Opinion of the European Economic and Social Committee on the "Proposal for a regulation of the European Parliament and of the Council on the transfer of cargo and passenger ships between registers within the Community" (COM(2003) 478 final — 2003/0180 (COD))
Date: 2003-12-10
Institutions: European Economic and Social Committee
Subjects: cargo vessel, carriage of passengers, common transport policy, maritime transport, transport regulations

C 80/88

EN

Official Journal of the European Union

30.3.2004

Opinion of the European Economic and Social Committee on the ‘Proposal for a regulation of
the European Parliament and of the Council on the transfer of cargo and passenger ships between
registers within the Community’

(COM(2003) 478 final — 2003/0180 (COD))

(2004/C 80/24)

On 1 September 2003, the Council of the European Union decided to consult the European Economic
and Social Committee, under Article 71 of the Treaty establishing the European Community, on the
above-mentioned proposal.

The 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 24 November 2003. The
rapporteur was Dr Bredima Savopoulou.

At its 404th plenary session held on 10 and 11 December 2003 (meeting of 10 December), the European
Economic and Social Committee adopted the following opinion by 78 votes in favour and seven
abstentions:

1.

Introduction

1.1. More than ten years after the entry into force of
Regulation (EEC) No 613/91 (1 January 1992), it is appropriate
to seek to improve Community rules on the transfer of cargo
ships with a view to further eliminate technical barriers to
such transfer. Regulation (EEC) No 613/91 seeks to reduce the
costs and administrative procedures involved in a change
of register within the Community, thereby improving the
competitiveness of Community shipping, whilst safeguarding
maritime safety in accordance with international conventions.
Its basic philosophy is the recognition at European level
that the safety standards enshrined in IMO Conventions are
appropriate. In accordance with the Regulation, Member States
forfeited the right to withhold from registration, for technical
reasons arising from three IMO Conventions (1974 SOLAS,
LL66 and MARPOL 73/78) cargo ships registered in other
Member States, complying with the requirements set out in
these Conventions and carrying valid certificates and approved
equipment.

1.2.
At the time of adoption of the Regulation it was not
considered appropriate to include in the scope of the Regu-
lation passenger ships due to their distinctive features, uses,
variations in interpretations of requirements of
the IMO
conventions. Nevertheless, in the explanatory memorandum
of the proposal leading to the adoption of Directive 98/18/
EC on safety rules and standards for passenger ships, the
Commission announced its intention to propose the amend-
ment of
the Regulation in order to extend its scope to
passenger ships.

1.3.

The reasons for the review exercise are threefold:

— substantial

international and Community regulatory
developments have occurred since the Regulation (EEC)
No 613/91 was adopted. Relevant international (IMO)
conventions have been amended, related resolutions
adopted and a large body of Community acquis in
maritime safety was adopted after the entry into force of
the Regulation;

— the existence of divergent interpretations has emerged
from the experience gathered in the implementation of
Regulation (EEC) No. 613/91 and the request of European
shipowners to extend the scope of the Regulation to
cover passenger ships;

— the probability of a growing number of requests for
transfer of ships in the context of the impending enlarge-
ment of the EU, which is likely to increase the current
difficulties.

2. The Commission proposal

In order to take into account the above parameters,

2.1.
the Commission proposes:

— enlargement of the scope of the Regulation to include
passenger ships against the background of an enhanced
international
regime and increased convergence of
interpretation of IMO rules since 1991, as well as the
adoption of Directive 98/18/EC on safety rules and
standards for passenger ships and Directive 2003/25/EC
on specific stability requirements for ro-ro passenger
ships. The Commission is proposing that the extension
should relate to all passenger ships built on or after 1 July
1998 (in line with Directive 98/18/EC). It will also apply
to ships built before that date if certified as complying
with the 1974 SOLAS requirements for ships built on or
after 1 July 1998;

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— better articulation with other EU safety instruments, in
that a link is established with EU rules adopted since
1991, notably in relation Directive 95/21/EC on port
state control, Directive 96/98/EC on marine equipment
and Directive 94/57/EC on classification societies;

The EESC welcomes the further clarification with
3.3.
respect to the balance between the proper functioning of the
internal market and the need to maintain a high maritime
safety level, in pursuit of the established EU policy to enhance
the
maritime safety and improve the competitiveness of
European fleet.

— reinforcement of the cooperation between national mari-
time administrations. This will involve a replacement of
the current rule whereby only ships which have been in
active service under an EU flag for at least 6 months
may be transferred to another EU register under the
Regulation. Instead, there will be enhanced cooperation
the
between maritime administrations.
administration of the losing register must inform the
gaining register of the improvements it required, if any,
for registering the ship, renewing certificates and on
overdue surveys, along the lines of
the Transfer of
Class Agreements of the members of the International
Association of Classification Societies.

In particular,

3. General comments

3.1.
The proposal for a new Regulation is generally well
balanced, motivated and consequent in its reasoning taking
the existing Regulation (EEC) No 613/91 as its departure point.
The objective of the new Regulation largely remains the same
as in Regulation (EEC) No 613/91, i.e., the free movement of
goods (ships) and the elimination of technical barriers to trade
within the internal market, whilst safeguarding maritime safety
in accordance with international conventions.

The EESC agrees that as a general rule a ship, while
3.4.
under banning, in accordance with Directive 95/21/EC on port
state control, should not be transferred from one EU register
to another.

The exchange of

3.5.
information between losing and
gaining register, drawing inspiration from the so-called Trans-
fer of Class Agreement (TOCA) of IACS, is broadly welcomed.
The EESC would certainly encourage and support further
enhanced co-operation between EU maritime administrations,
also in the context of EU enlargement. It believes that such a
strengthened cooperation will be beneficial in increasing the
understanding of, and maintaining a high maritime safety level
applied uniformly throughout the EU. It would, thus, avoid
any risk of distortion of competition in the internal market.

3.6.
The EESC notes the Commission’s recent report regard-
ing the progress of acceding states towards compliance with
the acquis communautaire. It expresses its concern that a
number of acceding flag states have not as yet reached the
desired level of compliance which would allow the unreserved
application of the proposed Regulation on 1 May 2004.
Hence, special attention should be exercised with respect to
the transfer of ships of acceding flag states to the registries of
current EU member states. In this context, the EESC welcomes
the proposed annual reporting by Member States (Article 8)
with regard to the implementation and functioning of the
proposed Regulation.

3.2.
The EESC fully supports the extension to include
passenger vessels under the scope of the Regulation and
against the background of unified rules and in particular
of Directives 98/18/EC (1) and 2003/25/EC (2) and more
importantly, of Directive 1999/35/EC (3). The EESC notes that
operational or social conditions are excluded from the scope of
the Regulation which deals solely with technical requirements.
However, there still exists the possibility of requiring com-
pliance with additional national technical requirements, relat-
ing to the construction and equipment of ships laid down in
the conventions, which may impede or delay the free transfer
of ships within the EU.

4. Detailed comments

Article 3

(1) OJ L 144, 15.5.1998 (safety rules and standards for passenger

ships).

(2) OJ L 123, 17.5.2003 (specific stability requirements for ro-ro

passenger ships).

(3) OJ L 138, 1.6.1999 (mandatory surveys for the safe operation of

regular ro-ro ferry and high speed passenger craft services).

4.1.
The EESC notes that ships should not benefit from the
possibility to be transferred to another register within the
Community until the refusal of access to European ports is
revoked (recital 7). For reasons of clarity Article 3 § 2 should
be worded accordingly:
‘This Regulation shall not apply to
ships that are not permitted to access Member States’ ports in
accordance with Article 76 of Directive 95/21/EC until the
ban is revoked’.

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Article 4

Article 5

4.2.
The requirement for type approval of the marine
equipment by the flag state was one of the main obstacles for
the unimpeded transfer of ships. Therefore, the inclusion of
Directive 96/98/EC in paragraph 1 is supported.

4.3.
For the purpose of unhindered achievement of the
objective of the Regulation, Member States should not with-
hold from registration a ship only for technical reasons arising
from the conventions, but also arising from additional national
technical requirements. Therefore, it is suggested to add in the
2nd line of paragraph 1 the words ‘or from any additional
national technical requirements’ after the word ‘conventions’.

4.4.
Paragraph 2 proposes that ‘... the maritime adminis-
tration of the losing register shall provide the receiver register
with all relevant information on the ship, in particular, on her
condition and equipment. This information shall contain the
if applicable, a list of the
history file of the vessel and,
improvements required by the losing register for registering
the ship or renewing her certificates and of overdue surveys
...’. In the interest of transparency, it is suggested that the
shipowner concerned should receive the same information at
the same time. Similarly,
in the interest of clarity and
uniformity, there might be a need to further define what is
meant by ‘history file’ (contents and time span).

4.5.
The EESC notes the possibility for the receiving flag
state to carry out some sort of ‘inspection’ (paragraph 3). The
EESC understands from the specific considerations in the
proposal that such an inspection should be limited in scope.
In view of that, the EESC would suggest that any such
inspection is made dependant on the information in the
‘history file’ transferred from the losing register. Attention is
also drawn to the expression ‘statements of compliance
referred to in Article 3’. There seems not to be any reference
in Article 3. Hence, it is suggested that the wording be either
deleted or referred to compliance with paragraphs (a)(ii) or
(b)(ii). The suggested text would then read:

‘The maritime administration of the receiving register may
subject the ship to an inspection, taking paragraph 2 into
consideration, to confirm that the actual condition of the ship
and her equipment correspond to her certificates and, where
applicable, that she complies with paragraphs (a)(ii) or (b)(ii) as
appropriate.’

Taking the stated objective of the proposed Regulation
4.6.
into consideration, the EESC is of the view that such an
inspection, where deemed necessary, should be proportional
and consider possible findings in the vessel history. Further-
more, the inspection should be performed without undue
delay, rather than within a reasonable delay. Therefore, the
relevant text should read:

‘The inspection shall be performed without undue delay.’

The provisions of Article 5 complement the procedures
4.7.
of Article 4 for achieving the objective of the Regulation.
However, the term ‘under the same conditions’ needs clarifi-
cation, possibly by way of the following rewording:

‘under the same technical conditions based on the implemen-
tation of the provisions of the relevant conventions.’

Article 6

The EESC broadly supports the procedure as proposed
4.8.
in Article 6, which is largely the same as under Regulation
(EEC) No 613/91. However, referring to paragraph 1, the large
degree of harmonisation achieved thus far with respect to the
current EU Member States, would not justify the refusal of
issue of new certificates by the receiving Member State as
required by Article 5. With respect to the acceding states, and
until it has been established that the same level of harmonis-
ation has been achieved, the receiving states should consider a
rigorous implementation of Art. 4 point 3 (inspection to
confirm the satisfactory condition of the ship and her equip-
ment).

4.9.
There is a need to clarify what happens to a vessel in
the ‘month’ during which the two administrations having
different interpretations have one month to solve their differ-
ences. It cannot be the intention of the proposal that the vessel
is prevented from sailing during this month (or until the
committee under the Regulation (COSS) has reached a final
decision). The vessel coming from an EU flag with full
certificates is acting in good faith and should be able to rely on
the validity of such certificates. Until the administrations have
solved their differences or the COSS committee decides
differently, the vessel should be able to continue to trade with
interim or short-term certificates issued by the receiving
Member State.

4.10.
There may be cases where the receiving Member State
delays in taking timely action or insists on imposing additional
national technical requirements. In such cases there should be
a clear provision that the owner should be able to lodge his
complaints with the Commission and request the referral of
the matter to the Committee of Article 7 for the expeditions
settlement of the dispute. Therefore, the word ‘new’ in the
2nd line of paragraph 1 should be replaced by the words ‘full
term’. For the same reasons, the words ‘following complaints
by owners’ should be inserted after the words ‘in Article 7’ in
the 1st line of paragraph 3.

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5. Conclusions

5.1.
The EESC considers the proposed Regulation a well-
balanced and motivated text. It strikes a balance between the
proper functioning of the internal market and the need to
maintain a high maritime safety level,
in pursuit of the
EU policy to enhance maritime safety and improve the
competitiveness of the European fleet.

The EESC fully supports the extension to include

5.2.
passenger vessels under the scope of the Regulation.

5.3.
The EESC agrees that as a general rule a ship, while
under banning in accordance with Directive 95/21/EC (on
port state control), should not be transferred from one EU
register to another. Ships should not benefit from the possi-

bility to be transferred to another EU register until the refusal
of access to European ports is revoked.

5.4.
In order to achieve the objective of the Regulation,
Member States should not withhold from registration a ship
only for technical reasons arising from the conventions but
also arising from additional national technical requirements.

5.5.
The EESC expresses its concern that a number of
acceding flag states have not as yet reached the desired level of
compliance which would allow the unreserved application of
the proposed Regulation on 1 May 2004. Hence, special
attention should be exercised with respect to the transfer of
ships of acceding flag states to the registries of current EU
Member States. The EESC proposes a rigorous implementation
of inspections of ships of acceding flag states to confirm their
satisfactory condition prior to transfer until it is established
that the same level of harmonisation has been achieved by the
acceding flag states.

Brussels, 10 December 2003.

The President

of the European Economic and Social Committee

Roger BRIESCH