Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on the implementation of the International Safety Management (ISM) Code within the Community
Date: 2005-08-23
Institutions: European Commission
Subjects: EU law, code of conduct, international instrument, maritime safety, pollution control measures

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.8.2005 
COM(2005) 379 final 

2003/0291 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on the implementation of the International Safety 
Management (ISM) Code within the Community 

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2003/0291 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on the implementation of the International Safety 
Management (ISM) Code within the Community 

1 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
the Council  
(document COM(2003) 767 final –2003/0291 (COD)): 

11.12.2003 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

30.06.2004 

Date of the opinion of the European Parliament at first reading: 

10.03.2004 

Date of adoption of the common position: 

18-7-2005 

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PURPOSE OF THE COMMISSION PROPOSAL 

The  proposal  is  intended  to  incorporate  the  International  Safety  Management  Code  into 
European Union law.  

Following  the  Estonia  accident,  on  8  December  1995  the  Council  adopted  Regulation  (EC) 
No 3051/95 of 8 December 1995, which was limited to the safety management of roll-on/roll-
off passenger ferries. 

Since  the  ISM  Code  now  applies  mandatorily  to  all  types  of  ship  engaged  in  international 
transport, the aim of the Commission’s proposal is to replace Council Regulation No 3051/95 
by  a  general  regulation.  In  practice,  the  purpose  of  the  draft  is  to  apply  the  ISM  Code,  in 
accordance  with  the  Code’s  basic  philosophy  of  a  global  approach,  to  companies  operating 
any  type  of  ship  flying  the  flag  of  a  Member  State  of  the  Community  as  well  as  to  ships, 
whatever  their  flag,  operating  domestic  services  within  the  EU  and  to  roll-on/roll-off 
passenger ferries operating on a regular service to or from European Union ports.  

The  aim  of  the  proposed  Regulation  is  to  improve the safety management and the safety of 
operation  of  ships  engaged  in  domestic  and  international  voyages  and  the  prevention  of 
maritime  pollution  from  them.  It  also  aims  to  introduce  the  amendments  made  to  the  ISM 
Code,  which  supplement  the  provisions  on  the  validity  of  certificates  of  compliance  and  of 
interim certificates and the form of the certificates. These amendments entered into force on 
1 July 2002 in the framework of the SOLAS Convention (IMO Resolution (MSC.104 (73)). 

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In addition, the draft provides for compulsory monitoring, an annual report to the Commission 
and the establishment of a system of sanctions by the Member States. 

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COMMENTS ON THE COMMON POSITION  

Although  the  European  Parliament  adopted  the  proposal  without  report  and  without 
amendment, the Council made a number of changes which alter neither the aims nor the spirit 
of the proposal. 

- Definitions 

The  changes  introduced  by  the  common  position  are  intended  to  broaden  the  scope  of  the 
draft Regulation to cover other vessels, such as high-speed craft, mobile drilling platforms and 
tourist submarines, and the gross tonnage of ships.  

From this point of view the common position makes the definitions of the various legislative 
acts in force more coherent. 

- Scope 

The  Commission’s  draft  differentiated  between  each  type  of  ship,  with  reference  to  the 
nationality  of  the  flag  or  application  to  all  flags,  and  the  kind  of  voyage  (international  or 
domestic) being made.  

The common position puts ships flying the flag of a Member State and those flying the flag of 
a third country on an equal footing when they are operated on a regular service or as cargo 
ships or passenger ships.  

- Safety management requirements 

The  common  position  establishes  a  link  between  the  scope  and  the  provisions  of  the  Code 
applicable to it.  

- Certification and verification 

The  draft  Regulation  provided  for  two  different  articles  (Articles  5  and  6).  The  common 
position deals with them in a single article, deleting all the provisions which were already in 
Part B of Annex II, and giving a reference to that Annex. 

- Safeguard procedure 

The  draft  included  the  procedure  in  Regulation  (EC)  No  3051/95.  The  common  position 
deletes this article, which has never been used in practice.  

- Derogations  

This provision did not exist in the draft Regulation. The aim is to reduce administrative costs 
for small shipping companies and certain ships operating exclusively on domestic voyages by 
enabling  them  to  be  fully  or  partially  exempted  from  certain  provisions  of  the  ISM  Code 
(section 6, 7, 9, 11 and 12 of Part A), while safeguarding the principles of the Code. 

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The common position provides that Member States must notify the Commission in advance of 
the equivalent national measures (Article 5a) and the applicable procedure for approval by the 
Commission. 

- Validity, acceptance and recognition of certificates 

These provisions did not exist as such in the draft Regulation, but appeared in the provisions 
which were recast during the negotiations with the Council (Articles 5 et 6). 

The  common  position  places  the  verification  of  validity,  acceptance  and  recognition  of  the 
certificates of ships flying the flag of a Member State on the same footing as for ships flying 
the flag of a third country.  

- Committee procedure 

The common position no longer applies the committee procedure to the question of the period 
of validity of certificates.  

- Entry into force 

The  common  position  delays  the  entry  into  force  of  the  Regulation  by  one  year  for  ships 
which  are  not  yet  covered  by  the  ISM  Code  (i.e.  ships  other  than  roll-on/roll-off  passenger 
ships operating on domestic voyages). The provisions will therefore apply to them two years 
after its entry into force.  

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CONCLUSIONS 

The Commission recognises that the common position alters neither the aims nor the spirit of 
the proposal and is therefore able to accept it. 

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