Commission Regulation (EC) No 884/2005 of 10 June 2005 laying down procedures for conducting Commission inspections in the field of maritime security   (Text with EEA relevance)
Date: 2005-06-10
Institutions: European Commission
Subjects: EU office or agency, European Commission, harbour installation, maritime safety, powers of the institutions (EU), supervisory power

11.6.2005

EN

Official Journal of the European Union

L 148/25

COMMISSION REGULATION (EC) No 884/2005

of 10 June 2005

laying down procedures for conducting Commission inspections in the field of maritime security

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

CHAPTER I

Having regard to the Treaty
Community,

establishing the European

Having regard to Regulation (EC) No 725/2004 of the European
Parliament and of the Council of 31 March 2004 on enhancing
ship and port facility security (1), and in particular Article 9(4)
thereof,

SUBJECT-MATTER AND DEFINITIONS

Article 1

Subject-matter

This Regulation lays
conducting
Commission inspections to monitor the application of Regu-
lation (EC) No 725/2004 at the level of each Member State
and of individual port facilities and relevant companies.

down procedures

for

Whereas:

The inspections shall be conducted in a transparent, effective,
harmonised and consistent manner.

In order to monitor the application by Member States of
Regulation (EC) No 725/2004 the Commission should
conduct inspections starting six months after the entry
into force of
that Regulation. The organisation of
inspections under the supervision of the Commission is
necessary to verify the effectiveness of national quality
control
security measures,
and maritime
systems
procedures and structures.

The European Maritime Safety Agency established by
Regulation (EC) No 1406/2002 of
the European
Parliament and of the Council (2), should provide the
Commission with technical assistance in the performance
of the latter's inspection tasks in respect of ships, relevant
companies and Recognised Security Organisations.

The Commission should coordinate the schedule and
preparation of its inspections with the Member States.
The Commission's inspection teams should be able to
inspectors, where available.
call upon qualified national

Article 2

Definitions

For the purposes of this Regulation the following definitions
shall apply:

1.

2.

inspection’ means
inspectors
security quality

‘Commission
an examination by
national
Commission
maritime
systems, measures,
procedures and structures, to determine compliance with
Regulation (EC) No 725/2004;

of Member
control

States'

‘Commission inspector’ means a person fulfilling the criteria
set out
in Article 7 employed by the Commission, or
employed by the European Maritime Safety Agency or a
national inspector, mandated by the Commission to parti-
cipate in Commission inspections;

Commission inspections should be carried out according
to a set procedure, including a standard methodology.

3.

‘national inspector’ means a person employed by a Member
State as a maritime security inspector, and qualified
according to the requirements of that Member State;

Sensitive information relating to inspections should be
treated as classified information.

4.

‘Committee’ means the Committee instituted by Article
11(1) of Regulation (EC) No 725/2004;

The measures provided for in this Regulation are in
accordance with the opinion of the Committee instituted
by Article 11(1) of Regulation (EC) No 725/2004,

HAS ADOPTED THIS REGULATION:

5.

‘objective evidence’ means quantitative or qualitative infor-
mation, records or findings pertaining to security or to the
existence and implementation of a requirement laid down
in Regulation (EC) No 725/2004, which are based on
test and which can be
observation, measurement or
verified;

(1) OJ L 129, 29.4.2004, p. 6.
(2) OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation

(EC) No 724/2004 (OJ L 129, 29.4.2004, p. 1).

6.

‘observation’ means a finding made during a Commission
inspection and substantiated by objective evidence;

(1)

(2)

(3)

(4)

(5)

(6)

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Official Journal of the European Union

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7.

8.

9.

‘non-conformity’ means
an observed situation where
objective
a
the non-fulfilment of
requirement laid down in Regulation (EC) No 725/2004
that requires corrective action;

indicates

evidence

‘major non-conformity’ means an identifiable deviation that
poses a serious threat to maritime security that requires
immediate corrective action and includes
the lack of
effective and systematic implementation of a requirement
laid down in Regulation (EC) No 725/2004;

‘focal point’ means the body designated by each Member
State to serve as a contact point for the Commission and
other Member States and to facilitate, follow up and inform
on the application of the maritime security measures laid
down in Regulation (EC) No 725/2004;

(b) data supplied by the focal point and monitoring reports
referred to in Article 9(4) of Regulation (EC) No 725/2004.

3. Wherever Commission inspectors encounter difficulties in
the execution of their duties, the Member States concerned shall
by any means within their legal powers assist the Commission
to accomplish in full its task.

Article 5

Participation of national

inspectors

in Commission

inspections

1. Member States shall endeavour to make available to the
Commission national
in
Commission inspections, including the related preparatory and
reporting phases.

participate

inspectors

able

to

10.

‘relevant company’ means an entity that has to appoint a
Company Security Officer, Ship Security Officer or Port
Facility Security Officer, or is responsible for the implemen-
tation of a Ship Security Plan or Port Facility Security Plan,
or has been appointed by a Member State as a Recognised
Security Organisation;

11.

‘test’ means a trial of maritime security measures, where
to commit unlawful action is simulated for the
intent
purpose of
testing efficiency in the implementation of
existing security measures.

CHAPTER II

GENERAL REQUIREMENTS

Article 3

Cooperation of Member States

Without prejudice to Commission responsibilities, Member
States shall cooperate with the Commission in the accomp-
lishment of
its inspection tasks. The cooperation shall be
effective during the preparatory, control and reporting phases.

Article 4

Exercise of Commission powers

A national inspector shall not participate in Commission

2.
inspections in the Member State where he is employed.

3.
Each Member State shall provide the Commission with a
list of national inspectors on whom the Commission may call
to participate in a Commission inspection.

That list shall be updated, at least by the end of June each year,
and for the first time within eight weeks of the entry into force
of this Regulation.

The Commission shall communicate to the Committee the

4.
lists referred to in the first subparagraph of paragraph 3.

5. Where the Commission considers that the participation of
a national
inspector is necessary in a particular Commission
inspection, it shall request information from Member States as
to the availability of national inspectors for the conduct of that
inspection. Such requests shall normally be made eight weeks in
advance of the inspection.

Each Member State

1.
that Commission
shall
inspectors are able to exercise their authority to inspect the
maritime security activities of any competent authority under
Regulation (EC) No 725/2004 and of any relevant company.

ensure

The expenses arising from the participation of national
in compliance

6.
inspectors
in Commission inspections
with Community rules, be met by the Commission.

shall,

2.
Each Member State shall ensure that, upon request,
Commission inspectors have access to all relevant security
related documentation and in particular:

(a) the national programme for the implementation of Regu-
lation (EC) No 725/2004 referred to in Article 9(3) of that
Regulation;

Article 6

Technical assistance from the European Maritime Safety
Agency in Commission inspections

1.
In providing the Commission with technical assistance
pursuant to Article 2(b)(iv) of Regulation (EC) No 1406/2002,
the European Maritime Safety Agency shall make technical
experts available to participate in Commission inspections,
including the related preparatory and reporting phases.

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The Commission shall communicate to the Committee a
2.
list of the technical experts from the European Maritime Safety
Agency on whom it may call to participate in an inspection.

Where a port facility is to be inspected and the inspection is to
include ships at that port facility during the inspection, the focal
point shall be informed in the notice.

Qualification

criteria

Article 7

training

and
inspectors

for Commission

Commission inspectors

shall have appropriate qualifi-
1.
cations, including sufficient theoretical and practical experience
in maritime security. This shall normally include:

(a) a good understanding of maritime security and how it is

applied to the operations being examined;

(b) a good working knowledge of security technologies and

techniques;

(c) a knowledge of inspection principles, procedures and tech-

niques;

(d) a working knowledge of the operations being examined.

In

2.
order
Commission inspectors
shall have
training to carry out such inspections.

qualify

to

for Commission

inspections,
successfully completed

In the case of national
them to act as Commission inspectors shall:

inspectors the training necessary for

(a) be accredited by the Commission;

(b) be initial and recurrent;

(c) ensure a standard of performance adequate for the purposes
of controlling whether security measures are implemented in
accordance with Regulation (EC) No 725/2004.

The Commission shall ensure that Commission inspectors

3.
fulfil the criteria set out in paragraphs 1 and 2.

CHAPTER III

PROCEDURES

FOR THE CONDUCT OF COMMISSION

INSPECTIONS

Article 8

Notice of inspections

1.
The Commission shall give at least six weeks notice of an
inspection to the focal point of the Member State in whose
territory it
In response to exceptional
is to be conducted.
events, this period of notice may be reduced.

Member States shall take all necessary steps to ensure that
in order to
notification of an inspection is kept confidential
ensure that the inspection process is not compromised.

3.

The focal point shall:

(a) inform the relevant competent authorities in the Member

State of the inspection, and

(b) notify the Commission of those relevant competent autho-

rities.

4.
The focal point shall advise the Commission at least 24
hours in advance of the inspection the name of the flag State
and the IMO number of ships expected to be at a port facility
notified under the second subparagraph of paragraph 2 during
the inspection.

5. Where the flag State is a Member State, the Commission
shall, where practicable, inform the focal point of that Member
State that the ship may be inspected when at the port facility.

6. Where the inspection of a port facility in a Member State
is to include a ship of that Member State as flag State, the focal
point shall liaise with the Commission to confirm whether or
not the ship will be at the port facility during the inspection.

7.
Commission inspections shall be carried out under the
auspices of the Member State of the port facility exercising
control and compliance measures under Regulation 9 of the
special measures to enhance maritime security of the SOLAS
Convention when either:

(a) the flag State of the ship is not a Member State; or

(b) the ship was not

included in the information provided

pursuant to paragraph 4.

8. When notice of an inspection is given to the focal point, a
pre-inspection questionnaire may also be communicated for
completion by the relevant competent authority or authorities,
together with a request for the documents referred to in Article
4(2).

The notice shall also specify the date by which the completed
questionnaire and documents referred to in Article 4(2) shall be
returned to the Commission.

Article 9

Preparation of inspections

Commission

1.
preparatory
activities in order to ensure efficiency, accuracy and consistency
of inspections.

inspectors

undertake

shall

The focal point shall be notified in advance of

2.
intended scope of a Commission inspection.

the

2.
The Commission shall provide the focal point with the
names of the Commission inspectors mandated to conduct the
inspection, and other details as appropriate.

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For each inspection the focal point shall ensure that a
3.
coordinator is designated to make the practical arrangements
associated with the inspection activity to be undertaken.

The report shall detail the observations of the inspection,
4.
identifying any non-conformity or major non-conformity with
Regulation (EC) No 725/2004.

Article 10

Conduct of inspections

A standard methodology shall be used to monitor the
security

1.
application by Member States of
requirements laid down in Regulation (EC) No 725/2004.

the maritime

It may contain recommendations for corrective action.

5. When assessing the implementation of Regulation (EC) No
725/2004, one of the following classifications shall apply to
each of the observations of the report:

2. Member States shall ensure that Commission inspectors
are accompanied at all times during the inspection.

(a) in conformity;

(b) in conformity, but improvement desirable;

3. Where a ship at a port facility is to be inspected and the
flag State of the ship is not the Member State of the port
facility, the Member State of the port facility shall ensure that
the Commission inspectors are accompanied by an officer of an
authority referred to in Article 8(2) of Regulation (EC) No
725/2004 during the inspection of the ship.

shall

Commission inspectors

4.
carry an identity card
authorising them to carry out inspections on behalf of the
Commission. The Member States shall ensure that Commission
inspectors are able to obtain access to all areas required for
inspection purposes.

A test shall only be performed after notification to and
5.
agreement with the focal point on its scope and purpose. The
focal point shall undertake any necessary coordination with the
competent authorities concerned.

6. Without prejudice
the Commission
inspectors shall, wherever appropriate and practicable, deliver
an informal oral summary of their observations on the spot.

to Article 11,

The focal point shall be informed promptly of any major non-
conformity with Regulation (EC) No 725/2004 identified by a
Commission inspection, prior to completion of an inspection
report in accordance with Article 11.

Article 11

Inspection report

1. Within six weeks of completion of an inspection, an
inspection report shall be communicated by the Commission
to the Member State.

2. Where a ship has been inspected during the inspection of
a port facility, the relevant parts of the inspection report shall
also be sent to the Member State that is the flag State,
if
different from the Member State in which the inspection took
place.

(c) non-conformity;

(d) major non-conformity;

(e) not applicable;

(f) not confirmed.

Article 12

Response from the Member State

1. Within three months of
inspection report,
Commission in writing a response to the report which:

the date of dispatch of an
to the

the Member State shall

submit

(a) addresses the observations and recommendations; and

(b) provides an action plan, specifying actions and deadlines, to

remedy any identified deficiencies.

2. Where the inspection report does not identify any non-
conformity or major non-conformity with Regulation (EC) No
725/2004, no response shall be required.

Article 13

Action by the Commission

1.
The Commission may take any of the following steps in
the event of non-conformity or major non-conformity with
the
Regulation (EC) No 725/2004 and following receipt of
response of the Member State:

(a) submit comments to the Member State or request further

explanation to clarify all or part of the response;

The Member State shall inform the inspected entities of

3.
the relevant observations of the inspection.

(b) conduct a follow-up inspection to check the implementation
of corrective actions, the minimum notice for such a follow-
up inspection being two weeks;

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(c) initiate an infringement procedure in respect of the Member

State concerned.

The Commission shall inform the Committee on a regular
2.
basis about the implementation of its inspection programme
and about the results of the inspections.

the Member State that

to be
2. Where a follow-up inspection of a ship is
is the flag State shall,
conducted,
where possible,
inform the Commission of the ship's future
ports of call, so the Commission can decide where and when
to carry out the follow-up inspection.

CHAPTER IV

GENERAL AND FINAL PROVISIONS

Article 14

Sensitive information

Article 16

Informing Member States of major non-conformity

If an inspection discloses major non-conformity with Regulation
(EC) No 725/2004 which is deemed to have a significant impact
on the overall level of maritime security in the Community, the
Commission shall inform the other Member States immediately
after communicating the inspection report to the Member State
concerned.

Article 17

Review

Without prejudice to Article 13 of Regulation (EC) No
725/2004,
treat sensitive inspection-
related materials as classified information.

the Commission shall

For the first time by 31 December 2006 and regularly thereafter
the Commission shall review its system of inspections and in
particular the effectiveness of that system.

Article 15

Commission inspection programme

Article 18

Entry into force

The Commission shall seek advice from the Committee on
inspection

implementation of

the

for

its

1.
the priorities
programme.

This Regulation shall enter into force on the twentieth day
following 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 Brussels, 10 June 2005.

For the Commission

Jacques BARROT
Vice-President