2004/246/EC: Council Decision of 2 March 2004 authorising the Member States to sign, ratify or accede to, in the interest of the European Community, the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxembourg, in the interest of the European Community, to accede to the underlying instruments
Date: 2004-03-02
Institutions: Council of the European Union
Subjects: Austria, Luxembourg, accession to an agreement, civil liability, indemnification, international convention, oil pollution, protocol

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Official Journal of the European Union

16.3.2004

II

(Acts whose publication is not obligatory)

COUNCIL

COUNCIL DECISION

of 2 March 2004

authorising the Member States to sign, ratify or accede to, in the interest of the European Com-
munity, the Protocol of 2003 to the International Convention on the Establishment of an Interna-
tional Fund for Compensation for Oil Pollution Damage, 1992, and authorising Austria and Luxem-
bourg, in the interest of the European Community, to accede to the underlying instruments

(2004/246/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 61(c),
in conjunction with
Article 300(2), first subparagraph, and Article 300(3), second
subparagraph, thereof,

Having regard to the proposal from the Commission,

Having regard to the assent of the European Parliament (1),

Whereas:

(1)

(2)

(3)

The Protocol to the International Convention on the
Establishment of an International Fund for Compensa-
tion for Oil Pollution Damage, 1992,
(hereinafter the
is aimed at ensuring
Supplementary Fund Protocol),
adequate, prompt,
compensation of
and effective
persons who suffer damage caused by oil spills caused
by tankers. By significantly raising the limits of compen-
sation available in the present international system, the
Supplementary Fund Protocol addresses one of the most
significant shortcomings in the international regulation
of oil pollution liability.

Articles 7 and 8 of the Supplementary Fund Protocol
affect Community legislation on jurisdiction and the
recognition and enforcement of judgments, as laid down
in Council Regulation (EC) No 44/2001 of 22 December
2000 on jurisdiction and the recognition and enforce-
ment of judgments in civil and commercial matters (2).

The Community has exclusive competence in relation to
Articles 7 and 8 of the Protocol, insofar as those Articles
affect the rules laid down in Regulation (EC) No 44/

(1) Assent of 12 February 2004 (not yet published in the Official

Journal).

(2) OJ L 12, 16.1.2001, p. 1.

(4)

(5)

(6)

(7)

(8)

2001. The Member States retain their competence for
matters covered by the Protocol which do not affect
Community law.

Pursuant
to the Supplementary Fund Protocol, only
sovereign States may be party to it; it is not therefore
possible for the Community to ratify or accede to the
Protocol, nor is there a prospect that it will be able to
do so in the near future.

The Council should therefore, exceptionally, authorise
the Member States to sign and conclude the Supplemen-
tary Fund Protocol
in the interest of the Community,
under the conditions set out in this Decision.

The United Kingdom and Ireland are bound by Regu-
lation (EC) No 44/2001 and are therefore taking part in
the adoption and application of this Decision.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on Euro-
pean Union and to the Treaty establishing the European
Community, Denmark is not taking part in the adoption
of this Decision, and is not bound by it or subject to its
application.

Only Contracting Parties to the underlying instruments
may become Contracting Parties to the Supplementary
Fund Protocol. Austria
and Luxembourg are not
currently parties to the underlying instruments. Since the
underlying instruments
contain provisions affecting
Regulation (EC) No 44/2001, Austria and Luxembourg
should also be authorised to accede to these instruments.

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Official Journal of the European Union

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(9)

(10)

Member States, with the exception of Austria and
Luxembourg, should sign or ratify the Protocol, as far as
possible before the end of June 2004. The choice of
either signing and subsequently ratifying the Protocol, or
signing it without reservation as to ratification, accep-
tance or approval, is left to the Member States.

The situation of Austria and Luxembourg is different in
that
they cannot become Contracting Parties to the
Supplementary Fund Protocol until they have acceded to
the underlying instruments. For this reason, Austria and
Luxembourg should therefore accede to the underlying
instruments and to the Supplementary Fund Protocol, as
far as possible by 31 December 2005 (1),

HAS ADOPTED THIS DECISION:

Article 1

The Member States are hereby authorised to sign, ratify
1.
or accede to, in the interest of the European Community, the
Protocol of 2003 to the International Convention on the Estab-
lishment of an International Fund for Compensation for Oil
Pollution Damage, 1992, (the Supplementary Fund Protocol)
subject to the conditions set out in the following Articles.

In addition, Austria and Luxembourg are authorised to

2.
accede to the underlying instruments.

The text of the Supplementary Fund Protocol is attached
3.
in Annex I to this Decision. The text of the underlying instru-
ments is attached in Annexes II and III to this Decision.

4.
In this Decision, the term ‘underlying instruments’ shall
mean the Protocol of 1992 to amend the International Conven-
tion on Civil Liability for Oil Pollution Damage, 1969 and the
Protocol of 1992 to amend the International Convention on
the Establishment of an International Fund for Compensation
for Oil Pollution Damage, 1971.

In this Decision,

5.
States with the exception of Denmark.

‘Member State’ means all the Member

if possible, before 30 June 2004, with the exception of Austria
and Luxembourg, which express their consent to be bound by
the Protocol under the conditions laid down in paragraph 3 of
this Article.

shall exchange information with the
2. Member States
Commission within the Council, by 30 April 2004, on the date
on which they expect
to be
completed.

internal procedures

their

Austria and Luxembourg shall take the necessary steps to
3.
express their consent to be bound by the underlying instru-
ments and the Supplementary Fund Protocol, as far as possible,
by 31 December 2005.

Article 3

When signing, ratifying or acceding to the instruments referred
inform the Secretary-
to in Article 1, Member States shall
General of the International Maritime Organisation in writing
that such signature, ratification or accession has taken place in
accordance with this Decision.

Article 4

Member States shall, at the earliest opportunity, use their best
endeavours to ensure that the Supplementary Fund Protocol,
and the underlying instruments, are amended in order to allow
the Community to become a Contracting Party to them.

Article 5

This Decision is addressed to the Member States in accordance
with the Treaty establishing the European Community.

Done at Brussels, 2 March 2004.

Article 2

1. Member States shall take the necessary steps to express
their consent to be bound pursuant to Article 19(2) thereof by
the Supplementary Fund Protocol within a reasonable time and,

For the Council

The President

M. CULLEN

(1) See Commission Declaration.

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Official Journal of the European Union

16.3.2004

ANNEX I

Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensa-
tion for Oil Pollution Damage, 1992

THE CONTRACTING STATES TO THE PRESENT PROTOCOL,

BEARING IN MIND the International Convention on Civil Liability for Oil Pollution Damage, 1992 (hereinafter the
1992 Liability Convention),

HAVING CONSIDERED the International Convention on the Establishment of an International Fund for Compensation
for Oil Pollution Damage, 1992 (hereinafter the 1992 Fund Convention),

AFFIRMING the importance of maintaining the viability of the international oil pollution liability and compensation
system,

NOTING that the maximum compensation afforded by the 1992 Fund Convention might be insufficient to meet
compensation needs in certain circumstances in some Contracting States to that Convention,

RECOGNISING that a number of Contracting States to the 1992 Liability and 1992 Fund Conventions consider it neces-
sary as a matter of urgency to make available additional funds for compensation through the creation of a supplemen-
tary scheme to which States may accede if they so wish,

BELIEVING that the supplementary scheme should seek to ensure that victims of oil pollution damage are compensated
in full for their loss or damage and should also alleviate the difficulties faced by victims in cases where there is a risk
that the amount of compensation available under the 1992 Liability and 1992 Fund Conventions will be insufficient to
pay established claims in full and that as a consequence the International Oil Pollution Compensation Fund, 1992, has
decided provisionally that it will pay only a proportion of any established claim,

CONSIDERING that accession to the supplementary scheme will be open only to Contracting States to the 1992 Fund
Convention,

HAVE AGREED AS FOLLOWS:

GENERAL PROVISIONS

6.

‘Person’, ‘Owner’,

‘Ship’,
‘Preven-
tive Measures’ and ‘Incident’ have the same meaning as in
Article I of the 1992 Liability Convention;

‘Pollution Damage’,

‘Oil’,

Article 1

For the purposes of this Protocol:

7.

‘Contributing Oil’, ‘Unit of Account’, ‘Ton’, ‘Guarantor’ and
‘Terminal installation’ have the same meaning as in Article
1 of the 1992 Fund Convention, unless stated otherwise;

1.

2.

3.

‘1992 Liability Convention’ means
International
Convention on Civil Liability for Oil Pollution Damage,
1992;

the

‘1992 Fund Convention’ means the International Conven-
tion on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1992;

8.

‘Established claim’ means a claim which has been recog-
nised by the 1992 Fund or been accepted as admissible by
decision of a competent court binding upon the 1992
Fund not subject to ordinary forms of review and which
would have been fully compensated if the limit set out in
Article 4(4), of the 1992 Fund Convention had not been
applied to that incident;

‘1992 Fund’ means
International Oil Pollution
Compensation Fund, 1992, established under the 1992
Fund Convention;

the

9.

‘Assembly’ means the Assembly of the International Oil
Fund, 2003,
Pollution Compensation Supplementary
unless otherwise indicated;

4.

‘Contracting State’ means a Contracting State to this
Protocol, unless stated otherwise;

5. When provisions of the 1992 Fund Convention are incor-
porated by reference into this Protocol,
in that
Convention means ‘Supplementary Fund’, unless stated
otherwise;

‘Fund’

10.

‘Organisation’ means the International Maritime Organisa-
tion;

11.

‘Secretary-General’ means the Secretary-General of
Organisation.

the