Opinion of the European Economic and Social Committee on the ‘Proposal for a directive of the European Parliament and of the Council on enhancing port security’ (COM(2004) 76 final — 2004/0031 (COD))
Date: 2004-06-30
Institutions: European Economic and Social Committee
Subjects: common ports policy, harbour installation, maritime safety, public safety

7.12.2004

EN

Official Journal of the European Union

C 302/23

Opinion of the European Economic and Social Committee on the ‘Proposal for a directive of the
European Parliament and of the Council on enhancing port security’

(COM(2004) 76 final — 2004/0031 (COD))

(2004/C 302/06)

On 24 February 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 154 votes in favour and four abstentions.

1. Introduction

The Commission with its Communication (1) on Enhan-
1.1
cing Maritime Transport Security and with its proposal (2) for a
Regulation on Enhancing Ship and Port Facility Security
addressed the ship and ship/port interface security concerns
and proposed specific action currently going through the legis-
lative process. However, the proposed Regulation stopped at
the part of the port which represents the ship/port interface,
i.e., the terminal.

The EESC with its opinion (3) welcomed the proposed
1.2
action and supported the Commission's intention as a second
step to pursue the implementation of additional Community
measures that would secure the port and its interface with the
hinterland.

1.3
The second, and more difficult, step of the Commission's
initiative acknowledges the need for a comprehensive port
security policy in view of the vulnerability of the wider port
areas that provide an essential
link with the total transport
chain and passenger flows.

2. The Commission's proposal

The proposal complements the security measures intro-
2.1
duced by the Regulation on Enhancing Ship and Port Facility
Security by ensuring that, as a result, the entire port is covered
by a security regime. The Directive will guarantee the proper
security levels for Community ports and will ensure the harmo-
nised implementation of security measures covering the entire
port areas.

2.2
The Commission asserts that the anticipated IMO and
ILO joint measures in the form of a voluntary Code of Practice
on Port Security, currently under development, will not guar-
antee the early establishment of the required security regime.
Hence, pro-active EU action is necessary, preferably in the form
of a Directive to introduce the required flexibility.

2.3
The proposed Directive will allow the maintenance of
existing port security regimes that comply with its principles
and framework requirements. More particularly, the Directive
requires the obligation to carry out security assessments, to
define security levels, to develop and approve security plans, to
designate responsible security authorities, to designate security
officers, to establish security committees and to support the
implementation of the measures.

3. General comments

Events and actions since the 11 September terrorist
3.1
attacks vindicated predictions that
the war on terrorism is
bound to last for long. The tragic events in Madrid on 11
March 2004 brought to the fore the vulnerability of the whole
transport system to terrorist attacks and proved that absolute
security can never be achieved. In its exploratory opinion on
transport security (4) and its subsequent opinion (5) regarding
maritime transport security, the EESC maintained that the EU
should take the lead internationally in developing a broader
framework for security which will address the causes of
it or eliminate its
terrorism and not only seek to prevent
effects.

rail

3.2 Maritime security being a global problem has received
adequate global and EU attention. However,
security
appears to be largely focused on national level initiatives whilst
terrorism in road and inland waterways transport has thus far
received relatively little attention. The EESC underlines that
unless the other modes of transport bear their share of respon-
sibility, the ‘weakest link’ will be the target of terrorists in order
to infiltrate into the system. It is unrealistic to expect ports to
fill the security gaps of other modes of transport and unfair to
impose upon them the financial burden.

(1) COM (2003) 229 final – 2003/0089 (COD).
(2) COM (2003) 229 final – 2003/0089 (COD).
(3) OJ C 32 of 5.2.2004, p. 21.

(4) OJ C 61 of 14.3.2003, p. 174.
(5) OJ C 32 of 5.2.2004, p. 21.

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3.3
fighting
The EESC reiterates that measures aimed at
terrorism should be coupled with measures aimed at fighting
traditional security problems (organised crime, piracy, fraud,
immigration). Such security problems
smuggling and illegal
exist in the wider port areas and should have been addressed as
a matter of urgency, as requested by the EESC. In this connec-
tion, the EESC regrets that a number of EU Member States are
not as yet parties to the Suppression of Unlawful Acts (SUA)
Convention and its Protocol and underlines the necessity and
urgency of prompt ratifications that would reinforce the legal
means for the fight against terrorism.

3.7
In its present form the Directive focuses on administra-
tive aspects. The directive does not define harmonised proce-
dures for the application of the details related to the Annexes.
Instead, it provides the possibility for future adaptations. The
EESC realises the urgency to enhance security beyond the ship/
port interface but underlines that it would have been more
prudent to take stock of the progress achieved thus far at inter-
national level in this regard, and in particular in IMO, ILO and
World Customs Organisation (WCO) and to provide prompt
and clear guidance for the realisation of its objective.

The EESC (1) supported EU action to ensure a reciprocal
3.4
and collaborative arrangement with the US giving equal treat-
ment for all cargoes (containers) originating from the EU and
to transfer/integrate the bilateral arrangements in a multilateral
agreement under the auspices of the World Customs Organisa-
tion (WCO). Similar reciprocal arrangements should be pursued
with other
system of
the agreements
exchange of
should provide for technical cooperation and financial aid to
developing countries to upgrade their port security infrastruc-
ture.

regions/countries
information. Where necessary,

supported by a

3.5
The framework of the proposed measures is similar to
the one established for the port facilities (terminals). Its signifi-
cant new element is the extension of the geographical scope to
cover the entire port areas, to be defined by the Member States
in line with similar action undertaken by the US. The EESC
believes that the purpose could have been best served by way
of expanding the scope of Regulation (EC) 725/2004 (2). Never-
theless, the EESC acknowledges the constrains for the early
extension of the full security regime of the aforementioned
Regulation to cover the wider port areas and the need to afford
to Member States, through the Directive, the required flexibility
to implement appropriate measures in view of the significant
variety of Community ports and the diverse activities within
them. The flexibility should not
lead to big differences of
measures in EU ports that may result in the classification of
foreign ports as ‘safe’ and blacklisting of ‘unsafe’ in terms of
detecting illegal immigrants and terrorists as they may lead to
market distortion and could jeopardise the smooth flow of
international trade.

to maritime

Its vicinity to areas

from where potential

The EESC reiterates its view (3) that with the advent of
3.6
EU enlargement, the Mediterranean Sea acquires an enhanced
security
role.
problems might arise emphasises the need for a Mediterranean
dimension
EESC
welcomed (4) the development of a Euro-Mediterranean Trans-
port Network and the incorporation of maritime security in its
objectives. It agreed that it is essential that the Mediterranean
partners strengthen security measures and the Euro-Mediterra-
nean Institute for Safety and Security was considered as a first
step towards this goal.

transport

security.

The

(1) OJ C 61 of 14.3.2003, OJ C 32 of 5.2.2004, p. 21.
(2) OJ L 129 of 29.4.2004, p. 6.
(3) OJ C 32 of 5.2.2004, p. 21.
(4) OJ C 32 of 5.2.2004, p.21 and COM(2003) 376 final.

The EESC notes that the Directive does not create new
3.8
obligations
in areas already covered by Regulation (EC)
725/2004 (5), or indeed in the expanded port areas. However, it
takes the opportunity to reiterate the basic principle that port
security measures should be balanced in relation to the objec-
tives they pursue, their costs and impact on traffic and trade
flows. Hence,
it is necessary to consider carefully their need
and assess whether they are realistic and practically feasible.
rights and
The measures
observe the principles recognised in particular by the Charter
of Fundamental Rights of the European Union so as not to
restrain the personal human rights of the citizens nor the
constitutional order,
terrorists.
Therefore, care should be exercised to avoid:

thus serving the purpose of

the fundamental

should respect

— deflection of traffic in favour of some ports (because of
increased security measures)
to the detriment of other
ports. Small ports may particularly get hit by such port
diversion. Security measures should not become an issue of
competition between ports;

— imposing disproportionate bureaucracy or costs;

— any imbalance between vessel security and port security
that may result in forcing upon vessels and their operators
the obligation to provide additional quay security to redress
the imbalance. Ports should not be unduly burdened by the
cost of compliance to the benefit of other modes of trans-
port;

— disproportionate technical infrastructure which can be seen

as promoting certain commercial interests.

3.9
The cost of compliance with the additional measures to
secure the geographical area of the significantly wider port,
namely access restrictions, cargo and luggage control and iden-
tification of persons will multiply for most ports, as the expan-
sion of the application of the security measures will involve
additional arrangements in terms of infrastructure, equipment,
manpower and training. The EESC, recalling its earlier opinions
on financing of security costs, reiterates its invitation to the

(5) OJ L 129 of 29.4.2004, p. 6.

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in the interest of

Commission to devise a EU scheme for financing the imple-
mentation of the measures. The EESC specifically asserted that
‘although part of the cost of compliance will be passed on to
the fairness EU governments
customers,
should also bear part of some costs since terrorism is a reaction
to policies of governments’. Moreover, the EESC reiterates its
call for an overall impact study by the Commission about the
financial
security
measures and joins the EP in its similar request.

increased maritime

implications of

the

Seaports are critical national assets. Measures aimed at
3.9.1
securing the entire port area logically qualify as being of
general public interest. Public funding of such measures would,
therefore, not be subject to the State aid rules of the EU treaty.
Given the fact that Member States, however, have the choice in
granting public support for such measures or not, a harmo-
nised approach should be developed at EU level to avoid distor-
tion of competition. This approach, which also takes into
account financing of port facility security measures, should be
based on the following principles:

— costs of port security measures taken as a consequence of
the port security Directive are in the general public interest
and should be covered through national public funding or
EU funding;

— costs of port facility security measures taken as a conse-
quence of the ship and port facility regulation should be
financed as follows:

a) all costs made by the designated authority (assessment,
approval of assessments, approval of plan, audit and
declaration of compliance) should be covered through
national public funding or EU funding;

b) recurrent overhead costs to control and audit port facil-
ities security plans should be covered through national
public funding or EU funding;

c) all other security costs related to port facilities should be
recovered from the users of those facilities on a trans-
parent basis.

Estimates on port security costs are extremely difficult
3.9.2
to derive. However, by way of comparison port security costs
in the EU are expected to be higher than in the US for geogra-
phical reasons due to the larger number of EU ports. It is
anticipated that comparatively speaking the cost of compliance
for big ports (1) and small ports will be huge.

3.10
Failure to react swiftly to new terrorist realities may
result in costly multi-billion port shutdowns. Hence, the danger
of security may become a non-tariff barrier to trade.

4. Specific comments

4.1
Ports are generally well defined in terms of geographical
coverage and administration and within them diverse activities
co-exist. Normally the boundaries of ports cover port facilities
and not vice-versa, as implied by Article 2.4, or indeed by the
definition of
in Article 3. The definition
seems to imply that the port area is lesser than the area of the
‘port facility’ which includes in addition anchorages, waiting
berths and approaches from seaward. Therefore, clarification of
the notion on ‘taking precedence’ is required in Article 2.4.

‘port’ οr ‘seaport’

4.2
As a first step, the port security plan, being a master
plan, has to be compatible with the decisions already made
during the implementation process of the ISPS-code and Regu-
lation (EC) 725/2004 (2), regarding criteria for port facilities. It
should encompass the integrated security plans for port facil-
ities within the boundaries of the port. Eventually the subordi-
nate port facilities should function as sections of the port and
their security plans should be part of the overall port security
plan, adjusted where necessary to be harmonised and coordi-
nated with its comprehensive objectives and consequently the
port security authority should have the ultimate authority and
responsibility.

The advisory role of the envisaged port security commit-
4.3
tees will enhance the effective implementation of
the port
security plan. The EESC presumes that the committees will be
established by the port security authorities, also for the purpose
of identifying the elements of the port security plan. The EESC
supports the participation of seamen and port workers repre-
sentatives in ports security committees for the purpose of
arriving at practical solutions.

4.4
Cargo and passengers should not be subject to double-
checking when entering the port area and then eventually
when entering the port
facility area. Moreover, a practical
approach is required regarding the mobility of the ship's crew,
visitors and ship suppliers.

4.5
Inspections of compliance with port security measures
in one Member State by security officials of another Member
State should be carried out under the authority of the European
Commission (Article 17.2 and 14.3).

(1) Container scanners in the port of Rotterdam cost €14 m: OJ C 32

of 5.2.2004.

(2) OJ L 129 of 29.4.2004, p. 6.

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5. Conclusions

5.1
The tragic events in Madrid on 11 March 2004 vindi-
cated the fears that the whole transport system is vulnerable to
terrorist attacks and the belief that absolute security can never
be achieved.

5.2
The EESC underlines that unless all modes of transport
bear their share of responsibility, the ‘weakest link’ will be the
target of terrorists in order to infiltrate into the system. It is
unrealistic to expect ports to fill the security gaps of other
modes of transport and unfair to impose upon them the finan-
cial burden.

The EESC firmly believes that a policing strategy is not a
5.3
secure strategy in a non-secure world. Hence, the EU should
take the lead internationally in developing a broader framework
for security which will address the causes of terrorism and not
only seek to eliminate its effects.

5.4
The EESC fully supports the proposed Directive to
implement security measures in the wider port areas. The flex-
ibility afforded to Member States under the proposed Directive
should not result in the classification of foreign ports as ‘safe’
and blacklisting of ‘unsafe’ as they may lead to market distor-
tion and could jeopardise the smooth flow of international
trade.

Brussels, 30 June 2004.

5.5
fighting
The EESC reiterates that measures aimed at
terrorism should be coupled with measures aimed at fighting
traditional security problems (organised crime, piracy, fraud,
smuggling and illegal immigration).

5.6
Seaports are critical national assets. Measures aimed at
securing the entire port area logically qualify as being of
general public interest. Public funding of such measures would
therefore not be subject to the State aid rules of the EU treaty.
A harmonised approach of
the Member States in granting
public support should be developed at EU level to avoid distor-
tion of competition. The EESC reiterates its invitation to the
Commission to devise an EU scheme for financing, where
the
necessary,
EESC believes that the economic dimensions of port security
are a major
trade and should be
international
addressed by the EU as a matter of urgency.

the implementation of

the measures. Hence,

issue for

The security measures in port areas should respect the
5.7
fundamental rights and observe the principles recognised by
the Charter of Fundamental Rights of the European Union so
as not to restrain the personal human rights of the citizens nor
the constitutional order.

The EESC underlines the urgent need to give a Mediter-
security policy which

5.8
ranean dimension to the EU port
becomes vital with the EU enlargement.

The President

of the European Economic and Social Committee

Roger BRIESCH