Regulation (EC) No 789/2004 of the European Parliament and of the Council of 21 April 2004 on the transfer of cargo and passenger ships between registers within the Community and repealing Council Regulation (EEC) No 613/91 (Text with EEA relevance)
Date: 2004-04-21
Institutions: Council of the European Union, European Parliament
Subjects: cargo vessel, carriage of passengers, directory, prevention of pollution, safety standard, technical standard, transport document

30.4.2004

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Official Journal of the European Union

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REGULATION (EC) No 789/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 21 April 2004

on the transfer of cargo and passenger ships between registers within the Community and
repealing Council Regulation (EEC) No 613/91

(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,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

(3)

The establishment and functioning of
the internal
market involve the elimination of technical barriers to
the transfer of cargo and passenger ships between the
registers of Member States. Measures to facilitate the
transfer of cargo and passenger
ships within the
Community are also required to reduce the costs and
involved in a change of
administrative procedures
register within the Community, thereby improving the
operating conditions and the competitive position of
Community shipping.

It is necessary, at the same time, to safeguard a high
level of ship safety and environmental protection,
in
compliance with International Conventions.

The requirements set out
in the 1974 International
Convention for the Safety of life at Sea (1974 SOLAS),
the 1966 International Convention on Load Lines

(4)

(5)

(6)

(7)

(LL 1966) and the 1973 International Convention for
the Prevention of Pollution from Ships, as amended by
the 1978 Protocol (MARPOL 73/78) provide for a high
level of ship safety and environmental protection. The
International Convention on Tonnage Measurement of
Ships, 1969 provides for a uniform system for
the
measurement of the tonnage of merchant ships.

The international regime applicable to passenger ships
has been strengthened and refined through the adoption
of a considerable number of amendments to 1974
SOLAS by the International Maritime Organisation
(IMO)
the
interpretations of the 1974 SOLAS rules and standards.

convergence

increased

and

an

of

the

provisions

The transfer of cargo and passenger ships flying the flag
of a Member State between the registers of Member
States should not be impeded by technical barriers,
provided that the ships have been certified as complying
with
international
of
Conventions by Member States or, on their behalf, by
the organisations recognised under Council Directive
94/57/EC of 22 November 1994, on common rules and
standards for ship inspection and survey organisations
and
of maritime
for
administrations (3).

activities

relevant

relevant

the

A Member State receiving a ship should however
remain able to apply rules which differ in scope and
nature from those referred to in the Conventions listed
in Article 2(a).

In order to ensure a prompt and informed decision by
the Member State of the receiving register, the Member
State of the losing register should provide it with all
relevant available information on the ship's condition
and equipment. The Member State of
the receiving
register should, nevertheless, be able to subject the ship
condition and
to an inspection to confirm its
equipment.

(1) OJ C 80, 30.3.2004, p. 88.
(2) Opinion of the European Parliament of 13 January 2004 (not yet
published in the Official Journal) and Decision of the Council of 6
April 2004.

(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 (OJ L
324, 29.11.2002, p. 53).

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(8)

(9)

(10)

(11)

standards

enforcement,

concerning the

Ships which have been refused access to Member States'
ports under Council Directive 95/21/EC of 19 June
1995,
in respect of
shipping using Community ports and sailing in the
waters under the jurisdiction of the Member States, of
pollution
for
international
prevention and shipboard living and working conditions
(port State control) (1) or which have been detained
more than once following an inspection in the port
during the three years preceding the application for
from the
registration should not be able to benefit
possibility of being transferred under
the simplified
system to another register within the Community.

ship safety,

leave

the Parties. On the basis of

International Conventions
interpretation of

important
Relevant
the requirements to the
points of
their own
discretion of
interpretation, Member States issue to all ships flying
their flags, that are subject to the provisions of relevant
International Conventions, certificates certifying their
compliance with these provisions. Member States
enforce national technical regulations, some provisions
of which contain requirements other than those in the
Conventions and in associated technical standards. An
appropriate procedure should therefore be established in
order to reconcile divergences in the interpretation of
existing requirements which may occur upon a request
for transfer of register.

the

to enable

implementation of

In order
this
Regulation to be monitored, Member States should
provide the Commission with succinct yearly reports. In
the first yearly report Member States should identify any
measures taken to facilitate the implementation of this
Regulation.

The provisions of Council Regulation (EEC) No 613/91
of 4 March 1991 on the transfer of ships from one
to another within the Community (2), are
register
significantly reinforced and extended by this Regulation.
Regulation (EEC) No 613/91 should therefore be
repealed.

HAVE ADOPTED THIS REGULATION:

Article 1

Purpose

this Regulation is

to eliminate technical
The purpose of
barriers to the transfer of cargo and passenger ships flying the
flag of a Member State between the registers of the Member
States while, at the same time, ensuring a high level of ship
in accordance with
safety and environmental protection,
International Conventions.

Article 2

Definitions

For the purposes of this Regulation:

(a)

(b)

‘Conventions' means the 1974 International Convention for
the Safety of Life at Sea (1974 SOLAS),
the 1966
International Convention on Load Lines (LL 66), the 1969
International Convention on Tonnage Measurement of
Ships, and the 1973 International Convention for
the
Prevention of Pollution from Ships, as amended by the
1978 Protocol relating thereto (MARPOL 73/78), in their
up-to-date versions, and related codes of mandatory status
adopted in the framework of the International Maritime
Organisation
and
amendments thereto in their up-to-date versions;

together with

Protocols

(IMO),

safety,

and
the
‘Requirements' means
pollution-prevention
the
requirements
construction and equipment of ships laid down in the
Conventions and, for passenger ships engaged on domestic
voyages, those set out in Council Directive 98/18/EC of 17
March 1998 on safety rules and standards for passenger
ships (4);

security
to

relating

(12)

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 the procedures for the exercise of implementing
powers conferred on the Commission (3),

(1) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive

2002/84/EC.

(2) OJ L 68, 15.3.1991, p. 1. Regulation as amended by Regulation (EC)
No 2099/2002 of the European Parliament and of the Council (OJ
L 324, 29.11.2002, p. 1).
(3) OJ L 184, 17.7.1999, p. 23.

(c)

‘Certificates' means certificates, documents and statements
of compliance issued by a Member State or by a
recognised organisation on its behalf in accordance with
the Conventions, and for passenger ships engaged on
domestic voyages, those issued in accordance with Article
11 of Directive 98/18/EC;

(d)

‘Passenger ship' means a ship carrying more than twelve
passengers;

(4) OJ L 144, 15.5.1998, p. 1. Directive as

last amended by

Commission Directive 2003/75/EC (OJ L 190, 30.7.2003, p. 6).

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(e)

‘Passenger' means every person other than:

2.

This Regulation shall not apply to:

(i)

the master and the members of
the crew or other
persons employed or engaged in any capacity on board
a ship on the business of that ship; and

(ii) a child under one year of age;

(f)

‘Domestic voyage' means a voyage in sea areas from a port
of a Member State to the same or another port within that
Member State;

(g)

‘International voyage' means a voyage by sea from a port
of a Member State to a port outside that Member State, or
conversely;

(h) ‘Cargo ship' means a ship which is not a passenger ship;

(i)

‘Recognised organisation' means an organisation recognised
in accordance with Article 4 of Directive 94/57/EC.

Article 3

Scope

1.

This Regulation shall apply to:

(a) cargo ships, carrying valid certificates, which:

(i) were built on or after 25 May 1980, or

(a) ships

following

their
construction that do not carry valid full-term certificates
from the Member State of the losing register;

completion of

delivery

after

(b) ships that have been refused access to Member States'
ports in accordance with Directive 95/21/EC during the
three years preceding application for registration and to
ships that have been detained following inspection in the
port of a State signatory of the Paris Memorandum of
Understanding of 1982 on Port State Control and for
reasons relating to the requirements defined in Article 2(b),
years preceding
more
application
shall
nevertheless
consideration to
applications in respect of such ships;

the
registration. Member
due

than once during

for
give

timely

States

three

and

(c) ships of war or

troopships, or other ships owned or
operated by a Member State and used only on government
non-commercial service;

(d) ships not propelled by mechanical means, wooden ships of
primitive build, pleasure yachts not engaged in trade or a
fishing vessel;

(e) cargo ships of less than 500 gross tonnage.

Article 4

Transfer of register

(ii) were built before that date, but have been certified by a
Member State or by a recognised organisation acting
on its behalf as complying with the regulations for
new ships defined in 1974 SOLAS, or, in the case of
chemical tankers and gas carriers, with the relevant
Standard codes for ships built on or after 25 May
1980;

1.
A Member State shall not withhold from registration, for
reasons arising from the Conventions, a ship
technical
registered in another Member State which complies with the
requirements and carries valid certificates and equipment
approved or
type-approved in accordance with Council
Directive 96/98/EC of 20 December 1996 on marine
equipment

(1).

(b) passenger ships engaged on domestic and/or international

voyages, carrying valid certificates, which:

(i) were built on or after 1 July 1998, or

(ii) were built before that date, but have been certified by a
Member State or by a recognised organisation acting
on its behalf as complying with the requirements set
out for ships built on or after 1 July 1998:

— in Directive 98/18/EC,

for

ships

engaged on

domestic voyages,

fulfil

regional
obligations
In
to
order
instruments ratified before 1 January 1992,
environmental
Member States may impose additional rules in accordance with
the optional Annexes to the Conventions.

under

their

shall

This Article

apply without prejudice, where
2.
applicable,
to any specific requirements laid down for the
operation of a ship under Article 7 of Directive 98/18/EC and
Article 6 of Directive 2003/25/EC of the European Parliament
the Council of 14 April 2003 on specific stability
and of
requirements for ro-ro passenger ships (2).

— in 1974 SOLAS, for ships engaged on international

voyages.

(1) OJ L 46, 17.2.1997, p. 25. Directive as last amended by Directive

2002/84/EC.

(2) OJ L 123, 17.5.2003, p. 22.

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to the

available

Upon receiving the request for transfer, the Member State
3.
of the losing register shall provide the Member State of the
receiving register, or make
recognised
organisation acting on its behalf, all relevant information on
the ship, in particular, on her condition and equipment. This
information shall contain the history file of the vessel and, if
applicable, a list of the improvements required by the losing
register for registering the ship or renewing her certificates
and of overdue surveys. The information shall include all the
certificates and particulars of
the ship as required by the
Conventions and relevant Community instruments as well as
Flag State inspection and Port State control records. The
Member
proper
implementation of this paragraph.

cooperate

ensure

States

shall

to

the Member State of

Before registering a ship,

4.
the
receiving register, or the recognised organisation acting on its
behalf, may subject the ship to an inspection to confirm that
the actual condition of the ship and her equipment correspond
to the certificates referred to in Article 3. The inspection shall
be performed within a reasonable time frame.

If, following the inspection and having given the ship
5.
owner a reasonable opportunity to rectify any deficiencies, the
Member State of
the recognised
is unable to confirm
organisation acting on its behalf,
shall notify the
it
correspondence with the
Commission in accordance with Article 6(1).

the receiving register, or

certificates,

Article 5

Certificates

1.
Upon the transfer and without prejudice to Directive
94/57/EC, the Member State of the receiving register, or the
issue
recognised organisation acting on its behalf,
certificates to the ship under the same conditions as those
under the flag of the Member State of the losing register,
provided the reasons or the grounds on the basis of which the
Member State of the losing register imposed any condition or
granted any exemption or waiver continue to apply.

shall

2.
the
At the time of renewal, extension or revision of
certificates, the Member State of the receiving register, or the
recognised organisation acting on its behalf, shall not impose
requirements other
the
full-term certificates insofar as requirements for existing ships
and conditions remain unchanged.

than those initially prescribed for

Article 6

Refusal of transfer and interpretation

The Member State of

shall
1.
immediately notify the Commission of any refusal to issue, or

receiving register

the

to authorise the issuing of, new certificates to a ship for
reasons based on divergences of
the
requirements or of the provisions which the Conventions or
relevant Community instruments leave to the discretion of the
Parties.

interpretation of

Unless the Commission is informed of an agreement between
it shall
the Member States concerned within one month,
initiate proceedings in order to take a decision in accordance
with the procedure referred to in Article 7(2).

2. Where a Member State considers that a ship cannot be
registered under Article 4 for
reasons relating to serious
danger to safety, security or to the environment, other than
registration may be
those
suspended.

referred to in paragraph 1,

the Commission, stating the reasons for

The Member State shall immediately bring the matter to the
attention of
the
suspension of the registration. The decision not to register the
ship shall be confirmed or not
in accordance with the
procedure referred to in Article 7(2).

3.
The Commission may consult the Committee referred to
in Article 7 on any matter related to the interpretation and
implementation of this Regulation,
in particular in order to
ensure that standards of safety, security and environmental
protection are not reduced.

Article 7

Committee procedure

1.
The Commission shall be assisted by the Committee on
Safe Seas and the Prevention of Pollution from Ships (COSS)
set up by Article 3 of Regulation (EC) No 2099/2002 of the
European Parliament and of the Council of 5 November 2002
establishing a 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)
(Committee).

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

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

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

3.

The Committee shall adopt its Rules of Procedure.

order to take account of developments at international level, in
particular, in the IMO and to improve the effectiveness of this
Regulation in the light of experience and of technical progress,
insofar as such amendments do not broaden the scope of this
Regulation.

Article 8

Reporting

2.
Any amendment to the Conventions may be excluded
from the scope of this Regulation, pursuant to Article 5 of
Regulation (EC) No 2099/2002.

shall

yearly

transmit

to the Commission a
1. Member States
succinct
this
Regulation. The report shall provide statistical data on the
transfer of ships carried out in accordance with this Regulation
and list any difficulties encountered in its implementation.

implementation of

report on the

By 20 May 2008 the Commission shall submit a report
2.
and the Council on the
to the European Parliament
implementation of
this Regulation, based in part on the
reports submitted by the Member States. In this report, the
Commission shall assess, inter alia, whether it is appropriate to
amend the Regulation.

Article 9

Amendments

Article 10

Repeal

Regulation (EEC) No 613/91 is hereby repealed.

Article 11

Entry into force

The definitions

in Article 2 may be amended in
1.
accordance with the procedure referred to in Article 7(2) in

This Regulation shall enter into force on the twentieth 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 Strasbourg, 21 April 2004.

For the European Parliament

The President

P. COX

For the Council

The President

D. ROCHE