Common Position (EC) No 18/2008 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 Regulation of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations (Recast) (Text with EEA relevance)
Date: 2008-06-06
Institutions: Council of the European Union
Subjects: approval, environmental protection, international standard, maritime safety, prevention of pollution, roadworthiness tests, vessel

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III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 18/2008

adopted by the Council on 6 June 2008

with a view to adopting Regulation (EC) No .../2008 of the European Parliament and of the Council
of … on common rules and standards for ship inspection and survey organisations (Recast)

(Text with EEA relevance)

(2008/C 190 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN 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 laid down in Article
251 of the Treaty (3),

Whereas:

(1)

(2)

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
are to be made,
it should be recast in the interests of
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,

(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 Offi-
cial 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).

(3)

(4)

(5)

(6)

(7)

This Regulation is to be understood and interpreted in
conformity with the Community's international obliga-
tions,
including the United Nations Convention on the
Law of the Sea of 10 December 1982.

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.

This objective should be pursued through measures that
adequately tie in with the work of the International Mari-
time Organisation (IMO) and, where appropriate, build
on and complement it. Furthermore, the Member States
and the Commission should promote the development
by the IMO of an international code for recognised orga-
nisations.

Minimum criteria for recognition of organisations should
be laid down with a view to enhancing the safety of, and
preventing pollution from, ships. The minimum criteria
laid down in Directive 94/57/EC should therefore be
strengthened.

In order to grant initial recognition to the organisations
wishing to be authorised to work on behalf of
the
Member States, compliance with the minimum criteria
laid down in this Regulation could be assessed more
effectively in a harmonised and centralised manner by
the Commission together with the Member States
requesting the recognition.

(8)

(9)

(10)

(11)

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Recognition should be granted only on the basis of the
quality and safety performance of the organisation.
It
should be ensured that the extent of that recognition be
at all times in keeping with the actual capacity of the
organisation concerned. Recognition should furthermore
the differences in legal status and
take into account
recognised organisations while
corporate structure of
continuing
the
minimum criteria laid down in this Regulation and the
effectiveness of the Community controls. Regardless of
the corporate structure, the organisation to be recognised
should provide services worldwide and be subject
to
global joint and several liability.

to ensure uniform application of

level, and therefore by the Commission, on the basis of a
committee procedure.

(13)

The continuous a posteriori monitoring of the recognised
organisations to assess their compliance with this Regu-
lation can be carried out more effectively in a harmo-
nised and centralised manner. Therefore, it is appropriate
that the Commission, together with the Member State
requesting the recognition, be entrusted with this task on
behalf of the Community.

The measures necessary for the implementation of this
adopted in accordance with
Regulation should be
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (1).

(14) As part of the monitoring of the operations of recog-
nised organisations, it is crucial that Commission inspec-
tors have access to ships and ship files regardless of the
ship's flag in order to ascertain whether the recognised
organisations are complying with the minimum criteria
laid down in this Regulation in respect of all ships in
their respective classes.

related thereto,

In particular, the Commission should be empowered to
amend this Regulation in order to incorporate subse-
to the international conventions,
quent amendments
protocols, codes and resolutions
to
update the minimum criteria in Annex I and to adopt the
criteria to measure the effectiveness of
the rules and
procedures as well as the performance of the recognised
organisations as regards the safety of, and the prevention
of pollution from,
their classed ships. Since those
measures are of general scope and are designed to amend
non-essential elements of this Regulation,
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.

It is of the utmost importance that failure by a recognised
organisation to fulfil its obligations can be addressed in a
prompt, effective and proportionate manner. The primary
objective should be to correct any deficiencies with a
view to removing any potential threat to safety or the
environment at an early stage. The Commission should
therefore be given the necessary powers to require that
the recognised organisation undertake the necessary
preventive and remedial action, and to impose fines and
periodic penalty payments as coercive measures. When
exercising these powers, the Commission should do so in
a manner that complies with fundamental rights and
should ensure that the organisation can make its views
known throughout the procedure.

(15)

(16)

(17)

(18)

(12)

In accordance with the Community-wide approach, the
decision to withdraw the recognition of an organisation
which fails to fulfil the obligations set out in this Regu-
lation if the above measures prove ineffective or the orga-
nisation otherwise presents an unacceptable threat
to
safety or the environment, has to be taken at Community

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

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

The ability of recognised organisations to identify rapidly
and correct weaknesses in their rules, processes and
internal controls is critical for the safety of the ships they
inspect and certify. That ability should be enhanced by
means of a Quality Assessment and Certification System,
which should be independent of commercial or political
interests in order to propose common action for the
sustained improvement of all recognised organisations
and ensure fruitful cooperation with the Commission.

The rules and procedures of recognised organisations are
a key factor for increasing safety and preventing accidents
and pollution. The recognised organisations have initiated
a process that should lead to harmonisation of their rules
and procedures. That process should be encouraged and
supported by Community legislation, as it should have a
positive impact on maritime safety as well as on the
competitiveness of the European shipbuilding industry.

The harmonisation of the rules of recognised organisa-
tions for the design, construction and periodic survey of
merchant ships is an ongoing process. Therefore,
the
obligation to have a set of own rules or the demonstrated
ability to have own rules should be seen in the context of
the process of harmonisation and should not constitute
an obstacle to the activities of recognised organisations
or potential candidates for recognition.

Recognised organisations should be obliged to update
their technical standards and enforce them consistently in
order
to harmonise safety rules and ensure uniform
implementation of international rules within the Com-
munity. Where the technical standards of recognised
organisations are identical or very similar, mutual recog-
and
nition of
components should be considered in appropriate cases,
taking the most demanding and rigorous standard as the
reference.

for materials,

equipment

certificates

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(19) While each recognised organisation, in principle, should
be held responsible solely and exclusively in relation to
the parts it certifies, the liability of recognised organisa-
tions and manufacturers will follow the agreed conditions
or, as the case may be, the applicable law in each indivi-
dual case.

(24)

(20)

(21)

(22)

(23)

Since transparency and exchange of information between
interested parties, as well as public right of access to
information, are fundamental tools for preventing acci-
dents at sea, recognised organisations should provide all
relevant statutory information concerning the conditions
of the ships in their class to the port State control autho-
rities and make it available to the general public.

In order to prevent ships from changing class to avoid
carrying out necessary repairs, recognised organisations
should exchange all relevant information among them-
selves concerning the conditions of ships changing class
and involve the flag State when necessary.

The protection of
intellectual property rights of ship-
yards, equipment suppliers and shipowners should not
prevent normal business transactions and contractually
agreed services between these parties.

The European Maritime Safety Agency (EMSA) established
by Regulation (EC) No 1406/2002 (1) should provide the
necessary support to ensure the application of this Regu-
lation.

Since the objective of this Regulation, namely the estab-
lishment of measures to be followed by organisations
entrusted with the inspection, 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 prin-
ciple of proportionality, as set out in that Article, this
Regulation does not go beyond what
is necessary in
order to achieve that objective.

are

(25) Measures to be followed by the Member States in their
relationship with ship inspection and survey organisa-
tions
the
European Parliament and the Council of … on common
rules and standards for ship inspection and survey orga-
nisations and for
the relevant activities of maritime
administrations (2),

laid down in Directive

.../.../EC of

HAVE ADOPTED THIS REGULATION:

Article 1

This Regulation establishes measures to be followed by organisa-
tions entrusted with the inspection, survey and certification of
ships for compliance 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 require-
ments for hull, machinery and electrical and control installations
of ships falling under the scope of the international conven-
tions.

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

Article 2

(a)

‘ship’

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

(b)

‘international conventions’

means the International Convention for the Safety of Life
at Sea of 1 November 1974 (SOLAS 74) with the excep-
tion of chapter XI-2 of the Annex thereto, the International
Convention of Load Lines of 5 April 1966 and the Interna-
tional 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;

(c)

‘organisation’

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 Regulation;

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

No 1891/2006, (OJ L 304, 30.12.2006, p. 1).

(2) OJ L …

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(d)

‘control’

(e)

‘recognised organisation’

(f)

‘authorisation’

(g)

‘statutory certificate’

(h)

‘rules and procedures’

(i)

‘class certificate’

(j)

‘location’

Article 3

means, for the purpose of point (c), 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 Regulation;

means an organisation recognised in accordance with
this Regulation;

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;

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 place of the registered office, central administra-
tion or principal place of business of an organisation.

for

1. Member States which wish to grant an authorisation to
any organisation which is not yet recognised shall submit a
request
recognition to the Commission together with
complete information on, and evidence of, the organisation's
compliance with the minimum criteria set out in Annex I and
on the requirement and its undertaking that it shall comply
with the provisions of Articles 8(4), 9, 10 and 11.

2.
The Commission, together with the respective Member
States submitting the request, shall carry out assessments of the
organisations for which the request for recognition was received
in order to verify that the organisations meet and undertake to
comply with the requirements referred to in paragraph 1.

3.
The Commission shall, in accordance with the regulatory
procedure referred to in Article 12(3), refuse to recognise orga-
nisations which fail to meet the requirements referred to in
paragraph 1 or whose performance is considered an unaccep-
table threat to safety or the environment on the basis of the
criteria laid down in accordance with Article 14.

recognised organisation. The recognition shall encompass all
legal entities that contribute to ensuring that that organisation
provides cover for their services worldwide.

The Commission, acting in accordance with the regulatory
4.
procedure referred to in Article 12(3), may limit the recognition
as regards certain types of ships, ships of a certain size, certain
trades, or a combination thereof, in accordance with the proven
capacity and expertise of the organisation concerned. In such a
case, the Commission shall state the reasons for the limitation
and the conditions under which the limitation shall be removed
or can be widened. The limitation may be reviewed at any time.

5.
The Commission shall draw up and regularly update a list
of the organisations recognised in accordance with this Article.
That list shall be published in the Official Journal of the Euro-
pean Union.

Article 4

Article 5

Recognition shall be granted by the Commission in
referred to in
regulatory procedure

1.
accordance with the
Article 12(3).

Recognition shall only be granted to organisations, which

2.
meet the requirements referred to in Article 3.

3.
Recognition shall be granted to the relevant legal entity,
which is the parent entity of all legal entities that constitute the

Where the Commission considers that a recognised organisation
has failed to fulfil the minimum criteria set out in the Annex I
or its obligations under this Regulation, or that the safety and
pollution prevention performance of a recognised organisation
has worsened significantly, without, however, it constituting an
unacceptable threat to safety or the environment, it shall require
the recognised organisation concerned to undertake the neces-
sary preventive and remedial action within specified deadlines to
ensure full compliance with those minimum criteria and obliga-
tions and, in particular, remove any potential threat to safety or
the environment, or to otherwise address the causes of the
worsening performance.

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The preventive and remedial action may include interim protec-
tive measures when the potential threat to safety or the environ-
ment is immediate.

However, and without prejudice to their immediate implementa-
tion, the Commission shall give to all Member States which
have granted an authorisation to the recognised organisation
concerned, advance notice of the measures that it intends to
take.

Article 6

In addition to the measures taken under Article 5, the
1.
Commission may,
in accordance with the advisory procedure
referred to in Article 12(2), impose fines on a recognised orga-
nisation:

(a) whose serious or repeated failure to fulfil the minimum
criteria set out in Annex I or its obligations under Articles 8
(4), 9, 10 and 11 or whose worsening performance reveals
serious shortcomings in its structure, systems, procedures or
internal controls;

or

(b) which has deliberately provided incorrect,

incomplete or
misleading information to the Commission in the course of
its assessment pursuant
to Article 8(1) or otherwise
obstructed that assessment.

2. Without prejudice to paragraph 1, where a recognised
organisation fails to undertake the preventive and remedial
action required by the Commission, or incurs unjustified delays,
the Commission may impose periodic penalty payments on that
organisation until the required action is fully carried out.

3.
The fines and periodic penalty payments referred to in
paragraphs 1 and 2 shall be dissuasive and proportionate to
both the gravity of the case and the economic capacity of the
recognised organisation concerned, taking into account, in par-
ticular, the extent to which safety or the protection of the envir-
onment has been compromised.

They shall be imposed only after the recognised organisation
and the Member States concerned have been given the opportu-
nity to submit their observations.

The aggregate amount of
the fines and periodic penalty
payments imposed shall not exceed 5 % of the total average
turnover of the recognised organisation in the preceding three
business years for the activities falling under the scope of this
Regulation.

4.
The Court of Justice of the European Communities shall
have unlimited jurisdiction to review decisions whereby the
Commission has fixed a fine or periodic penalty payment. It
may cancel, reduce or increase the fine or periodic penalty
payment imposed.

Article 7

The Commission shall withdraw the recognition of an

1.
organisation:

(a) whose repeated and serious failure to fulfil the minimum
criteria set out in Annex I or its obligations under this Regu-
lation is such that it constitutes an unacceptable threat to
safety or the environment;

(b) whose repeated and serious failure in its safety and pollution
prevention performance is such that it constitutes an unac-
ceptable threat to safety or the environment;

(c) which prevents or repeatedly obstructs the assessment by

the Commission;

(d) which fails

to pay the fines and/or periodic penalty

payments referred to in Article 6(1) and (2); or

(e) which seeks to obtain financial cover or reimbursement of

any fines imposed on it pursuant to Article 6.

2.
For the purpose of points (a) and (b) of paragraph 1, the
Commission shall decide on the basis of all the available infor-
mation, including:

(a) the results of its own assessment of the recognised organisa-

tion concerned pursuant to Article 8(1);

(b) reports submitted by Member States pursuant to Article 10

of Directive …/…/EC;

(c) analyses of casualties involving ships classed by the recog-

nised organisations;

(d) any recurrence of the shortcomings referred to in point (a)

of Article 6(1);

(e) the extent to which the fleet in the recognised organisation's

class is affected; and

(f) the ineffectiveness of the measures referred to in Article 6

(2).

3. Withdrawal of
recognition shall be decided by the
Commission, upon its own initiative or at the request of a
in accordance with the regulatory procedure
Member State,
referred to in Article 12(3) and after the recognised organisation
concerned has been given the opportunity to submit its obser-
vations.

Article 8

1.
All the recognised organisations shall be assessed by the
Commission, together with the Member State which submitted
the relevant request for recognition, on a regular basis and at
least every two years to verify that they meet the obligations
under this Regulation and fulfil the minimum criteria set out in
Annex I. The assessment shall be confined to those activities of
the recognised organisations, which fall within the scope of this
Regulation.

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2.
In selecting the recognised organisations for assessment,
the Commission shall pay particular attention to the safety and
pollution prevention performance of the recognised organisa-
tion, to the casualty records and to the reports produced by
Member States in accordance with Article 10 of Directive .../.../
EC.

The assessment may include a visit to regional branches of
3.
the recognised organisation as well as random inspection of
ships, both in service and under construction, for the purpose
of auditing the recognised organisation's performance. In this
case the Commission shall, where appropriate,
inform the
Member State in which the regional branch is located. The
Commission shall provide the Member States with a report on
the results of the assessment.

Each recognised organisation shall make available the
review to the

4.
results of
its quality system management
Committee referred to in Article 12(1), on an annual basis.

Article 9

Recognised organisations shall ensure that the Commis-
1.
sion has access to the information necessary for the purposes of
the assessment referred to in Article 8(1). No contractual clauses
may be invoked to restrict this access.

2.
Recognised organisations shall ensure in their contracts
with shipowners or operators for the issue of statutory certifi-
cates or class certificates to a ship that such issue shall be made
conditional on the parties not opposing the access of
the
Commission inspectors on board that ship for the purposes of
Article 8(1).

Article 10

1.
The recognised organisations shall consult with each other
periodically with a view to maintaining equivalence and aiming
for harmonisation of their rules and procedures and the imple-
mentation thereof. They shall cooperate with each other with a
view to achieving consistent interpretation of the international
conventions, without prejudice to the powers of the flag States.
in appropriate cases, agree on
Recognised organisations shall,
the technical and procedural conditions under which they will
mutually recognise the certificates for materials, equipment and
components based on equivalent standards, taking the most
demanding and rigorous standards as their reference.

Recognised organisations
classification
purposes, certificates of marine equipment bearing the wheel-
mark in accordance with Council Directive 96/98/EC of
20 December 1996 on marine equipment (1).

recognise,

shall

for

They shall provide the Commission and the Member States with
periodic reports on fundamental progress in standards and
mutual recognition of certificates for materials, equipment and
components.

The Commission shall submit a report to the European
2.
Parliament and the Council by … (*), based on an independent
study, on the level reached in the process of harmonising the
rules and procedures and on mutual recognition of certificates
for materials, equipment and components.

The recognised organisations shall cooperate with port
3.
State control administrations where a ship of
their class is
concerned, in particular in order to facilitate the rectification of
reported deficiencies or other discrepancies.

4.
The recognised organisations shall provide to all Member
States' administrations which have granted any of the authorisa-
tions provided for in Article 3 of Directive .../.../EC and to the
Commission all relevant information about their classed fleet,
transfers, changes, suspensions and withdrawals of class,
irre-
spective of the flag the ships fly.

Information on transfers, changes, suspensions, and withdrawals
of class, including information on all overdue surveys, overdue
recommendations, conditions of class, operating conditions or
operating restrictions issued against their classed ships, irrespec-
tive of the flag the ships fly, shall also be communicated electro-
nically to the common inspection database used by the Member
States for the implementation of Directive …/…/EC at the same
time as it is recorded within the recognised organisation's own
systems and in any case no later than 72 hours after the event
that gave rise to the obligation to communicate the information.
That information, with the exception of recommendations and
conditions of class which are not overdue, shall be published on
the website of these recognised organisations.

The recognised organisations shall not

issue statutory
5.
certificates to a ship,
irrespective of its flag, which has been
declassed or is changing class for safety reasons, before giving
the opportunity to the competent administration of the flag
State to give its opinion within a reasonable time as to whether
a full inspection is necessary.

In case mutual recognition cannot be agreed upon for serious
safety reasons, recognised organisations shall clearly state the
reasons thereof.

6.
In cases of transfer of class from one recognised organisa-
tion to another, the losing organisation shall, without undue
delay, provide the gaining organisation with the complete
history file of the ship and, in particular, inform it of:

Where a recognised organisation ascertains by inspection or
otherwise that material, a piece of equipment or a component is
not in compliance with its certificate, that organisation may
refuse to authorise the placing on board of that material, piece
of equipment or component. The recognised organisation shall
immediately inform the other recognised organisations, stating
the reasons for its refusal.

(a) any overdue surveys;

(b) any overdue recommendations and conditions of class;

(1) OJ L 46, 17.2.1997, p. 25. Directive as last amended by Directive

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

(*) Five years from the entry into force of this Regulation.

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(c) operating conditions issued against the ship; and

(d) operating restrictions issued against the ship.

New certificates for the ship can be issued by the gaining orga-
nisation only after all overdue surveys have been satisfactorily
completed and all overdue recommendations or conditions of
the ship have been
class previously issued in respect of
completed as specified by the losing organisation.

Prior to the issue of the certificates, the gaining organisation
must advise the losing organisation of the date of issue of the
certificates and confirm the date, place and action taken to
satisfy each overdue survey, overdue recommendation and
overdue condition of class.

Recognised organisations shall establish and implement appro-
priate common requirements concerning cases of transfer of
class where special precautions are necessary. Those cases shall,
as a minimum, include the transfer of class of ships of 15 years
of age or over and the transfer from a non-recognised organisa-
tion to a recognised organisation.

Recognised organisations shall cooperate with each other in
properly implementing the provisions of this paragraph.

Article 11

1.
Recognised organisations shall set up by … (*) and main-
tain an independent Quality Assessment and Certification
System in accordance with the applicable international quality
standards where the relevant professional associations working
in the shipping industry may participate in an advisory capacity.

The Quality Assessment and Certification System shall

2.
carry out the following tasks:

(a) periodic assessment of the quality management systems of
recognised organisations, in accordance with the ISO 9001
quality standard criteria;

(b) certification of the quality management systems of recog-
nised organisations, including organisations for which recog-
nition has been requested in accordance with Article 3;

(c) issue of interpretations of internationally recognised quality
management standards, in particular to take account of the
specific features of the nature and obligations of recognised
organisations; and

(d) drawing up of individual and collective recommendations
for the improvement of recognised organisations' processes
and internal control mechanisms.

The Quality Assessment and Certification System shall
3.
to act
the necessary governance
have
independently of the recognised organisations and shall have

and competences

the necessary means to carry out its duties effectively and to the
highest professional standards. The Quality Assessment and
Certification System will
lay down its working methods and
rules of procedure.

The Quality Assessment and Certification System shall

4.
adopt an annual work plan.

5.
The Quality Assessment and Certification System may
request assistance from other external quality assessment bodies.

The Quality Assessment and Certification System shall
6.
provide the interested parties,
including Flag States and the
Commission, with full information on its annual work plan as
well as on its findings and recommendations, particularly with
regard to situations where safety might have been compromised.

The Quality Assessment and Certification System shall be

7.
periodically assessed by the Commission.

The Commission shall report to the Member States on the

8.
results and follow-up of its assessment.

Article 12

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

2. Where reference is made to this paragraph, Articles 3 and
7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.

3. 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.

4. 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 13

1.
This Regulation may, without broadening its scope, be
amended in order to update the minimum criteria set out in
Annex I taking into account, in particular, the relevant decisions
of the IMO.

These measures designed to amend non-essential elements of
this Regulation shall be adopted in accordance with the regula-
tory procedure with scrutiny referred to in Article 12(4).

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

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

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

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2.
Amendments to the international conventions defined in
Article 2(b) of this Regulation may be excluded from the scope
of this Regulation, pursuant to Article 5 of Regulation (EC)
No 2099/2002.

Article 14

1.

The Commission shall adopt and publish:

(a) criteria to measure the effectiveness of the rules and proce-
dures as well as the performance of the recognised organisa-
tions as regards the safety of, and the prevention of pollu-
tion from, their classed ships, having particular regard to the
data produced by the Paris Memorandum of Understanding
on Port State Control and/or by other similar schemes; and

(b) criteria to determine when such performance is to be
considered an unacceptable threat to safety or the environ-
ment, which may take into account specific circumstances
affecting smaller-sized or highly specialised organisations.

These measures designed to amend non-essential elements of
this Regulation by supplementing it shall be adopted in accord-
ance with the regulatory procedure with scrutiny referred to in
Article 12(4).

2.
The measures designed to amend non-essential elements
of this Regulation by supplementing it relating to the implemen-
tation of Article 6 and, if appropriate, Article 7 shall be adopted
in accordance with the regulatory procedure with scrutiny
referred to in Article 12(4).

3. Without prejudice to the immediate application of
the
minimum criteria set out in Annex I, the Commission may, in
accordance with the
referred to in
Article 12(3), adopt rules on their interpretation and may
the general
establishment of objectives
consider
minimum criteria referred to in point 3, Part A of Annex I.

regulatory procedure

the

for

Article 15

1.
The organisations which, at the entry into force of this
Regulation, had been granted recognition in accordance with
Directive 94/57/EC shall retain their recognition, subject to the
provisions of paragraph 2.

2. Without prejudice to Articles 5 and 7, the Commission
shall re-examine all limited recognitions granted under Directive
94/57/EC in light of Article 4(3) of this Regulation by … (*),
with a view to deciding,
in accordance with the regulatory
procedure referred to in Article 12(3), whether the limitations
are to be replaced by others or removed. The limitations shall
continue to apply until the Commission has taken a decision.

Article 16

In the course of the assessment pursuant to Article 8(1), the
Commission shall verify that the holder of the recognition is the
relevant legal entity within the organisation to which the provi-
sions of this Regulation shall apply. If that is not the case, the
Commission shall take a decision amending that recognition.

Where the Commission amends the recognition, the Member
States shall adapt their agreements with the recognised organisa-
tion to take account of the amendment.

Article 17

The Commission shall, on a biennial basis, inform the European
Parliament and the Council on the application of this Regu-
lation.

Article 18

in Community and national

References
law to Directive
94/57/EC shall be construed, as appropriate, as being made to
this Regulation and shall be read in accordance with the correla-
tion table in Annex II.

Article 19

This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

(*) Twelve months after the entry into force of this Regulation.

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ANNEX I

MINIMUM CRITERIA FOR ORGANISATIONS

(Referred to in Article 3)

A. GENERAL MINIMUM CRITERIA

1. A recognised organisation must have legal personality in the State of its location. Its accounts shall be certified by

independent auditors.

2. The recognised organisation must be able to document extensive experience in assessing the design and construc-

tion of merchant ships.

3. The recognised organisation must be equipped at all times with significant managerial, technical, support and
research staff commensurate with the size of the fleet in its class, its composition and the organisation's involve-
ment in the construction and conversion of ships. The recognised organisation must be capable of assigning to
every place of work, when and as needed, means and staff commensurate with the tasks to be carried out in
accordance with general minimum criteria under points 6 and 7 and with the specific minimum criteria under part
B.

4. The recognised organisation must have and apply a set of own comprehensive rules and procedures, or the demon-
strated ability thereto, for the design, construction and periodic survey of merchant ships, having the quality of
internationally recognised standards. They must be published and continually upgraded and improved through
research and development programmes.

5. The recognised organisation must have its register of ships published on an annual basis or maintained in an elec-

tronic base accessible to the public.

6. The recognised organisation must not be controlled by shipowners or shipbuilders, or by others engaged commer-
cially in the manufacture, equipping, repair or operation of ships. The recognised organisation is not substantially
dependent on a single commercial enterprise for its revenue. The recognised organisation does not carry out class
or statutory work if it is identical to or has business, personal or family links to the shipowner or operator. This
incompatibility shall also apply to surveyors employed by the recognised organisation.

7. The recognised organisation must operate in accordance with the provisions set out

in the Annex to
IMO Resolution A.789(19) on specifications on the survey and certification functions of recognised organisations
acting on behalf of the administration, insofar as they cover matters falling within the scope of this Regulation.

B. SPECIFIC MINIMUM CRITERIA

1. The recognised organisation must provide worldwide coverage by its exclusive surveyors or, in exceptional and

duly justified cases, through exclusive surveyors of other recognised organisations.

2. The recognised organisation must be governed by a code of ethics.

3. The recognised organisation must be managed and administered in such a way as to ensure the confidentiality of

information required by the administration.

4. The recognised organisation must provide relevant information to the administration, to the Commission and to

the interested parties.

5. The recognised organisation, its surveyors and its technical staff shall carry out their work without in any way
harming the intellectual property rights of shipyards, equipment suppliers, and shipowners, including patents,
licences, know-how, or any other kind of knowledge whose use is legally protected at Community or national
level; under no circumstances, and without prejudice to the assessment powers of Member States and the
Commission and in particular under Article 9, may either the recognised organisation or the surveyors and tech-
nical staff, whom it employs pass on or divulge commercially relevant data obtained in the course of their work
of inspecting, checking, and monitoring ships under construction or repair.

6. The recognised organisation's management must define and document its policy and objectives for, and commit-
ment to, quality and must ensure that this policy is understood, implemented and maintained at all levels in the
recognised organisation. The recognised organisation's policy must refer to safety and pollution prevention perfor-
mance targets and indicators.

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7. The recognised organisation must ensure that:

(a) its rules and procedures are established and maintained in a systematic manner;

(b) its rules and procedures are complied with and an internal system to measure the quality of service in relation

to these rules and procedures is put in place;

(c) the requirements of the statutory work for which the recognised organisation is authorised are satisfied and
an internal system to measure the quality of service in relation to compliance with the international conven-
tions is put in place;

(d) the responsibilities, powers and interrelation of personnel whose work affects the quality of the recognised

organisation's services are defined and documented;

(e) all work is carried out under controlled conditions;

(f) a supervisory system is in place which monitors the actions and work carried out by surveyors and technical

and administrative staff employed by the recognised organisation;

(g) surveyors have an extensive knowledge of the particular type of ship on which they carry out their work as

relevant to the particular survey to be carried out and of the relevant applicable requirements;

(h) a system for qualification of surveyors and continuous updating of their knowledge is implemented;

(i) records are maintained, demonstrating achievement of the required standards in the items covered by the

services performed, as well as the effective operation of the quality system;

(j) a comprehensive system of planned and documented internal audits of the quality related activities is main-

tained in all locations;

(k) the statutory surveys and inspections required by the Harmonised System of Survey and Certification for
which the recognised organisation is authorised are carried out in accordance with the provision set out in
the Annex and Appendix to IMO Resolution A.948(23) on Survey Guidelines under the Harmonised System
of Survey and Certification;

(l) clear and direct lines of responsibility and control are established between the central and the regional offices

of the recognised organisation and between the recognised organisations and their surveyors.

8. The recognised organisation must have developed, implemented and must maintain an effective internal quality
system based on appropriate parts of internationally recognised quality standards and in compliance with EN ISO/
IEC 17020:2004 (inspection bodies) and with EN ISO 9001:2000 (quality management systems, requirements), as
interpreted and certified by the Quality Assessment and Certification System referred to in Article 11(1).

9. The rules and procedures of the recognised organisation must be implemented in such a way that the organisation
remains in a position to derive from its own direct knowledge and judgement a reliable and objective declaration
on the safety of the ships concerned by means of class certificates on the basis of which statutory certificates can
be issued.

10. The recognised organisation must have the necessary means of assessing, through the use of qualified professional
staff and pursuant to the provisions set out in the Annex to IMO Resolution A.913(22) on Guidelines on imple-
mentation of the International Safety Management (ISM) Code by administrations, the application and mainte-
nance of the safety management system, both shore-based and on board ships, intended to be covered in the certi-
fication.

11. The recognised organisation must allow participation in the development of its rules and procedures by represen-

tatives of the administration and other parties concerned.

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ANNEX II

CORRELATION TABLE

Directive 94/57/EC

Directive …/…/EC

This Regulation

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 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

Directive …/…/EC

This Regulation

Article 7

Article 6

Article 12

Article 8(1) first indent

Article 7(1), point
paragraph

(a) of

first sub-

-

Article 8(1) second indent

–

Article 13(1)

Article 8(1) third indent

Article 7(1), point (b) of
paragraph

first sub-

-

–

Article 8(2)

Article 7(1) second subparagraph

Article 13(1) second subparagraph

Article 7(2)

-

Article 8(2) second subparagraph

Article 9(1)

Article 9(2)

-

-

-

Article 10(1) introductory wording

Article 8

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

–

Article 11(1), (2)

Article 9(1), (2)

Article 13(2)

-

-

-

–

-

Article 11(3), (4)

-

Article 8(1), (2)

Article 12

Article 13

Article 14

–

-

–

Article 15(1)

-

Article 15(2)

Article 15(3)

Article 15(4)

Article 15(5)

–

Article 16

Article 17

–

–

Article 10

–

Article 11(1), (2)

Article 11(3)

Article 12

-

-

-

-

–

-

-

-

Article 13

Article 16

Article 14

Article 15

-

–

-

-

-

Article 9

-

Article 10(1), (2)

Article 10(3)

Article 10(4)

Article 10(5)

Article 10(6) first, second, third, fifth
subparagraphs

Article 10(6) fourth subparagraph

–

–

–

–

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Directive 94/57/EC

Directive …/…/EC

This Regulation

-

-

-

-

-

-

-

Annex

-

-

-

-

-

-

-

-

-

-

Annex I

Annex II

Article 11

Article 14

Article 15

Article 16

Article 17

Article 18

Article 19

Annex I

-

Annex II

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

In the framework of the codecision procedure (art. 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 Regulation. (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 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 Regu-
lation.

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 Regulation

Apart from the decision to include all provisions related to the Community recognition of ship inspec-
tion and survey organisations in a new Regulation, the Council deemed appropriate to modify these
provisions for reasons of clarity or based on the following considerations:

(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 Directive is set out in doc. 5724/08, the related statement of reasons in doc.

5724/08 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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1) Scope of recognition and minimum recognition criteria

The Council, as the European Parliament, considers it important to emphasize that the organisation to
be recognised, regardless of its corporate structure, should provide services worldwide. In case of a
limited recognition, the common position provides for transparency as to the reasons of the limitation
and the conditions to modify it. To avoid any downgrading of the minimum criteria for the recognition,
the common position foresees the possibility to fix, through the comitology procedure, rules on the
interpretation of, and objectives for, these criteria, in particular concerning the number of staff members
to be employed by the recognised organisations.

2) Imposition of fines against recognised organisations

In the Council's view the Member States are to be informed through the advisory procedure about any
decision to be taken by the Commission in order to impose fines against recognised organisations that
do not fulfil their obligations under the Regulation.

3) Harmonisation of rules and procedures of recognised organisations and mutual recognition of certificates issued

by them

The Council approves the Commission's proposal to encourage recognised organisations to further
harmonise their rules and procedures and to consider when to mutually recognise their certificates for
materials, equipment and components. The common position includes, however, a set of safeguard
clauses. The latter relate to cases where the mutual recognition of certificates cannot agreed upon
between recognised organisations or to cases where it has been confirmed that material, a piece of
equipment or a component is not in compliance with its certificate.

In line with the European Parliament, the Commission is asked to provide a report on the level reached
in the process of harmonisation of the rules and procedures of recognised organisations and on mutual
recognition of certificates issued by them.

4) Assessment and certification of the quality management systems of recognised organisations

The Council fully agrees with the broad outlines of the Commission's proposal that recognised organisa-
tions set up an entity responsible for the assessment and certification of their quality management
systems. Mostly in line with the European Parliament's amendment, the Council emphasizes in the
common position that this should be done in accordance with the applicable international quality stan-
dards and following the advise from the relevant professional associations working in the shipping
industry.

Further modifications by the Council of the provisions related to this Quality Assessment and Certifica-
tion System aim in particular at streamlining the tasks of this entity and clarifying that it must have the
necessary governance and competences to act independently of the recognised organisations.

5) Introduction of the regulatory procedure with scrutiny

In accordance with the amended Comitology Decision (1), the Council introduces in its common posi-
tion the regulatory procedure with scrutiny to amend the Regulation according to amendments to the
international conventions, protocols, codes and resolutions, to update the minimum recognition criteria
and to adopt criteria to measure the effectiveness of the rules and procedures as well as the performance
of the recognised organisations as regards safety and pollution prevention.

III. AMENDMENTS

The common position incorporates a large number of the European Parliament's first-reading amend-
ments, either verbatim or partly or in principle: 6, 11, 12, 15, 16, 17, 18, 20, 25, 26, 36, 37, 38, 39,
40, 41, 42, 43, 44, 45, 50, 52, 53, 54, 55, 56, 59, 60, 61, 62, 64, 66, 68, 69, 71 and 74. The related
provisions are often consistent with the amendments, but not identical, due to the necessary adaptation
of the text resulting from the splitting of the original proposal into two separate instruments.

(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.)

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The remaining amendments could not be accepted because, in the Council's view, they are not consistent
with the procedures of Community recognition (amendment 14), not entirely clear or seem to be redun-
dant (amendments 19, 23, 57 and 67) or are not consistent with the Council's approach to the setting
up of the entity responsible for the assessment and certification of the quality management systems of
recognised organisations (amendments 63, 65 and partly 74).

IV. CONCLUSION

The Council believes that its common position is the appropriate way to lay down provisions related to
the recognition of ship inspection and survey organisations at Community level by adopting a Regu-
lation, accompanied by a Directive providing for measures to be followed by Member States in their rela-
tionship with these organisations.

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.