleet worldwide.

Brussels, 11 December 2002.

The President

of the European Economic and Social Committee

Roger BRIESCH