Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parliament and of the Council on enhancing port security
Date: 2004-09-30
Institutions: European Committee of the Regions
Subjects: common ports policy, harbour installation, maritime safety, public safety, terrorism

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Opinion of the Committee of the Regions on the Proposal for a Directive of the European Parlia-
ment and of the Council on enhancing port security

(2005/C 43/08)

THE COMMITTEE OF THE REGIONS

Having regard to the proposal for a directive of the European Parliament and of the Council on enhancing
port security (COM(2004) 76 final – 2004/0031 (COD);

Having regard to the decision of the Council of 22 February 2004 to consult it on this subject, under the
first paragraph of Article 265 and the Article 80 of the Treaty establishing the European Community;

Having regard to the decision of its president of 27 January 2004 to instruct its Commission for Terri-
torial Cohesion Policy to draw up an opinion on this subject;

Having regard to its draft opinion (CdR 163/2004 rev. 1) adopted on 7 July 2004 by the Commission for
Territorial Cohesion Policy (rapporteur: Mr Anders Knape, Municipal Commissioner, SE/EPP);

Whereas:

(1)

(2)

(3)

Unlawful acts and terrorism are among the greatest threats to the ideals of democracy and freedom
and to the values of peace, which are the very essence of the European Union.

The security of people, infrastructure and equipment, including means of transport, in ports as well
as in relevant adjacent areas should be protected against unlawful acts and their devastating effects.
Such protection would benefit transport users, the economy and society as a whole.

On [Day/Month/2003] the European Parliament and the Council of the European Union adopted
Regulation (EC) No. 725/2004 on maritime security. The enhanced maritime security measures
imposed by this Regulation constitute only part of the measures necessary to achieve an adequate
level of security throughout maritime linked transport chains. The Regulation is limited in scope to
security measures onboard vessels and the immediate ship/port interface.

(4) Without prejudice to the rules of the Member States in the field of national security and measures
which might be taken on the basis of Title VI of the Treaty on European Union, the security objec-
tive described in recital 2 should be achieved by adopting appropriate measures in the field of port
policy establishing joint standards for establishing a sufficient port security level throughout Com-
munity ports.

(5)

(6)

(7)

(8)

Member States should rely upon detailed security assessments to identify the exact boundaries of the
security-relevant port area, and decide the different measures required to ensure appropriate port
security, taking into account the opinion of the local and regional bodies involved. Such measures
should be different according to the security level in place and reflect differences in the risk profile
of different subareas in the port.

Member States or, if appropriate, local or regional bodies, should establish port security plans which
thoroughly transpose the findings of the port security assessment. The efficient working of security
measures also requires clear task divisions between all parties involved as well as regular exercise of
measures. The retention of task divisions and exercise procedures in the format of the port security
plan is considered to contribute strongly to the effectiveness of both preventive and remedial port
security measures.

Member States should ensure that a national focal point acts as a contact point between the
Commission and Member States.

This directive respects fundamental rights and observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

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(9)

(10)

The measures necessary for the implementation of this Directive 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. A procedure should be defined for the adap-
tation of the directive to take account of developments in international instruments and, in the light
of experience, to adapt or complement the detailed provisions of the Annexes to the directive,
without widening its scope.

Since the objectives of the proposed action, namely the balanced introduction and application of
appropriate measures in the field of maritime transport and port policy, cannot be sufficiently
achieved by the Member States and can therefore, by reason of the European scale of this directive,
be better achieved at Community level, the Community may adopt measures in accordance with the
principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of
proportionality set out in that Article, this directive is limited to the basic joint standards required to
achieve the objectives of port security and does not go beyond what is necessary for that purpose,

adopted the following opinion at its 56th plenary session on 29 and 30 September 2004 (meeting
of 30 September).

1. Views of the Committee of the Regions

applies to that part of the port that represents the ship/port
interface, i.e. the terminal;

THE COMMITTEE OF THE REGIONS

shares the view that unlawful acts and terrorism are among
the greatest threats to the ideals of democracy and freedom and
to the values of peace, which are the very essence of the Euro-
pean Union;

notes that terrorism and similar criminal acts are transnational
in nature and, as such, must essentially be addressed using
transnational measures. It is not generally possible to quantify
and assess terror threats against ports or other infrastructures
only from a local and regional perspective;

considers that protection against terrorist attacks and other
criminal activities is chiefly a national competence and that the
Member States should therefore bear both the financial and
overall responsibility for the security measures decided at
national or Community level. Any measures adopted to
enhance port security against criminal acts must be weighed
against the likely threat to individual ports. However, in accord-
ance with the subsidiarity principle, port protection plans
should be drawn up at local and regional level;

recognises that for some ports further security measures may
be required, both for ports and for coordination between ports
and their hinterland, once Regulation (EC) No. 725/2004 has
been implemented and evaluated. The need for protection
extends to people working in or passing through ports, infra-
structure and equipment,
including means of transport. The
Committee of the Regions notes that the IMO and ILO are
currently drawing up a Code of Practice for port security;

considers that
the enhanced port and shipping security
measures provided for in regulations and directives must be
effective without requiring any further financial or staffing
resources than warranted from a security and protection stand-
point, and paying particular attention to the size, geographical
location and activity of ports;

considers that any regulation of activity, measures and moni-
toring must be commensurate with the perceived threat and
the need for an efficient, competitive transport network,
resulting in increased shipping activity and relieving other
modes of transport;

notes that
the Commission communication on Enhancing
maritime transport security (COM(2003) 229 final) contains a
proposal for the protection of ships and the ship/port interface,
and that the proposal is currently going through the legislative
procedure;

considers that authorisation of the assessment and plans under
the directive and implementation thereof should be guaranteed
by means of inspections monitored by the individual Member
State;

believes that port security will also be enhanced by the
security measures for ships and ports provided for in the
amended SOLAS Convention, the ISPS Code and Commission
Regulation (EC) No. 725/2004. However, the Regulation only

considers that the definition of a port as a ship/port interface
should be extended to cover the terminal, and areas such as
anchorages, waiting berths and approaches from seaward, and
any goods storage areas that should be included in the port
area;

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considers that inside ports should be considered as an exemp-
tion

endorses the view that,
in view of the diverse activities of
Community ports, a directive provides the best way to achieve
the necessary flexibility and common port security level;

is aware that a number of port security systems are already in
operation in the Member States and that it is possible to main-
tain existing security measures and structures as long as they
comply with the rules of the directive;

1.1 Content of the port security Directive

considers

and ship/port

that maritime

1.1.1
interface
security in some ports could need improving through enhanced
port security, and that this would ensure that the security
measures are improved upon thanks to security measures being
applied throughout the port area. In some ports the counter-
terrorism measures that are in place could need supplementing
with security measures designed to protect businesses located
in the vicinity of the ports and which could be a potential
terrorist target, for instance fuel depots and chemical or ferti-
lizer production sites;

considers that

1.1.2
in
consultation with local and regional bodies and stakeholder
port representatives, must determine the need for and scope of
any measures;

the individual Member States,

1.2.4
also welcomes the fact that the Member States are to
ensure that proper port security assessments and port security
plans are developed, establish and communicate security levels
and any changes to these, and appoint a port security authority.
In accordance with the subsidiarity principle, it must be left to
the individual Member States, in consultation with stakeholder
authorities and local and regional bodies, to determine the need
for assessments, plans and authorities, taking into account an
individual Member State's assessment of the threat and the
local and regional situation;

1.2.5 welcomes the proposal to appoint a security officer
for each individual port to ensure proper coordination for
establishing, updating and follow-up of the port security assess-
ments and plans including security plans for the adjacent busi-
nesses that the individual Member States, in consultation with
the security officer, deem necessary, and for the appointment
of focal points in the Member States to provide the necessary
communication both to other Member States and to the
Commission;

1.2.6
does not see the need for a general requirement of a
security committee for every port, as these should be set up on
the basis of actual need;

considers that the proposed minimum requirements
1.2.7
for security assessments and plans and for inspection proce-
dures to monitor the implementation of port security measures
should be in the form of general advice and recommendations
rather than regulations;

1.1.3
considers that the choice between various security
levels based on normal, heightened or imminent threats is not
a matter for the port authorities but is horizontal in nature;

1.3 Legal considerations

1.2 General principles

1.2.1
emphasises the importance of the subsidiarity prin-
ciple, particularly in view of the recently adopted constitutional
Treaty and the new subsidiarity protocol;

1.2.2
considers it positive that the proposal builds on the
same structure and security body as Regulation (EC) No
725/2004, whereby a security system can, where necessary, be
set up to include the whole maritime transport chain, from
ships, the ship/port interface and ports generally, to the port
area/hinterland interface;

1.2.3 welcomes the fact that the Member States are to
determine the boundaries within which the directive shall
apply to their ports. This should be decided in consultation
with the local and regional bodies concerned. A basic risk/need
assessment must be carried out in order to establish which
ports require enhanced security measures;

considers that the penalties for breaching the national
1.3.1
provisions adopted pursuant to the directive must be estab-
lished by the individual Member States. Since most Member
States already have adequate legislation,
there is, generally
speaking, no need for any further criminal law provisions;

1.4 Impact assessment

calls on the Commission to carefully assess the cost
1.4.1
implications of the proposal on enhancing port security. The
increased costs incurred as a consequence of the proposed
directive in terms of establishing plans, various
types of
measures, monitoring and control procedures etc., should be
borne largely by the Member States, in order to avoid maritime
passenger and goods transport costs becoming so high as to
encourage a switch to other less environmentally-friendly or
less safe modes of transport.

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2. The Committee of the Regions' Recommendations

Amendment

Recommendation 1

Recital (1) a (new)

Text of the Commission proposal

CoR amendment

(1a) Terrorism and similar criminal acts are transnational
in nature and, as such, must essentially be addressed
using transnational measures.
is not usually
possible to quantify and assess terror threats against
ports or other
from a local and
regional perspective.

infrastructures

It

Consequently, protection against terrorist attacks and
other criminal activities is chiefly a national compe-
tence and the Member States should therefore bear
both the financial and overall responsibility for the
security measures decided at national or Community
level.

R e a son

The preamble should state explicitly that terrorism and similar criminal acts are transnational in nature
and, as such, must essentially be addressed using transnational measures for which the Member States have
overall responsibility. It is important that the level responsible for taking a regulatory decision should also
be responsible for financing it, so as to reduce the risk of over-regulation and any ensuing negative socio-
economic repercussions. Consequently, it would seem natural that the state should also bear financial
responsibility for measures to prevent and deter such action.

Recommendation 2

Recital (4)

Text of the Commission proposal

CoR amendment

In order to achieve the fullest protection possible for mari-
time and port industries, port security measures should be
introduced. They should extend beyond the ship/port
interface and cover the entire port thus both protecting
the port areas and ensuring that security measures taken
in application of Regulation (EC) No. 725/2004 benefit
from enhanced security in adjacent areas. These measures
should apply to all those ports in which one or more port
facilities are situated which are covered by Regulation (EC)
No. 725/2004.

In order to achieve the fullest protection possible for mari-
time and port industries, port security measures should be
introduced. They should extend beyond the ship/port inter-
face and cover the entire port thus both protecting the
port areas and ensuring that security measures taken in
application of Regulation (EC) No. 725/2004 benefit from
enhanced security in adjacent areas. These measures
should apply to all those ports in which one or more port
facilities are situated which are covered by Regulation (EC)
No. 725/2004. In order to achieve the fullest protection
possible for maritime and port industries, port security
measures could become necessary. Such measures should
cover the ship/port
interface and the port areas that
require enhanced security. The Member States should
determine which port facilities covered by Regulation (EC)
No. 725/2004 require further measures.

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R e a son

Measures in addition to Regulation (EC) No. 725/2004 might need to be introduced in a second stage,
when the impact of the implementation of the Regulation can be assessed. In accordance with the subsi-
diarity principle,
individual Member States should determine which ports will be affected. Additional
security measures will not necessarily be needed by all ports covered by the Regulation.

Recommendation 3

Recital (5) a (new)

Text of the Commission proposal

CoR amendment

The Committee of the Regions considers that the The
enhanced port and shipping security measures provided
for in regulations and directives must be effective without
requiring any further financial or staffing resources than
warranted from a security and protection standpoint, and
paying particular attention to the size, geographical loca-
tion and activity of ports.

R e a son

In order to avoid inhibiting maritime goods and passenger flows, it is important that the security measures
decided should be relevant and cost-effective. Otherwise, there is a risk that the measures could have nega-
tive socio-economic repercussions. It is important that the directive should state clearly that the security
measures must be cost-effective from a socio-economic perspective.

Recommendation 4

Recital (8)

Text of the Commission proposal

CoR amendment

Member States should ensure that responsibilities in port
security are clearly recognised by all parties involved. The
Member States should monitor compliance with security
rules and establish a clear responsible authority for all
their ports, approve all security assessments and plans for
its ports, set and communicate security levels, ensure that
measures are well communicated, implemented and coor-
dinated, and provide for enhancing the effectiveness of
security measures and alertness by means of a platform for
advice within the port community

Member States should ensure that responsibilities in port
security are clearly recognised by all parties involved,
including appropriate local and regional authorities. The
Member States should monitor compliance with security
rules and establish a clear responsible authority for all
their ports, approve all security assessments and plans for
its ports, set and communicate security levels, ensure that
measures are well communicated, implemented and coor-
dinated, and provide for enhancing the effectiveness of
security measures and alertness by means of a platform for
advice within the port community

R e a son

Local and regional authorities may have responsibility for some aspects of port security such as port
health, examination of ships' cargo by environment health officers and other civil contingencies responsi-
bilities.

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Recommendation 5

Recital (9)

Text of the Commission proposal

CoR amendment

Member States should approve assessments and plans and
monitor the implementation in their ports. The effective-
ness of
the implementation monitoring should be the
subject of inspections supervised by the Commission.

Member States should approve assessments and plans and
monitor the implementation in their ports. The effective-
ness of
the implementation monitoring should be the
subject of inspections supervised by the Commissionrele-
vant Member State and reported to the Commission.

R e a son

The Commission's monitoring inspection proposals are more comprehensive and regulated than is
warranted by the current situation. Measures, monitoring and follow-up arrangements should be commen-
surate with security and protection needs, bearing in mind, in particular, the size, geographical location
and activity of the ports in question. It should be possible to carry out monitoring and inspection at
Member State level.

Recommendation 6

Article 2(2)

Text of the Commission proposal

CoR amendment

The measures laid down in this directive shall apply to any
port located in the territory of a Member State in which
one or more port facilities are situated which are covered
by Regulation (EC) No. 725/2004.

The measures laid down in this directive shall apply to any
port such ports located in the territory of a Member State
in which one or more port facilities are situated which are
covered by Regulation (EC) No. 725/2004 and which the
Member State considers requires enhanced port security.

R e a son

The amendment is a consequence of the amendment to Recital 4. The Commission proposal covers any
port located in the territory of a Member State in which one or more port facilities are situated which are
covered by Regulation (EC) No. 725/2004. The Committee of the Regions is not convinced that it is neces-
sary to adopt additional measures for all ports.

Recommendation 7

Article 3(1)

Text of the Commission proposal

CoR amendment

‘Port’ or ‘seaport’ means an area of land and water made
up of such works and equipment as to permit principally,
the reception of ships, their loading and unloading, the
storage of goods, the receipt and delivery of these goods,
and the embarkation and disembarkation of passengers.

‘Port’ or ‘seaport’ means an area of land and water defined
and demarcated by the Member State and made up of such
works and equipment as to permit, principally, commercial
maritime transport, and directly linked to a port facility.
the reception of ships, their loading and unloading, the
storage of goods, the receipt and delivery of these goods,
and the embarkation and disembarkation of passengers.

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R e a son

What qualifies as a ‘port area’ must be decided on a case-by-case basis and the definition of a ‘port’ must
not be over-restrictive. The above amendment provides the Member States with the flexibility they need to
define and demarcate these areas, without allowing port areas to extend beyond reasonable proportions.

Recommendation 8

Article 5(1)

Text of the Commission proposal

CoR amendment

Member States shall designate a port security authority for
each port covered by this directive. A port security
authority may be appointed for more than one port.

Member States shall ensure that designate a port security
authority is designated for each port covered by this direc-
tive on the basis of uniform criteria. A port security
authority may be appointed for more than one port.

R e a son

In accordance with the subsidiarity principle,
it should be possible for the regional and local level to
appoint the port security authority. However, the Member States should continue to have financial and
overall responsibility for port security, as argued in Recommendation 1.

Recommendation 9

Article 5(3)

Text of the Commission proposal

CoR amendment

Member States may appoint a 'competent authority for
maritime security' under Regulation (EC) No. 725/2004 as
port security authority.

Member States may appoint a A ‘competent authority for
maritime security’may be appointed as port
security
authority under Regulation (EC) No. 725/2004as port
security authority

R e a son

In accordance with the subsidiarity principle,
appoint the port security authority. The amendment is a consequence of the amendment to Article 5(1).

it should be possible for the regional and local level to

Recommendation 10

Article 9(1)

Text of the Commission proposal

CoR amendment

A port security officer shall be designated for each port.
Each port shall have a different port security officer. Small
adjacent ports may have a shared security officer.

A port security officer shall be designated for each port.
Each port shall have a different port security officer. Small
adjacentAdjacent ports may have a shared security officer.
Exceptionally, the same individual may be designated port
security officer for more than one port even where the
ports are not adjacent when, due to their low volume of
activity,
it would be disproportionate for them to have
their own security officer and provided that an adequate
level of security is guaranteed.

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R e a son

Generally speaking, adjacent ports should be able to have a shared security officer, regardless of size.

Recommendation 11

Article 10(1)

Text of the Commission proposal

CoR amendment

Member States shall ensure that port security committees
are established to provide practical advice in the ports
covered by this directive, unless the specificity of a port
renders such committees superfluous.

Member States shall ensure that may, where necessary,
security committees are established to
establish port
provide practical advice in the ports covered by this direc-
tive, unless the specificity of a port renders such commit-
tees superfluous.

R e a son

It is unlikely that all ports covered by the directive will need a security committee. It is probably only the
larger ports that need one. Consequently, the general rule should be that a security committee is not
required and that one may be established only where necessary.

Recommendation 12

Article 14(2)

Text of the Commission proposal

CoR amendment

Six months after the date referred to in Article 19, the
Commission, in co-operation with the focal points referred
to in Article 13, shall start a series of
inspections,
including inspections of a suitable sample of ports, to
monitor the application by Member States of this directive.
These inspections shall take account of the data supplied
including monitoring reports. The
by the focal points,
procedures
shall be
for conducting such inspections
adopted in accordance with the procedure referred to in
Article 16 (2).

Six months after the date referred to in Article 19, the
Member State Commission, in co-operation with the focal
points referred to in Article 13, shall start a series of
inspections, including inspections of a suitable sample of
ports, to monitor the application by Member States of this
directive. These inspections shall take account of the data
supplied by the focal points, including monitoring reports.
The procedures for conducting such inspections shall be
adopted in accordance with the procedure referred to in
Article 16(2).

R e a son

The amendment is a consequence of the amendment to Recital 9.

Recommendation 13

Article 14(3)

Text of the Commission proposal

CoR amendment

The officials mandated by the Commission to conduct
such inspections in accordance with paragraph 2 shall
exercise their powers upon production of an authorisation
in writing issued by the Commission and specifying the
subject-matter, the purpose of the inspection and the date
on which it is to begin. The Commission shall in good
time before
inform the Member States
concerned of the inspections.

inspections

The officials mandated by the Commission to conduct
such inspections in accordance with paragraph 2 shall
exercise their powers upon production of an authorisation
in writing issued by the Commission and specifying the
subject-matter, the purpose of the inspection and the date
on which it is to begin. The Commission shall in good
time before
inform the Member States
concerned of the inspections.

inspections

The Member State concerned shall submit to such inspec-
tions and shall ensure that bodies or persons concerned
also submit to those inspections.

The port security authority Member State concerned shall
submit to such inspections and shall ensure that bodies or
persons concerned also submit to those inspections.

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R e a son

The amendment is a consequence of amendments to Article 14(2) and Recital 9.

Recommendation 14

Article 14(4)

Text of the Commission proposal

CoR amendment

The Commission shall communicate the inspection reports
to the Member State concerned, which within three
months of receipt of the report shall
indicate sufficient
details of the measures taken to remedy any shortcomings.
The report and the answers shall be communicated to the
Committee referred to in Article 16.

The Commission Member State shall communicate the
to the Commission Member State
inspection reports
concerned, which can require the Member State to indi-
cate, within three months of receipt submission of the
reports, shall
indicate sufficient details of the measures
taken to remedy any shortcomings. The report and the
answers shall be communicated to the Committee referred
to in Article 16.

R e a son

The amendment is a consequence of amendments to Articles 14(2), 14(3) and Recital 9.

Recommendation 15

Article 17(2)

Text of the Commission proposal

CoR amendment

Any personnel carrying out security inspections, or hand-
ling confidential information related to this directive, must
have an appropriate level of security vetting by the
Member State of which the personnel concerned has the
nationality.

Any personnel carrying out security inspections, or hand-
ling confidential information related to this directive, must
have an appropriate level of security vetting by the
Member State of which the personnel concerned has the
nationality.

R e a son

The amendment is a consequence of amendments to Articles 14(2), 14(3), 14(4) and Recital 9.

Recommendation 16

Text of the Commission proposal

CoR amendment

The Committee proposes that security representatives
from individual ports chosen by Member States should be
invited to exchange experience at least once a year.

R e a son

The proposals and arguments put forward by the CoR in its reasons for amendments to the directive make
it clear that the coordination of security measures extending beyond the port/ship interface is a matter
which should as far as possible be dealt with by individual Member States.

Brussels, 30 September 2004.

The President

of the Committee of the
Regions

Peter STRAUB