Regulation (EC) No 782/2003 of the European Parliament and of the Council of 14 April 2003 on the prohibition of organotin compounds on ships
Date: 2003-04-14
Institutions: Council of the European Union, European Parliament
Subjects: Community certification, health control, marine pollution, organic chemical, paints and varnishes, pollution control, tin, vessel

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(Acts whose publication is obligatory)

REGULATION (EC) No 782/2003 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 14 April 2003

on the prohibition of organotin compounds on ships

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 European Economic and
Social Committee (2),

Having consulted the Committee of the Regions,

(6)

The AFS-Convention will only enter
into force 12
months after its ratification by at least 25 States repre-
senting at least 25 % of the world's tonnage.

(7)

Member States should ratify the AFS-Convention at the
earliest opportunity.

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

(8)

Member States should be put in the best possible posi-
tion for a speedy ratification of the AFS-Convention.
Any obstacles which might
impede such ratification
should be removed.

Whereas:

(1)

(2)

(3)

(4)

(5)

The Community is seriously concerned by the harmful
environmental effects of organotin compounds used as
anti-fouling systems on ships, and in particular of tribu-
tyltin (TBT) coatings.

An International Convention on the control of harmful
anti-fouling systems on ships (AFS-Convention) was
adopted on 5 October 2001 at a Diplomatic Conference
(AFS-Conference) held under the aegis of the Interna-
tional Maritime Organisation (IMO) with the attendance
of Member States of the Community.

framework

The AFS-Convention is
convention
a
allowing the prohibition of harmful anti-fouling systems
used on ships in accordance with well-defined proce-
dures and having due regard to the precautionary prin-
ciple expressed in the Rio Declaration on Environment
and Development.

The AFS-Convention, at this stage, only prohibits the
application of organotin compounds on ships.

Fixed application dates have been included in the AFS-
Convention: 1 January 2003 for the prohibition of the
application of organotin compounds on ships and 1
January 2008 for the elimination of the presence of
organotin compounds on ships.

(1) OJ C 262 E, 29.10.2002, p. 492.
(2) Opinion delivered on 11 December 2002 (not yet published in the

Official Journal).

(3) Opinion of the European Parliament of 20 November 2002 (not yet
published in the Official Journal) and Decision of the Council of 17
March 2003.

(9)

The AFS-Conference, aware that the time remaining until
1 January 2003 might not be sufficient to enable the
entry into force of the AFS-Convention by that date, and
desiring that organotin compounds should effectively
cease to be applied in shipping as from 1 January 2003,
requested in AFS-Conference Resolution No 1 that IMO
Member States do their utmost to prepare for imple-
menting the AFS-Convention as a matter of urgency,
and urged the relevant industries to refrain from the
marketing, sale and application of organotin compounds
by that date.

(10) As an immediate follow-up to the AFS-Conference the
Commission adopted 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 adminis-
the Member States relating to
trative provisions of
restrictions on the marketing and use of
certain
dangerous substances and preparations (organostannic
compounds) (4) in order to prohibit, with effect from 1
January 2003, the marketing and use of organostannic
compounds in anti-fouling systems for all ships, irrespec-
tive of their length.

(4) OJ L 183, 12.7.2002, p. 58.

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(11)

In the light of AFS-Conference Resolution No 1, addi-
tional steps are necessary for the implementation of
measures concerning organotin compounds in order to
ensure a general ban on TBT coating used on ships
throughout the Community and its surrounding seas on
the dates provided for by the AFS-Convention.

(17)

The definitions used and requirements imposed in this
Regulation should as far as possible be based upon those
used in the AFS-convention.

(12) A Regulation is the appropriate legal

instrument as it
imposes on shipowners and Member States, directly and
within a short time frame, precise requirements to be
implemented at the same time and in the same manner
the Community. This Regulation, which
throughout
should seek solely to prohibit organotin compounds,
should not duplicate the AFS-Convention.

(13)

This Regulation should not affect the restrictions on the
marketing and use of certain dangerous substances and
preparations (organostannic compounds) laid down in
Directive 76/769/EEC (1).

(14) Uncertainty regarding the total prohibition of active TBT
coatings should not be accepted at Community level; the
world-wide shipping industry, which has to programme
the maintenance of its ships, should be made aware
clearly and in due time that, as from 1 January 2008,
ships bearing an active TBT coating on their hulls will
no longer be allowed in Community ports.

(15)

legal

technical difficulties
legislation,

Third countries, particularly if they cannot benefit from
the added value of a supranational regulation, might
in imposing,
experience
through their national
the prohibition on
applying TBT coatings to their ships from the day on
which the prohibition enters into force under this Regu-
lation. The application of the prohibition in this Regula-
tion on applying TBT coatings should therefore be
suspended as regards ships sailing under the flag of a
third State for an interim period beginning on 1 July
2003 and ending on the date of entry into force of the
AFS-Convention.

(16)

Flag States which have banned the use of TBT coatings
on their ships have an economic interest in ensuring that
the AFS-Convention enters
soon as
possible, in order to ensure a world-wide level playing
field. This Regulation, which prohibits, as soon as
possible, all ships flying the flag of a Member State from
applying TBT coatings should constitute an incentive for
flag States to ratify the AFS-Convention.

into force as

(1) OJ L 262, 27.9.1976, p. 201. Directive as last amended by Commis-

sion Directive 2003/3/EC (OJ L 4, 9.1.2003, p. 12).

(18)

(19)

(20)

In order to ensure its application to offshore platforms,
this Regulation should also apply to ships operating
under the authority of a Member State. It should not
apply to any warships or other government ships since
the treatment of those ships is adequately covered under
the AFS-Convention.

Imposing, as from 1 July 2003, the prohibition of active
TBT coatings on all ships which are entitled to fly the
flag of a Member State and whose anti-fouling system
has been applied, changed or replaced after that date,
should be an incentive for the shipping industry to
implement
recommendation of AFS-Conference
the
Resolution No 1.

It is appropriate to establish the same survey and certifi-
cation regime as that provided for by the AFS-Conven-
this Regulation all ships of 400 gross
tion. Under
tonnage and above,
irrespective of the nature of their
voyage, should be surveyed, whilst ships of 24 metres or
more in length but less than 400 gross tonnage should
only have to carry a declaration of compliance with this
Regulation or with the AFS-Convention. The Commu-
nity should have the right to introduce a harmonised
survey regime for these ships, if this proves necessary at
a later stage.

(21)

For ships less than 24 metres in length, it is not neces-
sary to provide for a specific survey or declaration since
these ships, mainly recreational craft and fishing vessels,
will be adequately covered under the provisions of
Directive 76/769/EEC.

(22)

Certificates and documents issued in conformity with
this Regulation, as well as AFS-Certificates and AFS-
Declarations issued by Parties to the AFS-Convention,
should be recognised.

(23)

If the AFS-Convention has not entered into force by 1
January 2007, the Commission should be permitted to
adopt appropriate measures allowing ships flying the
flag of a third State to demonstrate their compliance
with this Regulation, as well as measures to control the
implementation of these provisions.

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(24)

(25)

(26)

The most appropriate regime for controlling the imple-
mentation of the prohibition of TBT coatings on ships
and the requirements of the AFS-Convention is that laid
down in 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 stan-
dards for ship safety, pollution prevention and shipboard
living and working conditions (port State control) (1) and
amendments should be made to that Directive at the
appropriate time. Having regard to the specific scope of
that Directive, equivalent provisions should be applied
to ships flying the flag of a Member State during the
interim period.

The measures necessary for the implementation of this
Regulation should be adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down procedures
implementing
the exercise of
for
powers conferred on the Commission (2).

In order to assess the achievement of the objective of
this Regulation, the Commission should report to the
if
European Parliament and the Council and propose,
necessary, any appropriate adjustments to the Regula-
tion.

(27)

The entry into force of this Regulation should be such as
to allow the
prohibition of organotin
compounds on ships as soon as possible,

effective

HAVE ADOPTED THIS REGULATION:

Article 1

Objective

The purpose of
this Regulation is to reduce or eliminate
adverse effects on the marine environment and human health
caused by organotin compounds, which act as active biocides
in anti-fouling systems used on ships flying the flag of, or oper-
ating under the authority of, a Member State, and on ships,
regardless of the flag they fly, sailing to or from ports of the
Member States.

Article 2

Definitions

For the purpose of this Regulation:

1.

‘anti-fouling system’ means a coating, paint, surface treat-
ment, surface, or device that is used on a ship to control
or prevent attachment of unwanted organisms;

(1) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive
2002/84/EC of the European Parliament and of the Council (OJ L
324, 29.11.2002, p. 53).
(2) OJ L 184, 17.7.1999, p. 23.

2.

‘gross tonnage’ means the gross tonnage calculated in
accordance with the tonnage measurement
regulations
contained in Annex 1 to the International Convention on
Tonnage Measurement of Ships, 1969, or any successor
Convention;

3.

‘length’ means the length as defined in the International
Convention on Load Lines, 1966, as modified by the
Protocol of 1988 relating thereto, or any successor
Convention;

4.

‘ship’ means a vessel of any type whatsoever operating in
the marine environment and includes hydrofoil boats, air-
fixed or
cushion vehicles, submersibles,
floating platforms,
(FSUs) and
floating production storage and off-loading units (FPSOs);

floating storage units

floating craft,

5.

‘AFS-Convention’ means the International Convention on
the control of harmful anti-fouling systems on ships,
adopted on 5 October 2001, irrespective of its entry into
force;

6.

7.

‘recognised organisation’ means a body recognised in
accordance with the provisions of Council Directive 94/
57/EC of 22 November 1994 on common rules and stan-
dards for ship inspection and survey organisations and for
the relevant activities of maritime administrations (3);

‘AFS-Certificate’ means the certificate issued to ships in
conformity with the provisions of Annex 4 to the AFS-
Convention or, during the interim period, a certificate
issued in accordance with the format laid down in Annex
II to this Regulation, when it is issued by the administra-
tion of any Member State or by a recognised organisation
acting on its behalf;

8.

‘AFS-Declaration’ means a declaration drawn up under the
provisions of Annex 4 to the AFS-Convention or, during
the interim period, a declaration signed by the owner or
the owner's authorised agent and drawn up in accordance
with the format laid down in Annex III to this Regulation;

9.

‘AFS-Statement of Compliance’ means
document
recording compliance with Annex 1 to the AFS-Conven-
tion, issued by a recognised organisation on behalf of the
administration of a Member State;

a

10.

‘interim period’ means the period beginning on 1 July
2003 and ending on the date of entry into force of the
AFS-Convention.

(3) OJ L 319, 12.12.1994, p. 20. Directive as last amended by Directive

2002/84/EC of the European Parliament and of the Council.

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Article 3

Scope

Paragraphs 1 and 2 shall not apply to fixed and floating
3.
platforms, FSUs and FPSOs constructed prior to 1 July 2003
that have not been in dry-dock on or after that date.

1.

This Regulation shall apply to:

(a) ships flying the flag of a Member State,

Article 6

(b) ships not flying the flag of a Member State but operating

under the authority of a Member State, and

Survey and certification

(c) ships that enter a port or offshore terminal of a Member

State but do not fall within points (a) or (b).

The following shall apply as regards the survey and certi-

1.
fication of ships flying the flag of a Member State:

2.
This Regulation shall not apply to any warship, naval
auxiliary or other ship owned or operated by a State and used,
for
the time being, only on government non-commercial
service.

Article 4

Prohibition of the application of organotin compounds
which act as biocides

As from 1 July 2003, organotin compounds which act as
biocides in anti-fouling systems shall not be applied or re-
applied on ships.

However, during the interim period this provision shall only
apply to ships referred to in points (a) or (b) of Article 3(1).

Article 5

Prohibition of the bearing of organotin compounds which
act as biocides

Ships entitled to fly the flag of a Member State as from 1
1.
July 2003, and whose anti-fouling system has been applied,
changed or replaced after that date, shall not bear organotin
compounds which act as biocides in anti-fouling systems on
their hulls or external parts and surfaces, unless they bear a
coating that forms a barrier to such compounds to prevent
them leaching from the underlying non-compliant anti-fouling
system.

(a) Ships of 400 gross tonnage and above, excluding fixed or
floating platforms, FSUs and FPSOs, shall be surveyed and
certified as from 1 July 2003 in accordance with the
requirements laid down in Annex I, before the ship is put
into service for the first time, or when the anti-fouling
systems are changed or replaced.

(b) Ships of 24 metres or more in length, but less than 400
gross tonnage, excluding fixed or floating platforms, FSUs
and FPSOs, shall carry an AFS-Declaration to demonstrate
compliance with Articles 4 and 5.

the Commission,

If necessary,
in accordance with the
procedure referred to in Article 9(2), may establish a
harmonised survey and certification regime for these ships.

(c) Member States may establish appropriate measures for
ships not covered by points (a) and (b) in order to ensure
compliance with this Regulation.

The following shall apply as regards the recognition of

2.
certificates, declarations and statements of compliance:

(a) as from 1 July 2003, Member States shall recognise any

AFS-Certificate;

(b) until a year after the date referred to in point (a), Member
States shall recognise any AFS-Statement of Compliance;

(c) as from 1 July 2003, Member States shall recognise any

AFS-Declaration.

These declarations shall be accompanied by appropriate docu-
mentation (such as a paint receipt or a contractor invoice) or
contain an appropriate endorsement.

2.
As from 1 January 2008 the ships referred to in Article
3(1) shall either not bear organotin compounds which act as
biocides in anti-fouling systems on their hulls or external parts
and surfaces, or bear a coating that forms a barrier to such
compounds leaching from the underlying non-compliant anti-
fouling system.

3.
If the AFS-Convention has not entered into force by 1
January 2007, the Commission, in accordance with the proce-
dure referred to in Article 9(2),
shall adopt appropriate
measures in order to allow ships flying the flag of a third State
to demonstrate their compliance with Article 5.

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Article 7

Port State control

During the interim period Member States shall apply control
provisions equivalent to those laid down in Directive 95/21/EC
to ships of 400 gross tonnage and above flying the flag of a
Member State. With regard to the inspections and detection of
breaches, Member States shall be guided by the provisions of
Article 11 of the AFS-Convention.

the Commission,

If the AFS-Convention has not entered into force by 1 January
2007,
in accordance with the procedure
referred to in Article 9(2), shall establish appropriate proce-
dures for these controls.

European Parliament and of the Council of 5 November 2002
concerning the Committee on Safe Seas and the Prevention of
Pollution from Ships (COSS) and amending the regulations on
maritime safety and the prevention of pollution from ships (1),
hereinafter referred to as ‘the COSS’.

2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at three months.

3.

The COSS shall adopt its rules of procedure.

Article 8

Adaptations

In order to take account of developments at international level
and in particular in the International Maritime Organisation
(IMO), or to improve the effectiveness of this Regulation in the
light of experience, the references to the AFS-Convention, to
the AFS-Certificate, to the AFS-Declaration and to the AFS-
Statement of Compliance and/or the Annexes to this Regula-
tion, including relevant IMO guidelines in relation to Article 11
of the AFS-Convention, may be amended in accordance with
the procedure referred to in Article 9(2).

Article 9

Committee

1.
The Commission shall be assisted by the Committee on
Safe Seas and the Prevention of Pollution from Ships estab-
lished by Article 3 of Regulation (EC) No 2099/2002 of the

Article 10

Evaluation

By 10 May 2004, the Commission shall report to the European
Parliament and the Council on the state of ratification of the
to
AFS-Convention and provide information on the extent
which organotin compounds, which act as biocides in anti-
fouling systems on ships, are still used on ships not flying the
flag of a Member State operating to or from Community ports.
In the light of this report the Commission may propose,
if
necessary, amendments to ensure accelerated reduction of the
contribution by ships not flying the flag of a Member State to
the presence of harmful anti-fouling compounds in the waters
under the jurisdiction of Member States.

Article 11

Entry into force

This Regulation shall enter into force on the day following that
of its publication in the Official Journal of the European Union.

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

Done at Luxembourg, 14 April 2003.

For the European Parliament

The President

P. COX

For the Council

The President

A. GIANNITSIS

(1) OJ L 324, 29.11.2002, p. 1.

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ANNEX I

Surveys and certification requirements for anti-fouling systems on ships flying the flag of a Member State

1.

Surveys

1.1. Ships of 400 gross tonnage and above, excluding fixed or floating platforms, FSUs, and FPSOs, shall, as from 1 July

2003, be subject to the following:

(a) an initial survey before the ship is put into service or when the ship is for the first time in a dry-dock for the

application of anti-fouling systems; and

(b) a survey when the anti-fouling systems are changed or replaced. Such surveys shall be endorsed on the certifi-

cate required under point 2.1.

1.2. The survey shall be such as to ensure that the ship's anti-fouling system fully complies with Articles 4 and 5 of this

Regulation.

1.3. Surveys shall be carried out by officers duly authorised by the administration of the Member State, or of another
Member State, or of a party to the AFS-Convention, or by a surveyor nominated for the purpose by one of those
administrations, or by a recognised organisation acting on behalf of the administration.

1.4. Unless provided otherwise in this Regulation, Member States shall for the surveys referred to in point 1.1 follow
the requirements laid down in Annex 4 to the AFS-Convention, as well as the guidelines for surveys and certifica-
tion of anti-fouling systems on ships annexed to Resolution MEPC 101(48), adopted on 11 October 2002 by the
Marine Environment Protection Committee of the IMO.

2. Certification

2.1. After completion of a survey referred to in point 1.1(a) or (b), a Member State which is not yet a Party to the AFS-
Convention shall issue a certificate in accordance with the format laid down in Annex II. A Member State which is
a Party to the AFS-Convention shall issue an AFS-Certificate.

2.2. A Member State may rely upon an AFS-Statement of Compliance for the demonstration of compliance with the
requirements of Articles 4 and 5 of this Regulation. A certificate referred to in point 2.1 shall replace this AFS-
Statement at the latest a year after the date referred to in point 1.1.

2.3. Member States shall require that a ship referred to in point 1.1 carries a certificate issued in accordance with point

2.1.

2.4. Member States shall, for the purposes of the certification referred to in point 2.1, follow the requirements laid down

in Annex 4 to the AFS-Convention.

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ANNEX II

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ANNEX III