Common Position (EC) No 16/2008 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 common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (Recast) (Text with EEA relevance)
Date: 2008-06-06
Institutions: Council of the European Union
Subjects: international standard, maritime safety, maritime transport, pollution from ships, prevention of pollution, roadworthiness tests, vessel

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COMMON POSITION (EC) No 16/2008

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 common rules and standards for ship inspection and survey organisations and for the relevant
activities of maritime administrations (Recast)

(Text with EEA relevance)

(2008/C 184 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

Having regard to the opinion of
Regions (2),

the Committee of

the

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

laid down in

(6)

(7)

Whereas:

Member States are responsible for the issuing of interna-
tional certificates for safety and the prevention of pollu-
tion provided for under conventions such as the Interna-
the Safety of Life at Sea of
tional Convention for
International
the
1 November 1974 (SOLAS 74),
Convention on Load Lines of 5 April 1966 and the Inter-
national Convention for the Prevention of Pollution from
Ships of 2 November 1973 (MARPOL), and for the
implementation of those conventions.

In compliance with such conventions all Member States
may authorise to a varying extent recognised organisa-
tions for the certification of such compliance and may
delegate the issue of the relevant certificates for safety
and the prevention of pollution.

(1)

(2)

(3)

(4)

(5)

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
significantly
amended on several occasions. Since further amendments
it should be recast in the interests of
are to be made,
clarity.

administrations (4)

been

has

In view of
the nature of
94/57/EC it seems appropriate that
recast
namely a Directive and a Regulation.

in two different Community legal

the provisions of Directive
its provisions be
instruments,

(8) Worldwide a large number of the existing classification
societies do not ensure either adequate implementation
of the rules or sufficient reliability when acting on behalf
of national administrations as they do not have reliable
and adequate structures and experience to enable them to
carry out their duties in a highly professional manner.

(9)

In its Resolution of 8 June 1993 on a common policy on
safe seas, the Council set the objective of removing all
substandard vessels from Community waters and gave
priority to Community action designed to secure the
effective and uniform implementation of
international
rules by drawing up common standards for classification
societies.

Safety and pollution prevention at sea may be effectively
enhanced by strictly applying international conventions,
codes and resolutions while furthering the objective of
freedom to provide services.

The control of compliance of ships with the uniform
international standards for safety and prevention of pollu-
tion of the seas is the responsibility of flag and port
States.

ships

In accordance with SOLAS 74 Chapter II-1, Part A-1,
Regulation 3-1, Member States are responsible for
ensuring that
flag are designed,
flying their
constructed and maintained in compliance with the struc-
tural, mechanical and electrical requirements of classifica-
tion societies recognised by administrations. These socie-
ties therefore produce and implement
the
design, construction, maintenance and inspection of
ships and they are responsible for inspecting ships on
behalf of the flag States and certifying that those ships
meet the requirements of the international conventions
for the issue of the relevant certificates. To enable them
to carry out that duty in a satisfactory manner they need
to have strict independence, highly specialised technical
competence and rigorous quality management.

rules

for

(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 (OJ C 74 E,
20.3.2008, p. 632), Council Common Position of 6 June 2008 and
Position of the European Parliament of … (not yet published in the
Official Journal).

(4) 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).

(10)

Ship inspection and survey organisations should be able
to offer their services throughout the Community and
compete with each other while providing equal levels of
safety and of environmental protection. The necessary
professional standards for their activities should therefore
be uniformly established and applied across the Com-
munity.

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(11)

The issue of the cargo ship safety radio certificate may be
entrusted to private bodies having sufficient expertise and
qualified personnel.

(12) A Member State may restrict the number of recognised
organisations it authorises in accordance with its needs,
based on objective and transparent grounds, subject to
control exercised by the Commission in accordance with
a committee procedure.

(13)

This Directive should ensure freedom to provide services
in the Community, accordingly the Community should
be entitled to negotiate, with those third countries where
some of
in
order to ensure equal treatment for the recognised orga-
nisations located in the Community.

the recognised organisations are located,

(14) A tight involvement of the national administrations in
ship surveys and in the issue of the related certificates is
necessary to ensure full compliance with the international
safety rules even if the Member States rely upon recog-
nised organisations, which are not part of their adminis-
tration for carrying out statutory duties. It is appropriate,
therefore,
to establish a close working relationship
between the administrations and the recognised organisa-
tions authorised by them, which may require that the
recognised organisations have a local representation on
the territory of the Member State on behalf of which they
perform their duties.

(15) Divergence in the financial liability regimes of the recog-
nised organisations working on behalf of the Member
States would impede the proper implementation of this
Directive. In order to contribute to solving this problem
it is appropriate to bring about a degree of harmonisa-
tion at Community level of the liability arising out of any
marine casualty caused by a recognised organisation, as
decided by a court of
including settlement of a
dispute through arbitration procedures.

law,

(16)

(17)

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 (1).

and resolutions

In particular the Commission should be empowered to
amend this Directive in order to incorporate subsequent
amendments to the international conventions, protocols,
codes
those
measures are of general scope and are designed to amend
non-essential elements of
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.

related thereto. Since

this Directive,

(18) Member States should nevertheless be left with the possi-
bility of suspending or withdrawing their authorisation of
a recognised organisation while informing the Commis-
sion and the other Member States of their decisions and
giving substantiated reasons therefor.

(19) Member States should periodically assess the performance
of the recognised organisations working on their behalf
and provide the Commission and all the other Member
States with precise information related to such perfor-
mance.

(20) As port authorities, Member States are required to
enhance safety and prevention of pollution in Com-
ships
munity waters
carrying certificates of organisations which do not fulfil
the common criteria, thereby ensuring that ships flying
the flag of a third State do not receive more favourable
treatment.

through priority inspection of

(21) At present there are no uniform international standards
to which all ships must conform either at the building
stage or during their entire lifetime, as regards hull,
machinery and electrical and control installations. Such
standards may be fixed according to the rules of recog-
nised organisations or
to equivalent standards to be
decided by the national administrations in accordance
with the procedure laid down in Directive 98/34/EC of
the European Parliament and of the Council of 22 June
1998 laying down a procedure for the provision of infor-
mation in the field of technical standards and regulations
and of rules on Information Society services (2).

(22)

(23)

(24)

Since the objective of this Directive, namely to establish
measures to be followed by the Member States in their
relationship with organisations entrusted with the inspec-
tion, survey and certification of ships, operating in the
Community, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
of the action, be better achieved at Community level, the
Community may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve that objec-
tive.

The obligation to transpose this Directive into national
law should be confined to those provisions which repre-
sent a substantive change as compared with the Direc-
tive 94/57/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 the Member States relating to the time limits for
transposition into national law of the Directives set out
in Annex I, Part B.

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

(2) OJ L 204, 21.7.1998, p. 37. Directive as last amended by Council

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

Directive 2006/96/EC (OJ L 363, 20.12.2006, p. 81).

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(25)

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 interest
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.

(26) Measures to be followed by ship inspection and survey
organisations are laid down in Regulation (EC) No …/…
of the European Parliament and the Council of … on
common rules and standards for ship inspection and
survey organisations (2),

HAVE ADOPTED THIS DIRECTIVE:

Article 1

This Directive establishes measures to be followed by the
Member States in their relationship with organisations entrusted
with the inspection, survey and certification of ships for compli-
ance with the international conventions on safety at sea and
prevention of marine pollution, while furthering the objective of
freedom to provide services. This includes the development and
implementation of safety requirements for hull, machinery and
electrical and control
installations of ships falling under the
scope of the international conventions.

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

Article 2

(a)

‘ship’

means a ship falling within the scope of the international
conventions;

(b)

‘ship flying the flag of a Member State’

means a ship registered in and flying the flag of a Member
State in accordance with its legislation. Ships not corre-
sponding to this definition are assimilated to ships flying
the flag of a third country;

(c)

‘inspections and surveys’

means inspections and surveys that are mandatory under
the international conventions;

(d)

‘international conventions’

the Annex

chapter XI-2 of

means the International Convention for the Safety of Life
at Sea of 1 November 1974, (SOLAS 74) with the excep-
the
tion of
International Convention of Load Lines of 5 April 1966
and the International Convention for the Prevention of
Pollution from Ships of 2 November 1973 (Marpol),
together with the protocols and amendments thereto, and
the related codes of mandatory status in all Member States,
in their up-to-date version;

thereto,

(e)

‘organisation’

(f)

‘control’

means a legal entity, its subsidiaries and any other entities
under its control, which jointly or separately carry out
tasks falling under the scope of this Directive;

means, for the purpose of point (e), rights, contracts or any
other means, in law or in fact, which, either separately or
in combination confer the possibility of exercising decisive
influence on a legal entity or enable that entity to carry out
tasks falling under the scope of this Directive;

(g)

‘recognised organisation’

means an organisation recognised in accordance with
Regulation (EC) No …/…;

(h)

‘authorisation’

(i)

‘statutory certificate’

means an act whereby a Member State grants an authorisa-
tion or delegates powers to a recognised organisation;

means a certificate issued by or on behalf of a flag State in
accordance with the international conventions;

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

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(j)

‘rules and procedures’

(k)

‘class certificate’

(l)

‘cargo ship safety radio certificate’

Article 3

means a recognised organisation's requirements for the
design, construction, equipment, maintenance and survey
of ships;

means a document issued by a recognised organisation
certifying the fitness of a ship for a particular use or
service in accordance with the rules and procedures laid
down and made public by that recognised organisation;

means the certificate introduced by the 1988 Protocol
amending SOLAS, adopted by the International Maritime
Organisation (IMO).

In assuming their responsibilities and obligations under
1.
the international conventions, Member States shall ensure that
their competent administrations can ensure appropriate enforce-
ment of the provisions thereof, in particular with regard to the
inspection and survey of ships and the issue of statutory certifi-
cates and exemption certificates as provided for by the interna-
tional conventions. Member States shall act in accordance with
the relevant provisions of the Annex and the Appendix to IMO
Resolution A.847(20) on guidelines to assist flag States in the
implementation of IMO instruments.

2. Where for the purpose of paragraph 1 a Member State
decides with respect to ships flying its flag:

(i) to authorise organisations to undertake fully or in part
inspections and surveys
related to statutory certificates
including those for the assessment of compliance with the
rules referred to in Article 11(2) and, where appropriate, to
issue or renew the related certificates; or

(ii) to rely upon organisations to undertake fully or in part the

inspections and surveys referred to in point (i);

it shall entrust these duties only to recognised organisations.

The competent administration shall in all cases approve the first
issue of the exemption certificates.

However, for the cargo ship safety radio certificate these duties
may be entrusted to a private body recognised by a competent
administration and having sufficient expertise and qualified
personnel
to carry out specified safety assessment work on
radio-communication on its behalf.

This Article does not concern the certification of specific

3.
items of marine equipment.

Article 4

1.
In applying Article 3(2), Member States shall in principle
not refuse to authorise any of the recognised organisations to

undertake such functions, subject to the provisions of para-
graph 2 of this Article and Articles 5 and 9. However, they may
restrict the number of organisations they authorise in accord-
ance with their needs provided there are transparent and objec-
tive grounds for so doing.

At the request of a Member State, the Commission shall,
accordance with the regulatory procedure
Article 6(2), adopt appropriate measures.

in
referred to in

In order for a Member State to accept that a recognised
2.
organisation located in a third State is to carry out fully or in
part the duties mentioned in Article 3 it may request the third
State in question to grant reciprocal treatment to those recog-
nised organisations which are located in the Community.

In addition, the Community may request the third State where a
recognised organisation is located to grant reciprocal treatment
to those recognised organisations which are located in the Com-
munity.

Article 5

1. Member States which take a decision as described in
Article 3(2) shall set out a ‘working relationship’ between their
competent administration and the organisations acting on their
behalf.

The working relationship shall be regulated by a forma-
2.
lised written and non-discriminatory agreement or equivalent
legal arrangements setting out the specific duties and functions
assumed by the organisations and including at least:

(a) the provisions set out

acting on behalf of

in Appendix II of
for

IMO Resolu-
the authorisation of
tion A.739(18) on guidelines
organisations
administration,
while drawing inspiration from the Annex, Appendices
and Attachment to IMO MSC/Circular 710 and MEPC/Cir-
for the authorisation
cular 307 on a model agreement
of
the
administration;

recognised organisations

acting on behalf of

the

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(b) the following provisions concerning financial liability:

(i) if liability arising out of any marine casualty is finally
and definitely imposed on the administration by a court
of law or as part of the settlement of a dispute through
arbitration procedures, together with a requirement to
compensate the injured parties for loss of or damage to
property or personal injury or death, which is proved in
that court of law to have been caused by a wilful act or
omission or gross negligence of the recognised organi-
sation, its bodies, employees, agents or others who act
on behalf of the recognised organisation, the adminis-
tration shall be entitled to financial compensation from
the recognised organisation to the extent that that loss,
damage, injury or death was, as decided by that court,
caused by the recognised organisation;

the recognised organisation,

(ii) if liability arising out of any marine casualty is finally
and definitely imposed on the administration by a court
of law or as part of the settlement of a dispute through
arbitration procedures, together with a requirement to
injury or
compensate the injured parties for personal
death, which is proved in that court of
law to have
been caused by any negligent or reckless act or omis-
its employees,
sion of
agents or others who act on behalf of the recognised
organisation,
the administration shall be entitled to
financial compensation from the recognised organisa-
tion to the extent that that personal
injury or death
was, as decided by that court, caused by the recognised
organisation;
the
maximum amount payable by the recognised organisa-
tion, which must, however, be at
to
EUR 4 million;

the Member

States may

least equal

limit

(iii) if liability arising out of any marine casualty is finally
and definitely imposed on the administration by a court
of law or as part of the settlement of a dispute through
arbitration procedures, together with a requirement to
compensate the injured parties for loss of or damage to
property, which is proved in that court of law to have
been caused by any negligent or reckless act or omis-
its employees,
sion of
agents or others who act on behalf of the recognised
organisation,
the administration shall be entitled to
financial compensation from the recognised organisa-
tion, to the extent that that loss or damage was, as
decided by that court, caused by the recognised organi-
sation;
the maximum
amount payable by the recognised organisation, which
must, however, be at least equal to EUR 2 million;

the Member States may limit

the recognised organisation,

(c) provisions for a periodical audit by the administration or by
an impartial external body appointed by the administration
into the duties the organisations are undertaking on its
behalf, as referred to in Article 9(1);

(d) the possibility for random and detailed inspections of ships;

(e) provisions for reporting essential

information about their
classed fleet, and changes, suspensions and withdrawals of
class.

The agreement or equivalent

3.
legal arrangement may
require the recognised organisation to have a local representa-
tion on the territory of the Member State on behalf of which it
performs the duties referred to in Article 3. A local representa-
tion with legal personality under the law of the Member State
and subject to the jurisdiction of its national courts may satisfy
such a requirement.

4.
Each Member State shall provide the Commission with
precise information on the working relationship established in
accordance with this Article. The Commission shall subse-
quently inform the other Member States thereof.

Article 6

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

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 7

This Directive may, without broadening its scope, be

1.
amended in order to:

(a) incorporate, for the purposes of this Directive, subsequent
amendments to the international conventions, protocols,
codes
related thereto referred to in
Articles 2(d), 3(1) and 5(2), which have entered into force;

and resolutions

(b) alter

the amounts

specified in points

(ii) and (iii) of

Article 5(2)(b).

These measures designed to amend non-essential elements of
this Directive shall be adopted in accordance with the regulatory
procedure with scrutiny referred to in Article 6(3).

Following the adoption of new instruments or protocols
2.
to the international conventions referred to in Article 2(d), the
Council, acting on a proposal
from the Commission, shall
decide, taking into account the Member States' parliamentary
procedures as well as the relevant procedures within the IMO,
on the detailed arrangements for ratifying those new instru-
ments or protocols, while ensuring that
they are applied
uniformly and simultaneously in the Member States.

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

(1) Regulation (EC) No 2099/2002 of the European Parliament and of the
Council establishing a Committee on Safe Seas and the prevention of
pollution from Ships (COSS) (OJ L 324, 29.11.2002, p. 1). Regulation
as last amended by Commission Regulation (EC) No 93/2007 (OJ L 22,
31.1.2007, p. 12).

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Article 8

Notwithstanding the minimum criteria specified in the Annex I
of Regulation (EC) No …/…, where a Member State considers
that a recognised organisation can no longer be authorised to
carry out on its behalf the tasks specified in Article 3 it may
suspend or withdraw such authorisation.
In such case the
Member State shall
inform the Commission and the other
its decision without delay and shall give
Member States of
substantiated reasons therefor.

Article 9

Each Member State shall satisfy itself that the recognised
1.
organisations acting on its behalf for the purpose of Article 3(2)
effectively carry out the functions referred to in that Article to
the satisfaction of its competent administration.

Each Member State shall carry out the task referred to in
2.
paragraph 1 at least on a biennial basis and shall provide the
other Member States and the Commission with a report on the
results of this monitoring at the latest by 31 March of the year
following the years for which compliance has been assessed.

Article 10

In exercising their inspection rights and obligations as port
States, Member States shall report to the Commission and to
other Member States, and inform the flag State concerned, if
they find that valid statutory certificates have been issued by
recognised organisations acting on behalf of a flag State to a
ship which does not fulfil the relevant requirements of the inter-
national conventions, or in the event of any failure of a ship
carrying a valid class certificate and relating to items covered by
that certificate. Only cases of ships representing a serious threat
to safety and the environment or showing evidence of particu-
larly negligent behaviour of the recognised organisations shall
be reported for the purposes of this Article. The recognised
organisation concerned shall be advised of the case at the time
of the initial inspection so that it can take appropriate follow-up
action immediately.

recognised organisations with a view to achieving consistent
interpretation of the international conventions.

Article 12

The Commission shall, on a biennial basis, inform the European
Parliament and the Council of progress in the implementation
of this Directive in the Member States.

Article 13

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

When they are adopted by Member States, these measures shall
contain a reference to this Directive or shall be accompanied by
such reference on the occasion of their official publication. They
shall also include a statement that references in existing laws,
regulations and administrative provisions
to the directives
repealed by this Directive shall be construed as references to this
Directive. The methods of making such references shall be laid
down by Member States.

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

Article 14

Directive 94/57/EC, as amended by the Directives listed in
Annex I, Part A, shall be repealed with effect from … (**),
without prejudice to the obligations of
the Member States
relating to the time-limits for transposition into national law of
the Directives set out in Annex I, Part B.

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

Article 11

Article 15

1.
Each Member State shall ensure that ships flying its flag
are designed, constructed, equipped and maintained in accord-
ance with the rules and procedures relating to hull, machinery
and electrical and control installation requirements of a recog-
nised organisation.

2.
A Member State may decide to use rules it considers
equivalent to the rules and procedures of a recognised organisa-
tion only on the proviso that it immediately notifies them to
the Commission in conformity with the procedure under Direc-
tive 98/34/EC and to the other Member States and they are not
objected to by another Member State or the Commission and
are held,
through the regulatory procedure referred to in
Article 6(2) of this Directive, not to be equivalent.

3. Member States shall cooperate with the recognised organi-
sations they authorise in the development of
the rules and
procedures of those organisations. They shall confer with the

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

into force on the twentieth day
Journal of the

Article 16

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

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

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ANNEX I

Part A

Repealed Directive with its successive amendments
(referred to in Article 14)

Council Directive 94/57/EC

Commission Directive 97/58/EC

Directive 2001/105/EC of the European Parliament and of the
Council

OJ L 319, 12.12.1994, p. 20

OJ L 274, 7.10.1997, p. 8

OJ L 19, 22.1.2002, p. 9

Directive 2002/84/EC of
Council

the European Parliament and of

the

OJ L 324, 29.11.2002, p. 53

Part B

List of time-limits for transposition into national law
(referred to in Article 14)

Directive

Time-limit for transposition

94/57/EC

97/58/EC

2001/105/EC

2002/84/EC

31 December 1995

30 September 1998

22 July 2003

23 November 2003

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ANNEX II

CORRELATION TABLE

Directive 94/57/EC

This Directive

Regulation (EC) No …/…

Article 1

Article 2(a)

Article 2(b)

Article 2(c)

Article 2(d)

Article 2(e)

—

Article 2(f)

Article 2(g)

Article 2(h)

Article 2(i)

—

Article 2(j)

Article 2(k)

Article 3

Article 4(1) first phrase

Article 4(1) second phrase

Article 4(1) third phrase

Article 4(1) fourth phrase

—

—

—

—

—

Article 1

Article 2(a)

Article 2(b)

Article 2(c)

Article 2(d)

Article 2(e)

Article 2(f)

Article 2(g)

Article 2(h)

Article 2(i)

Article 2(k)

Article 2(j)

Article 2(l)

—

Article 3

—

—

—

—

—

—

—

—

—

Article 5(1)

Article 5(3)

Article 4(1)

Article 4(2)

Article 6(1), (2), (3), (4)

Article 5(1), (2), (3), (4)

Article 6(5)

Article 7

—

Article 6

Article 1

Article 2(a)

—

—

Article 2(b)

Article 2(c)

Article 2(d)

Article 2(e)

Article 2(f)

Article 2(g)

Article 2(i)

Article 2(h)

—

Article 2(j)

—

Article 3(1)

Article 3(2)

—

Article 4(1)

Article 3(3)

Article 4(2), (3), (4)

Article 5

Article 6

Article 7

—

—

—

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Directive 94/57/EC

This Directive

Regulation (EC) No …/…

Article 8(1) first indent

Article 7(1), point
paragraph

(a) of

first sub-

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Article 8(1) second indent

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Article 13(1)

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Article 7(2)

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Article 8(2)

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Article 9(1)

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Article 10(1) introductory wording

Article 8

Article 10(1)(a), (b), (c), (2), (3), (4)

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Article 11(1), (2)

Article 9(1), (2)

Article 11(3), (4)

Article 12

Article 13

Article 14

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Article 15(2)

Article 15(3)

Article 15(4)

Article 15(5)

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Article 16

Article 17

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Article 10

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Article 11(1), (2)

Article 11(3)

Article 12

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Article 13

Article 16

Article 14

Article 15

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Article 13(2)

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Article 9

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Article 10(1)(2)

Article 10(3)

Article 10(4)

Article 10(5)

Article 10(6)
fifth subparagraphs

first,

second,

third,

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Directive 94/57/EC

This Directive

Regulation (EC) No …/…

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Annex

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Annex II

Article 15

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Article 18

Article 19

Annex I

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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 30 November
2007, a political agreement on two separate legal
instruments based on the related Commission
proposal (1): a draft Directive on common rules and standards for ship inspection and survey organisa-
tions and for the relevant activities of maritime administrations (recast) and a Regulation on common
rules and standards for ship inspection and survey organisations (recast). This document concerns the
part of the Commission proposal that constitutes the recast Directive (2).

Following legal/linguistic revision, the Council adopted its Common Position on 6 June 2008.

In taking its position, the Council took account of the opinions of the European Economic and Social
Committee (3) and of the Committee of Regions (4). A large number of the European Parliament's
amendments, adopted at first reading on 25 April 2007 (5), were integrated or reflected in the related
text, whether it forms part of the Directive or the Regulation according to the Council's position.

The proposal aims at recasting successive amendments to Directive 94/57/EC establishing common
rules and standards for organisations that inspect ships and issue ships' certificates, the so-called ‘recog-
nised organisations’. Furthermore, certain provisions of the existing Directive are amended with a view
to simplification or harmonisation or in order to reinforce the current rules, e.g. by strengthening the
control of recognised organisations and by reforming the system of penalties against those that do not
fulfil the minimum recognition criteria.

II. ANALYSIS OF THE COMMON POSITION

a) Form of the legal act

The main issue raised during the discussions in the Council bodies was the form of the legal act
proposed by the Commission. Several provisions in the proposed Directive must be understood to either
impose obligations directly or to devolve competence on the Commission to impose such obligations
on individuals,
in this case the recognised organisations. This was confirmed by the Council Legal
Service in its opinion of 8 October 2007 (doc. 13616/07) that advised to adopt the act in the form of a
Regulation or, alternatively, to redraft the provisions in question or to split the act into one Directive
and one Regulation.

In its political agreement, the Council agreed to split the text into two separate instruments, a Directive
and a Regulation. The Directive includes the provisions addressed to the Member States concerning their
relationship with recognised organisations; while the Regulation contains all provisions related to the
recognition at Community level, i.e. the granting and the withdrawal of the recognition by the Commis-
sion, the obligations and criteria to be fulfilled by the organisations to be eligible for Community recog-
nition as well as possible sanctions against recognised organisations that fail to fulfil these obligations
and criteria.

b) Main issues related to the Directive

The Council was able to agree on almost all main elements of the Commission proposal concerning the
relationship of Member States with organisations entrusted with the inspection, survey and certification
of ships. The related provisions contain only a few changes compared to the corresponding provisions
of the existing Directive 94/57/EC.

(1) The Commission transmitted on 30 January 2006 its proposal for a recast Directive on common rules and standards for
ship inspection and survey organisations and for the relevant activities of maritime administrations (doc. 5912/06 MAR 11
ENV 50 CODEC 95).

(2) The Council's Common Position on the draft Regulation is set out in doc. 5726/08, the related statement of reasons in

doc. 5726/08 ADD 1.

(3) CESE 1177/2006 of 13.9.2006 (OJ C 318 of 23.12.2006, p. 195-201).
(4) CdR 43/2006 of 15.6.2006 (OJ C 229 of 22.9.2006, p. 38).
(5) Doc. 8724/07 CODEC 389 MAR 28 ENV 206 (not yet published in the Official Journal).

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The modifications of the text by the Council were either necessary for editorial or terminological
reasons or concern the following issues:

in line with the existing Community system, under which Member States can delegate their
Firstly,
powers to recognised organisations to inspect ships and issue certificates under the relevant international
conventions, the Council is of the view that, if a Member State does no longer wish to authorise a
specific recognised organisation to act on its behalf, it is up to the Member State concerned to suspend
or withdraw the authorisation. The text of the Common Position does not specify any procedure, apart
from the obligation to inform the Commission and other Member States without delay of the suspen-
sion or withdrawal and to give substantiated reasons for this measure.

in accordance with the amended Comitology Decision (1), the Council

Secondly,
introduces in its
Common Position the regulatory procedure with scrutiny for the adaptation of the Directive to amend-
ments to the international conventions, protocols, codes and resolutions.

Thirdly, the Council deems it appropriate to specify the timeframe for the information by the Commis-
sion on the implementation of the Directive by Member States and provides that this will be done every
two years.

III. AMENDMENTS

The Council took account of the views expressed by the European Parliament in its first reading of the
proposal. The following elements of the EP's opinion are reflected in the Council's Common Position,
some of them partly or in principle: amendments 3, 7, 9, 11, 13, 20, 29, 30, 31, 34, 35, 36, 37 and 51.

The Council was unable to accept a set of amendments (4, 5, 8, 27 and 48) for terminological reasons.
Amendments 30 and 31 are in the Council's view partly not acceptable as they would considerably
change the existing rules for harmonising the financial liability of recognised organisations arising out of
an incident. The Council does not agree with amendments 46 and 47 because they are too prescriptive
and not consistent with the Council's approach to the delegation of powers attributed to Member States.
Finally, amendments 1, 21, 28, 33 and 49 are not entirely clear or seem to be redundant.

IV. CONCLUSION

The Council believes that its Common Position is the appropriate way to provide, by means of this
Directive, for measures to be followed by Member States in their relationship with ship inspection and
survey organisations, while all provisions related to the recognition of these organisations at Community
level are laid down in the parallel Regulation.

The text of the Common Position reflects a large number of the European Parliament's amendments.
The Council looks forward to engaging in constructive discussions with the European Parliament with a
view to reaching an agreement as soon as possible.

(1) Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers
conferred on the Commission, as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ L 200, 22.7.2006,
p. 11).