Common Position (EC) No 20/2008 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 on port State control (Recast) Text with EEA relevance
Date: 2008-06-06
Institutions: Council of the European Union
Subjects: dissemination of information, harbour installation, international standard, maritime safety, pollution from ships, ports policy, prevention of pollution, vessel

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III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 20/2008

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 …
on port State control (Recast)

(Text with EEA relevance)

(2008/C 198 E/01)

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,

(5)

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)

Council Directive 95/21/EC of 19 June 1995 on port
shipping (4) has been substantially
State control of
amended several times. Since further amendments are to
be made, it should be recast in the interests of clarity.

The Community is seriously concerned about shipping
casualties and pollution of
the seas and coastlines of
Member States.

The Community is equally concerned about on-board
living and working conditions.

Safety, pollution prevention and on-board living and
working conditions may be effectively enhanced through

(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 L 157, 7.7.1995, p. 1. Directive as last amended by Directive
the Council

the European Parliament and of

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

a drastic reduction of substandard ships from Com-
munity waters, by strictly applying Conventions, interna-
tional codes and resolutions.

Responsibility for monitoring the compliance of ships
with the international standards for safety, pollution
prevention and on-board living and working conditions
lies primarily with the flag State. Relying, as appropriate,
on recognised organisations, the flag State fully guaran-
tees the completeness and efficiency of the inspections
and surveys undertaken to issue the relevant certificates.
Responsibility for maintenance of the condition of the
ship and its equipment after survey to comply with the
requirements of Conventions applicable to the ship lies
with the ship company. However,
there has been a
serious failure on the part of a number of flag States to
implement and enforce international standards. Hence-
forth, as a second line of defence against substandard
shipping, the monitoring of compliance with the interna-
tional standards for safety, pollution prevention and on-
board living and working conditions should also be
ensured by the port State, while recognising that port
State control inspection is not a survey and the relevant
inspection forms are not seaworthiness certificates.

(6)

(7)

A harmonised approach to the effective enforcement of
these international standards by Member States in respect
of ships sailing in the waters under their jurisdiction and
using their ports should avoid distortions of competition.

The shipping industry is vulnerable to acts of terrorism.
Transport security measures should be effectively imple-
mented and Member States should vigorously monitor
compliance with security rules by carrying out security
checks.

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(8)

(9)

the experience gained
Advantage should be taken of
during the operation of
the Paris Memorandum of
Understanding on Port State Control (Paris MOU), signed
in Paris on 26 January 1982.

the inspection database, Member States should provide
the Commission with the information needed to ensure a
proper monitoring of the application of this Directive, in
particular concerning the movements of ships.

The European Maritime Safety Agency (EMSA) established
by Regulation (EC) No 1406/2002 of
the European
the Council of 27 June 2002 (1),
Parliament and of
to ensure the
should provide the necessary support
the port
convergent and effective implementation of
State control system. EMSA should in particular contri-
bute to the development and implementation of
the
inspection database set up in accordance with this Direc-
tive and of a harmonised Community scheme for the
training and assessment of competences of port State
control inspectors by Member States.

On the basis of the inspection data provided by Member
States, the Commission should retrieve from the inspec-
tion database data on the risk profile of ships, on ships
due for inspections and on the movement of ships and
should calculate the inspection commitments for each
Member State. The inspection database should also be
capable of interfacing with other Community maritime
safety databases.

(13) Member States should endeavour to review the method
of drawing the white, grey and black list of flag States in
the framework of the Paris MOU, in order to ensure its
fairness,
in particular with respect to the way it treats
flag States with small fleets.

(10) An efficient port State control regime should seek to
ensure that all ships calling at a port within the European
Union are regularly inspected. Inspection should concen-
trate on substandard ships, while quality ships, meaning
those which have satisfactory inspection records or
which fly the flag of a State complying with the Volun-
tary International Maritime Organisation (IMO) Member
State Audit Scheme, should be rewarded by undergoing
less frequent inspections. Such new inspection arrange-
ments should be incorporated into the Community port
State control regime as soon as its various aspects have
been defined and on the basis of an inspection-sharing
scheme whereby each Member State contributes fairly to
the Community objective of a
the achievement of
comprehensive inspection scheme. Moreover, Member
States should recruit and retain the requisite number of
staff, including qualified inspectors, taking into account
the volume and characteristics of shipping traffic at each
port.

(14)

(15)

The rules and procedures for port State control inspec-
tions, including criteria for the detention of ships, should
be harmonised to ensure consistent effectiveness in all
ports, which would also drastically reduce the selective
use of certain ports of destination to avoid the net of
proper control.

Ships calling at Community ports are subject to periodic
and additional inspections that include an examination of
pre-identified areas
for each ship, which will vary
according to the type of ship, the type of inspection and
the findings of previous port State control inspections.
The inspection database should indicate the elements to
identify the risk areas to be checked at each inspection.

(11)

(12)

The inspection regime set up by this Directive takes into
account the work carried out by the Paris MOU. Since
any developments arising from the Paris MOU should be
agreed at Community level before being made applicable
within the EU, close coordination should be established
and maintained between the Community and the Paris
MOU in order
to facilitate as much convergence as
possible.

The Commission should manage and update the inspec-
tion database, in close collaboration with the Paris MOU.
The inspection database should incorporate inspection
data of Member States and all States Parties to the Paris
MOU. Until
information
the Community maritime
system, SafeSeaNet, is fully operational and allows for an
automatic record of the data concerning ships' calls in

(1) 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).

(16)

Certain categories of ships present a major accident or
pollution hazard when they reach a certain age and
should therefore be subject to an expanded inspection.
The details of such expanded inspection should be laid
down.

(17) Under the inspection regime set up by this Directive, the
intervals between periodic inspections on ships depend
on their risk profile that is determined by certain generic
and historical parameters. For high-risk ships this interval
should not exceed six months.

(18)

In order to provide the competent port State control
authorities with information on ships in ports, port
authorities or the authorities or bodies designated for
that purpose should forward notifications on arrivals of
extent possible, notably
ships, on receipt
depending on their
capacity to maintain sufficient
resources outside usual opening hours of their offices.

to the

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(19)

Some ships pose a manifest risk to maritime safety and
the marine environment because of their poor condition,
flag performance and history. It is therefore legitimate for
the Community to dissuade those ships from entering
the ports of Member States. The refusal of access should
be proportionate and could result in an indefinite refusal
of access, if the operator of the ship persistently fails to
take corrective action in spite of several refusals of access
and detentions in ports within the Community. This
indefinite refusal of access should only be lifted if a
number of conditions designed to ensure that the ship
concerned can be operated safely in Community waters,
in particular relating to the flag State of the ship and the
managing company, are fulfilled. In the interests of trans-
parency, the list of ships refused access to ports within
the Community should be made public.

(20) With a view to reducing the burden placed on certain
administrations and companies by repetitive inspections,
surveys under Council Directive 1999/35/EC of 29 April
1999 on a system of mandatory surveys for the safe
operation of regular ro-ro ferry and high-speed passenger
craft services (1), carried out on ro-ro ferries or high-
speed passenger craft by a host State which is not the
flag State of the vessel, and which include at least all the
items of an expanded inspection, should be taken into
account when calculating the risk profile of a ship, the
intervals between inspections and the fulfilment of the
inspection commitment of each Member State. In addi-
tion,
is
the Commission should examine whether
appropriate that Directive 1999/35/EC be amended in
the future with a view of enhancing the level of safety
required for the operation of ro-ro ferries and high-speed
passenger craft to and from ports of Member States.

it

(21) Non-compliance with the provisions of

the relevant
Conventions should be rectified. Ships which need to be
the subject of corrective action should, where the
observed deficiencies are clearly hazardous to safety,
health or the environment, be detained until the short-
comings are rectified.

(22) A right of appeal against detention orders by the compe-
tent authorities should be made available,
in order to
prevent unreasonable decisions which may cause undue
detention and delay.

(23) Authorities and inspectors involved in port State control
activities should have no conflict of interests with the
port of inspection or with the ships inspected, or of
related interests. Inspectors should be adequately qualified
and receive appropriate training to maintain and improve
their competence in the conduct of inspections. Member

(24)

(25)

(26)

(27)

(28)

States should cooperate in developing and promoting a
harmonised Community scheme for the training and
assessment of competences of inspectors.

Pilots and port authorities or bodies should be enabled to
provide useful information on apparent anomalies found
on board ships.

Complaints
regarding on-board living and working
conditions should be investigated. Any person lodging a
complaint should be informed of the follow-up action
given to that complaint.

competent

authorities of
Cooperation between the
Member States and other authorities or organisations is
necessary to ensure an effective follow-up with regard to
ships with deficiencies, which have been permitted to
proceed, and for the exchange of information about ships
in port.

Since the inspection database is an essential part of port
State control, Member States should ensure that it is
updated in the light of Community requirements.

information concerning ships and their
Publication of
operators or companies which do not comply with inter-
national standards on safety, health and protection of the
marine environment may be an effective deterrent
discouraging shippers from using such ships and an
incentive to their owners to take corrective action. With
regard to the information to be made available,
the
Commission should establish a close collaboration with
the Paris MOU and take account of any information
published in order
to avoid unnecessary duplication.
Member States should have to provide the relevant infor-
mation only once.

(29) All costs of inspecting, which warrant detention of ships,
and those incurred in lifting a refusal of access, should be
borne by the owner or the operator.

(30)

(31)

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures for
implementing powers
the exercise of
conferred on the Commission (2).

In particular, the Commission should be empowered to
to apply subsequent
amend this Directive in order
amendments to Conventions,
international codes and
resolutions related thereto and to establish the rules of
implementation for the provisions of Articles 7 and 9.
Since those measures are of general scope and are
this
designed to amend non-essential

elements of

(1) OJ L 138, 1.6.1999, p. 1. Directive as last amended by Directive
2002/84/EC of the European Parliament and of the Council (OJ L 324,
29.11.2002, p. 53).

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

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

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Directive,
inter alia by supplementing it with new-non-
essential elements, they must be adopted in accordance
with the regulatory procedure with scrutiny provided for
in Article 5a of Decision 1999/468/EC.

HAVE ADOPTED THIS DIRECTIVE:

(32)

(33)

(34)

(35)

(36)

(37)

Since the objectives of this Directive, namely to reduce
substandard shipping in waters under Member States'
jurisdiction through improvement of the Community's
inspection system for seagoing ships and the develop-
ment of the means of taking preventive action in the
the seas, cannot be sufficiently
field of pollution of
achieved by Member States and may,
therefore, on
account of their scale and effects, be better achieved at
Community level, the Community may take 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 to achieve those
objectives.

The obligation to transpose this Directive into national
law should be confined to those provisions which repre-
sent a substantive change as compared with Directive
95/21/EC. The obligation to transpose the provisions
which are unchanged arises under that Directive.

This Directive should be without prejudice to the obliga-
tions of Member States relating to the time-limits for
transposition into national law of the Directives set out
in Annex XV, Part B.

In accordance with point 34 of
the Interinstitutional
Agreement on better law-making (1), 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.

In order not to impose a disproportionate administrative
burden on landlocked Member States, a de minimis rule
should allow such Member States to derogate from the
provisions of
this Directive, which means that such
Member States, as long as they meet certain criteria, are
not obliged to transpose this Directive.

In order to take into account the fact that the French
overseas departments belong to a different geographical
area, are to a large extent Parties to regional port State
control memoranda other than the Paris MOU and have
very limited traffic flows with mainland Europe,
the
Member State concerned should be allowed to exclude
those ports from the port State control system applied
within the Community,

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

Article 1

Purpose

The purpose of this Directive is to help to drastically reduce
substandard shipping in the waters under the jurisdiction of
Member States by:

(a) increasing compliance with international and relevant Com-
munity legislation on maritime safety, maritime security,
protection of the marine environment and on-board living
and working conditions of ships of all flags;

(b) establishing common criteria for control of ships by the
port State and harmonising procedures on inspection and
detention, building upon the expertise and experience
within the Paris MOU;

(c) implementing within the Community a port State control
system based on the inspections performed within the Com-
munity and the Paris MOU region, aiming at the inspection
of all ships with a frequency depending on their risk profile,
with ships posing a higher risk being subject to a more
detailed inspection carried out at more frequent intervals.

Article 2

Definitions

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

1) ‘Conventions’ means the following Conventions, with the
Protocols and amendments thereto, and related codes of
mandatory status, in their up-to-date version:

(a) the International Convention on Load Lines, 1966

(LL 66);

(b) the International Convention for the Safety of Life at

Sea, 1974 (SOLAS 74);

(c) the International Convention for

the Prevention of
Pollution from Ships, 1973, and the 1978 Protocol
relating thereto (MARPOL 73/78);

(d) the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978
(STCW 78);

(e) the Convention on the International Regulations for

Preventing Collisions at Sea, 1972 (Colreg 72);

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(f) the International Convention on Tonnage Measurement

of Ships, 1969 (ITC 69);

(g) the Merchant Shipping (Minimum Standards) Conven-

tion, 1976 (ILO No 147);

(h) the International Convention on Civil Liability for Oil

Pollution Damage, 1992 (CLC 92).

2) ‘Paris MOU’ means the Memorandum of Understanding on
Port State Control, signed in Paris on 26 January 1982, in
its up-to-date version.

3) ‘Framework and procedures for the Voluntary IMO Member
IMO Assembly Resolu-

State Audit Scheme’ means
tion A.974(24).

4) ‘Paris MOU region’ means the geographical area in which
the States party to the Paris MOU conduct inspections in
the context of the Paris MOU.

5) ‘Ship’ means any seagoing vessel to which one or more of
the Conventions apply, flying a flag other than that of the
port State.

6) ‘Ship/port interface’ means the interactions that occur when
a ship is directly and immediately affected by actions invol-
ving the movement of persons or goods or the provision of
port services to or from the ship.

7) ‘Ship at anchor’ means a ship in a port or another area
within the jurisdiction of a port, but not at berth, carrying
out a ship/port interface.

8) ‘Inspector’ means a public-sector employee or other person,
duly authorised by the competent authority of a Member
State to carry out port-State control
inspections, and
responsible to that competent authority.

9) ‘Competent authority’ means a maritime authority respon-
sible for port State control in accordance with this Direc-
tive.

10) ‘Competent authority for maritime security’ means a
competent authority for maritime security as defined in
Article 2, point 7 of 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).

11) ‘Night time’ means any period of not less than seven hours,
as defined by national law, and which must include, in any
case, the period between midnight and 5.00.

12) ‘Initial

inspection’ means a visit on board a ship by an
inspector, in order to check compliance with the relevant
the
Conventions and regulations and including at
checks required by Article 12(1).

least

(1) OJ L 129, 29.4.2004, p. 6.

13) ‘More detailed inspection’ means an inspection where the
ship, its equipment and crew as a whole or, as appropriate,
parts thereof are subjected, in the circumstances specified
in Article 12(3), to an in-depth examination covering the
ship's
and
working conditions and compliance with on-board opera-
tional procedures.

equipment, manning,

construction,

living

14) ‘Expanded inspection’ means an inspection, which covers at
least the items listed in Annex VII. An expanded inspection
may include a more detailed inspection whenever there are
clear grounds in accordance with Article 12(3).

15) ‘Complaint’ means any information or report submitted by
any person with a legitimate interest in the safety of the
ship, including an interest in safety or health hazards to its
crew, on-board living and working conditions and the
prevention of pollution.

16) ‘Detention’ means the formal prohibition for a ship to
proceed to sea due to established deficiencies which, indivi-
dually or together, make the ship unseaworthy.

17) ‘Refusal of access order’ means a decision issued to the
master of a ship, to the company responsible for the ship
and to the flag State notifying them that the ship will be
refused access to ports of the Community.

18) ‘Stoppage of an operation’ means a formal prohibition for a
ship to continue an operation due to established deficien-
cies which,
the
continued operation hazardous.

together, would render

individually or

19) ‘Company’ means the owner of the ship or any other orga-
nisation or person such as the manager, or the bareboat
charterer, who has assumed the responsibility for operation
of
the ship and who, on
assuming such responsibility, has agreed to take over all the
duties and responsibilities imposed by the International
Safety Management (ISM) Code.

the ship from the owner of

20) ‘Recognised Organisation’ means a classification company
or other private body, carrying out statutory tasks on
behalf of a flag State administration.

21) ‘Statutory certificate’ means a certificate issued by or on
behalf of a flag State in accordance with Conventions.

22) ‘Classification certificate’ means a document confirming
compliance with SOLAS 74, Chapter II-1, Part A-1, Regu-
lation 3-1.

23) ‘Inspection database’ means

information system
concerning the port State control data within the Com-
munity and the Paris MOU region.

the

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Article 3

Scope

Article 4

Inspection powers

This Directive shall apply to any ship and its crew calling

1.
at a port of a Member State to engage in a ship/port interface.

Where in this Directive reference is made to ships calling at
ports, and unless otherwise specified, this Directive shall also
apply to ships at anchor.

France may decide that the ports covered by this paragraph do
not include ports situated in the overseas departments referred
to in Article 299(2) of the Treaty.

If a Member State performs an inspection of a ship in waters
within its jurisdiction, other than at a port, it shall be consid-
ered as an inspection for the purposes of this Directive.

Nothing in this Article shall affect the rights of intervention
available to a Member State under the relevant Conventions.

the total number of

Member States which do not have seaports and which can
verify that of
individual vessels calling
annually over a period of the three previous years at their river
ports, less than 5 % are ships covered by this Directive, may
derogate from the provisions of this Directive.

They shall communicate to the Commission at the latest on the
date of transposition of the Directive the total number of vessels
and the number of ships calling at their ports during the three-
year period referred to above and shall inform the Commission
of any subsequent change to the abovementioned figures.

2. Where the gross tonnage of a ship is less than 500,
Member States shall apply those requirements of a relevant
Convention which are applicable and shall, to the extent that a
Convention does not apply, take such action as may be neces-
sary to ensure that the ships concerned are not clearly hazar-
dous to safety, health or the environment. In applying this para-
graph, Member States shall be guided by Annex 1 to the
Paris MOU.

1. Member States shall take all necessary measures, in order
to be legally entitled to carry out the inspections referred to in
this Directive on board foreign ships, in accordance with inter-
national law.

2. Member States
shall maintain appropriate competent
authorities with the requisite number of staff, in particular quali-
fied inspectors, for the inspection of ships and shall take appro-
priate measures to ensure that inspectors perform their duties as
laid down in this Directive and in particular that they are avail-
able for carrying out the inspections required in accordance
with this Directive.

Article 5

Inspection regime and annual inspection commitment

1. Member States shall carry out inspections in accordance
with the selection scheme described in Article 11 and the provi-
sions in Annex I.

In order to comply with its annual

2.
ment, each Member State shall

inspection commit-

(a) inspect all Priority I ships, referred to in Article 11(a),

calling at its ports, and

(b) carry out annually a total number of inspections of Priority I
and Priority II ships, referred to in Article 11(a) and (b),
corresponding at least to its share of the total number of
inspections to be carried out annually within the Com-
munity and the Paris MOU region. The inspection share of
each Member State shall be based on the number of indivi-
dual ships calling at ports of the Member State concerned in
relation to the sum of the number of individual ships calling
at the ports of each State within the Community and the
Paris MOU region.

3. With a view to calculating the share of the total number
of inspections to be carried out annually within the Community
and the Paris MOU region referred to in point (b) of paragraph 2,
ships at anchor shall not be counted unless otherwise specified
by the Member State concerned.

3. When inspecting a ship flying the flag of a State which is
not a party to a Convention, Member States shall ensure that
the treatment of such ship and its crew is not more favourable
than that of a ship flying the flag of a State party to that
Convention.

Fishing vessels, warships, naval auxiliaries, wooden ships
4.
of a primitive build, government ships used for non-commercial
purposes and pleasure yachts not engaged in trade shall be
excluded from the scope of this Directive.

Article 6

Modalities of compliance with the inspection commitment

1.
A Member State which fails to carry out the inspections
required in Article 5(2)(a), complies with its commitment in
accordance with that provision if such missed inspections do
not exceed:

(a) 5 % of the total number of Priority I ships with a high risk

profile calling at its ports;

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(b) 10 % of the total number of Priority I ships other than

those with a high risk profile calling at its ports.

inspection, provided that the reason for missing the inspection
is recorded in the inspection data base and the following excep-
tional circumstances occur:

Notwithstanding the percentages in (a) and (b), Member States
shall prioritise inspection of ships, which, according to the infor-
mation provided by the inspection database, call at ports within
the Community infrequently.

(a) in the judgement of the competent authority the conduct of
the inspection would create a risk to the safety of inspectors,
the ship, its crew or to the port, or to the marine environ-
ment, or

2.
A Member State in which the total number of calls of
Priority I ships exceeds its inspection share referred to in
Article 5(2)(b), shall be regarded as complying with such
commitment,
if a number of inspections on Priority I ships
carried out by that Member State corresponds at least to such
inspection share and if that Member State does not miss more
than 30 % of the total number of Priority I ships calling at its
ports.

A Member State, in which the total number of calls of
3.
Priority I and Priority II ships is less than the inspection share
referred to in Article 5(2)(b), shall be regarded as complying
with such commitment,
if that Member State carries out the
inspections of Priority I ships required under Article 5(2)(a) and
inspections on at least 85 % of the total number of Priority II
ships calling at its ports.

Article 7

Cases in which certain ships are not inspected

(b) the ship call takes place only during night time. In this case
Member States shall take the measures necessary to ensure
that
time are
ships which call
inspected as appropriate.

regularly during night

If an inspection is not performed on a ship at anchor, it

3.
shall not be counted as a missed inspection if:

(a) the ship is inspected in another port within the Community
or the Paris MOU region in accordance with Annex I within
15 days, or

(b) the ship call takes place only during night time or its dura-
tion is too short for the inspection to be carried out satisfac-
torily, and the reason for missing the inspection is recorded
in the inspection database, or

(c) in the judgement of the competent authority the conduct of
the inspection would create a risk to the safety of inspectors,
the ship, its crew or to the port, or to the marine environ-
ment, and the reason for missing the inspection is recorded
in the inspection database.

4.
The measures designed to amend non-essential elements
of this Directive, by supplementing it, relating to the rules for
the implementation of this Article shall be adopted in accord-
ance with the regulatory procedure with scrutiny referred to in
Article 30(3).

A Member State may decide to postpone the inspection of

1.
a Priority I ship in the following circumstances:

Article 8

(a) if the inspection may be carried out at the next call of the
ship in the same Member State, provided that the ship does
not call at any other port in the Community or the Paris
MOU region in between and the postponement is not more
than 15 days, or

(b) if the inspection may be carried out in another port of call
within the Community or the Paris MOU region within
15 days, provided the State in which such port of call is
located has agreed in advance to perform the inspection.

If an inspection is postponed in accordance with point (a) or (b)
and recorded in the inspection database, a missed inspection
shall not be counted as a missed inspection against the Member
State which postponed the inspection.

Notification of arrival of ships

1.
The operator, agent or master of a ship which, in accord-
ance with Article 13, is eligible for an expanded inspection and
bound for a port of a Member State, shall notify its arrival in
accordance with the provisions laid down in Annex III.

On receipt of the notification referred to in paragraph 1 of
2.
this Article and in Article 4 of Directive 2002/59/EC of the
European Parliament and of the Council of 27 June 2002 estab-
lishing a Community vessel traffic monitoring and information
system (1), the port authority or body or the authority or body
designated for that purpose shall forward such information to
the competent authority.

Electronic means shall be used whenever possible for any

3.
communication provided for in this Article.

2. Where an inspection is not performed on Priority I ships
it shall not be counted as a missed
for operational reasons,

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

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4.
The procedures and formats developed by Member States
for the purposes of Annex III shall comply with the relevant
provisions laid down in Directive 2002/59/EC regarding ships'
notifications.

(a) Ships shall be subject to periodic inspections at predeter-
mined intervals depending on their risk profile in accord-
ance with Annex I part I. The interval between periodic
inspections of ships shall increase as the risk decreases.

Article 9

Ship risk profile

1.
All ships in the inspection data base shall be attributed a
ship risk profile which determines their respective priority for
inspection, the intervals between the inspections and the scope
of inspections.

(b) Ships shall be subject to additional inspections regardless of
the period since their last periodic inspection as follows:

— The competent authority shall ensure that ships to
which overriding factors listed in Annex I part II 2A
apply are inspected.

— Ships to which unexpected factors listed in Annex I
II 2B apply may be inspected. The decision to
inspection is left to the

part
undertake such an additional
professional judgement of the competent authority.

The risk profile of a ship shall be determined by a combi-

2.
nation of generic and historical risk parameters as follows:

Article 11

(a) Generic parameters

Generic parameters are based on the type, age, flag, involved
recognised organisations and company performance in
accordance with Annex I part I.1 and Annex II.

(b) Historical parameters

Historical parameters are based on the number of deficien-
cies and detentions during a given period in accordance
with Annex I part I.2 and Annex II.

3.
The measures designed to amend non-essential elements
of this Directive, by supplementing it, relating to the rules for
the implementation of this Article, in particular:

(a) the flag State criteria,

(b) the company performance criteria

shall be adopted in accordance with the regulatory procedure
with scrutiny referred to in Article 30(3) and building upon the
expertise of the Paris MOU.

Notwithstanding point (a) above, the submission of a Flag State
Performance Self-Assessment Form (SAF) shall be used at least
until 1 January 2011 as an alternative criterion to the Voluntary
IMO Member States Audit Scheme.

Six months before 1 January 2011 the Commission shall
examine the progress made in IMO on the implementation of
the audit scheme and propose the appropriate measures for the
implementation of this criterion, including an extension of the
period for the submission of the IMO-SAF if necessary.

Article 10

Frequency of inspections

Ships calling at ports within the Community shall be subject to
periodic inspections or to additional inspections as follows:

Selection of ships for inspection

The competent authority shall ensure that ships are selected for
inspection on the basis of their risk profile as described in
Annex I part I and when overriding or unexpected factors arise
in accordance with Annex I part II 2A and 2B.

With a view to the inspection of ships, the competent authority:

(a) shall select ships which are due for a mandatory inspection,
referred to as ‘Priority I’ ships, in accordance with the selec-
tion scheme described in Annex I part II 3A;

(b) may select ships which are eligible for inspection, referred to
as ‘Priority II’ ships, in accordance with Annex I part II 3B.

Article 12

Initial and more detailed inspections

Member States shall ensure that ships which are selected for
inspection in accordance with Article 11 are subject to an initial
inspection or a more detailed inspection as follows:

1. On each initial inspection of a ship, the competent authority

shall ensure that the inspector, as a minimum:

(a) checks the certificates and documents listed in Annex IV
required to be kept on board in accordance with Com-
munity maritime legislation and Conventions relating to
safety and security;

(b) verifies, where appropriate, whether outstanding deficien-
cies found during the previous inspection carried out by
a Member State or by a State signatory to the Paris MOU
have been rectified;

(c) satisfies himself of

the ship,
including the hygiene of the ship, including engine room
and accommodation.

the overall condition of

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2. When, after an inspection referred to in paragraph 1, defi-
ciencies to be rectified at the next port of call have been
recorded in the inspection database, the competent authority
of such next port may decide not to carry out the verifica-
tions referred to in paragraph 1(a) and (c).

3. A more detailed inspection shall be carried out,

including
further checking of compliance with on-board operational
requirements, whenever there are clear grounds for believing,
after the inspection referred to in paragraph 1, that the
condition of a ship or of its equipment or crew does not
substantially meet the relevant requirements of a Conven-
tion.

‘Clear grounds’ shall exist when the inspector finds evidence
which in his professional
judgement warrants a more
detailed inspection of the ship, its equipment or its crew.

Examples of ‘clear grounds’ are set out in Annex V.

Article 13

Expanded inspections

The following categories of

1.
ships are eligible to an
expanded inspection in accordance with Annex I part II 3A
and 3B:

— Ships with a high-risk profile,

— Passenger ships, oil tankers, gas or chemical tankers or bulk

carriers, older than 12 years of age,

— Ships with a high-risk profile or passenger ships, oil tankers,
gas or chemical tankers or bulk carriers, older than 12 years
of age, in cases of overriding or unexpected factors,

— Ships subject to a re-inspection following a refusal of access

order issued in accordance with Article 15.

2.
On receipt of a pre-notification provided by a ship eligible
for a periodic expanded inspection, the competent authority
shall inform the ship if no expanded inspection will be carried
out.

The operator or master of the ship shall ensure that sufficient
time is available in the operating schedule to allow the expanded
inspection to be carried out.

Without prejudice to control measures required for security
purposes the ship shall remain in the port until the inspection
is completed.

3.
The scope of an expanded inspection, including the risk
areas to be covered, is set out in Annex VII. The Commission
shall,
referred to in
Article 30(2), adopt measures
the implementation of
Annex VII.

in accordance with the procedures

for

Article 14

Safety and security guidelines and procedures

1. Member States shall ensure that their inspectors follow the
procedures and guidelines specified in Annex VI.

2.
As far as security checks are concerned, Member States
shall apply the relevant procedures set out in Annex VI of this
Directive to all ships referred to in Articles 3(1), 3(2) and 3(3)
of Regulation (EC) No 725/2004, calling at their ports, unless
they fly the flag of the port State of inspection.

3.
The provisions of Article 13 of this Directive concerning
expanded inspections shall apply to ro-ro ferries and high-speed
passenger craft, referred to in Article 2(a) and (b) of Directive
1999/35/EC.

When a ship has been surveyed in accordance with Articles 6
and 8 of Directive 1999/35/EC by a host State which is not the
flag State of the ship, such specific survey shall be recorded as a
more detailed or an expanded inspection, as relevant,
in the
inspection database and taken into account for the purposes of
Articles 9, 10 and 11 of this Directive and for calculating the
fulfilment of the inspection commitment of each Member State
in as much as all the items referred to in Annex VII are covered.

Without prejudice to a prevention of operation of a ro-ro ferry
or a high-speed passenger craft decided in accordance with
Article 10 of Directive 1999/35/EC, the provisions of this Direc-
tive concerning rectification of deficiencies, detention, refusal of
access,
follow-up to inspections, detentions and refusal of
access, as appropriate, shall apply.

4.
If necessary, the Commission may, in accordance with the
procedure referred to in Article 30(2), adopt the rules for the
this
harmonised implementation of paragraph 1 and 2 of
Article.

Article 15

Access refusal measures concerning certain ships

1.

A Member State shall ensure that any ship which

— flies the flag of a State whose detention rate falls into the
black list, adopted in accordance with the Paris MOU on the
basis of information recorded in the inspection database and
as published annually by the Commission, and has been
detained more than twice in the course of the preceding
36 months in a port of a Member State or of a State signa-
tory of the Paris MOU; or

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— flies the flag of a State whose detention rate falls into the
grey list, adopted in accordance with the Paris MOU on
basis of information recorded in the inspection database and
as published annually by the Commission, and has been
detained more than twice in the course of the preceding
24 months in a port of a Member State or of a State signa-
tory of the Paris MOU; or

— has been issued with a prevention of operation order under
Directive 1999/35/EC more than twice in the course of the
preceding 36 months in a port of a Member State or of a
State signatory of the Paris MOU,

is refused access to its ports, except in the situations described
in Article 20(6).

Article 16

Report of inspection to the master

On completion of an inspection, a more detailed inspection or
an expanded inspection, the inspector shall draw up a report in
accordance with Annex IX. The ship's master shall be provided
with a copy of the inspection report.

Article 17

Complaints

Refusal of access shall become applicable as soon as the ship
leaves the port where it has been the subject of a third detention
and where a refusal of access order has been issued.

All complaints shall be subject to an initial assessment.

2.
The refusal of access order shall be lifted only after a
period of three months has passed from the date of issue of the
order and when the conditions in paragraphs 3 to 9 of
Annex VIII are met.

If the ship is subject to a second refusal of access, the period
shall be 12 months.

3.
Any subsequent detention in a port within the Com-
munity shall result in the ship being indefinitely refused access
in any port within the Community. The indefinite refusal of
access order may be lifted after a period of 36 months has
passed from the issue of the order and only if:

— the ship flies the flag of a State whose detention rate falls
neither into the black list nor the grey list referred to in
paragraph 1,

— the statutory and classification certificates of the ship are
issued by a organisation or organisations recognised under
Council Directive 94/57/EC of 22 November 1994 on
common rules and standards for ship inspection and survey
organisations and for the relevant activities of maritime
administrations (1),

— the ship is managed by a company with a high performance

according to Annex I part I.1, and

— the conditions in paragraphs 3 to 9 of Annex VIII are met.

Where the competent authority deems the complaint to be
manifestly unfounded,
inform the complainant of its
decision and of the reasons therefor.

it shall

The identity of the complainant shall not be revealed to the
master or the shipowner of the ship concerned. The inspector
shall ensure confidentiality during any interviews of crew
members.

Member States shall inform the flag State administration, with a
copy to the
if
appropriate, of complaints not manifestly unfounded and of
follow-up actions taken.

International Labour Organisation (ILO)

Article 18

Rectification and detention

1.
The competent authority shall be satisfied that any defi-
ciencies confirmed or revealed by the inspection are, or will be,
rectified in accordance with the Conventions.

2.
In the case of deficiencies which are clearly hazardous to
safety, health or the environment, the competent authority of
the port State where the ship is being inspected shall ensure
that the ship is detained or that the operation in the course of
which the deficiencies are revealed is stopped. The detention
order or stoppage of an operation shall not be lifted until the
hazard is removed or until such authority establishes that the
ship can, subject to any necessary conditions, proceed to sea or
the operation be resumed without risk to the safety and health
of passengers or crew, or risk to other ships, or without there
being an unreasonable threat of harm to the marine environ-
ment.

For

4.
comply with the procedures laid down in Annex VIII.

the purpose of

this Article, Member States shall

(1) OJ L 319, 12.12.1994, p. 20. Directive as last amended by Directive

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

3. When exercising his professional judgement as to whether
or not a ship is to be detained, the inspector shall apply the
criteria set out in Annex X.

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4.
If the inspection reveals that the ship is not equipped with
a functioning voyage data recorder, when use of such recorder is
compulsory in accordance with Directive 2002/59/EC,
the
competent authority shall ensure that the ship is detained.

If such deficiency cannot be readily rectified in the port of
detention, the competent authority may either allow the ship to
proceed to the appropriate repair yard nearest to the port of
detention where it may be readily rectified or require the defi-
ciency to be rectified within a maximum period of 30 days, as
provided for in the guidelines developed by the Paris MOU. For
these purposes, the procedures laid down in Article 20 shall
apply.

5.
In exceptional circumstances, where the overall condition
of a ship is obviously substandard, the competent authority may
suspend the inspection of that ship until the responsible parties
take the steps necessary to ensure that it complies with the rele-
vant requirements of the Conventions.

In the event of detention, the competent authority shall
6.
immediately inform,
in writing and including the report of
inspection, the flag State administration or, when this is not
possible, the Consul or, in his absence, the nearest diplomatic
representative of that State, of all the circumstances in which
intervention was deemed necessary.
In addition, nominated
surveyors or recognised organisations responsible for the issue
of classification certificates or statutory certificates in accordance
with Conventions shall also be notified where relevant.

7.
This Directive shall be without prejudice to the additional
requirements of the Conventions concerning notification and
reporting procedures related to port State control.

8. When port State control is exercised under this Directive,
all possible efforts shall be made to avoid a ship being unduly
detained or delayed. If a ship is unduly detained or delayed, the
owner or operator shall be entitled to compensation for any
loss or damage suffered. In any instance of alleged undue deten-
tion or delay the burden of proof shall lie with the owner or
operator of the ship.

or refusal of access by the competent authority. An appeal shall
not cause the detention or refusal of access to be suspended.

2. Member States shall establish and maintain appropriate
procedures for this purpose in accordance with their national
legislation.

The competent authority shall properly inform the master

3.
of a ship referred to in paragraph 1 of the right of appeal.

4. When, as a result of an appeal or of a request made by the
owner or the operator of a ship or his representative, a deten-
tion order or a refusal of access order is revoked or amended:

(a) Member States shall ensure that the inspection database is

amended accordingly without delay;

(b) the Member State where the detention order or refusal of
access order is issued shall, within 24 hours of such a deci-
sion, ensure that the information published in accordance
with Article 25 is rectified.

Article 20

Follow-up to inspections and detentions

1. Where deficiencies referred to in Article 18(2) cannot be
rectified in the port of inspection, the competent authority of
that Member State may allow the ship concerned to proceed to
the appropriate repair yard nearest to the port of detention
where follow-up action can be taken, as chosen by the master
and the authorities concerned, provided that
the conditions
determined by the competent authority of the flag State and
agreed by that Member State are complied with. Such conditions
shall ensure that the ship can proceed without risk to the safety
and health of passengers or crew, or risk to other ships, or
without there being an unreasonable threat of harm to the
marine environment.

In order

to alleviate port

9.
congestion, a competent
authority may allow a detained ship to be moved to another
part of the port if it is safe to do so. However, the risk of port
congestion shall not be a consideration when deciding on a
detention or on a release from detention.

Port authorities or bodies shall cooperate with the competent
authority with a view to facilitating the accommodation of
detained ships.

2. Where the decision to send a ship to a repair yard is due
to a lack of compliance with IMO Resolution A.744(18), either
with respect to a ship's documentation or with respect to a
ship's
competent
authority may require that the necessary thickness measure-
ments be carried out in the port of detention before the ship is
allowed to sail.

and deficiencies,

structural

failures

the

Article 19

Right of appeal

3.
the
In the circumstances referred to in paragraph 1,
competent authority of the Member State in the port of inspec-
tion shall notify the competent authority of the State where the
repair yard is situated, the parties mentioned in Article 18(6)
and any other authority as appropriate of all the conditions for
the voyage.

1.
The owner or operator of a ship or his representative in
the Member State shall have a right of appeal against detention

The competent authority of a Member State receiving such noti-
fication shall inform the notifying authority of the action taken.

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4. Member States shall take measures to ensure that access to
any port within the Community is refused to ships referred to
in paragraph 1 which proceed to sea:

which issue statutory and classification certificates or which
carry out the surveys necessary for the issue of those certificates
to ships.

(a) without complying with the conditions determined by the
competent authority of any Member State in the port of
inspection; or

(b) which refuse to comply with the applicable requirements of
the Conventions by not calling into the indicated repair
yard.

4.
Each inspector shall carry a personal document in the
form of an identity card issued by his competent authority in
accordance with Commission Directive 96/40/EC of 25 June
1996 establishing a common model for an identity card for
inspectors carrying out port State control (1).

Such refusal shall be maintained until the owner or operator
provides evidence to the satisfaction of the competent authority
of
the Member State where the ship was found defective,
demonstrating that the ship fully complies with all applicable
requirements of the Conventions.

5. Member States shall ensure that the competence of inspec-
tors and their compliance with the minimum criteria referred to
in Annex XI are verified, before authorising them to carry out
inspections and periodically thereafter
the
training scheme referred to in paragraph 7.

in the light of

5.
In the circumstances referred to in paragraph 4(a), the
competent authority of the Member State where the ship was
found defective shall immediately alert the competent authori-
ties of all the other Member States.

6. Member States shall ensure that inspectors receive appro-
priate training in relation to changes to the port State control
regime as laid down in this Directive and amendments to the
Conventions.

In the circumstances referred to in paragraph 4(b), the compe-
tent authority of the Member State in which the repair yard lies
shall immediately alert the competent authorities of all the other
Member States.

7.
In cooperation with Member States, the Commission shall
develop and promote a harmonised Community scheme for the
training and assessment of competences of port State control
inspectors by Member States.

Before denying entry, the Member State may request consulta-
tions with the flag administration of the ship concerned.

6.
By way of derogation from paragraph 4, access to a
specific port may be permitted by the relevant authority of that
port State in the event of force majeure or overriding safety
considerations, or to reduce or minimise the risk of pollution or
to have deficiencies rectified, provided that adequate measures
to the satisfaction of the competent authority of such Member
State are implemented by the owner, the operator or the master
of the ship to ensure safe entry.

Article 21

Professional profile of inspectors

1.
Inspections shall be carried out only by inspectors who
fulfil the qualification criteria specified in Annex XI and who are
authorised to carry out port State control by the competent
authority.

2. When the required professional expertise cannot be
provided by the competent authority of
the port State, the
inspector of that competent authority may be assisted by any
person with the required expertise.

3.
The competent authority, the inspectors carrying out port
State control and the persons assisting them shall have no
commercial interest either in the port of inspection or in the
ships inspected, nor shall the inspectors be employed by, or
undertake work on behalf of, non-governmental organisations

Article 22

Reports from pilots and port authorities

1. Member States shall take appropriate measures to ensure
that their pilots engaged on the berthing or unberthing of ships
or engaged on ships bound for a port or in transit within a
Member State immediately inform the competent authority of
the port State or the coastal State, as appropriate, whenever
they learn in the course of their normal duties that there are
apparent anomalies which may prejudice the safe navigation of
the ship, or which may pose a threat of harm to the marine
environment.

2.
If port authorities or bodies, in the course of their normal
duties, learn that a ship within their port has apparent anoma-
lies which may prejudice the safety of the ship or poses an
unreasonable threat of harm to the marine environment, such
authority or body shall
immediately inform the competent
authority of the port State concerned.

3. Member States shall require pilots and port authorities or
bodies to report at least the following information, in electronic
format whenever possible:

— ship information (name,

IMO identification number, Call

Sign and flag),

(1) OJ L 196, 7.8.1996, p. 8.

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— sailing information (last port of call, port of destination),

Article 24

— description of apparent anomalies found on board.

Exchange of information and cooperation

4. Member States shall ensure that proper follow-up action is
taken on apparent anomalies notified by pilots and port autho-
rities or bodies and shall record the details of action taken.

5.
The Commission may, in accordance with the regulatory
procedure referred to in Article 30(2), adopt measures for the
including a harmonised elec-
implementation of this Article,
tronic format and procedures for the reporting of apparent
anomalies by pilots and port authorities or bodies and of
follow-up action taken by Member States.

Article 23

Inspection database

1.
The Commission shall develop, maintain and update the
inspection database, building upon the expertise and experience
of the Paris MOU.

The inspection database shall contain all
the information
required for the implementation of the inspection system set up
under this Directive and shall include the functionalities set out
in Annex XII.

Each Member State shall ensure that its port authorities or
bodies and other relevant authorities or bodies provide the
competent port State control authority with the following types
of information in their possession:

— information notified in accordance with Article 8 and

Annex III,

and to Directive 2000/59/EC of

— information concerning ships which have failed to notify
any information according to the requirements of this Direc-
tive,
the European
Parliament and of the Council of 27 November 2000 on
port reception facilities for ship-generated waste and cargo
residues (1) and Directive 2002/59/EC, as well as, if appro-
priate, with Regulation (EC) No 725/2004,

— information concerning ships which have proceeded to sea
without having complied with Article 7 or 10 of Directive
2000/59/EC,

— information concerning ships which have been denied entry

or expelled from port on security grounds,

— information on apparent anomalies in accordance with

Article 22.

Article 25

Publication of information

2. Member States shall ensure that the information related to
inspections performed in accordance with this Directive is trans-
ferred to the inspection database as soon as the inspection
report is completed or the detention lifted.

The Commission shall make available and maintain on a public
website the information on inspections, detentions and refusals
of access in accordance with Annex XIII, building upon the
expertise and experience of the Paris MOU.

Within 72 hours, Member States shall ensure that the informa-
tion transferred to the inspection database is validated for publi-
cation purposes.

Article 26

3.
On the basis of the inspection data provided by Member
States, the Commission shall be able to retrieve from the inspec-
tion database any relevant data concerning the implementation
of this Directive, in particular on the risk profile of the ship, on
ships' due for inspections, on ships' movement data and on the
inspection commitments of each Member State.

Member States shall have access to all the information recorded
in the inspection database which is relevant for implementing
the inspection procedures of this Directive.

Member States and third States Parties to the Paris MOU shall
be granted access to any data they have recorded in the inspec-
tion database and to data on ships flying their flag.

Publication of a list of companies with a low and very low
performance

The Commission shall establish and publish regularly on a
public website information relating to companies whose perfor-
mance, in view of determining the ship-risk profile referred to
in Annex I part I, has been considered as low and very low for
a period of three months or more.

The Commission shall adopt, in accordance with the regulatory
procedure referred to in Article 30(2), the rules for the imple-
mentation of this Article, specifying in particular the modalities
of the publication.

(1) OJ L 332, 28.12.2000, p. 81. Directive as last amended by Commission

Directive 2007/71/EC (OJ L 329, 14.12.2007, p. 33).

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Article 27

Reimbursement of costs

1.
Should the inspections referred to in Articles 12 and 13
confirm or reveal deficiencies in relation to the requirements of
a Convention warranting the detention of a ship, all costs
relating to the inspections in any normal accounting period
shall be covered by the shipowner or the operator or by his
representative in the port State.

All costs relating to inspections carried out by the compe-
2.
tent authority of a Member State under the provisions of Arti-
cles 15 and 20(4) shall be charged to the owner or operator of
the ship.

3.
In the case of detention of a ship, all costs relating to the
detention in port shall be borne by the owner or operator of
the ship.

The detention shall not be lifted until full payment is
4.
made or a sufficient guarantee is given for reimbursement of the
costs.

Article 28

Data to monitor implementation

Member States shall provide the Commission with the informa-
tion listed in Annex XIV at the intervals stated in that Annex.

Article 29

Monitoring of compliance and performance of Member
States

In order to ensure the effective implementation of this Directive
and to monitor the overall functioning of the Community's port
State control regime in accordance with Article 2(b)(i) of Regu-
lation (EC) No 1406/2002, the Commission shall collect the
necessary information and carry out visits to Member States.

Article 30

Committee procedure

1.
The Commission shall be assisted by the Committee on
Safe Seas and the Prevention of Pollution from Ships (COSS)
created by Article 3 of Regulation (EC) No 2099/2002 of the
European Parliament and of
the Council of 5 November
2002 (1).

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.

(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).

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at three 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 31

Amendment procedure

The Commission shall:

(a) adapt the Annexes, except Annex I, in order to take into
account amendments to Community legislation on maritime
safety and security which have entered into force, and the
Conventions, international codes and resolutions of relevant
international organisations and developments in the Paris
MOU;

(b) amend the definitions referring to Conventions,

interna-
tional codes and resolutions and Community legislation
which are relevant for the purposes of this Directive.

Those measures, designed to amend non-essential elements of
this Directive, shall be adopted in accordance with the regula-
tory procedure with scrutiny referred to in Article 30(3).

The amendments to the international instruments referred to in
Article 2 may be excluded from the scope of this Directive,
pursuant to Article 5 of Regulation (EC) No 2099/2002.

Article 32

Implementing rules

When establishing the implementing rules referred to in Arti-
cles 7(4), 9(3), 13(3), 14(4), 22(5) and 26 in accordance with
the procedures referred to in Article 30(2) and (3), the Commis-
sion shall take specific care that these rules take into account
the expertise and the experience gained with the inspection
system in the Community and the Paris MOU.

Article 33

Penalties

Member States shall
lay down a system of penalties for the
breach of national provisions adopted pursuant to this Directive
and shall take all the measures necessary to ensure that those
penalties are applied. The penalties provided for shall be effec-
tive, proportionate and dissuasive.

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Article 34

Review

In addition, the Commission shall

4.
inform the European
Parliament and the Council on a regular basis of progress in the
implementation of this Directive within the Member States.

The Commission shall review the implementation of this Direc-
tive no later than 18 months from … (*). The review will
examine,
inter alia, the fulfilment of the overall Community
inspection commitment laid down in Article 5, the number of
port State control inspectors in each Member State, the number
of inspections carried out, and the compliance with the annual
inspection commitment by each Member State and the imple-
mentation of Articles 6 and 7.

The Commission shall communicate the findings of the review
to the European Parliament and the Council and shall determine
on the basis of the review whether it is necessary to propose an
amending Directive or further legislation in this area.

Article 35

Implementation and notification

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

2. When Member States adopt those measures, they shall
contain a reference to this Directive or be accompanied by such
a reference on the occasion of their official publication. They
shall also include a statement that references in existing laws,
to the Directive
regulations and administrative provisions
repealed by this Directive shall be construed as references to this
Directive. Member States shall determine how such reference is
to be made and how that statement is to be formulated.

3. Member States shall communicate to the Commission the
text of the main provisions of national law adopted in the field
covered by this Directive.

Article 36

Repeal

Directive 95/21/EC, as amended by the Directives listed in
Annex XV, Part A, is hereby repealed, with effect from … (***),
without prejudice to the obligations of Member States relating
to the time-limits for transposition into national
law of the
Directives set out in Annex XV, Part B.

References to the repealed Directive shall be construed as refer-
ences to this Directive and shall be read in accordance with the
correlation table set out in Annex XVI.

Article 37

Entry into force

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

into force on the twentieth day
Journal of the

Article 38

Addressees

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

(*) The date referred to in Article 35(1).
(**) 36 months after the entry into force of this Directive.

(***) Date of entry into force of this Directive.

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ANNEX I

Elements of the Community Port State Inspection Regime

(referred to in Article 5)

The following elements shall be included in the Community Port State Inspection Regime:

I. Ship risk profile

The risk profile of a ship shall be determined by a combination of the following generic and historical parameters:

1. Generic parameters

(a) Type of ship

Passenger ships, oil and chemical tankers, gas carriers and bulk carriers shall be considered as posing a higher
risk.

(b) Age of ship

Ships of more than twelve years old shall be considered as posing a higher risk.

(c) Flag State performance

(i) Ships flying the flag of a State with a high detention rate within the EU and Paris MOU region shall be

considered as posing a higher risk.

(ii) Ships flying the flag of a State with a low detention rate within the EU and Paris MOU region shall be

considered as posing a lower risk.

(iii) Ships flying the flag of a State for which an audit has been completed and, where relevant, a corrective
action plan submitted, both in accordance with the Framework and procedures for the Voluntary
IMO Member State Audit Scheme shall be considered as posing a lower risk. As soon as the measures
referred to in Article 9(3) are adopted, the flag State of such a ship shall demonstrate compliance with the
Code for the implementation of mandatory IMO instruments.

(d) Recognised organisations

(i) Ships which have been delivered certificates from recognised organisations having a low or very low perfor-
mance level in relation with their detention rates within the EU and the Paris MOU region shall be consid-
ered as posing a higher risk.

(ii) Ships which have been delivered certificates from recognised organisations having a high performance level
in relation with their detention rates within the EU and the Paris MOU region shall be considered as posing
a lower risk.

(iii) Ships with certificates issued by organisations recognised under the terms of Directive 94/57/EC shall be

considered as posing a lower risk.

(e) Company performance

(i) Ships of a company with a low or very low performance as determined by its ships' deficiency and deten-
tion rates within the European Union and the Paris MOU region shall be considered as posing a higher risk.

(ii) Ships of a company with a high performance as determined by its ships' deficiency and detention rates

within the European Union and the Paris MOU region shall be considered as posing a lower risk.

2. Historical parameters

(i) Ships which have been detained more than once shall be considered as posing a higher risk.

(ii) Ships which, during inspection(s) carried out within the period referred to in Annex II have had less than the

number of deficiencies referred to in Annex II, shall be considered as posing a lower risk.

(iii) Ships which have not been detained during the period referred to in Annex II, shall be considered as posing a

lower risk.

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The risk parameters shall be combined by using a weighting which reflects the relative influence of each parameter
on the overall risk of the ship in order to determine the following ship risk profiles:

— high risk,

— standard risk,

— low risk.

In determining these risk profiles greater emphasis shall be given to the parameters for type of ship, flag State
performance, recognised organisations and company performance.

II. Inspection of ships

1.

Periodic inspections

Periodic inspections shall be carried out at predetermined intervals. Their frequency shall be determined by the
ship risk profile. The interval between periodic inspections of high risk ships shall not exceed 6 months. The
interval between periodic inspections of ships of other risk profiles shall increase as the risk decreases.

Member States shall carry out a periodic inspection on:

— Any ship with a high risk profile which has not been inspected in a port of the European Union or of the
Paris MOU region during the last six months. High risk ships become eligible for inspection as from the
fifth month.

— Any ship with a standard risk profile which has not been inspected in a port of the European Union or of
the Paris MOU region during the last 12 months. Standard risk ships become eligible for inspection as from
the 10th month.

— Any ship with a low risk profile which has not been inspected in a port of the EU or of the Paris MOU
region during the last 36 months. Low risk ships become eligible for inspection as from the 24th month.

2.

Additional inspections

Ships, to which the following overriding or unexpected factors apply, are subject to an inspection regardless of
the period since their last periodic inspection. However, the need to undertake an additional inspection on the
basis of unexpected factors is left to the professional judgement of the inspector.

2A. Overriding factors

Ships to which the following overriding factors apply shall be inspected regardless of the period since their last
periodic inspection:

— Ships which have been suspended or withdrawn from their class for safety reasons since the last inspection

in the European Union or in the Paris MOU region.

— Ships which have been the subject of a report or notification by another Member State.

— Ships which cannot be identified in the inspection database.

— Ships which:

— have been involved in a collision, grounding or stranding on their way to the port,

— have been accused of an alleged violation of the provisions on discharge of harmful substances or efflu-

ents, or

— have manoeuvred in an erratic or unsafe manner whereby routing measures, adopted by the IMO, or

safe navigation practices and procedures have not been followed.

2B. Unexpected factors

Ships to which the following unexpected factors apply may be subject to inspection regardless of the period
since their last periodic inspection. The decision to undertake such an additional inspection is left to the profes-
sional judgement of the competent authority.

— Ships which have:

— been operated in such a manner as to pose a danger to persons, property or the environment, or

— not complied with the recommendation on navigation through the entrances to the Baltic Sea as given

in the Annexes to Resolution MSC.138(76) of the IMO.

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— Ships carrying certificates issued by a formerly recognised organisation whose recognition has been with-

drawn since the last inspection in the European Union or in the Paris MOU region.

— Ships which have been reported by pilots or port authorities or bodies as having apparent anomalies which
may prejudice their safe navigation or pose a threat of harm to the environment in accordance with
Article 22 of this Directive.

— Ships which have failed to comply with the relevant notification requirements referred to in Article 8 of
in Directive 2000/59/EC, Directive 2002/59/EC and if appropriate in Regulation (EC)

this Directive,
No 725/2004.

— Ships which have been the subject of a report or complaint by the master, a crew member, or any person or
organisation with a legitimate interest in the safe operation of the ship, on-board living and working condi-
tions or the prevention of pollution, unless the Member State concerned deems the report or complaint to
be manifestly unfounded.

— Ships which have been previously detained more than three months ago.

— Ships which have been reported with outstanding deficiencies, except those for which deficiencies had to be
rectified within 14 days after departure, and for deficiencies which had to be rectified before departure.

— Ships which have been reported with problems concerning their cargo, in particular noxious and dangerous

cargoes.

— Ships which have been operated in a manner posing a danger to persons, property or the environment.

— Ships where information from a reliable source became known, to the effect that their risk parameters differ

from those recorded and the risk level is thereby increased.

3.

Selection scheme

3A. Priority I ships shall be inspected as follows:

(a) An expanded inspection shall be carried out on:

— any ship with a high risk profile not inspected in the last six months,

— any passenger ship, oil tanker, gas or chemical tanker or bulk carrier, older than 12 years of age, with a

standard risk profile not inspected in the last 12 months.

(b) An initial or a more detailed inspection, as appropriate, shall be carried out on:

— any ship other than a passenger ship, an oil tanker, a gas or chemical tanker or a bulk carrier, older than

12 years of age, with a standard risk profile not inspected in the last 12 months.

(c) In case of an overriding factor:

— a more detailed or an expanded inspection, according to the professional judgement of the inspector, shall
be carried out on any ship with a high risk profile and on any passenger ship, oil tanker, gas or chemical
tanker or bulk carrier, older than 12 years of age,

— a more detailed inspection shall be carried out on any ship other than a passenger ship, an oil tanker, a

gas or chemical tanker or a bulk carrier, older than 12 years of age.

3B. Priority II ships may be inspected as follows:

(a) An expanded inspection may be carried out on:

— any ship with a high risk profile not inspected in the last five months,

— any passenger ship, oil tanker, gas or chemical tanker or bulk carrier, older than 12 years of age, with a

standard risk profile not inspected in the last 10 months, or

— any passenger ship, oil tanker, gas or chemical tanker or bulk carrier, older than 12 years of age, with a

low risk profile not inspected in the last 24 months.

(b) An initial or a more detailed inspection, as appropriate, may be carried out on:

— any ship other than a passenger ship, an oil tanker, a gas or chemical tanker or a bulk carrier, older than

12 years of age, with a standard risk profile not inspected in the last 10 months, or

— any ship other than a passenger ship, an oil tanker, a gas or chemical tanker or a bulk carrier, older than

12 years of age, with a low risk profile not inspected in the last 24 months.

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(c) In case of an unexpected factor:

— a more detailed or an expanded inspection according to the professional judgement of the inspector, may
be carried out on any ship with a high risk profile or any passenger ship, oil tanker, gas or chemical
tanker or bulk carrier, older than 12 years of age,

— a more detailed inspection may be carried out on any ship other than a passenger ship, an oil tanker, a

gas or chemical tanker or a bulk carrier, older than 12 years of age.

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ANNEX II

Design of ship risk profile

(referred to in Article 9(2))

Profile

High Risk Ship (HRS)

Standard Risk
Ship (SRS)

Low Risk Ship
(LRS)

Generic Parameters

Criteria

Weighting points

Criteria

Chemical tank-
ship
Gas Carrier
Oil tankship
Bulk carrier
Passenger ship

All types > 12 y

Black — VHR,
HR,
M to HR

Black — MR

—

—

—

Low

Very Low

—

—

—

Low

Very low

Not eligible

2

1

2

1

—

—

—

1

—

—

—

2

—

i

p
h
s

k
s
i
r

w
o

l

a

r
o
n

k
s
i
r

h
g
i
h

a

r
e
h
t
i
e
n

Criteria

All types

All ages

White

Yes

High

—

—

—

Yes

High

—

—

—

≤ 5 (and at least
one inspection
carried out in
previous
36 months)

1

Type of ship

2

3a

3b

4a

4b

5

6

7

Age of ship

BGW-list

g
a
l
F

n
o
i
t
a
s
i
n
a
g
r
O
d
e
s
i
n
g
o
c
e
R

y
n
a
p
m
o
C

IMO-Audit

H

M

L

VL

EU recognised

H

M

L

VL

e
c
n
a
m
r
o
f
r
e
P

e
c
n
a
m
r
o
f
r
e
P

Historical parameters

Number of
def.
recorded in
each insp.
within
previous
36 months

Number of
Detention
within
previous
36 months

s
e
i
c
n
e
i
c
i
f
e
D

s
n
o
i
t
n
e
t
e
D

≥ 2 detentions

1

No detention

HRS are ships which meet criteria to a total value of 5 or more weighting points.
LRS are ships which meet all the criteria of the Low Risk Parameters.
SRS are ships which are neither HRS nor LRS.

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ANNEX III

Notification

(referred in Article 8(1))

Information to be provided in accordance with Article 8(1):

The information listed below shall be submitted to the port authority or body or to the authority or body designated for
that purpose at least three days before the expected time of arrival in the port or before leaving the previous port if the
voyage is expected to take fewer than three days:

(a) ship identification (name, call sign, IMO identification number or MMSI number);

(b) planned duration of the call;

(c) for tankers:

(i) configuration: single hull, single hull with SBT, double hull;

(ii) condition of the cargo and ballast tanks: full, empty, inerted;

(iii) volume and nature of the cargo;

(d) planned operations at the port of destination (loading, unloading, other);

(e) planned statutory survey inspections and substantial maintenance and repair work to be carried out whilst in the port

of destination;

(f) date of last expanded inspection in the Paris MOU.

ANNEX IV

List of certificates and documents

(referred to in Article 12(1))

1. International Tonnage Certificate (1969).

2. — Passenger Ship Safety Certificate,

— Cargo Ship Safety Construction Certificate,

— Cargo Ship Safety Equipment Certificate,

— Cargo Ship Safety Radio Certificate,

— Exemption certificate, including, where appropriate, the list of cargoes,

— Cargo Ship Safety Certificate.

3. International Ship Security Certificate (ISSC).

4. Continuous Synopsis Record.

5. International Certificate of Fitness for Carriage of Liquefied Gases in Bulk;

— Certificate of Fitness for the Carriage of Liquefied Gases in Bulk.

6. International Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk;

— Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk.

7. International Oil Pollution Prevention Certificate.

8. International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk.

9. International Load Line Certificate (1966);

— International Load Line Exemption Certificate.

10. Oil record book, parts I and II.

11. Cargo record book.

12. Minimum Safe Manning Document.

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13. Certificates or any other documents required in accordance with the provisions of the STCW Convention.

14. Medical certificates, (see ILO Convention No 73 concerning Medical Examination of Seafarers).

15. Table of shipboard working arrangements (ILO Convention No 180 and STCW 95).

16. Records of hours of work and rest of seafarers (ILO Convention No 180).

17. Stability information.

18. Copy of the Document of Compliance and the Safety Management Certificate issued, in accordance with the Interna-
tional Management Code for the Safe Operation of Ships and for Pollution Prevention (SOLAS 74, Chapter IX).

19. Certificates as to the ship's hull strength and machinery installations issued by the recognised organisation in ques-

tion (only to be required if the ship maintains its class with a recognised organisation).

20. Document of compliance with the special requirements for ships carrying dangerous goods.

21. High speed craft safety certificate and permit to operate high speed craft.

22. Dangerous goods special list or manifest, or detailed stowage plan.

23. Ship's log book with respect to the records of tests and drills, including security drills, and the log for records of
inspection and maintenance of lifesaving appliances and arrangements and of fire fighting appliances and arrange-
ments.

24. Special purpose ship safety certificate.

25. Mobile offshore drilling unit safety certificate.

26. For oil tankers, the record of oil discharge monitoring and control system for the last ballast voyage.

27. The muster list, fire control plan, and for passenger ships, a damage control plan.

28. Shipboard oil pollution emergency plan.

29. Survey report files (in case of bulk carriers and oil tankers).

30. Reports of previous port State control inspections.

31. For ro-ro passenger ships, information on the A/A-maximum ratio.

32. Document of authorisation for the carriage of grain.

33. Cargo securing manual.

34. Garbage management plan and garbage record book.

35. Decision support system for masters of passenger ships.

36. SAR cooperation plan for passenger ships trading on fixed routes.

37. List of operational limitations for passenger ships.

38. Bulk carrier booklet.

39. Loading and unloading plan for bulk carriers.

40. Certificate of insurance or any other financial security in respect of civil liability for oil pollution damage (Interna-

tional Convention on Civil Liability for Oil Pollution Damage, 1992).

[41. Certificates required under Directive 2008/…/EC of the European Parliament and of the Council of … concerning

civil liability and financial guarantees of shipowners.

42. Certificate required under Regulation (EC) No …/2008 on the liability of carriers of passengers by sea and inland

waterways in the event of accidents (1).]

43. International Air Pollution Prevention Certificate.

44. International Sewage Pollution Prevention Certificate.

(1) Inclusion of items 41 and 42 pending the adoption of respective legislation contained in the Third Maritime Package.

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ANNEX V

Examples of ‘clear grounds’

(referred to in Article 12(3))

A. Examples of clear grounds for a more detailed inspection

1. Ships identified in Annex I part II 2A and 2B.

2. The oil record book has not been properly kept.

3. During examination of the certificates and other documentation, inaccuracies have been revealed.

4. Indications that the crew members are unable to comply with the requirements related to on-board communica-
tion set out in Article 17 of Directive 2001/25/EC of the European Parliament and of the Council of 4 April
2001 on the minimum level of training of seafarers (1).

5. A certificate has been fraudulently obtained or the holder of a certificate is not the person to whom that certificate

was originally issued.

6. The ship has a master, officer or rating holding a certificate issued by a country which has not ratified the STCW

Convention.

7. Evidence of cargo and other operations not being conducted safely, or in accordance with IMO guidelines, e.g. the

content of oxygen in the inert-gas main supply to the cargo tanks is above the prescribed maximum level.

8. Failure of the master on an oil tanker to produce the record of the oil discharge monitoring and control system

for the last ballast voyage.

9. Absence of an up-to-date muster list, or crew members not aware of their duties in the event of fire or an order

to abandon the ship.

10. The emission of false distress alerts not followed by proper cancellation procedures.

11. The absence of principal equipment or arrangements required by the Conventions.

12. Excessively unsanitary conditions on board the ship.

13. Evidence from the inspector's general impression and observations that serious hull or structural deterioration or

deficiencies exist that may place at risk the structural, watertight or weathertight integrity of the ship.

14. Information or evidence that the master or crew is not familiar with essential shipboard operations relating to the

safety of ships or the prevention of pollution, or that such operations have not been carried out.

15. The absence of a table of shipboard working arrangements or of records of hours of work or rest of seafarers.

B. Examples of clear grounds for the control of ships on security aspects

1. The inspector may establish clear grounds for further control measures on security during the initial PSC inspection

as follows:

1.1. ISSC is not valid or it has expired.

1.2. The ship is at a lower security level than the port.

1.3. Drills related to the security of the ship have not been carried out.

1.4. Records for the last 10 ship/port or ship/ship interfaces are incomplete.

1.5. Evidence or observation that key members of ship's personnel cannot communicate with each other.

1.6. Evidence from observations that serious deficiencies exist in security arrangements.

1.7. Information from third parties such as a report or a complaint concerning security-related information.

1.8. The ship holds a subsequent, consecutively issued Interim International Ship Security Certificate (ISSC) and in
the professional judgement of the inspector one of the purposes of the ship or company in requesting such a
certificate is to avoid full compliance with SOLAS 74 Chapter XI-2 and part A of the ISPS Code, beyond the
period of the initial Interim Certificate. ISPS Code Part A specify the circumstances when an Interim Certificate
may be issued.

(1) OJ L 136, 18.5.2001, p. 17. Directive as last amended by Directive 2005/45/EC (OJ L 255, 30.9.2005, p. 160).

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2. If clear grounds as described above are established, the inspector shall immediately inform the competent security
authority (unless the inspector is also a Officer Duly Authorised for Security). The competent security authority
shall then decide on what further control measures are necessary taking into account the security level in accord-
ance with Regulation 9 of SOLAS 74, Chapter XI.

3. Clear grounds other than those above are a matter for the Officer Duly Authorised for Security.

ANNEX VI

Procedures for the control of ships

(referred to in Article 14(1))

Annex I, ‘Port State Control Procedures’, to the Paris MOU and the following instructions from the Paris MOU, in their
up-to-date version:

— Instruction 33/2000/02: Operational Control on Ferries and Passenger Ships,

— Instruction 35/2002/02: Guidelines for PSCOs on Electronic Charts,

— Instruction 36/2003/08: Guidance for Inspection on Working and Living Conditions,

— Instruction 37/2004/02: Guidelines in Compliance with STCW 78/95 Convention as Amended,

— Instruction 37/2004/05: Guidelines on the Inspection of Hours of Work/Rest,

— Instruction 37/2004/10: Guidelines for Port State Control Officers on Security Aspects,

— Instruction 38/2005/02: Guidelines for PSCO's Checking a Voyage Data Recorder (VDR),

— Instruction 38/2005/05: Guidelines on MARPOL 73/78 Annex I,

— Instruction 38/2005/07: Guidelines on Control of the Condition Assessment Scheme (CAS) of Single Hull Oil

Tankers,

— Instruction 39/2006/01: Guidelines for the Port State Control Officer on the ISM-Code,

— Instruction 39/2006/02: Guidelines for Port State Control Officers on Control of GMDSS,

— Instruction 39/2006/03: Optimisation of Banning and Notification Checklist,

— Instruction 39/2006/10: Guidelines for PSCOs for the Examination of Ballast Tanks and Main Power Failure Simula-

tion (black-out test),

— Instruction 39/2006/11: Guidance for Checking the Structure of Bulk Carriers,

— Instruction 39/2006/12: Code of Good Practice for Port State Control Officers,

— Instruction 40/2007/04: Criteria for Responsibility Assessment of Recognised Organisations (R/O),

— Instruction 40/2007/09: Guidelines

for Port State Control

Inspections

for Compliance with Annex VI of

MARPOL 73/78.

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ANNEX VII

Expanded inspections of ships

(referred to in Article 13)

An expanded inspection concerns in particular the overall condition of the following risk areas:

— Documentation.

— Structural condition.

— Weathertight condition.

— Emergency systems.

— Radio communication.

— Cargo operations.

— Fire safety.

— Alarms.

— Living and working conditions.

— Navigation equipment.

— Life saving appliances.

— Dangerous Goods.

— Propulsion and auxiliary machinery.

— Pollution prevention.

In addition, subject to their practical feasibility or any constraints relating to the safety of persons, the ship or the port, an
expanded inspection shall include the verification of specific items of risk areas depending on the type of vessel inspected,
as established in accordance with Article 13(3).

ANNEX VIII

Provisions concerning refusal of access to ports within the Community

(referred to in Article 15)

1. If the conditions described in Article 15(1) are met, the competent authority of the port in which the ship is detained
for the third time shall inform the master of the ship in writing that a refusal of access order will be issued which
will become applicable immediately after the ship has left the port. The refusal of access order shall become applic-
able immediately after the ship has left the port after the deficiencies leading to the detention have been remedied.

2. The competent authority shall send a copy of the order of refusal of access to the flag State administration, the recog-
nised organisation concerned, the other Member States, and the other signatories to the MOU, the Commission and
the Paris MOU Secretariat. The competent authority shall also update the inspection database with information on
the refusal of access without delay.

3. In order to have the access refusal order lifted, the owner or the operator must address a formal request to the
competent authority of the Member State that imposed the access refusal order. This request must be accompanied
by a document from the flag State administration issued following an on-board visit by a surveyor duly authorised by
the flag State administration, showing that the ship fully conforms to the applicable provisions of the Conventions.
The flag State administration shall provide evidence to the competent authority that a visit on board has taken place.

4. The request for the lifting of the access refusal order must also be accompanied, where appropriate, by a document
from the classification society which has the ship in class following an on-board visit by a surveyor from the classifi-
cation society, showing that the ship conforms to the class standards stipulated by that society. The classification
society shall provide evidence to the competent authority that a visit on board has taken place.

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5. The access refusal order may be lifted only, after the period referred to Article 15 of this Directive has elapsed and

following a re-inspection of the ship at an agreed port.

If the agreed port is located in a Member State, the competent authority of that State may, at the request of the
competent authority which issued the access refusal order, authorise the ship to enter the agreed port in order to
carry out the re-inspection. In such cases, no cargo operations shall take place at the port until the refusal of access
order has been lifted.

6. If the detention which led to the issue of a refusal of access order included deficiencies in the ship's structure, the
competent authority which issued the refusal of access order may require that certain spaces, including cargo spaces
and tanks, are made available for examination during the re-inspection.

7. The re-inspection shall be carried out by the competent authority of the Member State that imposed the refusal of
access order, or by the competent authority of the port of destination with the agreement of the competent authority
of the Member State that imposed the refusal of access order. The competent authority may require up to 14 days
notice for the re-inspection. Evidence shall be provided to the satisfaction of this Member State that the ship fully
complies with the applicable requirements of the Conventions.

8. The re-inspection shall consist of an expanded inspection that must cover at least the relevant items of Annex VII.

9. All costs of this expanded inspection will be borne by the owner or the operator.

10. If the results of the expanded inspection satisfy the Member State in accordance with Annex VII, the access refusal

order must be lifted and the company of the ship informed thereof in writing.

11. The competent authority shall also notify its decision in writing to the flag State administration, the classification
society concerned, the other Member States, the other signatories to the Paris MOU, the Commission and the Paris
MOU Secretariat. The competent authority must also update the inspection database with information on the
removal of the access without delay.

12. Information relating to ships that have been refused access to ports within the Community must be made available in

the inspection database and published in conformity with the provisions of Article 25 and of Annex XIII.

ANNEX IX

Inspection report

(referred to in Article 16)

The inspection report must contain at least the following items.

I. General

1. Competent authority that wrote the report

2. Date and place of inspection

3. Name of the ship inspected

4. Flag

5. Type of ship (as indicated in the Safety Management Certificate)

6. IMO identification number

7. Call sign

8. Tonnage (gt)

9. Deadweight tonnage (where relevant)

10. Year of construction as determined on the basis of the date indicated in the ship's safety certificates

11. The classification society or classification societies as well as any other organisation, where relevant, which

has/have issued to this ship the classification certificates, if any

12. The recognised organisation or recognised organisations and/or any other party which has/have issued to this

ship certificates in accordance with the applicable Conventions on behalf of the flag State

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13. Name and address of the ship's company or the operator

14. Name and address of the charterer responsible for the selection of the ship and type of charter in the case of

ships carrying liquid or solid cargoes in bulk

15. Final date of writing the inspection report

16. Indication that detailed information on an inspection or a detention may be subject to publication.

II. Information relating to inspection

1. Certificates issued in application of the relevant Conventions, authority or organisation that issued the certificate(s)

in question, including the date of issue and expiry

2. Parts or elements of the ship that were inspected (in the case of more detailed or expanded inspection)

3. Port and date of the last intermediate or annual or renewal survey and the name of the organisation which carried

out the survey

4. Type of inspection (inspection, more detailed inspection, expanded inspection)

5. Nature of the deficiencies

6. Measures taken.

III. Additional information in the event of detention

1. Date of detention order

2. Date of lifting the detention order

3. Nature of the deficiencies warranting the detention order (references to Conventions, if relevant)

4. Indication, where relevant, of whether the recognised organisation or any other private body that carried out the

survey has a responsibility in relation to the deficiencies which, alone or in combination, led to detention

5. Measures taken.

ANNEX X

Criteria for detention of a ship

(referred to in Article 18(3))

INTRODUCTION

Before determining whether deficiencies found during an inspection warrant detention of the ship involved, the inspector
must apply the criteria mentioned below in points 1 and 2.

Point 3 includes examples of deficiencies that may for themselves warrant detention of
Article 18(4)).

the ship involved (see

Where the ground for detention is the result of accidental damage suffered on the ship's voyage to a port, no detention
order shall be issued, provided that:

(a) due account has been given to the requirements contained in Regulation I/11(c) of SOLAS 74 regarding notification
to the flag State administration, the nominated surveyor or the recognised organisation responsible for issuing the
relevant certificate;

(b) prior to entering a port, the master or shipowner has submitted to the port State control authority details on the
circumstances of the accident and the damage suffered and information about the required notification of the flag
State administration;

(c) appropriate remedial action, to the satisfaction of the Authority, is being taken by the ship; and

(d) the authority has ensured, having been notified of the completion of the remedial action, that deficiencies which were

clearly hazardous to safety, health or the environment have been rectified.

1.

MAIN CRITERIA

When exercising his professional judgement as to whether or not a ship should be detained the inspector must
apply the following criteria:

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Timing:

Ships which are unsafe to proceed to sea must be detained upon the first inspection irrespective of how much time
the ship will stay in port.

Criterion:

The ship is detained if its deficiencies are sufficiently serious to merit an inspector returning to satisfy himself that
they have been rectified before the ship sails.

The need for the inspector to return to the ship is a measure of the seriousness of the deficiencies. However, it does
not impose such an obligation for every case. It implies that the authority must verify one way or another, prefer-
ably by a further visit, that the deficiencies have been rectified before departure.

2.

APPLICATION OF MAIN CRITERIA

When deciding whether the deficiencies found in a ship are sufficiently serious to merit detention the inspector
must assess whether:

1. the ship has relevant, valid documentation;

2. the ship has the crew required in the Minimum Safe Manning Document.

During inspection the inspector must further assess whether the ship and/or crew is able to:

3.

4.

5.

navigate safely throughout the forthcoming voyage;

safely handle, carry and monitor the condition of the cargo throughout the forthcoming voyage;

operate the engine room safely throughout the forthcoming voyage;

6. maintain proper propulsion and steering throughout the forthcoming voyage;

7.

8.

9.

fight fires effectively in any part of the ship if necessary during the forthcoming voyage;

abandon ship speedily and safely and effect rescue if necessary during the forthcoming voyage;

prevent pollution of the environment throughout the forthcoming voyage;

10. maintain adequate stability throughout the forthcoming voyage;

11. maintain adequate watertight integrity throughout the forthcoming voyage;

12. communicate in distress situations if necessary during the forthcoming voyage;

13. provide safe and healthy conditions on board throughout the forthcoming voyage;

14. provide the maximum of information in case of accident.

If the answer to any of these assessments is negative, taking into account all deficiencies found, the ship must be
strongly considered for detention. A combination of deficiencies of a less serious nature may also warrant the deten-
tion of the ship.

3.

To assist the inspector in the use of these guidelines, there follows a list of deficiencies, grouped under relevant
Conventions and/or codes, which are considered of such a serious nature that they may warrant the detention of
the ship involved. This list is not intended to be exhaustive.

3.1. General

The lack of valid certificates and documents as required by the relevant instruments. However, ships flying the flag
of States not party to a relevant Convention or not having implemented another relevant instrument, are not
entitled to carry the certificates provided for by the Convention or other relevant instrument. Therefore, absence of
the required certificates should not by itself constitute reason to detain these ships; however, in applying the ‘no
more favourable treatment’ clause, substantial compliance with the provisions is required before the ship sails.

3.2. Areas under SOLAS 74

1.

2.

3.

4.

Failure of the proper operation of propulsion and other essential machinery, as well as electrical installations.

Insufficient cleanliness of engine room, excessive amount of oily-water mixtures in bilges, insulation of piping
including exhaust pipes in engine room contaminated by oil, improper operation of bilge pumping arrange-
ments.

Failure of the proper operation of emergency generator, lighting, batteries and switches.

Failure of the proper operation of the main and auxiliary steering gear.

5. Absence,

insufficient capacity or serious deterioration of personal

life-saving appliances, survival craft and

launching arrangements.

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6. Absence, non-compliance or substantial deterioration of fire detection system, fire alarms, firefighting equip-
ment, fixed fire-extinguishing installation, ventilation valves, fire dampers, quick-closing devices to the extent
that they cannot comply with their intended use.

7. Absence, substantial deterioration or failure of proper operation of the cargo deck area fire protection on

tankers.

8. Absence, non-compliance or serious deterioration of lights, shapes or sound signals.

9. Absence or failure of the proper operation of the radio equipment for distress and safety communication.

10. Absence or failure of the proper operation of navigation equipment, taking the provisions of SOLAS 74, Regu-

lation V/16.2 into account.

11. Absence of corrected navigational charts, and/or all other relevant nautical publications necessary for the
intended voyage, taking into account that a type approved electronic chart display and information system
(ECDIS) operating on official data may be used as a substitute for the charts.

12. Absence of non-sparking exhaust ventilation for cargo pump rooms.

13. Serious deficiency in the operational requirements, as described in Section 5.5 of Annex I to the Paris MOU.

14. Number, composition or certification of crew not corresponding with the safe manning document.

15. Failure to carry out the enhanced survey programme in accordance with SOLAS 74, Chapter XI, Regulation 2.

3.3. Areas under the IBC Code

1. Transport of a substance not mentioned in the Certificate of Fitness or missing cargo information.

2. Missing or damaged high-pressure safety devices.

3. Electrical installations not intrinsically safe or not corresponding to code requirements.

4. Sources of ignition in hazardous locations.

5. Contraventions of special requirements.

6. Exceeding of maximum allowable cargo quantity per tank.

7. Insufficient heat protection for sensitive products.

3.4. Areas under the IGC Code

1. Transport of a substance not mentioned in the Certificate of Fitness or missing cargo information.

2. Missing closing devices for accommodation or service spaces.

3. Bulkhead not gastight.

4. Defective air locks.

5. Missing or defective quick-closing valves.

6. Missing or defective safety valves.

7.

Electrical installations not intrinsically safe or not corresponding to code requirements.

8. Ventilators in cargo area not operable.

9.

Pressure alarms for cargo tanks not operable.

10. Gas detection plant and/or toxic gas detection plant defective.

11. Transport of substances to be inhibited without valid inhibitor certificate.

3.5. Areas under the Load Lines Convention

1. Significant areas of damage or corrosion, or pitting of plating and associated stiffening in decks and hull
affecting seaworthiness or strength to take local loads, unless proper temporary repairs for a voyage to a port
for permanent repairs have been carried out.

2. A recognised case of insufficient stability.

3. The absence of sufficient and reliable information, in an approved form, which by rapid and simple means,
enables the master to arrange for the loading and ballasting of his ship in such a way that a safe margin of stabi-
lity is maintained at all stages and at varying conditions of the voyage, and that the creation of any unacceptable
stresses in the ship's structure are avoided.

4. Absence, substantial deterioration or defective closing devices, hatch closing arrangements and watertight doors.

5. Overloading.

6. Absence of draft mark or draft mark impossible to read.

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3.6. Areas under the MARPOL Convention, Annex I

1. Absence, serious deterioration or failure of proper operation of the oily-water filtering equipment, the oil

discharge monitoring and control system or the 15 ppm alarm arrangements.

2. Remaining capacity of slop and/or sludge tank insufficient for the intended voyage.

3. Oil Record Book not available.

4. Unauthorised discharge bypass fitted.

5. Survey report file missing or not in conformity with Regulation 13G(3)(b) of the MARPOL Convention.

3.7. Areas under the MARPOL Convention, Annex II

1. Absence of the P&A Manual.

2. Cargo is not categorised.

3. No cargo record book available.

4. Transport of oil-like substances without satisfying the requirements or without an appropriately amended certifi-

cate.

5. Unauthorised discharge bypass fitted.

3.8. Areas under the MARPOL Convention, Annex V

1. Absence of the garbage management plan.

2. No garbage record book available.

3. Ship's personnel not familiar with disposal/discharge requirements of garbage management plan.

3.9. Areas under the STCW Convention and Directive 2001/25/EC

1. Failure of seafarers to hold a certificate, to have an appropriate certificate, to have a valid dispensation or to
provide documentary proof that an application for an endorsement has been submitted to the flag State admin-
istration.

2. Evidence that a certificate has been fraudulently obtained or the holder of a certificate is not the person to

whom that certificate was originally issued.

3. Failure to comply with the applicable safe manning requirements of the flag state administration.

4. Failure of navigational or engineering watch arrangements to conform to the requirements specified for the ship

by the flag State administration.

5. Absence in a watch of a person qualified to operate equipment essential to safe navigation, safety radio commu-

nications or the prevention of marine pollution.

6. Failure to provide proof of professional proficiency for the duties assigned to seafarers for the safety of the ship

and the prevention of pollution.

7. Inability to provide for the first watch at the commencement of a voyage and for subsequent relieving watches

persons who are sufficiently rested and otherwise fit for duty.

3.10. Areas under the ILO Conventions

1. Insufficient food for voyage to next port.

2. Insufficient potable water for voyage to next port.

3. Excessively unsanitary conditions on board.

4. No heating in accommodation of a ship operating in areas where temperatures may be excessively low.

5. Insufficient ventilation in accommodation of a ship.

6. Excessive garbage, blockage by equipment or cargo or otherwise unsafe conditions in passageways/accommoda-

tions.

7. Clear evidence that watch keeping and other duty personnel for the first watch or subsequent relieving watches

are impaired by fatigue.

3.11. Areas which may not warrant a detention, but where e.g. cargo operations have to be suspended

Failure of the proper operation (or maintenance) of inert gas system, cargo-related gear or machinery are considered
sufficient grounds for stopping cargo operation.

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ANNEX XI

Minimum criteria for inspectors

(referred to in Article 21(1) and (5))

1. Inspectors must have appropriate theoretical knowledge and practical experience of ships and their operation. They
must be competent in the enforcement of the requirements of Conventions and of the relevant port State control
procedures. This knowledge and competence in enforcing international and Community requirements must be acquired
through documented training programmes.

2. Inspectors must, as a minimum, have either:

(a) appropriate qualifications from a marine or nautical institution and relevant seagoing experience as a certificated
ship officer holding or having held a valid STCW II/2 or III/2 certificate of competency not limited as regards the
operating area or propulsion power or tonnage; or

(b) passed an examination recognised by the competent Authority as a naval architect, mechanical engineer or an engi-

neer related to the maritime fields and worked in that capacity for at least five years; or

(c) a relevant university degree or equivalent and have properly trained and qualified as ship safety inspectors.

3. The inspector must have:

— completed a minimum of one year's service as a flag-State inspector either dealing with surveys and certification in
accordance with the Conventions or involved in the monitoring of the activities of recognised organisations to
which statutory tasks have been delegated, or

— gained an equivalent level of competence by following a minimum of one year's field training participating in Port

State Control inspections under the guidance of experienced Port State Control Officers.

4. The inspectors mentioned under 2(a) must have gained a maritime experience of at least 5 years including periods
served at sea as officers in the deck- or engine-department respectively, or as a flag state inspector or as an assistant
port State control inspector. Such experience shall include a period of at least two years at sea as a deck or engine
officer.

5. The inspectors must have the ability to communicate orally and in writing with seafarers in the language most

commonly spoken at sea.

6. Inspectors not fulfilling the above criteria are also accepted if they are employed by the competent authority of a

Member State for port State control at the date of adoption of this Directive.

7. Where in a Member State inspections referred to in Article 14(1) and (2) are performed by port State control inspec-
include sufficient theoretical and practical

tors; those inspectors shall have appropriate qualifications, which shall
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 techniques;

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

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ANNEX XII

Functionalities of the inspection database

(referred to in Article 23(1))

1. The inspection database shall include at least the following functionalities:

— Incorporate inspection data of Member States and all States Parties to the Paris MOU,

— Provide data on the ship risk profile and on ships due for inspections,

— Calculate the inspection commitments for each Member State,

— Produce the white as well as the grey and black list of flag States, referred to in Article 15(1),

— Produce data on the performance of companies,

— Identify the items in risk areas to be checked at each inspection.

2. The inspection database shall have the capability to adapt to future developments and to interface with other Com-
munity maritime safety databases, including SafeSeaNet, which shall provide data on ships' actual calls to ports of
Member States and, where appropriate, to relevant national information systems.

3. A deep hyperlink shall be provided from the inspection database to the Equasis information system. Member States
shall encourage that the public and private databases relating to ship inspection accessible through Equasis are
consulted by the inspectors.

ANNEX XIII

Publication of information related to inspections, detentions and refusals of access in ports of Member States

(referred to in Article 25)

1. Information published in accordance with Article 25 must include the following:

(a) name of the ship;

(b) IMO identification number;

(c) type of ship;

(d) tonnage (gt);

(e) year of construction as determined on the basis of the date indicated in the ship's safety certificates;

(f) name and address of the company of the ship;

(g) in the case of ships carrying liquid or solid cargoes in bulk, the name and address of the charterer responsible for

the selection of the ship and the type of charter;

(h) flag State;

(i) classification and statutory certificates issued in accordance with the relevant Conventions, and the authority or

organisation that issued each one of the certificates in question, including the date of issue and expiry;

(j) port and date of the last intermediate or annual survey for the certificates in point (i) above and the name of the

authority or organisation which carried out the survey;

(k) date, country, port of detention.

2. For ships which have been detained, information published in accordance with Article 25 must also include:

(a) number of detentions during the previous 36 months;

(b) date when the detention was lifted;

(c) duration of detention, in days;

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(d) the reasons for detention, in clear and explicit terms;

(e) indication, where relevant, of whether the recognised organisation that carried out the survey has a responsibility

in relation to the deficiencies which, alone or in combination, led to detention;

(f) description of the measures taken in the case of a ship which has been allowed to proceed to the nearest appro-

priate repair yard;

(g) if the ship has been refused access to any port within the Community, the reasons for the measure in clear and

explicit terms.

ANNEX XIV

Data provided in the context of monitoring implementation

(referred to in Article 28)

1. Every year Member States must provide the Commission with the following data for the preceding year by 1 April at

the latest.

1.1. Number of inspectors acting on their behalf in the framework of port State control

This information must be communicated to the Commission using the following model table (1) (2).

Port/area

Number of full-
time inspectors
(A)

Number of part-
time inspectors
(B)

Conversion of (B)
to full-time
(C)

Total
(A + C)

Port X/or Area X …

Port Y/or Area Y …

TOTAL

1.2. Total number of individual ships that entered their ports at national level. The figure shall be the number of ships

covered by this Directive that entered their ports at national level counted only once.

2. Member States must:

(a) provide the Commission every six months with a list of calls at port of individual ships, other than regular
passenger and freight ferry services, that entered their ports or which have notified to a port authority or body
their arrival in an anchorage, containing for each movement of the ship its IMO identification number, its date of
arrival and the port. The list shall be provided in the form of a spreadsheet programme enabling an automatic
retrieval and processing of the abovementioned information. The list shall be provided within 4 months from the
end of the period to which data pertained,

and

(b) provide the Commission with separate lists of regular passenger ferry services and regular freight ferry services
referred to in point (a), not later than six months following the implementation of this Directive, and thereafter
each time changes take place in such services. The list shall contain for each ship its IMO identification number, its
name and the route covered by the ship. The list shall be provided in the form of a spreadsheet programme
enabling an automatic retrieval and processing of the abovementioned information.

(1) Where the inspections carried out in the context of port State control represent only part of the inspectors' work, the total number of inspec-
tors must be converted to a number equivalent to full-time inspectors. Where the same inspector works in more than one port or geogra-
phical area the applicable part-time equivalent must be counted in each port.

(2) This information must be provided at national level and for each port of the Member State concerned. For the purposes of this Annex, a port
is taken to mean an individual port or the geographical area covered by an inspector or team of inspectors, comprising several individual
ports where appropriate.

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ANNEX XV

PART A

Repealed directive with its successive amendments

(referred to in Article 36)

Council Directive 95/21/EC
(OJ L 157, 7.7.1995, p. 1)

Council Directive 98/25/EC
(OJ L 133, 7.5.1998, p. 19)

Commission Directive 98/42/EC
(OJ L 184, 27.6.1998, p. 40)

Commission Directive 1999/97/EC
(OJ L 331, 23.12.1999, p. 67)

Directive 2001/106/EC of the European Parliament and of the Council
(OJ L 19, 22.1.2002, p. 17)

Directive 2002/84/EC of the European Parliament and of the Council
(OJ L 324, 29.11.2002, p. 53)

Only Article 4

PART B

List of time-limits for transposition into national law

(referred to in Article 36)

Directive

Time-limit for transposition

Directive 95/21/EC

Directive 98/25/EC

Directive 98/42/EC

Directive 1999/97/EC

Directive 2001/106/EC

Directive 2002/84/EC

30 June 1996

30 June 1998

30 September 1998

13 December 2000

22 July 2003

23 November 2003

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ANNEX XVI

Correlation table

(referred to in Article 36)

Directive 95/21/EC

This Directive

Article 1, introductory wording

Article 1, introductory wording

Article 1, first indent

Article 1, second indent

—

Article 1(a)

Article 1(b)

Article 1(c)

Article 2, introductory wording

Article 2, introductory wording

Article 2(1), introductory wording

Article 2(1), introductory wording

Article 2(1), first indent

Article 2(1), second indent

Article 2(1), third indent

Article 2(1), fourth indent

Article 2(1), fifth indent

Article 2(1), sixth indent

Article 2(1), seventh indent

Article 2(1), eighth indent

Article 2(2)

—

—

Article 2(3)

Article 2(4)

—

—

Article 2(5)

—

—

—

Article 2(6)

Article 2(7)

Article 2(8)

—

Article 2(9)

—

Article 2(10)

—

—

Article 2(1)(a)

Article 2(1)(b)

Article 2(1)(c)

Article 2(1)(d)

Article 2(1)(e)

Article 2(1)(f)

Article 2(1)(g)

Article 2(1)(h)

Article 2(2)

Article 2(3)

Article 2(4)

Article 2(5)

—

Article 2(6)

Article 2(7)

Article 2(8)

Article 2(9)

Article 2(10)

Article 2(11)

Article 2(12)

Article 2(13)

Article 2(14)

Article 2(15)

Article 2(16)

Article 2(17)

Article 2(18)

Article 2(19)

Article 2(20)

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Directive 95/21/EC

This Directive

—

—

—

Article 2(21)

Article 2(22)

Article 2(23)

Article 3(1), first subparagraph, first indent

Article 3(1), first subparagraph

—

Article 3(1), second subparagraph

Article 3(1), first subparagraph, second indent

Article 3(1), third subparagraph

—

Article 3(1), fourth subparagraph

Article 3(1), second subparagraph

Article 3(1), fifth subparagraph

—

—

Article 3(1), sixth subparagraph

Article 3(1), seventh subparagraph

Article 3(2) to (4)

Article 3(2) to (4)

—

Article 4

Article 5

—

—

—

—

—

—

—

Article 6(1), introductory wording

—

Article 6(1)(a)

—

Article 6(1)(b)

Article 6(2)

—

Article 6(3)

Article 6(4)

Article 7

Article 7a

Article 7b

—

—

—

Article 4(1)

Article 4(2)

—

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

—

Article 12(1), introductory wording

Article 12(1)(a)

Article 12(1)(b)

Article 12(1)(c)

—

Article 12(2)

Article 12(3)

—

—

—

—

Article 13

Article 14

Article 15

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Directive 95/21/EC

This Directive

Article 8

—

Article 9(1) and (2)

Article 9(3), first sentence

Article 9(3), sentences 2 to 4

Article 9(4) to (7)

—

Article 9a

Article 16

Article 17

Article 18(1) and (2)

Article 18(3)

Article 18(4)

Article 18(5) to (8)

Article 18(9)

—

Article 10(1) to (3)

Article 19(1) to (3)

—

Article 11(1)

—

Article 11(2)

Article 19(4)

Article 20(1)

Article 20(2)

Article 20(3), first subparagraph

Article 11(3), first subparagraph

—

Article 11(3), second subparagraph

Article 20(3), second subparagraph

Article 11(4) to (6)

Article 12(1) to (3)

Article 12(4)

—

Article 13(1) to (2)

—

Article 14

Article 15

—

—

—

—

Article 20(4) to (6)

Article 21(1) to (3)

Article 21(4)

Article 21(5) to (7)

Article 22(1) to (2)

Article 22(3) to (5)

—

—

Article 23

Article 24

Article 25

Article 26

Article 16(1) and (2)

Article 27(1) and (2)

Article 16(2a)

Article 16(3)

Article 17

—

Article 18

Article 19

—

Article 19a

Article 27(3)

Article 27(4)

Article 28

Article 29

Article 30

Article 31

Article 32

Article 33

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Directive 95/21/EC

This Directive

—

Article 20

—

Article 21

Article 22

Annex I

—

—

—

Annex II

Annex III

Annex IV

Annex V

Annex VI

Annex VII

—

Annex VIII

Annex IX

Annex X

Annex XI

Annex XII

—

—

Article 34

Article 35

Article 36

Article 37

Article 38

—

Annex I

Annex II

Annex III

Annex IV

Annex V

Annex VI

Annex VII

Annex X

Annex XI

Annex XII

Annex XIII

Annex IX

Annex XIV

Annex VIII

—

Annex XV

Annex XVI

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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 on port State control (recast) (1). Following legal/linguistic
revision, the Council adopted its Common Position on 6 June 2008 with the Maltese delegation
abstaining.

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).

The proposal aims at recasting successive amendments to Directive 95/21/EC on Port State Control in a
consolidated text and at simplifying or amending certain provisions in order to reinforce the effective-
ness and quality of inspections on ships by the port State. Inter alia it strengthens the requirements for
the competent administrations and inspectors and provides for a reinforcement of the notification obli-
gation for pilots.

In order to enhance the dissuasive effect of the Directive, the proposal simplifies and extends the
measures to refuse the access to ports of the Member States and provides for the publication of a black
list of shipowners and operators.

Furthermore, the proposal introduces the principles of a new inspection system, according to which all
ships calling at Member States' ports are inspected, based on a risk profile that allows to intensify inspec-
tions on high risk ships and to reduce the burden of inspections for quality ships. According to the
Commission's proposal, the details of this new system will be introduced through the comitology proce-
dure, once all elements of this mechanism have been established.

II. ANALYSIS OF THE COMMON POSITION

General

The Common Position, as agreed by Council, pursues the same objective as the opinion of the European
Parliament voted in first reading, namely to replace the existing port State control system with the entry
into force of the recast Directive by a new inspection system. This new system aims at ensuring that a
maximum of ships calling at Member States' ports are inspected, taking into account the equitable
sharing of the overall inspection commitment among Member States. The detailed elements of the new
inspection system, which have been agreed upon, based on the work carried out in the framework of
the Paris Memorandum of Understanding on Port State Control (Paris MOU), are contained in Annex II that
is exempted from comitology.

Resulting from this new approach, the Common Position modifies, in a number of cases, the original
Commission proposal by redrafting it entirely, inserting completely new provisions or supplementing
the text with new elements. These modifications correspond to a major extent to a large number of the
European Parliament's first-reading amendments (1, 3, 4, 5, 6, 7, 9, 11, 14, 15, 16, 18, 19, 22, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 46, 47, 48, 49, 50, 51, 52, 53, 55,
56, 57, 58, 71, 72, 75, 76, 78, 81, 83, 84, 85, 86, 87, 88, 89, 90, 92, 94, 95, 98, 101, 102, 105, 106
and 111), which are reflected either verbatim or partly or in principle in the Common Position.

A number of other amendments of the European Parliament (8, 12, 13, 17, 21, 24, 26, 36, 37, 45, 54,
59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 73, 74, 77, 80, 82, 91, 96, 97, 99, 100 and 103) were,
however, not accepted by the Council. These relate mostly to the main issues raised in the discussions
within the Council bodies and are not consistent with the approach chosen by the Council
in its
Common Position. Further details concerning these amendments are set out in the next section.

(1) The Commission transmitted its proposal on 24 January 2006 (doc. 5632/06).
(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).

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Main issues

1) Scope of the Directive

The Council shares the view of the Commission and the European Parliament (amendments 29 to 34)
that the current port State control regime, imposing a purely quantitative threshold of 25 % of ships to
be inspected by Member States, results in an insufficient control and leads sometimes to unjustified
inspections carried out solely to reach this arbitrary threshold. Therefore, the Common Position estab-
lishes a new system with a collective inspection objective for the whole Community based on a fair
share of the number of inspections among Member States and States within the Paris MOU region. The
inspections are focused on substandard vessels, which shall be checked more often, while the burden of
inspections is alleviated with regard to quality vessels.

Contrary to the Commission and the European Parliament (amendments 8, 13, 17, 22, 26, 31, 34, 35,
39, 40, 41, 54, 64, 65 and 96), the Council, however, deems it appropriate to take into account prac-
tical difficulties of some Member States in terms of financial and personal resources. The Common Posi-
tion, therefore, modifies the scope of inspections under this Directive, applying them to ships calling at
a port of a Member State to engage in a ship/port interface, including ships at anchor in a port or
another area within the jurisdiction of a port.

Furthermore, the Council, as the European Parliament (amendment 12 and 26), includes in its Common
Position the possibility for landlocked Member States to derogate from the Directive under specific
conditions. For reasons of legal certainty, these conditions are spelt out in the related provision. They
constitute essential elements of the Directive and, therefore, cannot be modified through comitology, in
contrast to what is provided for in the European Parliament's amendments.

2) Flexibility mechanism for inspections

Following the objective of establishing an inspection system that is fair and practically applicable, the
Council, in its Common Position, takes into consideration the specific situation of each Member State
resulting in an unequal number of ships calling at their respective ports. To this effect, Member States
are allowed, according to the Council's position and contrary to the European Parliament's view, to miss
a small percentage of inspections, namely inspections on 5 % of the total number of Priority I ships
(ships due for a mandatory inspection) with a high risk profile and on 10 % of the total number of
Priority I ships other than those with a high risk profile. Member States shall, however, give particular
attention to ships that do not call often at ports within the Community.

In addition, the Council, as the European Parliament (amendments 35 to 37), is of the opinion that, for
practical reasons, flexibility mechanisms are necessary in specific circumstances, i.e. to provide the possi-
bility to postpone an inspection for 15 days, not to carry out an inspection for safety reasons or to miss
an inspection if the ship calls at night time. The last flexibility provision is not provided for by the
European Parliament (amendments 36 and 37).

3) Access refusal

The Council, as the European Parliament (amendments 8 and 54), supports the Commission's proposal
to tighten the access refusal measures against substandard ships. As criteria for such a measure, the
performance of the ship is evaluated in relation to the performance of its operator, indicated by repeated
detentions during a certain timeframe, and of its flag State, determined on the basis of the ‘black’, ‘grey’
and ‘white’ lists of flag States established by the Paris MOU.

The duration of the access refusal to Member States' ports increases with each time such a measure is
taken. While the Commission, supported by the European Parliament, proposed to provide for an ulti-
mate possibility of permanently banning ships that are caught for the third time in such a situation, the
Council considers that, for legal reasons, it is necessary to foresee the possibility to lift the ban after a
certain period, namely 36 months, but only if the ship concerned complies with a series of conditions.

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4) Reports from pilots

The Council fully supports the Commission's proposal to reinforce the obligation for all pilots, including
deep sea pilots on ships bound for a port or in transit, to report apparent anomalies they encounter on
board of ships to the competent authority of the port or coastal State. Unlike the European Parliament
(amendment 68), the Council considers that this can only be done through a mandatory provision.

5) List of companies with a low and very low performance

Similar to the Commission and the European Parliament (amendment 71), the Council
intends to
strengthen the dissuasive effect of the Directive and requests the Commission to establish and publish
regularly information on badly performing ship operators, however without specifying the publication
modalities, which will be established through the comitology procedure.

6) Transposition date

The Council is of the opinion that the new inspection system should apply at Community level with the
entry into force of the recast Directive. Nonetheless, given the complexity of the new system, including
the necessary technical work related to the inspection database, Member States are allowed to a transpo-
sition period of 36 months, unlike the provision of the European Parliament's amendment 82.

7) Other issues

The Council was unable to accept a number of other amendments, as they would cause unproportionate
administrative burden (amendments 60, 62, 70, 73 and 96), are not entirely clear, not precise enough
or do not correspond to the Council's approach of structuring the Directive (amendments 13, 21, 24,
45, 59, 61, 63, 67, 69, 77, 80, 82, 91, 97, 99, 100 and 103).

III. CONCLUSION

The Council believes that its Common Position is a balanced tool to put in place a fair and efficient new
inspection system reinforcing the fight against substandard vessels navigating in Community waters.

The Council notes the contacts which have already taken place with the European Parliament on this
proposal and looks forward to constructive negotiations in order to come quickly to an agreement and
to allow the adoption of the Directive.