Opinion of the European Economic and Social Committee on the ‘Proposal for a regulation of the European Parliament and of the Council on the implementation of the International Safety Management Code within the Community’ (COM(2003) 767 final — 2003/0291 (COD))
Date: 2004-06-30
Institutions: European Economic and Social Committee
Subjects: EU law, code of conduct, international instrument, maritime safety, pollution control measures

C 302/20

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Official Journal of the European Union

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— Article 20 of

the proposal

repeals Council Decision
73/391/EEC. Annex III
to the proposal, however, also
mentions Council Decision 76/641/EEC under the title
‘Repealed Decision with its amendment’. Hence, in order to
be consistent, the amendment introduced by Decision 76/
641/EEC should also be repealed in Article 20.

2.6 Moreover, particular attention needs to be paid to
ensuring that the translations are correct since inaccuracies
could lead to legal uncertainty and to the legislation being
wrongly applied.

Brussels, 30 June 2004.

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 implementation of the International Safety
Management Code within the Community’

(COM(2003) 767 final — 2003/0291 (COD))

(2004/C 302/05)

On 13 January 2004, the Council of the European Union 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 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 10 May 2004. The rapporteur was
Dr Bredima Savopoulou.

At its 410th plenary session of 30 June and 1 July 2004 (meeting of 30 June), the European Economic and
Social Committee adopted the following opinion by 155 votes to 2, with 4 abstentions:

1. Introduction

1.1
The International Management Code for the Safe Opera-
tion of Ships and Pollution Prevention (ISM Code) was adopted
by the International Maritime Organisation (IMO) in 1979 as a
tool to promote the development of a safety culture and envir-
onmental conscience in shipping. In 1994 the IMO decided to
make the Code mandatory through the adoption of a new
Chapter IX ‘Management for the Safe Operation of Ships’, in
the International Convention for the Safety of Life at Sea
(SOLAS) 1974.

1.2
The mandatory application of the Code was effected in
two phases. On 1 July 1998 it became mandatory for compa-
nies operating passenger ships, oil tankers, chemical tankers,
gas carriers and bulk carriers of 500 gross tons and over,
engaged on international voyages. On 1 July 2002 the Code
became mandatory for companies operating other cargo ships
of 500 gross tons and over, engaged on international sea
voyages.

In response to the Estonia tragedy the EU decided to
1.3
take action for the early implementation of the ISM Code for
ro-ro passenger ferries engaged on international and domestic
voyages within the Community by 1/7/1996 under Regulation
(EC) 3051/95 (8/12/1995) (1). The EESC in its relevant opinion
welcomed the proposed action and supported the Commis-
sion's initiative. (2)

1.4
The Regulation has been amended twice: a) by Regu-
lation 179/1998 (3) concerning the uniform implementation of
the ISM Code documents / certificates for ferries operating in
Europe and b) by the Regulation 1970/2002 (4) taking account
of subsequent amendments to the ISM Code adopted by IMO.
The Regulation entered into force on 26 November 2002.

(1) Council Regulation (EC) No 3051/95 of 8 December 1995 on the
(ro-ro

roll-on/roll-off passenger

ferries

safety management of
ferries), OJ L 320, 30.12.1995, p. 14.

(2) OJ C 236 of 11.9.1995, p. 42.
(3) OJ L 19 of 24.01.1998, p. 35.
(4) OJ L 302 of 6.12.2002, p. 3.

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2. The Commission's proposal

2.1 When Regulation (EC) No 3051/95 was adopted
Member States and the European Parliament stated that the
application of the ISM Code to ro-ro passenger ferries was a
priority, but also that it was the first of a series of continuing
initiatives to improve safety at sea.

2.2
The proposed Regulation is of a more general nature, it
will replace Regulation (EC) No 3051/95 and its main purpose
is to facilitate the correct, strict and harmonised implementa-
tion of the Code in all Member States and acceding countries.
The Regulation will maintain in parallel the existing EU ISM
rules applicable to ro-ro ferries, irrespective of their flag and
sailing on a regular service to and from European ports.

The Regulation will apply to any companies operating

2.3
one or more of the following ships at sea:

— cargo ships, flying the flag of a Member State engaged in

international and domestic voyages;

— passenger ships flying the flag of a Member State engaged

on international voyages;

— passenger ships engaged on domestic voyages in sea areas
of Class A and B, as defined in article 4 of Directive
98/18/EC, regardless of their flag;

— ro-ro passenger ferries operating to or from ports of the
ro-ro

Member States of
passenger ferry service, regardless of their flag; and

the Community on a regular

— cargo ships, operating to or from ports of the Member
States of the Community on a cabotage feeder service,
regardless of their flag.

2.4
The scope of the proposed regulation is based on the
provisions of Chapter IX of SOLAS Convention, and applies to
all ships falling under the scope of SOLAS and flying the flag
of a Member State, even if they operate on domestic voyages.
Nevertheless,
ships operating on domestic
voyages the provisions will only apply to passenger ships oper-
ating more than five miles from the coastline, but these rules
will apply to all flags.

for passenger

2.5
Any company operating one or more of the aforemen-
tioned ships will have to comply with the International
Management Code for the safe operation of ships and for pollu-
tion prevention (ISM Code), reproduced at Title I of the Annex.
Member States will have to comply with the Guidelines on the
certification process
the Administration
concerning the implementation of the ISM Code), as outlined
in Title II of the Annex.

(Provisions

for

3.2
The EESC notes that with respect to companies oper-
ating passenger and cargo ships engaged on international
voyages, the objective of the proposed regulation has already
been achieved, since the obligation to comply with the ISM
Code stems from the SOLAS Convention. Likewise, for compa-
nies operating ro-ro passenger ships engaged on domestic
voyages the objective has been achieved through the imple-
mentation of Regulation 3051/95.

3.3
The Commission's basic justification for the proposal is
that the transposition of the full ISM Code and relevant IMO
guidelines into EU law will enhance the effective implementa-
tion of the ISM Code within the Community. The EESC agrees
with the justification and fully supports the objective to the
extent that it relates to ships to which the ISM Code is already
applicable. However, regarding the added value of the proposed
extension of application of the ISM Code to other types of
ships the EESC has the following comments.

3.3.1
The ISM Code originated from an industry initiative as
a voluntary tool to promote quality shipping. The experience
from the ISM Code mandatory global implementation since the
first phase in 1998, as expected, has revealed the strengths and
shortcomings of the Code. It has been generally recognised that
there is a need for a better understanding throughout the mari-
time community (flag states, classification societies and ship-
ping companies) of the objectives of the Code, for improved
links between those who issue ISM certificates and uniform
standards of training for ISM Code auditors. The cornerstone of
good safety management is commitment from the top. In mari-
time safety and pollution prevention it is the commitment and
motivation of individuals at all levels that determine the end
result. Without the understanding of the maritime cluster the
ISM Code could become the paper exercise that the sceptics
would like to suggest.

Risk assessment is nowadays being widely used as an
3.3.2
objective and reliable tool
for the consideration of safety
improvements. Based on this approach, and taking into
account the demonstrated need, the mandatory application of
the ISM Code within the EU for ferries operating on a regular
service to and from European ports was fully justified and
endorsed. On the same grounds, the application of the Guide-
lines to all other ships engaged in domestic voyages so far has
been left, quite rightly, to the discretion of the national admin-
istrations on the basis of the subsidiarity principle. The EESC is
not aware of any national legislation extending the mandatory
implementation of the ISM Code to other ships engaged in
domestic voyages.

3. General comments

The ISM Code is one of

the most significant steps
3.1
forward that IMO has taken in the field of maritime safety
because it provides
the framework through which IMO
Conventions can be effectively implemented. The EESC view, as
expressed in its past opinions, is that Regulation 3051/95 has
served a useful purpose in advancing the implementation of
the ISM Code to ro-ro passenger ships by two years and
extending its application to such ships engaged in domestic sea
voyages.

3.3.3
The ISM Code, designed for ships engaged on interna-
tional voyages, and hence beyond the easy reach of administra-
tions and companies, places significant obligations to compa-
nies and their ships and requires compliance with international
conventions and encourages adherence to industry standards.
Furthermore, the safety regime of cargo ships engaged exclu-
sively on domestic voyages is regulated by national legislations
and, by implication, such ships may have to comply with the
regime applicable to cargo ships engaged on international
voyages.

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3.3.4
The EESC as the guardian, inter alia, of the interests of
small and medium-sized undertakings in Europe, is concerned
about the mandatory application of the ISM Code on small and
medium-sized shipping companies exclusively engaged in
domestic voyages.
In light of the above considerations, the
proposed regulation should take into consideration the bureau-
cratic formalities and the cost of compliance regarding its
application to the ships of such companies, Hence, flexibility of
application and/or derogations will be required.

4. Specific comments

4.1 Article 3 — Application

4.1.1
The EESC believes that derogations may be necessary
for reasons of practicality in cases of small cargo ships and
passenger ships engaged in domestic voyages and especially
when such ships are operated by the owner himself or under
its direct supervision.

4.2 Article 4 — Safety management requirements

4.2.1
By implication, the aforementioned ships may have to
comply with the regime applicable to ships engaged on interna-
tional voyages. The EESC believes that, the Regulation should
clearly stipulate the basic requirements of the ISM Code which
may be relevant to such ships.

4.3 Article 5 — Certification

4.3.1
The EESC endorses the mandatory application of the
certification process, which is the main valid justification for
the proposed regulation.

4.3.2 With respect to paragraphs 2 and 6 it should be noted
that Documents of Compliance and Safety Management Certifi-
cates respectively can also be issued by an Administration at
the request of the flag Administration.

The EESC maintains that Art. 5 paragraphs 4 and 9
4.3.3
need clarification and streamlining with the ISM Code provi-
sions because they place unnecessary restrictions and lead to
confusion.

4.4 Article 7 — Safeguard procedure

The safeguard procedure does not, as

4.4.1
should,
involve the Member State or the flag State that has issued the
Document of Compliance and which may need to suspend the
validity or withdraw the Document.

it

Brussels, 30 June 2004.

4.5 Article 9 — Reporting

4.5.1
The article refers to a reporting form to be established
by the Commission, however it does not stipulate what should
be reported. It should be clarified if reporting of compliance of
Member States with the Regulation and more specifically with
the certification procedures
reporting of
compliance of companies and their ships, as may be evidenced
by flag and port state control.

is envisaged, or

4.6 Article 13 — Entry into force

4.6.1
Consistent with the comments under Articles 3 and 4,
the EESC considers that the one-year transitional period for the
compliance of cargo ships and passenger ships engaged on
domestic voyages is appropriate.

5. Conclusions

The EESC supports the transposition of the full ISM
5.1
Code and relevant IMO guidelines into EU law through the
proposed new Regulation replacing Regulation 3051/95.
However, in real terms, the added value of the extension of the
scope of the proposed regulation could be limited, since ships
engaged on international voyages and ro-ro passenger ships
engaged in domestic voyages already comply with the ISM
Code.

5.2
The EESC notes that the experience from the ISM imple-
mentation since the first phase in 1998 has revealed the
strengths and shortcomings of the Code. All parties of the
maritime cluster involved in the implementation of the ISM
Code should fully understand the objectives of the Code, other-
wise it could become a paper exercise. The need is more
obvious regarding companies and ships thus far excluded from
the ISM Code regime.

5.3
The initiative to extend the application of the ISM Code
to all ships engaged on domestic voyages needs to be reviewed
with a view to render it more flexible. Inadvertently and dispro-
portionately, the new categories of ships may have to comply
with the regime applicable to ships engaged on international
voyages with probably prohibitive cost for compliance, in par-
ticular in cases of ships operated or under the direct supervi-
sion of the owner of the ship. The certification procedure of
the proposed regulation needs to be adjusted so as not to
impose unnecessary restrictions for small and medium-sized
companies engaged in domestic voyages. Hence, derogations or
alternatively stipulation of basic requirements of the ISM Code
relevant to those ships may be necessary.

The President

of the European Economic and Social Committee

Roger BRIESCH