Common Position (EC) No 17/2008 of 6 June 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC and 2002/59/EC (Text with EEA relevance)
Date: 2008-06-06
Institutions: Council of the European Union
Subjects: code of conduct, maritime safety, maritime transport, pollution from ships, prevention of pollution, transport accident, transport safety

22.7.2008

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COMMON POSITION (EC) No 17/2008

adopted by the Council on 6 June 2008

with a view to adopting Directive 2008/…/EC of the European Parliament and of the Council of …
establishing the fundamental principles governing the investigation of accidents in the maritime
transport sector and amending Directives 1999/35/EC and 2002/59/EC

(Text with EEA relevance)

(2008/C 184 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

(2)

(3)

(4)

(5)

A high general level of safety should be maintained in
maritime transport in Europe and every effort should be
made to reduce the number of marine casualties and inci-
dents.

The expeditious holding of technical investigations into
marine casualties improves maritime safety, as it helps to
prevent the recurrence of such casualties resulting in loss
of life, loss of ships and pollution of the marine environ-
ment.

The European Parliament, in its resolution of 21 April
2004 on improving safety at sea (4), has urged the
for a directive on
Commission to present a proposal
investigating shipping accidents.

Article 2 of the United Nations Convention on the Law
of the Sea of 10 December 1982 (hereinafter referred to
as ‘UNCLOS’) establishes the right of coastal States to
investigate the cause of any marine casualty occurring
within their territorial seas which might pose a risk to
involve the coastal State's
life or to the environment,
search and rescue authorities, or otherwise affect
the
coastal State.

Article 94 of UNCLOS establishes that flag States are to
cause an inquiry to be held, by or before a suitably quali-
fied person or persons, into certain casualties or incidents
of navigation on the high seas.

(1) OJ C 318, 23.12.2006, p. 195.
(2) OJ C 229, 22.9.2006, p. 38.
(3) Opinion of the European Parliament of 25 April 2007 (not yet
published in the Official Journal), Council Common Position of 6 June
2008 and Position of the European Parliament of … (not yet published
in the Official Journal).

(4) OJ C 104 E, 30.4.2004, p. 730.

(6)

(7)

(8)

International Convention for

the
Regulation I/21 of
Safety of Life at Sea of 1 November 1974 (hereinafter
referred to as ‘SOLAS 74’), the International Convention
of Load Lines of 5 April 1966 and the International
Convention for the Prevention of Pollution from Ships of
2 November 1973 lay down the responsibilities of flag
States to conduct casualty investigations and to supply
the International Maritime Organisation (IMO) with rele-
vant findings.

The Code for the Implementation of Mandatory IMO
the
Instruments annexed to Resolution A.973(24) of
IMO Assembly of 1 December 2005 recalls the obliga-
tion of flag States to ensure that marine safety investiga-
tions are conducted by suitably qualified investigators,
competent in matters relating to marine casualties and
incidents. That Code further requires flag States to be
prepared to provide qualified investigators
that
purpose,
irrespective of the location of the casualty or
incident.

for

Account should be taken of the Code for the Investiga-
tion of Marine Casualties and Incidents annexed to Reso-
lution A.849(20) of the IMO Assembly of 27 November
1997 (hereinafter referred to as the ‘IMO Code for the
Investigation of Marine Casualties and Incidents’), which
provides for implementation of a common approach to
the safety investigation of marine casualties and incidents
and for cooperation between States in identifying the
contributing factors leading to marine casualties and inci-
dents. Account should also be taken of Resolution A.861
(20) of the IMO Assembly of 27 November 1997 and
Resolution MSC.163(78)
Safety
Committee of IMO of 17 May 2004, which provide a
definition of voyage data recorders.

the Maritime

of

of

event

(9) While conducting safety investigations of marine casual-
should take into
ties and incidents, Member States
account the Guidelines on fair treatment of seafarers in
the
to
Resolution A.987(24) of
the IMO Assembly and the
Governing Body of the International Labour Organisation
of 1 December 2005, or any other recommendations or
instruments relating to the human factor adopted by rele-
vant international organisations, as far as they are applic-
able to technical safety investigations.

a maritime

annexed

accident

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(10)

Council Directive 1999/35/EC of 29 April 1999 on a
system of mandatory surveys for the safe operation of
ro-ro ferry and high-speed passenger
regular
craft
services (1)
in the
requires Member States to define,
framework of their respective legal systems, a legal status
that will enable them and any other substantially inter-
ested Member State to participate, to cooperate in, or,
the
where provided for under
the IMO Code for
to
Investigation of Marine Casualties and Incidents,
conduct any marine casualty or incident
investigation
involving a ro-ro ferry or high-speed passenger craft.

(11) Directive 2002/59/EC of the European Parliament and of
the Council of 27 June 2002 establishing a Community
traffic monitoring and information system (2)
vessel
requires Member States to comply with the IMO Code for
the Investigation of Marine Casualties and Incidents and
ensure that the findings of the accident investigations are
published as soon as possible after its conclusion.

(12)

Conducting a safety investigation of casualties and inci-
dents involving seagoing vessels, or other vessels in port
or other restricted maritime areas, in an unbiased manner
is of paramount importance for effectively establishing
the circumstances and causes of such casualty or incident.
Such an investigation should therefore be carried out by
qualified investigators under the control of an indepen-
dent body or entity in order to avoid any conflict of
interest.

(13) Member States should, in compliance with their legisla-
tion as regards the powers of the authorities responsible
for the judicial inquiry and in collaboration with those
authorities, where appropriate, ensure that those respon-
sible for the technical inquiry are allowed to carry out
their tasks under the best possible conditions.

(14) Member States should ensure that their legal systems
enable them and any other
substantially interested
Member States to participate or cooperate in, or conduct,
accident investigations on the basis of the provisions of
the IMO Code for the Investigation of Marine Casualties
and Incidents.

(15) A Member State may delegate to another Member State
the task of leading a marine casualty or incident safety
investigation (hereinafter referred to as ‘safety investiga-
tion’) or specific tasks of such investigation, if mutually
agreed.

(16) Member States should make every effort not to charge
for costs for assistance requested in the framework of
safety investigations involving two or more Member
States. Where assistance is requested from a Member
State that
involved in the safety investigation,
Member States should agree on the reimbursement of
costs incurred.

is not

(1) OJ L 138, 1.6.1999, p. 1. Directive as amended by Directive
the Council

the European Parliament and of

2002/84/EC of
(OJ L 324, 29.11.2002, p. 53).

(2) OJ L 208, 5.8.2002, p. 10.

(17) Under Regulation V/20 of SOLAS 74, passenger ships
and ships other than passenger ships of 3 000 gross
tonnage and upwards constructed on or after 1 July
2002 must carry voyage data recorders to assist in acci-
dent investigations. Given its importance in the formula-
tion of a policy to prevent shipping accidents, such
equipment should be systematically required on board
ships making national or international voyages which call
at Community ports.

(18)

(19)

(20)

(21)

(22)

(23)

The data provided by a voyage data recording system, as
well as by other electronic devices, can be used both
retrospectively after a marine casualty or incident
to
investigate its causes and preventively to gain experience
of the circumstances capable of leading to such events.
Member States should ensure that such data, when avail-
able, are properly used for both purposes.

solutions

Regulation (EC) No 1406/2002 of
the European
Parliament and of the Council (3) requires the European
Maritime Safety Agency (hereinafter referred to as ‘the
Agency’) to work with the Member States to develop
technical
assistance
and provide
related to the implementation of Community legislation.
In the field of accident investigation, the Agency has the
specific task of
facilitating cooperation between the
Member States and the Commission in the development,
with due regard to the different legal systems in the
Member States, of a common methodology for investi-
gating maritime accidents according to agreed interna-
tional principles.

technical

In accordance with Regulation (EC) No 1406/2002, the
Agency facilitates cooperation in the provision of support
given by the Member States in activities concerning
investigations, and in analysing existing accident investi-
gation reports.

The safety recommendations resulting from a safety
investigation should be duly taken into account by the
Member States.

Since the aim of the technical safety investigation is the
prevention of marine casualties and incidents, the conclu-
sions and the safety recommendations should in no
circumstances determine liability or apportion blame.

Since the objective of this Directive, namely to improve
marine safety in the Community and thereby reduce the
risk of future marine casualties, cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale or the effects of the action, be better
achieved at Community level, the Community may adopt
measures, in accordance with the principle of subsidiarity
as set out in Article 5 of the Treaty. In accordance with
the principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in
order to achieve that objective.

(3) OJ L 208, 5.8.2002, p. 1. Regulation as last amended by Regulation

(EC) No 1891/2006 (OJ L 394, 30.12.2006, p. 1).

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(24)

(25)

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
implementing powers
the exercise of
procedures for
conferred on the Commission (1).

In particular, the Commission should be empowered to
amend this Directive in order
to apply subsequent
amendments to the international conventions, protocols,
codes and resolutions related thereto and to adopt or
modify the common methodology for
investigating
marine casualties and incidents. Since those measures are
of general scope and are designed to amend non-essential
elements of this Directive, inter alia by supplementing it
with new non-essential elements, they must be adopted
in accordance with the regulatory procedure with scru-
tiny provided for in Article 5a of Decision 1999/468/EC.

(26)

In accordance with point 34 of
the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the inter-
ests of the Community, their own tables illustrating, as
far as possible, the correlation between this Directive and
the transposition measures, and to make them public,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

The purpose of

this Directive is to improve maritime
1.
safety and the prevention of pollution by ships, and so reduce
the risk of future marine casualties, by:

(a) facilitating the expeditious holding of safety investigations
and proper analysis of marine casualties and incidents in
order to determine their causes; and

Article 2

Scope

This Directive shall apply to marine casualties and inci-

1.
dents that:

(a) involve ships flying the flag of one of the Member States;

(b) occur within Member States'

territorial sea and internal

waters as defined in UNCLOS; or

(c) involve other substantial interests of the Member States.

This Directive shall not apply to marine casualties and

2.
incidents involving only:

(a) ships of war and troop ships and other ships owned or
operated by a Member State and used only on government
non-commercial service;

(b) ships not propelled by mechanical means, wooden ships of
primitive build, pleasure yachts and pleasure craft not
engaged in trade, unless they are or will be crewed and
carrying more than 12 passengers for commercial purposes;

(c) inland waterway vessels operating in inland waterways;

(d) fishing vessels with a length of less than 15 metres;

(e) fixed offshore drilling units.

Article 3

Definitions

For the purposes of this Directive:

1) ‘IMO Code for the Investigation of Marine Casualties and
Incidents’ means the Code for the Investigation of Marine
Casualties and Incidents annexed to Resolution A.849(20) of
the IMO Assembly of 27 November 1997, in its up-to-date
version.

2) The following terms shall be understood in accordance with
the definitions contained in the IMO Code for the Investiga-
tion of Marine Casualties and Incidents:

(a) ‘marine casualty’;

(b) ensuring the timely and accurate reporting of safety investi-

(b) ‘very serious casualty’;

gations and proposals for remedial action.

(c) ‘marine incident’;

2.
Investigations under this Directive shall not be concerned
with determining liability or apportioning blame. However,
Member States shall ensure that the investigative body or entity
(hereinafter
is not
refraining from fully reporting the causes of the casualty or inci-
dent because fault or liability may be inferred from the findings.

the ‘investigative body’)

referred to as

(d) ‘marine casualty or incident safety investigation’;

(e) ‘lead investigating State’;

(f) ‘substantially interested State’.

(1) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(2) OJ C 321, 31.12.2003, p. 1.

3) The terms ‘ro-ro ferry’ and ‘high-speed passenger craft’ shall
be understood in accordance with the definitions contained
in Article 2 of Directive 1999/35/EC.

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4) ‘Voyage data recorder’ (hereinafter referred to as ‘VDR’) shall
be understood in accordance with the definition contained in
Resolution A.861(20) of
the IMO Assembly and Resolu-
tion MSC.163(78) of the IMO Maritime Safety Committee.

5) ‘Safety recommendation’ means any proposal made by either

of the following:

(c) involving a substantial

interest of the Member State, irre-
spective of the location of the casualty and of the flag of
the ship or ships involved.

2.
In addition, the investigative body shall decide whether or
not a safety investigation of any other marine casualty or inci-
dent shall be undertaken.

(a) the investigative body of

the State conducting, or
leading, the safety investigation on the basis of informa-
tion derived from that investigation; or, where appro-
priate,

(b) the Commission, acting on the basis of an abstract data

analysis.

Article 4

Status of safety investigations

1. Member States shall define, in accordance with their legal
systems, the legal status of the safety investigation in such a way
that such investigations can be carried out as effectively and
rapidly as possible.

Member States shall ensure, in accordance with their legislation
and, where appropriate, through collaboration with the authori-
ties responsible for the judicial inquiry, that safety investigations
are:

(a) independent of criminal or other parallel investigations held

to determine liability or apportion blame; and

(b) not unduly precluded, suspended or delayed by reason of

such investigations.

2.
The rules to be established by the Member States shall
include, in accordance with the permanent cooperation frame-
work referred to in Article 10, provisions for allowing:

(a) cooperation and mutual assistance in safety investigations
led by other Member States, or the delegation to another
Member State of the task of leading such an investigation in
accordance with Article 7; and

(b) coordination of the activities of their respective investigative
bodies to the extent necessary to attain the objective of this
Directive.

Article 5

Obligation to investigate

In its decision, the investigative body shall take into account the
seriousness of the casualty or incident, the type of vessel and/or
cargo involved, and the potential for the findings of the safety
investigation to lead to the prevention of future casualties and
incidents.

3.
The scope and practical arrangements for the conduct of
safety investigations shall be determined by the investigative
body of the lead investigating Member State in cooperation with
the equivalent bodies of the other substantially interested States,
in such manner as appears to it most conducive to achieving
the objective of this Directive, and with a view to preventing
future casualties and incidents.

Safety investigations shall

4.
the
common methodology for investigating marine casualties and
incidents developed pursuant to Article 2(e) of Regulation (EC)
No 1406/2002. The Commission shall adopt or modify this
methodology for the purposes of this Directive.

follow the principles of

That measure, designed to amend non-essential elements of this
Directive,
inter alia by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny referred
to in Article 18(3).

The Commission and Member States shall develop guidelines on
processes and best practice in safety investigations to be used in
implementing the common methodology. These guidelines shall
be updated periodically to take account of experience gained in
the conduct of safety investigations.

A safety investigation shall be started as promptly as is

5.
practicable after the marine casualty or incident occurs.

Article 6

Obligation to notify

A Member State shall require,
in the framework of its legal
system, that its investigative body be notified without delay, by
the responsible authorities and/or by the parties involved, of the
occurrence of all casualties and incidents falling within the
scope of this Directive.

1.
Each Member State shall ensure that a safety investigation
is carried out by the investigative body referred to in Article 8
after very serious marine casualties:

(a) involving a ship flying its flag, irrespective of the location of

the casualty;

(b) occurring within its territorial sea and internal waters as
defined in UNCLOS, irrespective of the flag of the ship or
ships involved in the casualty; or

Article 7

Leading of, and participation in, safety investigations

1. Member States shall avoid conducting parallel safety inves-
tigations into the same marine casualty or incident. They shall
abstain from any measure which could unduly preclude,
suspend or delay the conduct of a safety investigation falling
within the scope of this Directive.

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In cases of safety investigations involving two or more Member
States, the Member States concerned shall cooperate with a view
to rapidly agreeing which of them is to be the lead investigating
Member State. They shall make every effort to agree on the
procedures to investigate. In the framework of this agreement,
other substantially interested States shall have equal rights and
access
the Member State
conducting the safety investigation. They shall also have the
right to see their point of view taken into consideration by the
lead investigating Member State.

and evidence

to witnesses

as

Notwithstanding paragraph 1, each Member State shall
2.
remain responsible for the safety investigation and coordination
with other substantially interested Member States until such
time as it is mutually agreed which of them is to be the lead
investigating State.

3. Without prejudice to its obligations under this Directive
and international law, a Member State may, on a case-by-case
basis, delegate by mutual agreement to another Member State
the task of leading a safety investigation or specific tasks for the
conduct of such an investigation.

is
4. When a ro-ro ferry or high-speed passenger craft
involved in a marine casualty or incident, the safety investiga-
tion procedure shall be launched by the Member State in whose
territorial sea or internal waters as defined in UNCLOS the acci-
dent or incident occurs or, if occurring in other waters, by the
last Member State visited by that ferry or craft. That State shall
remain responsible for the safety investigation and coordination
with other substantially interested Member States until
is
mutually agreed which of them is to be the lead investigating
State.

it

Article 8

Investigative bodies

1. Member States shall ensure that safety investigations are
conducted under the responsibility of an impartial permanent
investigative body, and by suitably qualified investigators,
competent in matters relating to marine casualties and incidents.

In order to carry out a safety investigation in an unbiased
manner, the investigative body shall be independent in its orga-
nisation,
legal structure and decision-making of any party
whose interests could conflict with the task entrusted to it.

Landlocked Member States which have neither ships nor vessels
identify an independent focal point to
flying their flag will
cooperate in the investigation pursuant to Article 5(1)(c).

3.
The activities entrusted to the investigative body may be
extended to the gathering and analysis of data relating to
marine safety, in particular for prevention purposes, in so far as
these activities do not affect its independence or entail responsi-
bility in regulatory, administrative or standardisation matters.

4. Member States, acting in the framework of their respective
legal systems, shall ensure that the investigators of its investiga-
tive body, or of any other investigative body to which it has
delegated the task of safety investigation, where appropriate in
collaboration with the authorities responsible for the judicial
inquiry, be authorised to:

(a) have free access to any relevant area or casualty site as well
as to any ship, wreck or structure including cargo, equip-
ment or debris;

(b) ensure immediate listing of evidence and controlled search
for and removal of wreckage, debris or other components
or substances for examination or analysis;

(c) require examination or analysis of the items referred to in
point (b), and have free access to the results of such exami-
nations or analysis;

(d) have free access to, copy and have use of any relevant infor-
mation and recorded data, including VDR data, pertaining
to a ship, voyage, cargo, crew or any other person, object,
condition or circumstance;

(e) have free access to the results of examinations of the bodies
of victims or of tests made on samples taken from the
bodies of victims;

(f) require and have free access to the results of examinations
of, or tests made on samples taken from, people involved in
the operation of a ship or any other relevant person;

(g) interview witnesses in the absence of any person whose
interests could be considered as hampering the safety inves-
tigation;

(h) obtain survey records and relevant information held by the
flag State, the owners, classification societies or any other
relevant party, whenever those parties or their representa-
tives are established in the Member State;

(i) call

for the assistance of
States,

the relevant authorities in the
respective
and port-State
surveyors, coastguard officers, vessel traffic service opera-
tors, search and rescue teams, pilots or other port or mari-
time personnel.

flag-State

including

2.
The investigative body shall ensure that individual investi-
gators have a working knowledge of, and practical experience
in, those subject areas pertaining to their normal investigative
duties. Additionally, the investigative body shall ensure ready
access to appropriate expertise, as necessary.

5.
The investigative body shall be enabled to respond imme-
diately on being notified at any time of a casualty, and to obtain
sufficient resources to carry out its functions independently. Its
investigators shall be afforded status giving them the necessary
guarantees of independence.

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6.
The investigating body may combine its tasks under this
Directive with the work of investigating occurrences other than
marine casualties on condition that such investigations do not
endanger its independence.

(d) draw up common principles for the follow-up of safety
investigative
technical and scientific

recommendations and for the adaptation of
methods to the development of
progress;

Article 9

Confidentiality

Member States, acting in the framework of their legal systems,
shall ensure that the following records are not made available
for purposes other than the safety investigation, unless the
competent authority in that State determines that the interest in
their disclosure outweighs the adverse domestic and interna-
tional impact that such action may have on that safety investiga-
tion or on any future investigations:

(a) all witness evidence and other statements, accounts and
notes taken or received by the investigative body in the
course of the safety investigation;

(b) records revealing the identity of persons who have given

evidence in the context of the safety investigation;

(c) medical or private information regarding persons involved

in the casualty or incident.

(e) establish confidentiality rules for the sharing, in the respect
of national rules, of witness evidence and the processing of
data and other records referred to in Article 9, including in
relations with third countries;

(f) organise, where appropriate, relevant training activities for

individual investigators;

(g) promote cooperation with the investigative bodies of third
countries and with the international maritime accidents
investigation organisations in the fields covered by this
Directive;

(h) provide investigative bodies conducting safety investigations

with any pertinent information.

Article 11

Costs

1. Where safety investigations involve two or more Member
States, the respective activities shall be free of charge.

Article 10

Permanent cooperation framework

2. Where assistance is requested of a Member State that is
not involved in the safety investigation, Member States shall
agree on the reimbursement of costs incurred.

shall,

1. Member States
in close cooperation with the
Commission, establish a permanent cooperation framework
to cooperate
respective investigative bodies
enabling their
among themselves to the extent necessary to attain the objective
of this Directive.

The rules of procedure of

2.
the permanent cooperation
framework and the organisation arrangements required therefor
shall be decided in accordance with the regulatory procedure
referred to in Article 18(2).

3. Within the permanent cooperation framework, the investi-
gative bodies in the Member States shall agree,
in particular,
upon the best modalities of cooperation in order to:

(a) enable investigative bodies to share installations, facilities
and equipment for the technical investigation of wreckage
and ship's equipment and other objects relevant
to the
safety investigation, including the extraction and evaluation
of information from VDRs and other electronic devices;

(b) provide each other with the technical cooperation or exper-

tise needed to undertake specific tasks;

(c) acquire and share information relevant for analysing casualty
data and making appropriate safety recommendations at
Community level;

Article 12

Cooperation with substantially interested third countries

1. Member States shall cooperate, to the maximum extent
possible, with other substantially interested third countries in
safety investigations.

2.
Substantially interested third countries shall, by mutual
agreement, be allowed to join a safety investigation led by a
Member State under this Directive at any stage of the investiga-
tion.

3.
The cooperation of a Member State in a safety investiga-
tion conducted by a substantially interested third country shall
be without prejudice to the conduct and reporting requirements
of safety investigations under this Directive. Where a substan-
tially interested third country is leading a safety investigation
involving one or more Member States, Member States may
decide not to carry out a parallel safety investigation, provided
that
the safety investigation led by the third country is
conducted in accordance with the IMO Code for the Investiga-
tion of Marine Casualties and Incidents.

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Article 13

Preservation of evidence

Member States shall adopt measures to ensure that the parties
concerned by casualties and incidents under the scope of this
Directive make every effort to:

(a) save all information from charts, log books, electronic and
magnetic recording and video tapes, including information
from VDRs and other electronic devices relating to the
period preceding, during and after an accident;

(b) prevent the overwriting or other alteration of such informa-

tion;

(c) prevent interference with any other equipment which might
reasonably be considered pertinent to the safety investiga-
tion of the accident;

(d) collect and preserve all evidence expeditiously for

the

purposes of the safety investigations.

Article 14

Accident reports

1.
Safety investigations carried out under this Directive shall
result in a published report presented in a format defined by the
competent investigative body and in accordance with the rele-
vant sections of Annex I.

Investigative bodies may decide that a safety investigation, which
does not concern a very serious marine casualty and the find-
ings of which do not have the potential to lead to the preven-
tion of future casualties and incidents, shall result in a simplified
report to be published.

2.
Investigative bodies shall make every effort to make the
report referred to in paragraph 1 available to the public within
12 months from the day of the casualty. If it is not possible to
produce the final report within that time, an interim report
shall be published within 12 months from the date of
the
casualty.

3.
The investigative body of the lead investigating Member
State shall send a copy of the final, simplified or interim report
to the Commission. It shall take into account the possible obser-
vations of the Commission on final reports for improving the
editorial quality in the way most conducive to achieving the
objective of this Directive.

the addressees and, where appropriate, be given an adequate
follow-up in accordance with Community and international law.

2. Where appropriate, an investigative body or the Commis-
sion shall make safety recommendations on the basis of an
abstract data analysis.

A safety recommendation shall in no circumstances deter-

3.
mine liability or apportion blame for a casualty.

Article 16

Early alert system

Without prejudice to its right to give an early alert, the investi-
gative body of a Member State shall, at any stage of a safety
investigation, if it takes the view that urgent action is needed at
Community level to prevent the risk of new casualties, inform
the Commission without delay of the need to give an early alert.

If necessary, the Commission shall issue a note of warning for
the attention of
the responsible authorities in all the other
Member States, the shipping industry, and to any other relevant
party.

Article 17

European database for marine casualties

Data on marine casualties and incidents shall be stored
1.
and analysed by means of a European electronic database to be
set up by the Commission, which shall be known as the
European Marine Casualty Information Platform (EMCIP).

2. Member States shall notify the Commission of the entitled
authorities that will have access to the database.

3.
The investigative bodies of the Member States shall notify
the Commission on marine casualties and incidents in accord-
ance with the format in Annex II. They shall also provide the
Commission with data resulting from safety investigations in
accordance with the EMCIP database scheme.

4.
The Commission and the Member States shall develop the
database scheme and a method for the notification of data
within the appropriate timescale.

Article 18

Committee

Article 15

Safety recommendations

1.
The Commission shall be assisted by the Committee on
Safe Seas and the Prevention of Pollution from Ships (COSS)
established by Regulation (EC) No 2099/2002 of the European
Parliament and the Council (1).

1. Member States shall ensure that safety recommendations
made by the investigative bodies are duly taken into account by

(1) OJ L 324, 29.11.2002, p. 1. Regulation as last amended by Commis-

sion Regulation (EC) No 93/2007 (OJ L 22, 31.1.2007, p. 12).

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2. Where reference is made to this paragraph, Articles 5
and 7 of Decision 1999/468/EC shall apply, having regard to
the provisions of Article 8 thereof.

Article 21

Penalties

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at two months.

3. Where reference is made to this paragraph, Article 5a(1)
to (4) and Article 7 of Decision 1999/468/EC shall apply,
having regard to the provisions of Article 8 thereof.

Article 19

Amending powers

The Commission may update definitions in this Directive, and
the references made to Community acts and to IMO instruments
in order to bring them into line with Community or IMO
measures which have entered into force, subject to observance
of the limits of this Directive.

Those measures, designed to amend non-essential elements of
this Directive, inter alia by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny referred
to in Article 18(3).

Acting in accordance with the same procedure, the Commission
may also amend the Annexes.

Member States shall lay down the rules on penalties applicable
to infringements of the national provisions adopted pursuant to
this Directive and shall take all measures necessary to ensure
that they are implemented. The penalties provided for must be
effective, proportionate and dissuasive.

Article 22

Amendments to existing acts

1.

2.

Article 12 of Directive 1999/35/EC shall be deleted.

Article 11 of Directive 2002/59/EC shall be deleted.

Article 23

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by … (*).

When Member States adopt those measures, they shall contain a
reference to this Directive or be accompanied by such a refer-
ence on the occasion of their official publication. Member States
shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 24

Entry into force

Amendments to the IMO Code for the Investigation of Marine
Casualties and Incidents may be excluded from the scope of
this Directive pursuant
to Article 5 of Regulation (EC)
No 2099/2002.

This Directive shall enter
following that of its publication in the Official
European Union.

into force on the twentieth day
Journal of the

Article 25

Addressees

Article 20

This Directive is addressed to the Member States.

Additional measures

Done at …

Nothing contained in this Directive shall prevent a Member
State from taking additional measures on maritime safety which
are not covered by this Directive, provided that such measures
do not infringe this Directive or in any way adversely affect the
attainment of its objective.

For the European Parliament

The President

…

For the Council

The President

…

(*) 24 months after the date of entry into force of this Directive.

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ANNEX I

SAFETY INVESTIGATION REPORT CONTENT

Foreword

This identifies the sole objective of the safety investigation, that a safety recommendation shall
in no case create a
presumption of liability or blame, and that the report has not been written, in terms of content and style, with the inten-
tion of it being used in legal proceedings.

(The report should make no reference to witness evidence nor link anyone who is referred to in the report to a person
who has given evidence during the course of the safety investigation.)

1. Summary

This part outlines the basic facts of the marine casualty or incident: what happened, when, where and how it
happened; it also states whether any deaths, injuries, damage to the ship, cargo, third parties or environment occurred
as a result.

2. Factual information

This part includes a number of discrete sections, providing sufficient information that the investigating body interprets
to be factual, substantiate the analysis and ease understanding.

These sections include, in particular, the following information:

2.1. Ship particulars

Flag/register,

Identification,

Main characteristics,

Ownership and management,

Construction details,

Minimum safe manning,

Authorised cargo.

2.2. Voyage particulars

Ports of call,

Type of voyage,

Cargo information,

Manning.

2.3. Marine casualty or incident information

Type of marine casualty or incident,

Date and time,

Position and location of the marine casualty or incident,

External and internal environment,

Ship operation and voyage segment,

Place on board,

Human factors data,

Consequences (for people, ship, cargo, environment, other).

2.4. Shore authority involvement and emergency response

Who was involved,

Means used,

Speed of response,

Actions taken,

Results achieved.

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3. Narrative

This part reconstructs the marine casualty or incident through a sequence of events, in a chronological order leading
up to, during and following the marine casualty or incident and the involvement of each actor (i.e. person, material,
environment, equipment or external agent). The period covered by the narrative depends on the timing of those par-
ticular accidental events that directly contributed to the marine casualty or incident. This part also includes any relevant
details of the safety investigation conducted, including the results of examinations or tests.

4. Analysis

This part includes a number of discrete sections, providing an analysis of each accidental event, with comments relating
to the results of any relevant examinations or tests conducted during the course of the safety investigation and to any
safety action that might already have been taken to prevent marine casualties.

These sections should cover issues such as:

— accidental event context and environment,

— human erroneous actions and omissions, events involving hazardous material, environmental effects, equipment

failures, and external influences,

— contributing factors involving person-related functions, shipboard operations, shore management or regulatory

influence.

The analysis and comment enable the report to reach logical conclusions, establishing all of the contributing factors,
including those with risks for which existing defences aimed at preventing an accidental event, and/or those aimed at
eliminating or reducing its consequences, are assessed to be either inadequate or missing.

5. Conclusions

This part consolidates the established contributing factors and missing or inadequate defences (material, functional,
symbolic or procedural) for which safety actions should be developed to prevent marine casualties.

6. Safety recommendations

When appropriate, this part of the report contains safety recommendations derived from the analysis and conclusions
and related to particular subject areas, such as legislation, design, procedures, inspection, management, health and
safety at work, training, repair work, maintenance, shore assistance and emergency response.

The safety recommendations are addressed to those that are best placed to implement them, such as ship owners,
managers, recognised organisations, maritime authorities, vessel traffic services, emergency bodies, international mari-
time organisations and European institutions, with the aim of preventing marine casualties.

This part also includes any interim safety recommendations that may have been made or any safety actions taken
during the course of the safety investigation.

7. Appendices

When appropriate, the following non-exhaustive list of information is attached to the report in paper and/or electronic
form:

— photographs, moving images, audio recordings, charts, drawings,

— applicable standards,

— technical terms and abbreviations used,

— special safety studies,

— miscellaneous information.

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ANNEX II

MARINE CASUALTY OR INCIDENT NOTIFICATION DATA

(Part of the European Marine Casualty Information Platform)

Note: Underlined numbers mean that data should be provided for each ship if more than one ship is involved in the

marine casualty or incident.

01. Member Sate responsible/contact person

02. Member Sate investigator

03. Member State role

04.

Coastal state affected

05. Number of substantially interested States

06.

Substantially interested States

07. Notification entity

08.

Time of the notification

09. Date of the notification

10. Name of the ship

11.

12.

13.

14.

IMO number/distinctive letters

Ship flag

Type of marine casualty or incident

Type of ship

15. Date of the marine casualty or incident

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

Time of the marine casualty or incident

Position — Latitude

Position — Longitude

Location of the marine casualty or incident

Port of departure

Port of destination

Traffic separation scheme

Voyage segment

Ship operation

Place on board

Lives lost:

— Crew

— Passengers

— Other

27.

Serious injuries:

— Crew

— Passengers

— Other

Pollution

Ship damage

Cargo damage

28.

29.

30.

31. Other damage

32.

Brief description of the marine casualty or incident

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In the framework of the codecision procedure (Article 251 TEC), the Council reached, on 7 June 2007,
a political agreement on the draft Directive establishing the fundamental principles governing the
investigation of accidents in the maritime transport sector and amending Directives 1999/35/EC
and 2002/59/EC (1). Following legal/linguistic revision, the Council adopted its Common Position on
6 June 2008.

In taking its position, the Council took account of the opinion of the European Parliament in its first
reading on 25 April 2007 (2), as well as of the opinions of the Economic and Social Committee (3) and
of the Committee of Regions (4). Furthermore,
it considered the impact study carried out by the
Commission during the examination of the proposed Directive.

The proposal aims at improving safety by establishing clear Community-wide rules on the independent
technical investigations to be carried out following maritime casualties and incidents. The aim of such
technical investigations is not to determine civil or criminal liability, but to establish the circumstances
and to research the causes of maritime casualties or incidents in order to draw all possible lessons from
them. The proposal is drawn up in compliance with the rules of international maritime law and in
accordance with the definitions and recommendations in the IMO Code for the Investigation of Marine
Casualties and Incidents.

II. ANALYSIS OF THE COMMON POSITION

The Council agrees with the objective and most of the main elements of the Commission proposal that
provide an adequate mechanism for ensuring appropriate return of experience from accidents and inci-
dents in order to prevent other casualties. The approach adopted by the Council required, however,
some modifications of the text, in particular with a view to ensuring the independence and discretion
powers of the investigative body.

The following issues were considered of major importance during the examination of the proposed
Directive in the Council bodies and are reflected in the Council's Common Position:

The Council is of the view that, in coherence with the nature of the legal act, Member States, and in par-
ticular their respective investigative bodies, should retain certain flexibility and discretion related to
carrying out safety investigations. Contrary to the original proposal that provided for mandatory safety
investigations for very serious and serious marine casualties and incidents, the text agreed by the
Council limits the obligation for safety investigations to very serious marine casualties or incidents and
requires the investigative body in all other cases of marine casualties or incidents to decide whether or
not to undertake a safety investigation, taking account in particular of the seriousness of the casualty or
incident and the possible lessons to be learned. In addition, in the Council's view, there is no need to
refer explicitly to distress alerts as a specific category of incidents that require safety investigations.

Furthermore, and following the example of the railways sector (5), the Council deems it appropriate to
emphasize that the investigative body shall be independent in its organisation, legal structure and deci-
sion-making of any party whose interests could conflict with the task entrusted to it in order to carry
out safety investigations in an unbiased manner. It is to be understood that each Member State, in
accordance with its own administrative organisation, sets up the investigative body as a public structure
with the greatest possible autonomy in terms of internal functioning. This structure can be linked to a
bigger entity like a ministry or administration, but will have to be regulated by provisions guaranteeing

(1) The Commission transmitted its proposal on 13 February 2006.
(2) Doc. 8724/07 CODEC 389 MAR 28 ENV 206 (not yet published in the Official Journal).
(3) CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195-201).
(4) CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).
(5) Article 21 of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the
Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive
2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastruc-
ture and safety certification (Railway Safety Directive) (OJ L 164, 30.4.2004).

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its independence, particularly from other administrative authorities likely to be interested in any mari-
time accident. For reasons of proportionality, Member States, which have neither ships nor vessels flying
their flag, will
identify an independent focal point to cooperate in safety investigations involving a
substantial interest of that Member State.

In line with the requirements laid down in Community Law for safety investigations in the air transport
and railways sectors, the Council agrees with the European Parliament that safety investigations have to
be differentiated from criminal investigations or other proceedings aimed at determining liability and
apportioning blame. The text of the Common Position establishes that investigations under this Directive
have no other aim than to determine the causes of casualties. At the same time, and in accordance with
the IMO Code for the Investigation of Marine Casualties and Incidents, it stipulates that the investigative
body should not refrain from full reporting to this effect because fault or liability may be inferred from
the findings. In case national law does not provide for a clear separation of safety investigations from
criminal or other administrative investigations, Member States have to ensure, by defining the legal
status of safety investigations, that these can be carried out as effectively and rapidly as possible and are
not unduly precluded or suspended by other investigations.

Concerning the scope of the Directive, the Council
includes in its Common Position small fishing
vessels with a length of more than 15 m, and not only vessels above 24 m length as in the original
proposal. This is done for reasons of consistency with the Council's Common Position on the draft
Directive of the European Parliament and of the Council amending Directive 2002/59/EC establishing a
Community vessel traffic monitoring and information system. According to this draft Directive, these
vessels are obliged to be equipped with AIS (Automatic Identification System) to improve the possibili-
ties of monitoring these ships and to make them safer in close navigation situations. They should, there-
fore, also be covered by the Directive concerning the investigation of accidents.

Related to the methodology for investigating marine casualties and incidents, the Council deems it
appropriate to provide for more flexibility, while establishing the bases for a continuous exchange of
experience. Compared to the original proposal, Member States have more leeway in implementing the
principles of the common methodology that is developed with the assistance of the European Maritime
Safety Agency and adopted in accordance with the regulatory procedure with scrutiny. At the same time,
based on the experience gained in the conduct of safety investigations, the Commission and the Member
States will develop guidelines on processes and best practices to be used in implementing the common
methodology.

III. AMENDMENTS

In agreeing on its Common Position, the Council took account of the points of view expressed by the
European Parliament in its first reading of the proposal. The following elements of the EP's opinion are
reflected in the Common Position, some of them partly or in principle: amendments 3, 9, 10, 11, 22
and 23.

A number of other amendments were, however, not acceptable for the Council. With regard to amend-
ments 2 and 19, the Council believes that the joint methodology should not deal with the findings of
safety investigations but rather focus on procedural aspects. Amendments 5 and 8 are in the Council's
view not compatible with its approach to the principle of differentiation between criminal and technical
investigations. Amendments 7 and 20 could not be accepted because the Council believes that it is not
appropriate to specify the competences of the European Maritime Safety Agency (EMSA) in this Direc-
tive. Amendments 12 and 13 would restrict the working methods of the investigative body or are too
prescriptive. Amendments 14 and 26 could not be accepted because the Council attaches major impor-
tance to the principle of impartiality of the investigative body and is of the view that it is up to each
Member State to set up this body in accordance with its own administrative structure. Amendment 16 is
not compatible with the need to respect national law.

A set of other amendments (4, 6, 15, 17, 18 and 24) was rejected either because they were not entirely
clear or they do not correspond to the Council's approach for a concise text.

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IV. CONCLUSION

The Council believes that the text of its Common Position is appropriate and balanced. It shares the aim
of the European Parliament to establish a framework ensuring rapid safety investigations into maritime
casualties and incidents. The Common Position includes some of the EP amendments adopted in first
reading.

The Council reaffirms its engagement to start negotiations with the European Parliament on this text
with a view to reaching an agreement as soon as possible.