Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on 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 and a Regulation of the European Parliament and of the Council on common rules and standards for ship inspection and survey organisations (Text with EEA relevance)
Date: 2008-06-11
Institutions: European Commission
Subjects: international standard, maritime safety, pollution from ships, prevention of pollution, roadworthiness tests, technical regulations, transport safety, vessel

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.6.2008 
COM(2008) 370 final 

2005/0237 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on 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 and a 
Regulation of the European Parliament and of the Council on common rules and 
standards for ship inspection and survey organisations 

(Text with EEA relevance) 

EN 

   EN 

 
 
 
  
 
 
 
 
2005/0237 (COD) 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on 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 and a 
Regulation of the European Parliament and of the Council on common rules and 
standards for ship inspection and survey organisations 

(Text with EEA relevance) 

1. 

BACKGROUND 

Date on which the proposal was sent to the European Parliament 
and to the Council 
(document COM(2005) 587 final – 2005/0237COD): 

30 January 2006 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

13 September 2006 

Date of the opinion of the Committee of the Regions: 

15 June 2006 

Date of the opinion of the European Parliament, first reading: 

25 April 2007 

Date of adoption of the common position: 

6 June 2008 

2. 

PURPOSE OF THE COMMISSION PROPOSAL 

The purpose of the proposal is to reform the current system for Community recognition of the 
bodies  tasked  by  the  Member  States  with  inspecting  and  certifying  ship  safety  under 
international  conventions  (classification  societies),  a  system  set  up  by  Directive  94/57/EC 
(OJ L 319, 12.12.1994, p. 20). The recasting technique is used for this fourth updating of the 
Directive.  

More specifically, the aim of the recasting proposal is to: 

(1) 

(2) 

strengthen  the  systems  for  monitoring  recognised  organisations  by  setting  up  a 
common but independent body to certify their quality management systems; 

harmonise  the  current  dual  system  of  ordinary  and  limited  recognition,  which  would 
mean that recognition will henceforth be granted on the basis of the quality of service 
and  the  performance  achieved  by  the  organisations  concerned,  with  the  size  of  such 
organisations no longer a factor;  

EN 

2 

   EN 

 
 
 
(3) 

(4) 

(5) 

simplify  and  improve  the  structure  of  the  Community  recognition  criteria,  making 
them more stringent; 

reform  the  system  of  penalties,  which  currently  provides  only  for  suspension  or 
withdrawal  of  recognition.  The  aim  of  the  proposal  is  to  establish  a  system  of  more 
measured and more effective financial penalties, retaining the scope for withdrawal for 
the most serious cases; 

introduce  mutual  recognition  of  classification  certificates  between  recognised 
organisations (certificates of conformity with the organisations' own technical  rules), 
in particular for certificates that apply to marine equipment and are issued on the basis 
of equivalent technical standards; 

(6) 

clarify the scope and facilitate the application of certain provisions of the Directive. 

3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

Splitting the proposal into a draft Directive and a draft Regulation 

The  Council  has  split  the  proposal  into  a  draft  Directive  and  a  draft  Regulation  in  order  to 
ensure that the system is legally watertight, particularly as it involves imposing obligations on 
recognised organisations and setting up a system of financial penalties.  

The  Commission  notes  that  the  draft  Directive  focuses  on  the  relationship  between  the 
Member  States  and  the  recognised  organisations  to  which  they  delegate  the  inspection  and 
certification  of  ships  under  international  conventions,  whereas  the  draft  Regulation  deals  in 
full  with  the  recognition  system  as  a  whole  (including  the  granting  of  recognition,  the 
recognition  criteria,  the  recognised  organisations'  obligations  as  regards  reporting  and 
cooperation,  the  periodic  assessment  of  recognised  organisations,  the  correction  of 
shortcomings and, finally, withdrawal of recognition).  

The  Commission  accepts  this  separation  in  so  far  as  (a)  it  remains  a  formal  procedure  and, 
aside from the necessary textual amendments, the substance of its proposal is fully respected; 
and (b) it helps create greater legal certainty for the organisations concerned. 

3.2. 

The draft Directive 

The Commission considers the Council's amendments to the recitals to be consistent with the 
amendments to the legislative part of the text. 

Amendments to the legislative part of the text:  

•  The  amendments  to  Articles  6  and  7  are  consistent  with  the  introduction  of  a  regulatory 

committee procedure with scrutiny under Council Decision 2006/512/EC1. 

•  The  Council  has  removed  the  safeguard  clause  from  Article  8(1),  regarding  which  the 
Commission had not put forward a proposal. However, the Commission is of the opinion 
that  this  should  be  considered  a  technical  matter,  involving  the  removal  of  a  mechanism 

1 

OJ L 200, 22.7.2006, p. 11. 

EN 

3 

   EN 

 
                                                 
carried  over  from  the  initial  versions  of  the  Directive  but  no  longer  applicable.  The 
mechanism in question is, in fact, incompatible with the powers of assessment and sanction 
conferred  on  the  Commission  by  successive  amendments.  The  Commission  is  therefore 
able to support this amendment, which does not undermine its right of initiative. 

•  The Commission reiterated its position on Member States drawing up concordance tables 
between  Member  States'  transposal  measures  and  the  provisions  of  the  Directive,  in  the 
interests  of  citizens,  better  regulation  and  transparency.  Despite  the  removal  of  this 
requirement  from  Article  14,  the  Commission  offered  no  opposition  to  the  Council's 
agreement  with  a  view  to  finalising  the  interinstitutional  procedure.  However,  it  expects 
this horizontal matter to be considered jointly by the institutions. 

The text thus amended incorporates the European Parliament's amendments 3, 5, 7, 9, 13, 29, 
34,  35  to  37  and  51,  which  the  Commission  had  accepted.  Amendments  1,  4  and  8,  which 
were drafting changes and had, in principle, been accepted by the Commission, have not been 
incorporated. Nevertheless, the principle behind the first two is reflected in criterion B(6)(l) of 
the Annex to the draft Regulation, which the Commission considers to be correct. 

The Commission considers the other amendments made by the Council to the legislative part 
of  the  text  to  be  minor  changes  and/or  drafting  or  technical  changes.  They  are  therefore 
acceptable.  

3.3. 

The draft Regulation 

The Commission considers the Council's amendments to the recitals to be consistent with the 
amendments to legislative part of the text, with the exception of recitals 1a and 28a, on which 
the Commission would make the following observations: 

•  The Commission does not agree with the new recital 1a, which states that the Regulation 
must  be  interpreted  in  accordance  with  international  law.  The  Commission  is  of  the 
opinion that (a) the draft Regulation is entirely consistent with international law and (b) the 
interpretation of Community law falls exclusively within the jurisdiction of the European 
Court of Justice, on which the legislature cannot impose constraints.  

•  The  Commission  can  accept  the  new  recital  28a,  as  it  reflects  the  need  to  stipulate  that 
recognised  organisations  must  have  a  comprehensive  set  of  technical  rules  and  must 
harmonise  these.  However,  when  assessing  recognised  organisations  and  organisations 
applying  for  recognition,  the  Commission  will  continue  to  require  full  compliance  with 
both of those obligations. 

Amendments to the legislative part of the text: 

•  The  new  version  of  Article  4(1a)  states  explicitly  what  was  already  implicit  in  the 
Commission's proposal, i.e. that recognition may be granted only to organisations that meet 
the recognition criteria.  

•  The  amendment  to  Article  4(4)  enables  a  more flexible approach  to limiting  recognition, 
but  any  such  limitation  remains  purely  qualitative.  At  the  same  time,  the  Commission  is 
placed  under  an  obligation  to  specify  the  reasons  for  this  limitation  and  the  conditions 
subject to which it may be lifted, which enhances the protection of the rights and interests 
of the organisation concerned. 

EN 

4 

   EN 

 
•  In Article 5, the inclusion of deadlines for corrective action increases the pressure on the 

recognised organisation in question once shortcomings have been detected.  

•  The  Council's  amendment  to  Article  6  will  mean first launching  an Advisory  Committee 
procedure  before  the  Commission  imposes  penalties  on  a  defaulting  recognised 
organisation. In general, the Commission considers comitology to be of little relevance to 
decisions  of  this  type,  but  recognises  that  such  decisions  may  affect  the  relationship 
between  the  Member  States  and  the  organisations  in  question,  given  that  Community 
recognition  is  ultimately  designed  to  allow  Member  States  to  delegate  inspection  and 
certification  under  international  conventions.  The  Commission  therefore  accepts  the 
solution put forward by the Council, which, whilst allowing Member States to express their 
opinion  on  the  infringements  detected  and  the  penalties  to  be  imposed,  rules  out  any 
possibility  of  political  irregularities  in  the  procedure.  Furthermore,  the  Council  judged  it 
necessary to calculate the upper limit of the fines that may be imposed on an organisation 
on the basis of its turnover for the previous three financial years, which seems fair. Lastly, 
giving the Court of Justice full jurisdiction over fines reinforces the procedural guarantees 
and the protection of the defendant's rights. 

•  As  regards  grounds  for  withdrawal  of  recognition,  the  Council  has  added  a  fifth  case 
designed,  in  particular,  to  prevent  public  or  private  subsidies  being  used  to  pay  the 
penalties  imposed  on  a  recognised  organisation.  The  Commission  fully  supports  this 
proposal because, were that to occur, the system would lose its deterrent effect.  

•  The new wording put forward by the Council for Article 9 does not alter the substance of 
the Commission's initial proposal, and access to documents and vessels for the purposes of 
assessing recognised organisations is still fully guaranteed.  

•  Significant improvements have been made to Article 10 as regards mutual recognition of 
classification certificates, which will henceforth be automatic for all equipment covered by 
Directive 96/98/EC on marine equipment2. The Council stipulates that mutual recognition 
affects only equipment, materials and components, thus stating explicitly what was already 
implicit in the original proposal. The Council has introduced two new mechanisms. Firstly, 
recognised  organisations  are  required  to  state  their  reasons  where  they  have  not 
implemented  mutual  recognition,  although  this  is  acceptable  only  for  reasons  of  safety. 
Secondly,  a  safeguard  clause  will  allow  recognised  organisations  to  refuse  to  install 
specific, non-compliant equipment on board without undermining the principle of mutual 
recognition.  Lastly,  the  deadline  for  the  Commission  to  submit  a  report  on  the 
implementation  of  mutual  recognition,  as  specified  by  the  European  Parliament  in 
amendment  53,  has  been  extended  from  three  to  five  years.  In  view  of  the  technical 
complexity  of  the  process  to  be  undertaken  by  the  recognised  organisations,  the 
Commission also considers this to be appropriate. 

•  The  Commission  welcomes  the  fact  that  the  common  position  retains  the  obligation  for 
recognised  organisations  to  set  up  a  joint  independent  system  to  certify  their  quality 
management  systems.  Accordingly,  Article  11  incorporates  the  key  elements  of  the 
Commission's  initial  proposal  on  the  subject,  leaving  the  implementation  of  the  system 
entirely  in  the  hands  of  the  recognised  organisations,  i.e.  without  the  involvement  of  the 

2 

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). 

EN 

5 

   EN 

 
                                                 
Member  States  or  the  Commission.  The  Parliament  wanted  the  Member  States  to  be 
involved in this, which the Commission accepted in principle. However, this idea will have 
to  be  abandoned  with  a  view  to  developing  an  international  code  for  recognised 
organisations,  which  will  include  a  strong  mechanism  for  independent  certification  (see 
below). 

•  With the committee procedure, the Council has made it possible for the Commission to lay 
down the techniques for interpreting and applying the criteria set out in the Annex. Given 
the  occasionally  very  general  nature  of  some  of  the  criteria,  such  as  the  resources  that 
recognised organisations are required to have, this can usefully contribute to their effective 
implementation and increase legal certainty for all concerned.  

The text thus amended incorporates, either in whole or in part, amendments 6, 12, 15, 17, 18, 
25,  38  to  44,  50,  52  to  56,  59  to  61,  66  and  68,  which  the  Commission  had  accepted. 
Amendments 18, 26, 14 and 69, which were accepted by the Commission either in part or in 
principle,  have  been  incorporated  into  the  common  position  in  a  form  that  the  Commission 
considers  satisfactory.  Amendments  16,  62,  64,  65  and  71  on  the  name  of  the  body 
responsible for certifying the recognised organisations' quality systems were accepted by the 
Commission  only  in  principle,  as  the  use  of  the  term  "committee"  could  lead  to  confusion 
with the committee procedure. In the Commission's opinion, the name chosen by the Council, 
i.e. "Quality Assessment and Certification System" is an entirely satisfactory compromise. 

Other  than  those  set  out  above,  the  Commission  considers  the  amendments  made  by  the 
Council  to  the  legislative  part  of  the  text  to  be  minor  changes  and/or  merely  drafting  or 
technical changes. They are therefore acceptable.  

3.4. 

Joint  Council  and  Commission  Declaration  on  the  development  of  a  code  for 
recognised organisations by the International Maritime Organisation (IMO) 

The  Commission  and  the  Council  are  both  of  the  opinion  that  the  system  currently  being 
developed by the Community could usefully serve as a model at international level. This is in 
line with the European Parliament's concerns regarding the need for coordination between the 
Community system and the international system. The Commission and the Member States are 
therefore  prepared  to  call  on  the  IMO  to  draw  up  a  code  guaranteeing  that  classification 
societies operate to a high level of quality worldwide. The Council and the Commission have 
therefore signed a joint declaration to this effect, which is annexed to this Communication. 

4. 

CONCLUSIONS 

The  Council's  common  position  fully  addresses  the  concerns  which  led  the  Commission  to 
submit its proposal to recast Directive 94/57/EC and retains the key elements of the measures 
it recommended. Now that the act has been split into a draft Directive and a draft Regulation, 
most  of  those  measures  have  been  incorporated  into  the  draft  Regulation.  Furthermore,  the 
common position incorporates almost all of those amendments put forward by the European 
Parliament which the Commission was able to accept either in whole or in part. 

The Commission is therefore of the opinion that the common position adopted unanimously 
by  the  Council  forms  a  good  basis  for  reaching  agreement  with  the  European  Parliament  at 
second  reading  and  accepts  it,  subject  to  the  observations  and  reservations  set  out  above.

EN 

6 

   EN 

 
ANNEX  

STATEMENT BY THE COUNCIL AND THE COMMISSION 

"The Council and the Commission consider that the objectives of this Directive of enhancing 
ship  safety  and  preventing  marine  pollution  should  also  be  pursued  at  international  level. 
Therefore,  Member  States  and  the  Commission  should,  seeking  the  collaboration  of  other 
IMO members, propose to the IMO the development of an international Code for recognised 
organisations. 

Building on the principles of this Directive, this Code should encompass, as appropriate, 

a) the mandatory requirements to be met by recognised organisations with regards to statutory 
work.  This  includes  inter  alia  the  following:  general  requirements  such  as  independence, 
impartiality,  integrity,  competence  and  responsibility;  requirements  relating  to  organisation, 
management  and  resources;  requirements  related  to  the  certification  process;  requirements 
related to quality management; 

and 

b)  a  framework  and  procedures  for  a  mandatory  Audit  Scheme  to  verify  that  a  recognised 
organisation meets the requirements referred to in a)." 

EN 

7 

   EN