Commission Regulation (EC) No 324/2008 of 9 April 2008 laying down revised procedures for conducting Commission inspections in the field of maritime security (Text with EEA relevance)
Date: 2008-04-09
Institutions: European Commission
Subjects: EU office or agency, European Commission, harbour installation, maritime safety, powers of the institutions (EU), supervisory power

10.4.2008

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Official Journal of the European Union

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COMMISSION REGULATION (EC) No 324/2008

of 9 April 2008

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

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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,

the European
Having regard to Directive 2005/65/EC of
Parliament and of
the Council of 26 October 2005 on
enhancing port security (2), and in particular Article 13(2) and
(3) thereof,

Whereas:

(4)

(5)

(6)

(7)

(8)

The Commission should co-ordinate 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

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

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

Commission Regulation (EC) No 884/2005 of 10 June
2005
conducting
Commission inspections
field of maritime
security (4) should therefore be repealed.

procedures
in the

laying

down

for

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,

(1)

(2)

(3)

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
security measures,
and maritime
systems
control
procedures and structures.

HAS ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER AND DEFINITIONS

Article 1

Subject matter

accordance with Article

In
of Directive
2005/65/EC, the Commission should monitor the imple-
mentation by Member States of the said Directive jointly
with the inspections provided for in Regulation (EC) No
725/2004.

13(3)

The European Maritime Safety Agency established by
Regulation (EC) No 1406/2002 of
the European
the Council (3) should provide the
Parliament and of
Commission with technical assistance in the performance
of the latter’s inspection tasks in respect of ships, relevant
companies and Recognised Security Organisations.

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

This Regulation also lays down procedures for the monitoring
implementation of Directive
by the Commission of
2005/65/EC jointly with the inspections at
the level of
Member States and port
in respect of ports as
defined in Article 2(11) of this Regulation.

facilities

the

(1) OJ L 129, 29.4.2004, p. 6.
(2) OJ L 310, 25.11.2005, p. 28.
(3) OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation

(EC) No 2038/2006 (OJ L 394, 30.12.2006, p. 1).

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

(4) OJ L 148, 11.6.2005, p. 25.

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Article 2

Definitions

down in Regulation (EC) No 725/2004 and the port
security measures laid down in Directive 2005/65/EC;

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

1.

inspectors
security quality

‘Commission inspection’ means
an examination by
national
Commission
maritime
systems, measures,
procedures and structures, to determine compliance with
Regulation (EC) No 725/2004 and implementation of
Directive 2005/65/EC;

of Member
control

States'

2.

‘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;

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;

4.

‘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 or Directive 2005/65/EC,
which are based on observation, measurement or test and
which can be verified;

5.

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

6.

7.

‘non-conformity’ means
an observed situation where
objective
a
the non-fulfilment of
requirement laid down in Regulation (EC) No 725/2004
or Directive 2005/65/EC 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 or Directive
2005/65/EC;

9.

‘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;

10.

‘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;

11.

‘port’ means the area within the boundaries defined by
Member
of Directive
2005/65/EC and notified to the Commission under
Article 12 thereof.

under Article

States

2(3)

CHAPTER II

GENERAL REQUIREMENTS

Article 3

Co-operation of Member States

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

Article 4

Exercise of Commission powers

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 or Directive 2005/65/EC and of
any relevant company.

ensure

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

8.

‘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

(a)

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

the

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

(c)

the outcome of Member States' monitoring of the imple-
mentation of port security plans.

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

A national inspector shall not participate in Commission

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

Article 6

Technical assistance from the European Maritime Safety
Agency in Commission inspections

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.

Article 7

Qualification criteria and training for Commission
inspectors

Commission inspectors

1.
shall have appropriate qualifi-
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;

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.

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

That list shall be updated, at least by the end of June each year.

The Commission shall communicate to the Committee
4.
instituted by Article 11(1) of Regulation (EC) No 725/2004
(hereinafter the Committee)
the lists referred to in the first
subparagraph of paragraph 3 of this Article.

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.

The expenses arising from the participation of national
in compliance

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

shall,

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 and
Directive 2005/65/EC.

The Commission shall ensure that Commission inspectors

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

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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.

The focal point shall advise the Commission at least 24
4.
hours in advance of the inspection, of the name of the flag State
and the IMO number of ships expected to be at a port facility
or port 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.

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

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.

The focal point shall be notified in advance of

2.
intended scope of a Commission inspection.

the

Where a port facility is to be inspected, the focal point shall be
informed in the notice whether:

(a)

the inspection is to include ships at that port facility, or
elsewhere in the port, during the inspection; and

(b) the inspection will

include monitoring of the port under

Article 13(2) of Directive 2005/65/EC.

‘monitoring’ means verifying
For the purposes of point
(b)
whether or not the provisions of Directive 2005/65/EC have
been implemented by Member States and by the ports in their
territory that have been notified to the Commission under
Article 12 of Directive 2005/65/EC. In particular, monitoring
means verifying that all provisions of Directive 2005/65/EC
the port
have been taken into account
security assessments
the port
and the
security plans and that
the measures established thereunder
are consistent with the provisions adopted under Regulation
(EC) No 725/2004 for the port facilities located in the ports
concerned.

in the conduct of
establishment of

7. Where a ship previously identified to be inspected will not
be berthed in the port during the inspection of the port facility,
the Commission and
appointed under
Article 9(3) shall agree an alternative ship to be inspected.
This ship may be located at another port facility within the
port. Paragraphs 5 and 8 of this Article shall still apply in
these cases.

coordinator

the

8.
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 1974
International Convention for
the Safety of Life at Sea as
amended (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 of this Article.

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

communicated

for

be

3.

The focal point shall:

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.

(a)

inform the relevant competent authorities in the Member
State of the inspection;

Article 9

Preparation of inspections

(b) notify

the Commission of

those

relevant

competent

authorities.

Commission

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

inspectors

undertake

shall

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The Commission shall provide the focal point with the
2.
names of the Commission inspectors mandated to conduct the
inspection, and other details as appropriate. Those names shall
include the name of the Team Leader for the inspection, who
shall be a Commission inspector employed by the Commission.

3.
For each inspection the focal point shall ensure that a
coordinator is designated to make the practical arrangements
associated with the inspection activity to be undertaken. During
the inspection, the team leader shall be the primary contact for
the coordinator.

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

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. This inspection report may contain as
appropriate the outcomes of
the port
undertaken in respect of Article 8(2)(b).

the monitoring of

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.

The Member State shall inform the inspected entities of
the
to the inspected

3.
the relevant observations of
inspection report
entities.

the inspection. However,

itself shall not be sent

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

The report shall detail the observations of the inspection,
4.
identifying any non-conformity or major non-conformity with
Regulation (EC) No 725/2004 or Directive 2005/65/EC.

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.

It may contain recommendations for corrective action.

5. When assessing the implementation of Regulation (EC) No
725/2004 and Directive 2005/65/EC, one of
the following
classifications shall apply to each of the observations of the
report:

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.

5.
A test shall only be performed after notification to and
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 relevant focal point shall be informed promptly of any
major non-conformity with Regulation (EC) No 725/2004 or
Directive 2005/65/EC identified by a Commission inspection,
prior to completion of an inspection report in accordance with
Article 11 of this Regulation.

(a)

in conformity;

(b) in conformity, but improvement desirable;

(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

However, in cases where a Commission inspector carrying out
the inspection of a ship finds a major non-conformity requiring
action under Article 16, the Team Leader shall inform the focal
point of the Member State as port State immediately.

(a) addresses the observations and recommendations; and

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

remedy any identified deficiencies.

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2. Where the inspection report does not identify any non-
conformity or major non-conformity with Regulation (EC) No
725/2004 or Directive 2005/65/EC, 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
Regulation (EC) No 725/2004 or Directive 2005/65/EC and
following receipt of the response of the Member State:

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

explanation to clarify all or part of the response;

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

(c)

initiate an infringement procedure in respect of the Member
State concerned.

the Member State that

to be
2. Where a follow-up inspection of a ship is
is the flag State shall,
conducted,
inform the Commission of the ship’s future
where possible,
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

Without prejudice to Article 13 of Regulation (EC) No
725/2004 and Article 16 of Directive 2005/65/EC,
the
Commission shall treat sensitive inspection-related materials as
classified information.

Article 15

Commission inspection programme

The Commission shall seek advice from the Committee on
inspection

implementation of

the

for

its

1.
the priorities
programme.

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

Article 16

Informing Member States of major non-conformity

If an inspection discloses a major non-conformity with Regu-
lation (EC) No 725/2004 or Directive 2005/65/EC which is
level of
deemed to have a significant impact on the overall
maritime security in the Community,
the Commission shall
inform the other Member States immediately after communi-
cating the inspection report to the Member State concerned.

Once a major non-conformity notified to the other Member
States under this Article has been corrected to the satisfaction
of the Commission, the Commission shall immediately inform
the other Member States.

Article 17

Review

The Commission shall regularly review its system of inspections
and in particular the effectiveness of that system.

Article 18

Repeal

Regulation (EC) 884/2005 is repealed.

Article 19

Entry into force

This Regulation shall enter into force on the 20th 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, 9 April 2008.

For the Commission

Jacques BARROT
Vice-President